De Bar - Civ Pro

Front 1

civ pro -- jurisdiction of lower DE courts generally

Back 1

a. The Superior Court -- Major trial court for civil and criminal matters; law court; jury
b. Chancery Ct -- Equity ct; non jury.
c. Ct. of Common Pleas -- Civil claims up to $50K (non-jury trial); concurrent criminal jurisdiction over all vehicle violations and misdemeanors.
d. Justice of the Peace Court -- Civil claims up to $15K (non-jury); Summary proceedings (Landlord-tenant evictions) (jury of 6 permitted); some criminal matters.

Front 2

civ pro -- specific jurisdiction of the superior court

Back 2

i. Remedial Writs
1. Writ of Certiorari (issued to D who seeks to challenge constitutionality of a conviction under statute but has no right of appeal).
2. Writ of prohibition (issued to stop lower ct action)
3. Writ of mandamus (issued to compel action of a government agency)
ii. Proceedings for Condemnation (eminent domain) - exclusive jurisdiction
iii. Med mal - exclusive jurisdiction
iv. Habeas corpus
v. Appeals from administrative agencies
vi. Wire taps
vii. Drug offenses other than possession/use of marijuana by an adult
viii. Criminal appeals from Family ct.
ix. All appeals from Ct. of Common Pleas

Front 3

civ pro -- DRCP 1

Back 3

These rules “shall be construed to secure the just, speedy and inexpensive determination of every proceeding.”

Front 4

civ pro -- what must be filed to commence a civil action in DE?

Back 4

1. E-filing of (1) a complaint, (2) praecipe (paper providing address for service), (3) case information statement, and (4) filing fee.
a. After prothonotary accepts, must file hard copies of each.

Front 5

civ pro -- additional filing requirements for commencing a personal injury action in DE?

Back 5

1. Must file answers to Form 30 interrogatories (re: eyewitnesses, persons interviewed, photos, experts, insurance, etc.)
a. D must answer Form 30 interrogatories in answer.
2. Copies of docs related to specific damages and tax returns if lost wages are claimed.

Front 6

civ pro -- who makes service under DRCP 4? Exception to the norm?

Back 6

i. Ordinarily, service is made by a sheriff.
1. Exception Ct may appoint a person to make service if:
a. Sheriff has made one failed attempt; or
b. It is necessary for service to be made (i) after 10pm on a weekday other than a holiday or (ii) on a weekend or holiday; or
c. other exigent reason exists; and
d. Sheriff has been notified and has not offered reason not to be disqualified.

Front 7

civ pro -- acceptable methods of service under DRCP 4?

Back 7

1. Personal service
2. Incompetents/Infants -- guardian or person with whom resides
3. Officer or agent of corp.
4. Service under DE Long Arm Statute
a. Personal service in DE;
b. Any manner prescribed by state in which service is made
c. Mail requiring signed receipt
d. As directed by ct.
e. If a corporation --
i. Serve Sec. of State who then mails process to corp;
ii. Publication in DE and in state where head officer resides.

Front 8

civ pro -- service must be made by when under DRCP 4?

Back 8

1. Within 120 days of filing complaint unless P shows good cause for the delay

Front 9

civ pro -- what must be served (other than process) under DRCP 5?

Back 9

i. EVERY order, pleading, and motion MUST be served upon each party

Front 10

civ pro -- computation of time under DRCP 6

Back 10

1. Day of act (e.g., the day of filing) is not included.
2. Last day of period is INCLUDED unless a weekend or holiday.
3. If prescribed period is LESS than 11 days weekends and holidays are not included.
4. Service by mail receiving party has 3 ADDITIONAL days.

Front 11

civ pro -- requirements for enlarging prescribed time periods under DRCP

Back 11

1. Before expiration  requesting party must show cause.
2. After expiration  requesting party must show excusable neglect.

Front 12

civ pro -- when is a pleading sufficient under DRCP 8?

Back 12

i. Notice Pleading -
1. Short and plain statement of the claim showing that P is entitled to relief sought, and
2. A demand for judgment.

Front 13

civ pro -- Where should affirmative defenses be set forth according to DRCP?

Back 13

iii. Affirmative defenses MUST be set forth in the Answer.
1. Include: accord and satisfaction, arbitration and award, assumption of risk, comparative negligence, discharge and bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by a fellow servant, license, payment, release, res judicata, SOF, SOL, waiver.

Front 14

civ pro -- what matters require particular pleading under DRCP 9?

Back 14

i. Allegations of Fraud, Negligence, and Mistake Must plead circumstances constituting such with particularity.
ii. Unliquidated damages demanded generally (i.e., no amount); special damages (e.g., lost wages) specifically alleged

Front 15

civ pro -- timing requirement for the Answer under DRCP 12?

Back 15

1. Response within 20 days of service; 60 days for US govt.

Front 16

civ pro -- what defenses may be raised in a motion to dismiss under DRCP 12?

Back 16

i. Lack of subject matter jurisdiction
ii. Lack of personal jurisdiction
iii. Improper venue
iv. Insufficient process
v. Insufficient service of process
vi. Failure to state a claim upon which relief can be granted
vii. Failure to join a party

Front 17

civ pro -- standard of review for DRCP 12 motions to dismiss?

Back 17

b. Standard of Review of Rule 12 Motions? All well-pleaded allegations in the complaint must be accepted as true.

Front 18

civ pro -- what defenses are waived if not raised in the Answer, motion to dismiss or pleadings?

Back 18

i. Lack of PJ;
ii. Improper venue;
iii. Insufficiency of process
iv. Insufficiency of service of process

Front 19

civ pro -- what is a compulsory counterclaim and when can it be asserted under DRCP 13?

Back 19

i. Compulsory counterclaims -- Any claim which pleading party has against opposing party which arises out of same incident or occurrence and does not require presence of third parties over whom court does not have jurisdiction
1. MUST be asserted

Front 20

civ pro -- what is a permissive counterclaim and when can it be asserted?

Back 20

2. Permissive counterclaims -- claims against opposing party which do not arise out of same incident or occurrence.
a. In court’s discretion whether to allow.

Front 21

civ pro -- what is a crossclaim and when can it be asserted?

Back 21

ii. Crossclaim -- Any claim against a co-party arising out of same incident or occurrence.
1. May be filed in same case.

Front 22

civ pro -- 3d party palintiff practice under DRCP 14?

Back 22

i. Anytime after service, D, as a 3d party plaintiff, may cause summons and complaint to issue on a person who is not a party but who is or may be liable for all or part of P’s claim against D.

Front 23

civ pro -- when is there a right to amend pleadings under DRCP 15?

Back 23

1. One amendment okay if:
a. No responsive pleading is yet filed, or
b. Amendment made within 20 days of filing and no responsive pleading is necessary

Front 24

civ pro -- when does an amendment to pleadings relate back to the original date of filing?

Back 24

1. Amendment relates back to date of original pleading when:
a. Claim or defense asserted in amendment arose out of conduct, transaction or occurrence set forth in original pleading, or
b. Amendment changes party/name of party, satisfies part (a.) above, and within 120 days the party to brought in by amendment:
i. Has received notice such that he will not be prejudiced in maintaining a defense of the merits, and
ii. Knew or should have known that, but for a mistake concerning identity, the action would have been brought against him.

Front 25

civ pro -- purposes of pretrial conferences?

Back 25

1. Expediting disposition
2. Discouraging wasteful pretrial activity
3. Improving quality of trial
4. Facilitating settlement

Front 26

civ pro -- when is joinder compulsory under DRCP 19?

Back 26

i. Party is within jurisdiction of the court
1. In the person’s absence, complete relief cannot be accorded among those already parties; or
2. Person claims an interest relating to the subject of the action, and person’s absence may:
a. Impair person’s ability to protect that interest; or
b. Leave persons already parties subject to substantial risk os incurring double, multiple or inconsistent obligations.
ii. If person cannot be made a party court determines whether in equity or good conscience case should continue.

Front 27

civ pro -- when is joinder permitted under DRCP 20?

Back 27

provided there is a common question of law or fact affecting the rights of such parties

Front 28

civ pro -- what are requirements for submitting a class action under DRCP 23?

Back 28

1. Class is so numerous that joinder is impracticable;
2. There are common questions of law or fact common to the class;
3. Claims or defenses of the representatives are typical of the claims or defenses of the class;
4. Representatives will fairly and adequately protect interests of the class
5. And ONE of the following:
a. Separate actions create a risk of inconsistent judgments or prejudice to others not in the suit; or
b. Party opposing class has acted inappropriately or refused to act appropriately for all; or
c. Common questions of law or fact predominate over individual issues and a class action is superior to other available methods to resolve claims.

Front 29

civ pro -- when does a party have a right to intervene?

Back 29

1. Where statute confers the right
2. Claims interest relating to subject of the action AND disposition of the suit may impair his right to protect that interest.

Front 30

civ pro -- timing and substitution b/c of death under DRCP 25?

Back 30

i. B/c of Death Party requesting substitution must file motion within 90 days of suggestion of death on the record.

Front 31

civ pro -- what is discoverable under DRCP 26?

Back 31

1. Anything reasonably calculated to lead to the discovery of admissible evidence.

Front 32

civ pro -- under what circumstances can a court limit discovery under DRCP 26?

Back 32

a. Unreasonably cumulative or duplicative or is easily obtainable from a more convenient, less burdensome, or less expensive source, or
b. Party seeking has had ample opportunity to obtain the info sought, or
c. The discovery is unduly burdensome or expensive.
i. NOTE Cross-reference Rule 1 when discussing this third prong (“contrary to overarching policy espoused in Rule 1 to secure the just, speedy, and inexpensive…”)

Front 33

civ pro -- when is attorney work product discoverable under DRCP 26?

Back 33

a. Party seeking has a substantial need of the materials, and
b. Party seeking is unable without undue hardship to get materials through other means.
i. NOTE mental impressions, opinions, and conclusions are NEVER discoverable.

Front 34

civ pro -- what facts are discoverable with respect to experts who will and will not testify under DRCP 26?

Back 34

a. Experts who WILL testify
i. Facts known to and opinions held by experts who will testify are discoverable through interrogatories requiring opposing party to:
1. Identify each person they intend to call as W;
2. State the subject matter and the substance of the facts and opinions to which the expert is expected to testify
3. Summarize the grounds for each opinion.
b. Experts who will NOT testify 
i. Facts known to and opinions held by experts who will NOT testify are discoverable only if:
1. There is a showing of exceptional circumstances under which it is impracticable for party seeking to obtain facts or opinions on the same subject by any other means; or
2. Info sought is a report of an examining physician or psychologist.

Front 35

civ pro -- what are the exceptions to the general non-duty to supplement discovery requests with after-acquired info?

Back 35

a. Discovery requests asking identity and location of persons having knowledge of discoverable matter.
b. Discovery requests asking identity of experts to be called and substance of their testimony
c. Responses which party learns were incorrect when made or were correct when made but are no longer true.

Front 36

civ pro -- requirements before a deposition is taken under DRCP 30?

Back 36

1. Party seeking to depose must give reasonable notice of time and place;
2. Name and address fo each person to be examined and
3. Means of recording.

Front 37

civ pro -- use of deposition at trial under DRCP 32?

Back 37

i. Deposition may be used against a party who was present or represented at the deposition:
1. To impeach;
2. If a party or agent of the party, adverse party may use for any reason;
3. If deposee is unavailable at trial, ANY party may use for any reason
a. Unavailability? Death, incompetence, out of state, unable to procure by subpoena, exceptional circumstances.

Front 38

civ pro -- time to respond to interrogatories under DRCP 33?

Back 38

ii. Answers and objections due within 30 days of service of interrogatories.
1. If interrogatories are served with the Complaint, party has extra 15 days.

Front 39

civ pro -- how to perfect the ABSOLUTE right to jury trial under DRCP 38?

Back 39

1. Make a demand on face of complaint or within 10 days of answer being filed;
a. If no demand, party is deemed to have WAIVED the right.
b. A general demand is presumed to be a demand for a 6 person jury. MUST specifically request 12 person jury.

Front 40

civ pro -- for what reasons may a court order an involuntary dismissal under DRCP 41?

Back 40

1. Court may order dismissal for:
a. Failure to prosecute
i. If no proceedings for more than 6 months, parties are notified and have 30 days to take action.
b. Failure to comply with any rule, statute, or order of court,
c. Any other reason deemed by court to be appropriate.
2. After notice of dismissal, party has 15 days to show cause why action should not be dismissed.
a. Dismissal without notice? Permitted where complaint, petition or appeal manifestly fails on its face to invoke the jurisdiction of the Court and Court concludes providing notice would serve no meaningful purpose.

Front 41

civ pro -- how many preemptory challenges does each party have?

Back 41

ii. 3 preemptory challenges in civil trials; 6 in criminal trials; 1 for every 2 alternate jurors to be impaneled.

Front 42

civ pro -- standard of review for JMOL motions under DRCP 50?

Back 42

1. Standard -- There must be no legally sufficient basis for a reasonable jury to find for that party.

Front 43

civ pro -- timing for renewal of JMOL motion at end of trial? for motion for new trial after JMOL granted? standard of review of JMOL grant?

Back 43

3. Renewal of motion? May be renewed no later than 10 days after judgment.
4. Motion for new trial may be made by losing party within 10 days of grant of JMOL.
a. Standard of JMOL review? Shocks the conscience.

Front 44

civ pro -- when can a DRCP 56 summary judgment motion be made?

Back 44

Can be made ANYTIME after 20 days from commencement of action (but should wait till end of discovery)

Front 45

civ pro -- timing for motion for new trial under DRCP 59?

Back 45

i. New Trial  within 10 days of entry of judgment or rendition of the verdict

Front 46

civ pro -- timing for motion for reargument under DRCP 59?

Back 46

ii. Reargument within 5 days after filing of court’s opinion or decision.

Front 47

civ pro -- standard for DRCP 59 motion for new trial?

Back 47

1. Standard -- Ct must decide if verdict is against the great weight of the evidence/shocks the conscience.

Front 48

civ pro -- DRCP 68: offers of judgment...timing?effect of rejection?

Back 48

i. ANYTIME up to 10 days before the trial, D may make P an offer of judgment (essentially, a settlement)
1. If P rejects but obtains a lesser judgment at trial, P must pay D’s costs incurred after making of the offer.

Front 49

civ pro -- requirements for admission pro hac vice under DRCP 90?

Back 49

1. Written motion by DE atty
2. Local counsel shall sign/receive service and attend all court proceedings
3. Responsibility is with local counsel
4. Atty to be admitted certifies:
a. In good standing with other bar
b. Willing to be bound by DE rules of professional conduct
c. Follow rules of court
d. Consents to prothonotary as agent for service of process
e. Reveals number of times admitted in DE in last 12 months, criminal or civil action number, and presiding judge for all DE cases during that time
f. Will pay $300 annual fee.

Front 50

civ pro -- when is there absolute right of appeal to supreme court?

Back 50

1. ALL final judgments or orders from:
a. Sup Ct
b. Chancery
c. Bd of Professional Responsibility
d. Family Ct decisions in a civil matter
2. Criminal cases where sentence is death, imprisonment exceeding one month, or fine exceeding $100.

Front 51

civ pro -- from whom will DE supreme court take certified questions of law?

Back 51

fed courts, any state supreme court, any DE court, or SEC

Front 52

civ pro -- when will supreme court exercise discretion to answer certified questions of law?

Back 52

1. Standard -- where it appears that there are important and urgent reasons for an immediate determination of such questions.
a. Non-exclusive criteria for basis of acceptance of certified question:
i. Question of law is of first instance;
ii. Conflict in opinions of trial courts on a question of law;
iii. Addresses constitutionality, construction or application of statute which has not been settled.

Front 53

civ pro -- when will supreme court take an interlocutory appeal?

Back 53

iv. Interlocutory Appeals which determine substantial issues and establish legal rights.

Front 54

civ pro -- to whom and regarding what issues will supreme court give advisory opinions?

Back 54

1. On what? Regarding:
a. Proper construction of DE constitution or US constitution, or
b. Constitutionality of any proposed constitutional amendment
2. For whom? Governor of DE or majority of members elected to each house.

Front 55

civ pro -- timing for appeals to supreme court (R 6)?

Back 55

i. Civil  within 30 days of entry upon the docket or judgment, order, or decree.
ii. Criminal within 30 days after sentence is imposed.

Front 56

civ pro -- timing for a motion to affirm in supreme court?

Back 56

a. Appellee files within 10 days of receiving appellants opening brief.

Front 57

civ pro -- when will a motion to affirm be granted by supreme court?

Back 57

b. Judgment is affirmed if it appears from Appellant’s brief that appeal is without merit b/c:
i. Issue on appeal is clearly controlled by settled law;
ii. Issue on appeal is factual and there clearly is sufficient evidence to support the verdict or findings of fact below; or
iii. Issue on appeal is one of judicial discretion and there is no abuse of that discretion.

Front 58

civ pro -- when will supreme court grant a request for interlocutory review (R 42)?

Back 58

ii. For interlocutory appeal to be granted, proponent must demonstrate:
1. Decision determines a substantial issue;
2. Decision establishes a legal right;
3. And the decision meets one or more of the following criteria:
a. It is a question of law is of first instance;
b. There is a conflict in opinions of trial courts on a question of law;
c. It addresses constitutionality, construction or application of statute which has not been settled.
d. Interlocutory order has sustained the controverted jurisdiction of the trial court;
e. Order of the trial court reversed or set aside a prior decision of the court, jury, or an administrative agency AND a review of interlocutory order may terminate the litigation, substantially reduce further litigation, or otherwise serve considerations of justice.
i. NOTE In other words, the issue sought to be appealed by the interlocutory appeal must be related to jurisdiction or the development or clarification of the law.

Front 59

DE Long-Arm Statute

Back 59

DE cts have PJ over non-resident when that person maintains certain enumerated minimum contacts, including: (1) conducting biz or providing services in DE; (2) entry into a K to be performed in DE; (3) ownership of land in DE; (4) commission of a tort in DE; (5) commission of a tort outside of DE, but maintains general contacts with DE such that jurisdiction is permissible.

Front 60

civ pro -- Proceeding pro se in DE courts?

Back 60

Person has the right to proceed pro se in civil litigation.

Corps, however, may not represent itself in DE courts