De Civ Pro 2006

Front 1

Substitution of Parties
Rule 25

Back 1

Upon Death where the claim survives, Party must file a Motion to get the proepr party substituted w/in 90 days of a Suggestion of Death on the record.

If not filed w/in 90 days, the case may be dismissed.

Front 2

Scope of Discovery

Back 2

Parties may obtain discovery of any matter which is:
a) Not privileged; and
b) is relevant whether it relates to a claim or defense of the party seeking discovery.

Information inadmissible at trial is still discoverable if it appears Reasonably Calculated to Lead to the Discovery of Admissible Evidence.

Front 3

Use of Depositions at Trial

Back 3

At Trial, or Motions Hearing, any part of a deposition (so far as admissible under DRE) may be used AGAINST a party who was present or represented at the taking of the depo, OR who had reasonable notice of the taking of the depo as follows:

a) To impeach the testimony offered at trial;

b) The depo of a party or his agent may be used by an adverse party for any reason, e.g., affirmative evidence;

c) UNAVAILABILITY - Depo of a Witness (whether a party or not) may be used by any party for any reason if the Court finds:
1) W is dead; or
2) W is out of DE; or
3) W is unable to testify b/c of age, illness, infirmity, or imprisonment; or
4) Party offering the depo has been unable to procure attendance of W by subpoena; or
5) Upon Application & Notice that such exceptional circumstances exist as to make it desirable to allow the depo to be used.

Front 4

Requests for Admission
Rule 36

Back 4

Any party may serve requests on any other party.

A request is admitted UNLESS the party serves a written Answer or Objection w/in 30 days (45 days if request is served w/ Complaint).

Response may admit or deny, in whole or in part

Lack of information or knowledge is not a sufficient reason for failure to admit or deny unless party certifies that a Reasonable Inquiry has been made.

Front 5

Failure to Make Discovery
Rule 37

Back 5

A party may apply to the Court for an Order Compelling Discovery. If granted, the Court may, after opportunity for a hearing, require the party whose action necessitated the Motion to pay costs including attorney's fees

Front 6

Judgment as a Matter of Law
Rule 50

Back 6

After the close of P's case, AND
There is no Legally Sufficient evidenciary basis for a reasonable jury to find for P, i.e., that there's no evidence on a critical point, Court may grant this motion.

Failure to show any component of a claim would justify an entry of a Judgment as a Matter of Law.

May be made any time before the case is submitted to Jury.

Evidence viewed in light most favorable to the non-moving party

Front 7

Renewal of Motion for Judgment After Trial
Rule 50

Back 7

After a Motion for Judgment as a Matter of Law has been made & denied, it may be renewed by Service and Filing w/in 10 days after Judgment.

Motion for New Trial may be joined w/ the renewal, or new trial may be requested in the alternative.

If a verdict was returned, Court may allow the judgment to stand or reopen the Judgment & either order a new trial or direct the entry of Judgment as a Matter of Law.

If no vedict was returned, Court may direct Entry of Judgment as a Matter of Law or order a new trial.

Party against whom judgment has been rendered may Move for a New Trial w/in 10 days after Entry of Judgment

Front 8

Remittitur

Back 8

After a verdict of damages, where Court finds damages too high, Court may order a reduction of damages to a sum the Judge considers to be the absolute maximum amount that the record can support.

Court may order this in connection w/ a Motion for a New Trial or sua sponte.

Opposing party either accepts the remittitur or a new trial is granted.

Front 9

Additur

Back 9

If Court finds the verdict too low, Court may order payment of the absolute minimum amount the record can support.

Opposing party either accepts it or a new trial is granted

Front 10

Summary Judgment
Rule 56

Back 10

Party may move for Summary Judgment any time after 20 days from the commencement of the action.

It SHALL be rendered if the Pleadings, Discovery, & Responses, together w/ any Affidavits filed, show that there is No Genuine Issue as to Any Material Fact; AND
The Moving Party is Entitled to Judgment as a Matter of Law

Not appealable, it's Interlocutory

Front 11

New Trials and Rearguments
Rule 59

Back 11

MOTION FOR NEW TRIAL
Court must give jury verdict great deference and Must decide whether the verdict is "Against the Great Weight" of the evidence

Motion must be served w/in 10 days after Entry of Judgment
- Shall be accompanied by a Brief & Affidavit, if any;
- Shall briefly & distinctly state the grounds;
- Opposing Party has 10 days to serve & file a short answer to each ground asserted and MAY file a brief.

Court may NOT order a new trial after the 10 day period.

GROUNDS for granting Motion for New Trial on After-Discovered Evidence - it must be such that will probably change the result if a new trial is granted, that it has been discovered since the trial or could not have been discovered before trial by due diligence, it's material to an issue in the case, and not merely cumulative, and that it does not merely intend to impeach or contradict evidence at the original trial.
MOTION TO ALTER/AMEND JUDGMENT
served & filed w/in 10 days from Entry of Judgment.

MOTION FOR REARGUMENT
served & filed w/in 5 days from the filing of Court Opinion or Decision. It must briefly and distinctly state the grounds
Opposing party has 5 days to respond.

Front 12

Relief From Judgment
Rule 60

Back 12

Grounds for Relief
Clerical mistakes may be corrected by the Court at any time on its own initiative or by motion;
On Motion, Court may relieve a party from a Judgment or Order for:
a) Mistake, inadvertence, surprise, or excusable neglect;
b) Newy discovered evidence which could not have been discovered by due diligence in time to move for a New Trial under Rule 59(b);
Fraud, Misrepresentation, or other misconduct of Adverse Party;
d) Judgment is Void;
e) Judgment has been satisfied, released, or discharged by prior judgment; or
f) any other reason justifying relief.

Front 13

Offer of Judgment
Rule 68

Back 13

Any time, more than 10 days b/f trial, a D may serve P w/ an Offer of Judgment to end the case. If it's not accepted it's deemed withdrawn. However, if Judgment obtained by P is not more favorable than the offer, P must pay D's costs incurred after making the offer (but not attorney's fees).

Front 14

Motion to Affirm

Back 14

Filed by Appellee w/in 10 days after receipt of appellant's opening brief. Motion is filed in lieu of a reply brief and automatically suspended the brief schedule.

Lower decision will be affirmed if it appears that Appeal is w/out merit if Issue on Appeal is
a) clearly controlled by settled law;
b) factual and there clearly is sufficient evidence to support the jury verdict or findings of fact below; or
c) is one of judicial discretion and there is no abuse of discretion.

If denied, Appellee must file brief w/in 20 days.

AFFIRMANCE
Court may also Sua Sponte enter an Order or Opinion Affirming the Judgment of the trial court. Grounds are the same as above.

Front 15

Interlocutory Appeal

Back 15

1. Acceptance of an interlocutory appeal is discretionary
2. PROCEDURE
a. There is a highly detailed procedure for filing an interlocutory appeal.
i. W/in 10 days of the entry of the order from which appeal is sought, the party seeking the appeal must file an application w/ the trial court (Chancery or Superior)
ii. The opposing party responds w/in 10 days
iii. W/in 10 days the trial court certifies or refuses to certify
iv. The party seeking the appeal must serve & file an appeal from the interlocutory order w/in 30 days after the trial court enters the order, pursuant to a detailed procedure.
b. GROUNDS
i. The Supreme Court won’t accept an interlocutory appeal unless the order of the trial court
1. determines a substantial issue &
2. Establishes a legal right &
3. Meets on or more of the following criteria
a. Any of the criteria applicable to proceedings for certification of questions of law set forth in Rule 41 (see above) or
b. The interlocutory order has sustained the controversial jurisdiction of the trial court or
c. An order of the trial court has reversed or set aside a prior decision of the court, a jury, or an administrative agency from which an appeal was taken to the trial court which had determined a substantial issue & established a legal right, & a review of the interlocutory order may
i. terminate the litigation,
ii. substantially reduce further litigation
iii. or otherwise serve considerations of justice
4. TYPES OF ISSUES
a. Discovery: absent special circumstances, the Court will not accept interlocutory appeals on discovery orders
b. Court may accept appeal from interlocutory orders of Superior Court & Chancery acting as appellate court in review of a decision or order of a court or administrative agency
5. EFFECT OF INTERLOCUTORY APPEAL
a. Does not automatically stay proceedings in trial court
b. Party seeking jurisdiction appeal does not waive right to seek review of interlocutory orders when appealing from final order
c. Orders entered pursuant to Rule 42 are not subject to Reargument

Front 16

Certification of Question of Law

Back 16

1. Court, at request of party or sua sponte certifies questions of law.
2. Supreme Court will accept certification where “there exist important & urgent reasons for an immediate determination… of the questions certified.” A certification will not be accepted if there are material facts in dispute.
3. Certification by certifying court & acceptance by Supreme Court is discretionary.
4. Examples of Rule 41(b) criteria for basis of acceptance (non-exclusive)
a. Question of law is of 1st instance
b. Conflict in opinions of trial courts on question of law
c. Addresses constitutionality, construction, or application of a statute which has not been settled.
5. The Delaware Supreme Court has jurisdiction to hear & determine questions of law certified to it by any Article 3 federal court (District or Court of Appeals), the highest appellate court of any other state, or any Delaware Court.