Rule 4. Process

Issuance of writs.

Upon the commencement of an action, the Clerk of the Court shall forthwith issue the process specified in the praecipe and shall deliver it for service to the sheriff of the county or counties specified in the praecipe or to a person especially appointed by the Court to serve it. The party requesting the issuance of process shall prepare a form thereof for signature by the Clerk of the Court under the seal of the Court. Upon direction of the plaintiff in the praecipe, separate or additional process shall issue against any defendants.

Attachment under Chapter 35, Title 10, Delaware Code.

• The proof required for the issuance of a mesne writ of attachment under Chapter 35, Title 10, Delaware Code, will be satisfied by filing with the complaint an affidavit of plaintiff or some credible person setting forth the facts required by the applicable statute. In addition to the facts required by the applicable statute, such affidavit shall also state:

1. As to each nonresident defendant whose appearance is sought to be compelled, the defendant’s last known address or a statement that such address is unknown and cannot with due diligence be ascertained.
2. The following information as to the property of each defendant sought to be seized: 1. A reasonable description thereof. 2. The estimated amount and value thereof. 3. The nature of the defendant’s title or interest therein, and if such title or interest be equitable in nature, the name of the holder of the legal title. 4. The source of affiant’s information as to any of the items as to which the affidavit is made on information and belief. 5. The reason for the omission of any of the required statements.
   

• Bond required of plaintiff. No mesne writ of attachment shall be issued until plaintiff, in such proceedings, shall give bond, in an amount and with surety to be approved by the Court out of which the writ is to be issued, conditioned that if the suit shall not be prosecuted with effect, or if the judgment rendered therein shall be in favor of a defendant, the plaintiff will pay any and all costs which may be awarded to a defendant, together with any and all damages, not exceeding the amount of the bond, which a defendant in the suit may have sustained by reason of such attachment; for this purpose, a bond executed by an approved surety company alone, without joinder of plaintiff shall be deemed a compliance with the provisions of this Rule. In fixing the amount of such bond, the Court may consider the kind of property to be seized, the estimated value thereof, the possibility of a loss to a defendant as the result of the seizure, and other relevant matters.
  

• Release of attached property.

1. Any nonresident defendant whose property shall have been seized upon a writ of foreign attachment and who shall have entered a general appearance in the cause may move for an order releasing such property or any part thereof from seizure. The Court shall then release such property forthwith unless the plaintiff shall satisfy the Court that because of other circumstances there is a reasonable possibility that such release may render it substantially less likely that plaintiff will obtain satisfaction of any judgment thereafter secured and in that event plaintiff shall also give bond with approved surety, in an amount at least equal to the current value of the property seized, conditioned that if the cause shall not be prosecuted with effect, or if judgment rendered therein shall be in favor of a defendant, the plaintiff will pay all damages, including costs, which such defendant may have sustained by reason of such seizure, not exceeding the amount of such bond.
2. Any property seized under a mesne writ of attachment will be released from seizure, in whole or in part, upon defendant’s furnishing such security for its release as is approved by the Court, conditioned for the payment of any judgment that may be recovered in the proceedings with costs, in an amount at least equal to the current value of the property to be released or the amount claimed in the suit, whichever is the lesser; provided, however, that the furnishing of such security shall not of itself constitute a general appearance.

• A writ of foreign attachment may issue against any individual or incorporated association not an inhabitant of this State or against a foreign corporation, although joined as parties defendant with other nonresident or resident parties, with the same effect as if such nonresident defendant were the only defendant.



• Every mesne writ of attachment issued shall specify therein a reasonable description of the property to be seized, and the amount claimed by the plaintiff. The Clerk of the Court shall cause to be published a copy of such writ in a newspaper of general circulation in the county in which the writ is issued at least once within 20 days after the issuance of such writ. Within 7 days after the filing of the sheriff’s return of a writ of mesne attachment, the Clerk of the Court shall, in addition to making the required publication, send by registered mail to every nonresident defendant whose appearance is sought to be compelled, at the address furnished by plaintiff, if such address is known, certified copies of the complaint, affidavit, writ and return, filed in the cause. No publication will be required if all defendants shall have been personally served prior to the time publication would otherwise take place, and no mailing will be required to any defendant who has been personally served.

• Except in cases of garnishment, if it appears from the description of the property to be seized that it is not susceptible of physical seizure within the State, the plaintiff shall upon institution of suit obtain from the Court an order, a certified copy of which shall be served with the writ, upon the person, persons or corporation having possession or custody of the property or control of its transfer, directing such person, persons or corporation to:



1. Retain the property and recognize no transfer thereof until order of the Court;
2. Forthwith make a notation upon any records pertaining to the property that such property is held pursuant to the order of the Court; and
3. Within 10 days after the date of such service, file a certificate under oath with the Clerk of the Court, specifying: 1. Such defendant’s property, if any, of which it has possession, custody or control, or control of its transfer; 2. Whether the title or interest of each such defendant is legal or beneficial; and 3. If legal, the name and address of the holder of any equitable or beneficial title or interest therein, if known, and if beneficial, the name and address of the holder of the legal title thereto, if known.

• Costs. The plaintiff shall deposit with the Clerk of the Court an amount sufficient to defray the cost of publication in any case where such publication is required in addition to the usual deposit for costs, before a writ of foreign attachment will be issued.

• In any action commenced by mesne writ of attachment, the defendant shall serve the answer (and if required, an affidavit of defense) within 40 days after the date of the attachment of the property or the service of the writ upon a garnishee, as the case may be. After the expiration of such 40-day period, or after the defendant’s appearance, whichever first occurs, the action shall proceed as in suits commenced by summons.



• If any attached property is of a perishable nature, or will cause undue expense in its keeping, the Court may order the attaching officer, on due notice, to sell the same, and retain the proceeds of sale, subject to the order of the Court. No property attached under a mesne writ of attachment or garnishment shall be sold except upon order of the Court, which order shall specify the notice required and all other pertinent matters relating to such sale.

Process, complaint and affidavit of demand to be served together.

The process, complaint and affidavits, if any, shall be served together. The Prothonotary shall furnish the person making service with such copies as are necessary. Service shall be made as follows:

Service of process; how made.

• Summons. Service of summons shall be made as follows:



1. Upon an individual other than an infant or an incompetent person by delivering a copy of the summons, complaint and affidavit, to that individual personally or by leaving copies thereof at that individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering copies thereof to an agent authorized by appointment or by law to receive service of process.
2. (I) Upon an infant of 18 years of age or more, in the same manner as upon an adult individual unless such infant has a guardian in this State; and if there is such a guardian, then upon such guardian in the same manner as upon an individual, if the guardian is an individual, or in the same manner as upon a corporation, if the guardian is a corporation. (II) Upon an infant under the age of 18 years, if such infant has a guardian in this State, by service upon such guardian in the same manner as upon an individual, if the guardian is an individual, or in the same manner as upon a corporation, if the guardian is a corporation; and if there is no such guardian, by service in the same manner as upon an individual, upon an adult person with whom such infant resides or who has the infant’s place of abode. (III) Upon an incompetent person, if such person has a trustee or guardian in this State, by service upon such trustee or guardian, in the same manner as upon an individual, if the trustee or guardian is an individual; or in the same manner as upon a corporation, if such trustee or guardian is a corporation; and if there is no such trustee or guardian, by service in the same manner as upon an individual, upon an adult person with whom such incompetent person resides or who has the incompetent person’s place of abode. (IV) As used herein, trustee or guardian refers to one appointed by the Court of competent jurisdiction in this State; provided, however, that a trustee or guardian duly appointed by a court of competent jurisdiction of another state may accept service and/or appear, upon filing proof of such appointment in the cause here pending. (V) Upon an infant or incompetent person, not a resident of the State, in the same manner as upon a competent adult person who is not an inhabitant of or found within the State.
3. Upon a domestic or foreign corporation or upon a partnership or unincorporated association which is subject to suit under common name by delivering copies of the summons, complaint and affidavit, if any, to an officer, a managing or general agent or to any other agent authorized by law to receive service of process and if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant.
4. Upon a municipal corporation or other governmental organization subject to suit by delivering a copy of the summons, complaint and affidavit, if any, to the chief executive officer thereof or by serving copies thereof in the manner prescribed by law for the service of summons upon such defendant.
5. Upon a defendant of any class referred to in subsection (I) and (III) of this Rule, it is also sufficient if the summons, complaint and affidavit, if any, are served in the manner prescribed by any statute.
6. Whenever a statute, rule of court or an order of court provides for service of summons or of a notice or of an order in lieu of summons upon a party not an inhabitant of or found within the State, service shall be made under the circumstances and in the manner prescribed by the statute, rule or order.
   

• Attachment. Service of attachment or garnishee process shall be made in the same manner as provided in Rule 4(f), on those persons, firms or corporations subject to such service in this State. If garnishees are summoned upon a writ of mesne attachment, the person serving the writ shall leave with them a copy of the writ, the complaint and affidavit. If execution of the writ requires seizure of real or personal property, the sheriff shall levy thereon and make his return in the same manner as heretofore.
• Capias. The writ of capias shall be served as provided by statute. The person serving the writ shall deliver to the defendant a copy of the writ, complaint and affidavit.
• Scire Facias. In actions begun by scire facias, 2 returns without service of 2 consecutive writs, being the original writ and an alias writ, followed by a certification by the sheriff that he has posted a copy of the alias writ on the subject property and has mailed a copy of the alias writ by both certified mail, return receipt requested, and first class mail to the last known address (as stated in the praecipe) of the defendants, shall constitute legal and sufficient service. Not later than ten (10) days following the filing of an action begun by scire facias, the plaintiff, or his counsel of record, shall send by certified mail, postage prepaid, return receipt requested, to holders of liens on the real estate which is the subject of such action who have acquired such liens at the time the action is filed and to tenants holding or possessing a leasehold estate for years or at will in such real estate, a notice consisting of a copy of the complaint and a written Notice to Lien Holders and Tenants of Filing of Action substantially similar to Form 36 Appendix of Forms (Superior Court). The notice shall be addressed to holders of liens at the address which appears upon the recorded or filed instrument creating the lien or upon the record of the lien, or to the counsel of record for the holder of the lien, or, if such addresses are not ascertainable from the public records, at the last known available or reasonably ascertainable address of the holders of such liens. The notice shall be addressed to tenants holding or possessing a leasehold estate for years or at will at the last known available or reasonably ascertainable address of such tenants, and in addition, the plaintiff or his counsel of record or a representative of the plaintiff or his counsel of record shall post such notice on the common entrance door or in a common area of any building or buildings on the real estate which is the subject of such action. No judgment shall be entered in such action unless the plaintiff or his counsel of record shall file with the Court proof of the mailing and posting of such notice which shall consist of the usual receipt given by the post office of mailing to the person mailing the certified article, the return receipt, or, in the case of an undelivered notice, the original returned envelope, and a copy of the Notice to Lien Holders and Tenants of Filing of Action mailed with such notice together with an affidavit made by plaintiff or his counsel of record or a representative of the plaintiff or his counsel of record specifying:
  

1. The names and addresses of holders of liens and tenants holding or possessing a leasehold estate for years or at will in such real estate and the dates upon which the notice was mailed by certified mail to such lien holders and tenants;
2. That the copy of the Notice to Lien Holders and Tenants of Filing of Action attached to the affidavit is a true and correct copy of the Notice to Lien Holders and Tenants of Filing of Action mailed by certified mail;
3. That the notice was posted on the common entrance door or in a common area of any building or buildings on the real estate which is the subject of the action and the date of such posting;
4. That the receipt obtained at the time of mailing by the person mailing the envelope containing the notice is the receipt filed with the affidavit;
5. That the return receipt obtained at the time of delivery of the envelope containing the notice is the return receipt filed with the affidavit;
6. The date upon which the envelope containing any undelivered notice was returned to the sender; and
7. If the identity or address of any lien holders and tenants cannot be reasonably ascertained, a description of the reasonably diligent efforts that were made by plaintiff or his counsel to ascertain such identity or address and that plaintiff or his counsel of record caused a copy of the Notice to Lien Holders and Tenants (but not Exhibit “A” to such Notice) to be published once in a newspaper of general circulation in the County which is the venue of such action. Notice given to lien holders and tenants holding or possessing a leasehold estate for years or at will in accordance with this paragraph shall be sufficient notice to such parties in lieu of joinder of such parties as a defendant.

• Service of original process other than summons, attachment, capias or scire facias. Service of original process other than summons, attachment, capias or scire facias, shall be made as provided by statute or order of court.
  

Return of process.

Original process, whether an original, alias or pluries writ shall be returnable 20 days after the issuance of the writ, except that in actions for mandamus the Court may, upon application for cause shown, direct that the writ be returnable in a shorter time. The person serving the process shall make return thereof to the Court promptly after service and in any event on the return day thereof. Process which cannot be served before the return day thereof shall be returned on the return day and such return shall set forth the reasons why service could not be had. If service is made by a person other than by an officer or his deputy his return shall be verified. Failure to make a return or proof of service shall not affect the validity of service.

Amendment of process.

At any time in its discretion and upon such terms as it deems just, the Court may allow any process or return of proof of service to be amended unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.

Summons: Time limit for service.

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.

Service in actions for judgment by confession or execution thereon.

Action for judgment by confession or execution thereon shall comply with Rules 58.1, 58.2, and 58.3. discovery required to be served upon a party unless the Court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, designation of record on appeal, and similar paper shall be served upon each of the parties. No service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in Rule 4.

Rule 45. Subpoena.

Form; issuance.

• Every subpoena shall

1. state the name of the Court and the county from which it is issued; and
2. state the title of the action, the name of the court in which it is pending, and its civil action number; and
3. command each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying of designated books, documents, or tangible things in the possession, custody or control of that person, or to permit inspection of premises, at a time and place therein specified; and
4. set forth the text of subdivisions (c), (d), and (e) of this rule. A command to produce evidence or to permit inspection may be joined with a command to appear at trial or hearing or at deposition, or may be issued separately.

• A subpoena shall issue from the county in which the action is pending. If the action is pending in another court, a subpoena for attendance at a deposition shall issue from the county in which the deposition is to be taken or, if separate from a subpoena commanding the attendance of a person, a subpoena for production or inspection shall issue from the county in which the production or inspection is to be made.
• The Prothonotary shall issue a subpoena, signed but otherwise in blank, to a party requesting it, who shall complete it before service. A Delaware attorney, as an officer of the Court, may also issue and sign a subpoena.
  

Service.

• A subpoena may be served by the Sheriff or by any person who is not a party and is not less than 18 years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person. Prior notice of any commanded production of documents and things or inspection of premises before trial shall be served on each party in the manner prescribed by Rule 5(b).
• Proof of service when necessary shall be made by filing with the Prothonotary of the county from which the subpoena issued a statement of the date and manner of service and of the names of the persons served, certified by the person who made the service.

Rule 5. Service and Filing of Pleadings and Other Papers.

Service: When required.

Except as otherwise provided in these Rules, every order required by its terms to be served, every pleading subsequent to the original complaint unless the Court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the Court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, designation of record on appeal and similar paper shall be served upon each of the parties. No service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in Rule 4.

• Appearance: When; how made; withdrawal. Except as otherwise provided by statute, a defendant may appear though a summons has not been served upon the defendant. Appearance may be made by the service and filing of notice thereof, or by the service or filing of any motion or pleading purporting to be responsive to, or affecting the complaint, except that appearance for purpose of satisfying a judgment, when appearance may be made by notation thereof on the judgment docket. An attorney may withdraw the attorney’s appearance without obtaining the Court’s permission where such withdrawal will leave a member of the Delaware Bar appearing as attorney of record for the party. Otherwise, no appearance shall be withdrawn except on order of the Court.
• Appearance of garnishee: When; how made. Any garnishee duly summoned (either on mesne writ of attachment or execution process) shall serve upon plaintiff a verified answer within 20 days after service of process, which shall specify what goods, chattels, rights, credits, money or effects of a defendant, if any, the garnishee has in the garnishee’s possession or custody. Within 10 days after service of such answer, plaintiff may serve exceptions thereto, and the proceedings on the issues thus raised shall be had as in actions commenced by summons. If no exceptions are filed by plaintiff to garnishee’s answer within the 10-day period as aforesaid, a delivery to the sheriff of the property set forth in the answer by the garnishee, or so much of it as shall satisfy plaintiff’s demand, shall be a discharge of the garnishee in the proceedings, and the sheriff shall make a suitable supplemental return on the writ showing the property which has been delivered to the sheriff by the garnishee, and shall dispose of such property as directed by the writ. Unless the garnishee delivers such property to the sheriff within 5 days after the expiration of the 10-day period for plaintiff’s exceptions, if any, the sheriff shall on written direction of the plaintiff physically seize any property subject to seizure, and with respect to any property set forth in the answer, which is not seized or delivered to the sheriff, the plaintiff on motion may have personal judgment entered against the garnishee in favor of plaintiff in an amount equal to the value of the property of defendant in garnishee’s custody or possession, or the amount of the plaintiff’s judgment, whichever is less, with interest and costs. Before the sheriff shall serve any writ of attachment, the sheriff shall receive from the plaintiff the sum of $20 for each party to be summoned as garnishee (except as to garnishment governed by the terms of 10 Del. C. § 4913) and said sum shall be delivered to each garnishee when the summons is served; the return on the writ of garnishment will show the garnishee fee paid, which will be taxed as costs in the case; no garnishee will be required to answer without first having received the garnishee fee as aforesaid.

Service of pleadings and papers: How made.

Whenever under these Rules service is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney unless service upon the party personally is ordered by the Court. Service upon the attorney or upon a party shall be made by delivering a copy or by mailing it to the attorney or the party at the attorney’s or party’s last known address or, if no address is known, by leaving it with the Clerk of the Court. Delivery of a copy within this Rule means: handing it to the attorney or to the party; or leaving it at the attorney’s or the party’s office with a clerk or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or if the office is closed or the person to be served has no office, leaving it at the person’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Service by mail is complete upon mailing.

• In any action involving a claim for personal injuries, the defendant shall file and serve with his answer, answers to the interrogatories appearing in Superior Court Rules Form 30.

• If a counterclaim, cross-claim or third-party complaint for personal injuries is filed, the defendant in such claim shall file with the answer that discovery which is required of a defendant in a complaint for personal injuries.



• The prerequisites of Rule 5(b)(1) may for good cause shown be waived by order of the Court.
  

Same: Numerous defendants.

In any action in which there are unusually large numbers of defendants, the Court, upon motion or of its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants and that any cross-claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the Court directs.

Filing.

All papers after the complaint required to be served upon a party shall be filed with the Court within a reasonable time after service thereof subject to the following provisions.

• All requests for discovery under Court of Common Pleas Civil Rules 31, 33, 34, 35 and 36 and answers and responses shall be served upon all appearing counsel or parties appearing pro se but shall not be filed with the Court. In lieu thereof, the party requesting discovery and the party serving responses thereto shall file with the Court a “Notice of Service” containing the following information:

1. a certification that a particular form of discovery or response was served on other counsel or opposing parties, and
2. the date and manner of service.



• The party responsible for service of the request for discovery and the party responsible for the response shall retain the originals and become the custodian of them. The party taking an oral deposition shall be custodian of the original; no copy shall be filed except pursuant to subparagraph (3). In cases involving out-of-state counsel, local counsel shall be the custodian.
• If depositions, interrogatories, requests for documents, requests for admission, answers or responses are to be used at trial or are necessary to a pretrial or post-trial motion, the verbatim portions thereof considered pertinent by the parties shall be filed with the Court when relied upon.
• When discovery not previously filed with the Court is needed for appeal purposes, the Court, on its own motion, on motion by any party or by stipulation of counsel, shall order the necessary material delivered by the custodian to the Court.
• The Court, on its own motion, on motion by any party or an application by a non-party, may order the custodian to file the original of any discovery document.
• When discovery materials are to be filed with the Court other than during trial, the filing party shall file the material together with a notice setting forth an itemized list of the material.
• It shall be the duty of the party on whose behalf a deposition was taken to make certain that the officer before whom it was taken has delivered the original transcript to such party. Unless otherwise ordered by the Court, any deposition which has been filed pursuant to this Rule may be unsealed by the Clerk of the Court.

Filing with the court defined.

The filing of pleadings and other papers with the Court as required by these Rules shall be made by filing them with the Clerk of the Court, except that the judge may permit the p judge may permit the papers to be filed with the judge, in which event the judge shall note thereon the filing date and transmit them to the office of the Clerk of the Court. Papers may be filed by facsimile transmission or electronically if permitted by these Rules, by administrative order, or by a judge.

Proof of service of papers.

Unless otherwise ordered, no pleading or other paper, required by these Rules to be served by the party filing the paper, shall be filed unless the original thereof shall have endorsed thereon a receipt of service of a copy thereof by all parties required to be served or it shall be accompanied by affidavit showing that service has been made and how made or it shall be accompanied by a certificate of an attorney of record showing service has been made and how.