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Rule 4 – Process

May 15, 2021 | Civil Procedure, Civil Procedure Superior Court, Delaware

(a) Issuance of writs. Upon the commencement of an action, the Prothonotary 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 Prothonotary under the seal of the Court. Blank forms shall be provided by the Prothonotary on request of a party. Upon direction of the plaintiff in the praecipe, separate or additional process shall issue against any defendants.
(b)Attachment under Chapter 35, Title 10, Delaware Code.

(1) 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:

(A) As to each nonresident defendant whose appearance is sought to be compelled, that defendant’s last known address or a statement that such address is unknown and cannot with due diligence be ascertained.
(B) The following information as to the property of each defendant sought to be seized:

(I) A reasonable description thereof.
(II) The estimated amount and value thereof.
(III) 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.
(IV) The source of affiant’s information as to any of the items as to which the affidavit is made on information and belief.
(V) The reason for the omission of any of the required statements.
(2) 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 loss to a defendant as the result of the seizure, and other relevant matters. No inferior court shall authorize the attachment of any property of an estimated value greater than the jurisdictional amount for which suit in such court may be brought.
(3) Release of attached property. –

(A) 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.
(B) 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.
(4) A writ of foreign attachment may issue against any individual or unincorporated 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.
(5) 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 Prothonotary 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 Prothonotary 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 case. 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.
(6) 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:

(A) Retain the property and recognize no transfer thereof until further order of the Court;
(B) Forthwith make a notation upon any records pertaining to the property that such property is held pursuant to the order of the Court; and
(C) Within 10 days after the date of such service, file a certificate under oath with the Prothonotary, specifying:

(I) Such defendant’s property, if any, of which it has possession, custody or control, or control of its transfer;
(II) Whether the title or interest of each such defendant is legal or beneficial; and
(III) 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.
(7) Costs. The plaintiff shall deposit with the Prothonotary 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.
(8) In any action commenced by mesne writ of attachment, the defendant shall serve the answer (and if the complaint contains a specific notation under Rule 3(b) requiring the defendant to answer any or all allegations of the complaint by affidavit 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.
(9) 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.
(c) Contents of writ: Generally. – The process shall bear the date of its issuance, be signed by the Prothonotary or one of the Deputy Prothonotaries, be under the seal of the Court, contain the name of the Court and the names of the parties, state the name of the official or other person to whom it is directed, the name and address of the plaintiff’s attorney, if any, otherwise the plaintiff ‘s address, and the time within which these Rules require the defendant to appear and defend, and shall notify the defendant that in case of the failure to do so, judgment by default will be rendered against the defendant for the relief demanded in the complaint. When the complaint contains a specific notation under Rule 3(b) requiring the defendant to answer any or all allegations of the complaint by affidavit, the process shall also notify the defendant that unless an affidavit of defense, in conformity with the statute, shall be served by the defendant not later than the time for service of the answer, judgment by default will be rendered against the defendant for the amount specified in the complaint.

(1) Summons. The writ of summons shall be directed to the defendant.
(2) Attachment. – The writ of attachment shall be directed to the person serving the writ and command that person to attach the defendant by all the defendant’s real and personal property in the county to which the writ is issued and to summon defendant’s garnishees to appear within 20 days after service of the writ to answer or plead and shall notify them that, on failure to do so, they may be compelled by attachment.
(3) Capias ad respondendum. The writ of capias shall be directed to the person serving the writ and command that person to arrest the defendant and produce the defendant in Court on or before the return day of the writ.
(d) By whom served. Service of process shall be made by the sheriff to whom the writ is directed, by a deputy or by some person specially appointed by the Court for that purpose, except that a subpoena may be served as provided in Rule 45.

(1) Except in cases governed by subsection (d) (2) of this Rule, no person shall be specially appointed by the Court to make service unless moving papers affirmatively demonstrate that:

(i) the Sheriff has made one return non est inventus ; or,
(ii) it is necessary that service be accomplished after 10:00 p.m. on any weekday other than a holiday; or,
(iii) it is necessary that service be accomplished on a holiday or weekend; or,
(iv) some other exigent reason is shown why the Sheriff cannot or will not accomplish service. Except in cases governed by subsection (d) (2) of this Rule, with respect to each filed motion, the Sheriff shall be served with notice of the motion and may offer reason as to why the Sheriff should not be disqualified from making service.
(2) In cases governed by 10 Del. C. § 3104, 10 Del. C. § 3112, and 10 Del. C. § 3114, special appointments to accomplish service upon the Secretary of State as required by these statutes may be made freely by the Court.
(e) Process and complaint 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:
(f) Service of process; how made. –

(1) Summons. Service of summons shall be made as follows:

(I) 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.
(II)(a) 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.

(b) 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.
(c) 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.
(d) 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.
(e) 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.
(III) 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.
(IV) 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.
(V) 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.
(VI) 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.
(2) 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.
(3) 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.
(4) 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:

(i) 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;
(ii) 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;
(iii) 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;
(iv) 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;
(v) That the return receipt obtained at the time of delivery of the envelope containing the notice is the return receipt filed with the affidavit;
(vi) The date upon which the envelope containing any undelivered notice was returned to the sender; and
(vii) 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.
(5) Ejectment.- Not later than ten (10) days following the filing of an action begun in ejectment under a lease of an interest in real estate, which lease or a notice or memorandum of which has been recorded in the Office of the Recorder of Deeds, 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 (including but not limited to liens on the leasehold interest of the lessee) , 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 (other than the parties to the ejectment action; hereafter “Non-party Tenants”) , a notice consisting of a copy of the complaint and a written Notice to Lien Holders and Non-party 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 Non-party Tenants at the last known available or reasonably ascertainable address of such Non-party 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 persona 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 Holds and Non-party 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:

(i) The names and addresses of holders of liens and Non-party Tenants in such real estate and the dates upon which the notice was mailed by certified mail to such lien holders and Non-party Tenants;
(ii) That the copy of the Notice to Lien Holders and Non-party Tenants of Filing of Action attached to the affidavit is a true and correct copy of the Notice to Lien Holders and Non-party Tenants of Filing of Action mailed by certified mail;
(iii) 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;
(iv) 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;
(v) That the return receipt obtained at the time of delivery of the envelope containing the notice is the return receipt filed with the affidavit;
(vi) The date upon which the envelope containing any undelivered notice was returned to the sender; and
(vii) If the identity or address of any lien holders and Non-party 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 Non-party 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 Non-party Tenants in accordance with this paragraph shall be sufficient notice to such parties in lieu of joinder of such parties as a defendant.
(6) 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.
(g) 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.
(h) Actions in which service of process is secured pursuant to 10 Del. C. § 3104, § 3112 or § 3113. In an action in which the plaintiff serves process pursuant to 10 Del. C. § 3104, § 3112 or § 3113, the defendant’s return receipt and the affidavit of the plaintiff or the plaintiff’s attorney of the defendant’s nonresidence and the sending of a copy of the complaint with the notice required by the statute shall be filed as an amendment to the complaint within 10 days of the receiving by the plaintiff or the plaintiff ‘s attorney of the defendant’s return receipt; provided, however, that the amendment shall not be served upon the parties in accordance with the provisions of Rule 5(a).
(i) 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.
(j) 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.
(k) 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.

Del. R. Civ. P. Super. Ct. 4