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Delaware Trial Practice Blog

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So, You Want To Amend Your Complaint . . .

Posted in Civil Procedure, Delaware Superior Court

So, you want to amend your complaint to add a claim after the statute of limitations has expired.  Is it possible? The short answer is yes, it may be possible.  As the Superior Court decision recently issued in the case of Mills v. J.E.M. Enterprises, Inc. reminds us, the amendment may be permitted if the complaint was filed before the statute expired and the Court is satsifed that the requirements of Superior Court Civil Procedure Rule 15 are satisfied.  To meet the requirements of that Rule: (i) the claim to be added must relate back to the same conduct transaction or occurrence in the initial complaint, and (ii) the party opposing the amendment must have been put on notice of the existence of the potential additional claims in order to avoid prejudice to the opposing party’s ability to defend against the merits of the proposed claims.  The Court’s analysis of Rule 15 may be read in its entirety here.

November Is National Adoption Month!

Posted in Adoption

November has been declared National Adoption Month! A Proclamation signed by President Obama designates November as National Adoption Month and states:


Every year, adoptive parents welcome tens of thousands of children and teenagers into supportive and loving families.
These mothers and fathers provide their sons and daughters with the security and stability of a safe environment and the opportunity to learn, grow, and achieve their full potential. During National Adoption Month, we honor those who have opened their hearts and their homes, and we recommit to supporting all children still in need of a place to call their own.

Over the past decade, more than 500,000 children have been adopted. However, there are still too many children waiting to be part of an adoptive family. This month — on the Saturday before Thanksgiving — we will observe the 15th annual National Adoption Day, a nationwide celebration that brings together policymakers, practitioners, and advocates to finalize thousands of adoptions and to raise awareness of those still in need of permanent homes.

To help ensure there is a permanent home for every child, my Administration is investing in programs to reduce the amount of time children in foster care wait for adoption and to educate adoptive families about the diverse needs of their children, helping ensure stability and permanency. We are equipping State and local adoption organizations with tools to provide quality mental health services to children who need them, and — because we know the importance of sibling relationships — we are encouraging efforts to keep brothers and sisters together. Additionally, last year I was proud to permanently extend the Adoption Tax Credit to provide relief to adoptive families. By supporting policies that remove barriers to adoption, we give hope to children across America. For all those who yearn for the comfort of family, we must continue our work to increase the opportunities for adoption and make sure all capable and loving caregivers have the ability to bring a child into their life, regardless of their race, religion, sexual orientation, or marital status.

Throughout November, we recognize the thousands of parents and kids who have expanded their families to welcome a new child or sibling, as well as the professionals who offer guidance, resources, and counseling every day. Let us reaffirm our commitment to provide all children with every chance to reach their dreams and realize their highest aspirations.

NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim November 2014 as National Adoption Month. I encourage all Americans to observe this month by answering the call to find a permanent and caring family for every child in need, and by supporting the families who care for them.

IN WITNESS WHEREOF, I have hereunto set my hand this thirty-first day of October, in the year of our Lord two thousand fourteen, and of the Independence of the United States of America the two hundred and thirty-ninth.




Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.


Family Court – Unique Rules For A Court of Special Jurisdiction Part II

Posted in Civil Procedure, Delaware Family Court

Any exploration of the unique nature of the Family Court Civil Rules of Civil Procedure must include a review of Rule 26, regarding the general provisions regarding discovery.  In many trial courts, Rule 26 permits parties to gather information through multiple methods such as interrogatories, requests for admission, requests for production and depositions.  In addition, discovery of information held by non-parties is possible.

Family Court, however, takes a different approach.  Family Court Civil Procedure Rule 26 narrows the forms and manner of discovery available to parties.  The Rule states,

While the Court encourages the prompt and voluntary exchange of information and documents by the parties before trial, no formal discovery shall be conducted without Court order following a motion therefore except for depositions of the parties and Requests for Production.

So, under this Rule one party may depose the other party or ask the other party to produce documents, but discovery may not go beyond that without the permission of the Court.


Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

Prevailing Parties Are Entitled to Some, But Not ALL, Of Their Costs

Posted in Civil Procedure, Delaware Superior Court

You won a case by prevailing on a motion for summary judgment.  Therefore, as the prevailing party, the court will award costs to you as a matter of course pursuant to Delaware Superior Court Rule 54, correct?  Generally speaking, YES – but not necessarily ALL of the costs you incurred in the litigation.

In Martin v. National General Assurance Company, C.A. No. N13C-01-020-RRC, decided on November 3, 2014, the Delaware Superior Court (Cooch, J.) (available in its entirety here) awarded the following costs to the defendant, who had prevailed on summary judgment:

  • Court costs (such as filing fees)
  • Costs incurred in obtaining the plaintiff’s medical records.

However, the Court denied the defendant’s request for an additional $690.33 to cover the cost of a deposition transcript the defendant had attached as an exhibit to its winning Motion for Summary Judgment.  The reason the court denied this request is because the deposition transcript was “not introduced into evidence at trial” as required by Rule 54(f); attaching the transcript as an exhibit to the winning summary judgment motion did not count.  The Court pointed to Delaware Superior Court 54(f) and the case of DIGA v. Troise, 1992 WL 240352 (Del. Super. Ct. Sept. 14, 1992) (finding that depositions, when used for the purpose of pretrial motions, are not “introduced into evidence” under Rule 54(f)).

The bottom line is, as a prevailing party, it is best not to overreach when seeking costs—or else you may end up incurring extra fees to brief the issues!

Family Court –Unique Rules For A Court of Special Jurisdiction

Posted in Civil Procedure, Delaware Family Court, Family Law

The Family Court Rules of Civil Procedure are similar to those of the Superior Court and the Court of Common Pleas.  However, due to the specialized jurisdiction of the Family Court, the Rules are not identical.  Take for example, Rule 56 regarding motions for summary judgment.  A motion for summary judgment should be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.  They are filed, briefed and decided before a trial.  If the motion is granted it may resolve the case in its entirety.  If the motion is not granted, the case will proceed to trial.

Under the Rules of the other trial courts, there are no special conditions restricting a party’s ability to file a motion seeking summary judgment.  A brief review of the Delaware State Court Opinion page shows that motions of this type are not a not unusal.

In Family Court, however, they are virtually unheard of.  Consider Family Court Rule 56, which provides:

While it may be desirable to dispose of proceedings by way of summary judgment, the Court is mindful that litigants are often unrepresented, and, even where there is representation, summary judgment proceedings may in fact delay resolution of litigation; therefore, a motion for summary judgment shall not be filed without Court order following a motion therefor. No motion for summary judgment shall be filed unless accompanied by a stipulated set of facts executed by counsel or, in the case of an unrepresented party, by the party. (emphasis added)

The Rule clearly expresses Family Court’s concern about how these potentially dispositive pretrial motions might impact the large number of pro se litigants, and the fact that the motion process itself could delay resolution of the matters heard by the Court.  In response to these considerations the Rule restricts the filing of motions for summary judgment.  Unlike the other trial courts, Family Court requires litigants to obtain the permission before filing a motion for summary judgment.  In addition, the motion for summary judgment may not be filed unless the parties agree on and sign a stipulated set of facts.  It is not hard to image how difficult it is to get family members involved in litigation to agree upon the facts of the case.  With these resrictions, motions for summary judgment are rarely seen in Family Court.


Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.


Family Court – A Court Of Special Jurisdiction

Posted in Delaware Family Court, Jurisdiction

In many states domestic relations matters are heard in trial courts of general jurisdiction.  For over four decades Delaware has taken a different approach.  In 1971 the Delaware General Assembly enacted legislation creating a unified, statewide family court.  This specialized court exercises jurisdiction over a multitude of family matters.  For example, the Family Court hears cases involving juvenile delinquency, dependent/neglected/abused children, adult misdemeanor crimes against juveniles, child and spousal support, paternity, custody and visitation of children, adoptions, terminations of parental rights, divorces and annulments, property divisions, specific enforcement of separation and property division agreements, guardianship of minors, petitions for orders of protection from abuse, and intra-family misdemeanor crimes.

The Delaware Code describes the purpose behind the creation of this unique court as follows:

In the firm belief that compliance with the law by the individual and preservation of the family as a unit are fundamental to the maintenance of a stable, democratic society, the General Assembly intends by enactment of this chapter that 1 court shall have original statewide civil and criminal jurisdiction over family and child matters and offenses as set forth herein. The court shall endeavor to provide for each person coming under its jurisdiction such control, care, and treatment as will best serve the interests of the public, the family, and the offender, to the end that the home will, if possible, remain unbroken and the family members will recognize and discharge their legal and moral responsibilities to the public and to one another.   10 Del. C. § 902.

As future posts will describe and explore, the specialized nature and jurisdiction of the Family Court results in some similarly unique rules, processes and procedures.


Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

A Petition for Writ of Certiorari – What Is It?

Posted in Delaware Superior Court

The Superior Court recently granted a petition for writ of certiorariSee, Millsboro Fire Co. v. Delaware State Fire Prevention Commission et al., Del. Super., No. K14A-05-001, Young, J. (Oct. 21, 2014).  In reaching its decision, the Court reminds us of the essential concepts of the writ and the analysis involved with this type of petition.

What is a petition for writ of certiorari?

It “is simply a form that calls up, for review, the record from the lower court or tribunal.  The purpose of the writ is to permit the higher court to review the conduct of the lower tribunal of record.”  Id. at 3.

What is the scope of review?

The “scope of review by the higher court is limited to the consideration only of the record below, and does not involve fact-finding or weighing of the evidence.” Id. at 3-4.

What are the considerations involved in the analysis?

First, the petitioner must establish the existence of two conditions: (1) the judgment of the tribunal below must be final; and (2) there can be no other available basis for review.  Id. at 4.  If the petitioner satisfies those conditions, the court will grant a petition for certiorari if the tribunal below: “(1) exceeded its jurisdiction; (2) committed errors of law; or (3) proceeded irregularly.”  Id. at 4.

The decision may be read in its entirety here.


LeslieSpoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

Delaware Courts Consider Work-Life Balance

Posted in Delaware Supreme Court, Uncategorized

Earlier this month, the Delaware District Court announced that with the exception of initial pleadings, all electronic transmissions of documents (including, but not limited to, motions, briefs, appendices, and discovery responses) must be completed by 6:00 p.m. Eastern Time, in order to be considered timely filed and served that day (a copy of the Court’s standing Order can be found here).  Last week, in an open letter to the bar, Chief Judge Stark emphasized that the deadline applies to every filing and service deadline in every case in the District of Delaware and that parties will not be permitted to alter the new deadline on a case-by-case basis (a copy of the letter can be found here).  This follows Chief Judge Strine’s comments at the 2014 State of the Judiciary Address concerning work-life balance and Making It Easier To Be A Lawyer And A Good Spouse And Parent (the State of the Judiciary Address can  be found here, see page 14).  To our readers, what are your thoughts on the trend towards a 6:00 filing deadline?  Is there any downside?


Seth Niederman is a partner with the law firm Fox Rothschild LLP. Seth practices in Fox Rothschild’s Wilmington, Delaware office. You can reach Seth at 302-622-4238, or sniederman@foxrothschild.com.

The Delaware Senate Confirms A New Supreme Court Justice

Posted in Delaware Supreme Court

The Delaware Supreme Court has a new member!  During a special session conducted yesterday, the Delaware Senate unanimously confirmed the appointment of James T. Vaughn, Jr.   Justice Vaughn, who served as a Superior Court judge for 15 years, fills the seat vacated by retired Justice Carolyn Berger.

Governor Markell, who appointed Justice Vaughn to the Court, issued the following statement regarding the confirmation:

Justice Vaughn is an accomplished and well-respected jurist whose integrity and commitment to justice are second to none.  I believe he will make an outstanding addition to the Supreme Court, and I thank the members of the Senate for their consideration and swift confirmation of his nomination.

Motions for Judgment on the Pleadings Get DENIED When Factual Disputes Abound

Posted in Civil Procedure, Contract law, Delaware Superior Court

In two recent Delaware Superior Court cases before different Judges, the Court denied motions for judgment on the pleadings due to the existence of a material factual dispute.  These decisions underscore the importance of ensuring that, if you are going to move for judgment on the pleadings (“MJOP”), there are no disputed material facts.

In Sheets v. Quality Assured, Inc., No. N14C-03-010-VLM (Medinilla, J.), a case involving a dispute over the enforceability of a purported settlement agreement memorialized in an email exchange, the Court denied the defendant’s MJOP, noting that “[w]hile Defendant relied solely on the email exchange between the parties, the pleadings give rise to a reasonable inference that an oral agreement to settle their dispute existed between them.”  [Opinion at 7.]  [The full opinion is available here.]  The Court further noted that “[i]f material facts concerning the existence or terms of an agreement to settle are in dispute, courts should not summarily enforce a settlement agreement absent an evidentiary hearing.”  [Id.]

Similarly, in Hedgewood v. Rommell Motorsports Delaware, Inc., No. N13C-11-192 (Wharton, J.), a case involving allegations of negligence and breach of warranty arising out of allegedly defective merchandise, the Court denied the defendant’s MJOP.  [The full opinion is available here.]  The defendant in Hedgewood argued that it was entitled to judgment on the pleadings because the executed sale documents attached to the pleadings included conspicuous disclaimer language that disposes of the plaintiff’s breach of warranty claims.  In response, the plaintiff raised a material factual dispute as to whether the disclaimer of warranties, which was executed on the same date as the sales invoice, had been executed as part of the sales contract or after the sales contract.  The Court agreed with the plaintiff, finding that material issues of fact remain.

These decisions serve as a helpful reminder to assess whether there are any material facts in dispute before filing a MJOP.  While your client may ultimately deserve to win on the merits, it might not be appropriate at the pleadings stage to try to sink the battleship.