The Superior Court recently announced amendments to Superior Court Civil Rule 107 regarding briefs.  The amendments include changes to Rule 107(b) and (h), as well as the adoption of Rule 107(j) and Form 48. Of note, the amendment to Rule 107 (h) redefines how the Court measures the length of briefs. Rather than imposing a page limit, the Rule now provides a type-volume limitation.

(1) Type-volume limitation. Without leave of Court, an opening or answering brief shall not exceed 8,000 words and no reply brief shall exceed 5,500 words, exclusive of appendix. In the calculation of words, the material required by paragraphs (e)(1) and (2) of this rule is excluded and the material required by paragraphs (e)(3) through (5) of this rule is included.

The amendments, which become effective July 15, 2017, may be read in their entirety here.

 

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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 SealFamily Court recently announced amendments to Rules 5, 72, and 302 of the Family Court Rules of Civil Procedure. The amendments, which become effective January 9, 2017, may be read in their entirety here. The Court described the amendments as follows:

Rule 5 governing the service of process and filing of pleadings in Family Court has been amended to reflect a change in the law regarding the certified mail requirement for retroactive modification of child support obligations. The prior law allowed for a modification of a child support obligation to be retroactive only to the date the modification petition had been delivered to the responding party by certified mail. Otherwise, any modification could only be effective the date of the hearing or mediation conference. The new statute eliminates the certified mail requirement and allows modification back to the regular mailing date (plus 3 days) to the responding party. Rule 5 is being changed to remove reference to certified mail as a prerequisite to retroactivity.

Rule 72 governing administrative appeals from the child support agency has been amended to recognize the change in name of the Division of Child Support Enforcement (DCSE) to the Division of Child Support Services (DCSS).

Rule 302 governing income attachments for child support obligations has been amended to reflect a change in the law in those cases where there is a past due child support balance and no payment has been received for at least one month. The previous law allowed DCSS to impose a payment on past due support of 10% of the current support, or at least $5, if a person had not made a payment for 90 days. The new law increased the allowable payment to 20% of the current support, or at least $20, if a person has not made a payment within one calendar month. The change from 90 days to one calendar month reflects the change in child support accounting practices over the years from weekly to monthly, and a desire for a more aggressive remedy that can be imposed without requiring the parties to appear in court.

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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.

 

The consequences of missing the statute of limitations – even by only one day – can be dire, as illustrated by the recent Delaware Superior Court case of Vicks v. Justison Landing Apartments, C.A. No. N16C-01-063-ALR (Rocanelli, J.) (Order, April 28, 2016).  The full opinion can be read here:  http://courts.delaware.gov/opinions/

 The plaintiff, a tenant in an apartment complex owned and managed by the defendant, filed suit on January 11, 2016 for physical injuries she sustained on January 10, 2014 when she slipped and fell on ice outside the apartments.  Defendants moved to dismiss based on the two-year statute of limitations for bringing personal injury claims.  The two-year statute of limitations is set forth in Section 8119, Title 10 of the Delaware Code: “No action for the recovery of damages upon a claim for alleged personal injuries shall be brought after the expiration of 2 years from the date upon which it is claimed that such alleged injuries were sustained[.]”

The Court granted the defendant’s motion to dismiss, concluding that “although plaintiff’s complaint was filed only one day after the statute of limitations, it was nevertheless filed outside the applicable statute of limitations and is untimely.”  The Court further noted that:

 “While the Court is cognizant of the public policy favoring resolution of cases on their merits, and that dismissing a claim that has been filed only one day after the statute of limitations may be harsh, the Court is satisfied that even if this matter were to proceed, Plaintiff’s claims have no merit under the Continuing Storm Doctrine.  Specifically, at the time that Plaintiff suffered her alleged injuries, Defendant did not owe Plaintiff any duty to remove snow or ice at the Apartments because a winter storm was ongoing.  Accordingly, because Plaintiff’s claims are time-barred and Plaintiff cannot succeed on the merits of her claims, Defendant’s motion to dismiss with prejudice must be granted.”

 Thus, it appears that the Court dismissed the case for two reasons: (1) because the plaintiff’s claim was time-barred under the statute of limitations; and (2) because the Plaintiff would not have been able to prevail anyway, due to the Continuing Storm Doctrine.

Even though the Court appeared to give a second rationale for dismissing the case, the decision still illustrates the importance of filing your complaint within the applicable statute of limitations. 

 

 

There is always a tension between requiring a third party to produce relevant discovery and protecting that third party against “unduly burdensome” discovery requests.  By order dated September 3, 2015, Commissioner Bradley V. Manning of the Delaware Superior Court struck such a balance in granting-in-part and denying-in-part a Motion to Compel and related Motion to Quash.  See September 3, 2015 Order in Gemalto, Inc. v. Merchant Customer Exchanges, LLC, C.A. No. N15M-07-052 (Del. Super. Ct.), available here.

In an underlying breach of contract dispute between Gemalto, Inc. and Merchant Customer Exchanges, LLC (“MCX”) pending before the American Arbitration Association (“AAA”), Gemalto sought discovery from MCX regarding MCX’s rationale for terminating its agreement with Gemalto and subsequently hiring another company, Paydiant, to finish the job.  Gemalto also sought similar discovery from Paydiant, a non-party, and served a subpoena duces tecum on Paydiant’s registered agent in Delaware.  Dissatisfied with Paydiant’s response to the subpoena, Gemalto filed a Motion to Compel in the Delaware Superior Court.  Paydiant then filed a Motion to Quash the subpoena.

Gemalto’s subpoena requested documents relating to ten topics, including documents regarding the reason why MCX terminated the contract with Gemalto.  As Commissioner Manning noted, such documents would logically be in the possession of MCX.  Commissioner Manning further noted the following:  “As a non-party to the litigation, requiring Paydiant to produce any discovery is burdensome; whether it is ‘unduly burdensome’ is a question for another day.  In any event, as a non-party, Paydiant should not be placed in a position of providing discovery that is duplicative, cumulative or could more conveniently and reasonably be located in the possession of its creator—MCX.”  The Court, however, “recognize[d] that in the course of soliciting Paydiant to take over the software development from Gemalto, MCX may have communicated information concerning the reason for Gemalto’s termination to Paydiant; information relevant to Gemalto’s claim.”

Accordingly, Commissioner Manning ordered Paydiant to produce documents relating to three of the ten subpoena topics relating specifically to the Gemalto-MCX contract and MCX’s rationale for terminating the contract.  Commissioner Manning specifically excluded trade secrets and commercially sensitive information from his Order, stating that such information need not be produced.           

This Order provides a good example of the balancing act a Court must perform in connection with a subpoena for documents.  The requesting party’s right to the information must be carefully balanced against the burdensomeness to the third party of complying with the subpoena.

 

The Family Court has amended the Rules of Civil Procedure.  Specifically, the Court has amended Rules 200 – 222 and 500 – 508.  Rules 200 – 222 relate to child dependency, neglect and or abuse proceedings; and Rules 500 – 508 related to the Delaware Child Support Formula.  The amendments became effective on April 20, 2015.

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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.

The Family Court Rules of Civil Procedure are unique in many respects.  One distinctive feature is the absence of any requirement that members of the Delaware Bar maintain an office in this State for the practice of law in order to appear before the Family Court.  That, however, is about to change.  The Delaware Supreme Court recently approved an amendment to Family Court Civil Procedure Rule 90(a).  The Rule as amended provides:

(a) Admission. – Except as provided in paragraph (b) of this Rule, only an active member of the Bar of the Supreme Court of this State who maintains an office in Delaware for the practice of law as defined by Delaware Supreme Court Rule 12(d) shall be entitled to practice as an attorney in this Court.

The amendment, which was provided to the Bar today, becomes effective in 30 days.

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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.

On March 11, 2015, the following important bulletin regarding the e-filing of Pro Hac Vice Motions was issued by File & Serve XPress:

Filers in the Delaware Court of Chancery Civil Action, Delaware Superior Courts, and Delaware Supreme Courts will be required to select the document type “Proposed Order – Pro Hac Vice” when e-Filing their Pro Hac Vice Motions and Proposed Orders. The authorizer of the transactions should be the local Delaware counsel (as is required under DE Rules of Procedure), and the first words of the Document Title should be the Pro Hac Admittee’s name, last name, first name, followed by a colon, then the document title as shown in quotations below (omit quotations and brackets).

For Example: “Smith, John S.: Proposed Order [document title]…”

 

 

Mediation, it is a process and concept with which most people are familiar. The Court rules define it as follows:

Mediation is a process by which a mediator facilitates the parties in reaching a mutually acceptable resolution of a controversy. It includes all contacts between the mediator and any party or parties until a resolution is agreed to, the parties discharge the mediator, or the mediator determines that the parties cannot agree.

See Superior Court Civil Procedure Rule 16(f)(ii) Court of Common Pleas Civil Procedure Rule 16(a)(9) and Family Court Civil Procedure Rule 16.1(e)(2). In Family Court, however, the mandatory mediation of child support and custody matters conducted by Court mediators are governed by a separate Rule and are handled a bit differently.

Child Support

Child support matters are scheduled for mediation with a Family Court mediator (unless one of the parties has committed an act of domestic violence or if there is a no contact order). If the parties cannot reach an agreement then the mediator has the authority to recommend a resolution which will become a temporary court order. Specifically, Family Court Civil Procedure Rule 16(a) allows parties to proceed immediately to a hearing if they cannot agree at mediation. However, if they elect not to proceed to a hearing immediately, Rule 16 provides:

If an evidentiary hearing is not held. . . and if the matter is not resolved at the mediation conference by a permanent, temporary, or interim agreement of the parties, then, absent good reason otherwise to be stated on the mediator’s report, the mediator shall prepare an interim order based upon the documentation provided and the Delaware Child Support Formula which upon review and adjustment by the Court shall issue promptly and may include an order for such discovery as the Court deems appropriate. (emphasis added)

Custody

Custody matters are also referred to mediation in the first instance unless there are issues of domestic violence.  With regard to custody mediation Rule 16 provides,

If the matter is not resolved at the mediation conference by a permanent, temporary or interim agreement of the parties, the mediator shall recommend an interim contact schedule based on information received at the mediation conference and in the best interest of the child(ren).

The mediator’s recommendation shall be reviewed by a Judge and if the recommendation is approved, it shall become an interim order of contact, without prejudice to either party, pending a full hearing. In the event that the mediator’s recommendation is not approved, the Court shall enter an appropriate interim order. (emphasis added)

In each instance the mediator is obligated to make a recommendation and to prepare a form of order based on his or her assessment of the facts of the case. These recommended orders are frequently signed by the Court.

Practitioners and litigants often debate the pros and cons of this system. The benefit of the process is that it allows the Court to issue temporary, interim orders quickly.  This gives families a framework for support and/or custody until they can have a hearing before a judicial officer.  This structure can be invaluable to families in transition.  However, because the process may result in the imposition of an order over the objection of one or both of the parties, litigants and practitioners also have some concerns.  For example, concerns arise that: (1) no witnesses are presented at mediation so an order results from what may be limited information; (2) there is no record of the mediation so the judicial officer does not have an opportunity to hear from the parties and to gauge credibility for himself or herself prior to signing a recommended order;  (3) it may be difficult for parties to feel free to negotiate when the neutral is also the person who will be drafting the interim resolution; and (4) the mediator’s notes remain in the file and as a result confidential settlement discussions are contained in the Court file.  For better or worse, this is the system that is in place and recognizing that it is not a typical mediation process can be helpful.

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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.

In Damiani v. Gill, C.A. No. N14C-05-186-ALR (Rocanelli, J.) (Order dated January 26, 2015), the Delaware Superior Court addressed Plaintiff Pablo Damiani’s request to have that Court appoint counsel to represent him.  The Court began by noting the general principle that “[s]elf represented litigants in civil proceedings have no legal or equitable right to appointed counsel.”  Id. at 1.  However, the Court did not immediately reject.

In analyzing the request, the Court applied a six pronged test previously set out by the Third Circuit Court of Appeals in Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002) to determine whether appointment was necessary or appropriate.  Applying this test, the Court concluded appointment was neither because:

(i) plaintiff has demonstrated the ability to present his own case; (ii) plaintiff is in the best position to develop the facts on his own behalf; (iii) significant factual investigation is not necessary as plaintiff is likely is own main witness; (iv) the case is likely to turn on credibility determinations; (v) expert testimony will not be required; and (vi) plaintiff’s inability to afford counsel is not significant under the circumstances presented.

The case provides concise insight into the test for and analysis of a request for the appointment of counsel in Superior Court civil proceedings.

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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.

 

In Johnson v. Student Funding Group and Sergio Sotolongo, C.A. No. N14C-08-098-ALR (Rocanelli, J.) (Order dated January 26, 2015), the Delaware Superior Court provided a comprehensive and useful overview of the legal standard for converting a motion to dismiss into a motion for summary judgment when the motion relies on information outside the pleadings.  The defendants in this breach of contract case had attached two documents to their Motion to Dismiss for Failure to State a Claim: (1) an agreement (“EEA”) that was not attached to the plaintiff’s Complaint, but was incorporated by reference into the main agreement at issue (the “DCA,” which was attached to the plaintiff’s Complaint); and (2) an Affidavit from defendant Sergio Sotolongo.  Thus, the Court was required to decide whether to convert the motion to dismiss into a motion for summary judgment.

The Court began by reciting the familiar legal standard:

  • “Generally, the Court will not consider matters outside the pleadings when considering a motion to dismiss.  However, if a party presents extraneous documents in support of its motion to dismiss, it is within the Court’s discretion to include or exclude the extraneous documents from its consideration.  If the Court excludes the extraneous documents from its consideration, the motion to dismiss is preserved.  On the other hand, if the Court considers the extraneous documents, the Court shall treat the motion to dismiss as a motion for summary judgment, unless an exception applies.”
  • “The first exception is when the document is integral to the complaint…[t]he second exception is when the document is not being relied upon to prove the truth of its contents.”

Next, the Court analyzed the two documents that the defendants attached to their motion to dismiss:

  • “Here, consideration of the extraneous documents requires conversion of the motion to dismiss to a motion for summary judgment because neither exception applies.”
  • “While Plaintiff’s complaint does incorporate the EEA by reference, the Court finds that the EEA is not integral to Plaintiff’s claim because Plaintiff’s claim alleges breach of the DCA, the contract succeeding the terminated EEA.”
  • “Likewise, Defendants submitted an affidavit of Defendant Sergio Sotolongo, seeking to verify the contents and truth of the EEA.”

The Court then decided, in its discretion, to exclude the documents from its consideration of Defendants’ motion to dismiss, stating that “[i]f Defendants want the Court to consider the extraneous documents, Defendants may file a motion for summary judgment.”

Finally, the Court denied the defendants’ motion to dismiss for failure to state a claim, concluding that the plaintiff’s Complaint is “well-pleaded” and states a claim upon which relief may be granted.

In sum, this case provides a useful overview of the legal standard for converting a motion to dismiss into a motion for summary judgment, and how that standard applies.