Delaware Superior Court

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.



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

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:

 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. 



On May 20, 2016, the Vincent Bifferato Trial Practice Forum will offer a rare chance for practitioners to talk to Judges from the Superior Court.  Admission to the forum is free and attendees will have the opportunity to hear what issues and concerns are most on the minds of the Judges.  The following Judges will be on the panel:

The panel will be moderated by David White, Esquire., and held in the NCC Courthouse, Jury Assembly Room.


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

The Delaware Judiciary recently issued its 2015 Annual Report. The Report includes a message from Chief Justice Strine, as well messages from the Chancellor, President or Chief Judge from each Court.  The Report also contains a fiscal overview and a summary of 2015 legislation that impacts the Judiciary.

In addition, the Judiciary published Statistical Information for 2015. The Statistical Information includes,

  • The Average time from filing to disposition of appeals to the Supreme Court;
  • The Average time from submission to disposition of appeals to the Supreme Court; and
  • Caseload breakdown and disposition of matters filed in each Court with comparisons to previous years.

The 2015 Annual Report and Reports from prior years can be found on the Court’s website.


Leslie Spoltore is an attorney 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

Superior Court Administrative Directive 2016-1, provides the Court’s civil and criminal judicial assignments for 2016 (a copy of Administrative Directive 2016-1 can be found here).  This information is important for litigants assessing when their case might be scheduled for trial–criminal matters will receive scheduling preference over  a Judge’s civil docket.  In addition, the Directive establishes the administrative judges for each county as follows:

New Castle County

Civil Administrative Judge – Judge Davis

Criminal Administrative Judge – Judge Carpenter

Asbestos Docket – Judge Medinilla and Judge Scott

Kent County

Civil Administrative Judge – Judge Young

Criminal Administrative Judge – Judge Clark

Sussex County

Civil Administrative Judge – Judge Stokes

Criminal Administrative Judge – Judge Bradley


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


President Judge Jurden recently issued Administrative Directive 2015-7, which names Judge Paul R. Wallace to the Complex Commercial Litigation Division.  Judge Wallace will assume Judge Silverman’s CCLD caseload and succeed President Judge Jurden on the Panel.  The Panel now consists of:

  • Judge William C. Carpenter, Jr.
  • Judge Mary M. Johnston
  • Judge Eric M. Davis
  • Judge Paul R. Wallace

Judge Wallace’s civil case management preferences can be found here.  See our previous post on the CCLD here.


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

On December 3, 2015, in the medical malpractice case of Estate of Robert R. Rochester, Jr. v. Reyes, M.D., et al., N13C-07-371-JAP, the Delaware Superior Court (Clark, J.) issued a letter opinion which, among other things, denied the Defendants’ motion in limine seeking to preclude the Plaintiff from admitting out-of-court statements allegedly made by Christiana Care Health System staff instructing the decedent (Robert Rochester) to stop taking his Coumadin regimen.  The Court ruled that such statements were not being offered to prove the truth of the matter asserted–i.e., they were not “hearsay.”  Rather, the statements were being offered for the non-hearsay purpose of proving the effect of the statements on the listener, Robert Rochester.  The full decision is available here.

In this case, the Plaintiffs allege that Defendants (Dr. Reyes and Delaware Medical Group) were negligent in treating the decedent Robert Rochester.  Specifically, Plaintiffs allege that Dr. Reyes failed to appropriately treat the decedent’s hypercoagulation condition, which ultimately caused his death.  The decedent had been admitted to the emergency room to treat a severe dog bite.  During that visit, two separate healthcare professionals allegedly instructed the decedent to stop taking his prescribed Coumadin until a follow up appointment with Dr. Reyes.  Years earlier, the decedent had been prescribed Coumadin due to a pulmonary embolism.  Several days after allegedly being told to stop taking his Coumadin, the decedent suffered another pulmonary embolism and died.

Plaintiffs sought to introduce the healthcare providers’ statements to the decedent to stop taking his Coumadin.  Defendants argued that such statements are inadmissible hearsay because Plaintiffs were merely seeking to offer these out-of-court statements to prove their truth–i.e., to prove that the healthcare providers did in fact tell the decedent to stop taking his Coumadin.  Plaintiffs countered that the statements were in fact being introduced for a different purpose–to prove their effect on the listener.  In other words, Plaintiffs sought to introduce the statements to prove that the decedent likely stopped taking his Coumadin in response to the healthcare providers’ statements.

Agreeing with the Plaintiffs’ arguments, the Court overruled the Defendants’ hearsay objection.  In particular, the Court made clear that Delaware law does not require “independent corroborating evidence as a prerequisite to admission of nonhearsay.”  (Opinion at 4).  In other words, it is not necessary for the Plaintiffs to produce additional evidence, other than the healthcare workers’ statements themselves, that demonstrates that the decedent had stopped taking his Coumadin.  The Court also acknowledged, as Defendants argued, that “the statements at issue could also tend to prove the truth of the matter asserted.”  (Opinion at 5).  However, the Court noted, “nonhearsay statements involving effect on the listener ‘frequently have an impermissible hearsay aspect as well as the permissible nonhearsay aspect.'”  (Id., quoting McCormick on Evidence, Section 249 (3rd Ed.)).  Thus, because the statements were being introduced for a clear nonhearsay purpose and were highly relevant to the issues in the case, the Court allowed them to be admitted into evidence despite the fact that they also had some hearsay aspects to them.

This case provides an interesting analysis of the “effect on the listener” rule and how it interplays with the general rule against hearsay.  Although not discussed in the opinion, the statements could also be admissible on a separate ground: they are potentially admissions against the Defendants’ interest.


The Superior Court recently issued Administrative Directive 2015-5, which modifies the caption designation for civil and criminal filings.  The Directive provides:

WHEREAS, the Superior Court of the State of Delaware is a Court with statewide jurisdiction;

WHEREAS, the historic designation of counties in pleadings filed with the Court is surplusage and is not necessary,


(1) Effective January 1, 2016, all pleadings filed in this Court, in both criminal and civil matters, should only include the following designation in the caption:

“In the Superior Court of the State of Delaware”

(2) Pleadings filed after January 1, 2016 should not include a county designation.


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

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 Delaware Courts announced that they will be implementing fee increases.  The increases, which become effective on September 1, 2015, are as follows:

Supreme Court— Filing fee ($50 increase: $450 – $500)

Chancery Court — Docketing fee = $.75 increase ($1 – $1.75)

Superior Court — Additional docket fee ($20 increase: $225 – $245)

Superior Court— Civil filing (complaints) fee ($15 increase: $175 – $190)

Superior Court — Writs/Foreign Judgments ($5 increase: $50 – $55)

Family Court — Divorce filing fee ($10 increase: $150 – $160)

Family Court — Ancillary matters filing fee ($10 increase: $75 to $85)

Family Court — Civil filing — custody, guardianship, visitation & minor to marry ($5 increase: $80 – $85)

Family Court — Civil filing — all others fee ($10 increase: $75 – $85)

Family Court — Review of Commissioner’s Order ($10 increase: $100 – $110)

Family Court — Rule 60(b) motions ($10 increase: $75 – $85)

Court of Common Pleas — Criminal jury trial fee ($5 increase: $125 – $130)

Court of Common Pleas — Criminal non-jury trial fee ($2 increase: $50 – $52)

Justice of the Peace Court— Civil debt action filing fee ($5 increase: $30 – $35)

Justice of the Peace Court — Alias summons fee ($5 increase: $15 – $20)

Justice of the Peace Court — Wage attachment fee (execution)($5 increase: $25 – $30)

Justice of the Peace Court — Levy fee (execution)($5 increase: $25 – $30)

Justice of the Peace Court — Subpoena ($5 increase: $5 – $10)

Justice of the Peace Court — Motions ($5 increase: $10 – $15)

Justice of the Peace Court — Garagekeepers liens ($15 increase: $20 – $35)



leslie_SpoltoreLeslie 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