Del. R. Ch. Ct. 4

As amended through May 31, 2024

Rule 4 - [Effective 6/14/2024] Process

(a)Form of Summons. The summons must:

(1) name the Court and the parties;

(2) be directed to the defendant;

(3) state the name and address of the plaintiff or-if represented-the plaintiff's attorney;

(4) state the time within which the defendant must appear and defend;

(5) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint;

(6) be signed by the Register in Chancery; and

(7) bear the Court's seal.

(b)Issuance of Summons. On or after filing the complaint, the plaintiff may present a summons to the Register in Chancery for signature and seal. If the summons is properly completed, the Register in Chancery will sign it, seal it, and issue it to the plaintiff for service on the defendant. The Register in Chancery will furnish the person making service with sufficient copies. A summons-or a copy of the summons if addressed to multiple defendants-must be issued for each defendant to be served.

(c)Service of Process.

(1) Service of Process. Service of process means service of both the summons and the complaint. The summons and complaint must be served together.

(2) Any person who is at least 18 years old and not a party may serve process. At the plaintiff's request, the Court may order that service be made by the sheriff or by a person specially appointed by the Court for that purpose. All persons-except the sheriff-wishing to serve process in person for the Court's matters must be registered with the Register in Chancery.

(d)Personal Service. Service of process may be made on:

(1) An individual other than a person without capacity, by:

(A) delivering process to the individual personally;

(B) leaving process at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or

(C) delivering process to an agent authorized by appointment or by law to receive service of process;

(2) A person without capacity, by serving process in the manner prescribed by law;

(3) A Delaware or foreign entity-with or without separate legal existence-by serving process in the manner provided by statute; or

(4) Any defendant, pursuant to a Court order directing another or additional mode of service.

(e)Service Under a Consent Statute.

(1) This rule applies when serving:

(A) a partner or liquidating trustee under 6 Del. C. § 15-114;

(B) a partner or liquidating trustee under 6 Del. C. § 17-109;

(C) a manager or liquidating trustee under 6 Del. C. § 18-109; and

(D) a director, trustee, member of the governing body, or officer, under 10 Del. C. § 3114.

(2) The plaintiff must file a statement signed by the party or its attorney providing:

(A) the addresses required by the consent statute;

(B) the registered agent and registered address of the entity;

(C) the date of service on the entity; and

(D) if any information is unknown, a description of the diligent efforts made to ascertain it.

(3) A summons for service under a consent statute must identify the consent statute and append a copy of the statute.

(4) Within the time required by the consent statute, the Register in Chancery must mail a copy of the summons as prescribed by the statute. Not later than three days after the mailing is completed, the Register in Chancery will note on the docket when the mailing took place.

(f)Service under 10 Del. C. § 365.

(1) The plaintiff must file an affidavit stating that:

(A) a defendant is out of the State or cannot be found to be served with process; and

(B) there is just ground to believe the defendant is intentionally avoiding service.

(2) The plaintiff must obtain a Court order providing for:

(A) the defendant to appear by a specific date; and

(B) publication of the order in the manner directed by the Court, but not less than once per week for three consecutive weeks.

(3) The Register in Chancery will cause the order to be published as directed by the Court.

(4) Service is accomplished upon compliance with the Court order.

(g)Service under 10 Del. C. § 366.

(1) The plaintiff must file an affidavit:

(A) stating that a defendant is a nonresident;

(B) providing a last-known address or stating that the last-known address is unknown and cannot be ascertained after reasonable diligence;

(C) providing a reasonable description of property to be sequestered, including the estimated value of the property;

(D) describing the nature of the defendant's title or interest in the property and-if that title or interest is beneficial in nature-the name of the holder of legal title;

(E) identifying the source of the information; and

(F) providing reasons for omitting any information.

(2) The plaintiff must obtain a Court order:

(A) providing for the defendant to appear by a specific date;

(B) requiring publication of the order in the manner directed by the Court, but not less than once per week for three consecutive weeks;

(C) specifying sufficient security;

(D) appointing a sequestrator; and

(E) specifying the property that the sequestrator must seize if the defendant fails to appear and the plaintiff posts sufficient security.

(3) The Register in Chancery will:

(A) cause the order to be published as directed by the Court; and

(B) send the order by registered or certified mail if a last-known address has been provided.

(4) If the defendant fails to appear and the plaintiff posts the required security, then the sequestrator must:

(A) serve a certified copy of the Court's order on the person with possession, custody, or control of the property;

(B) seize the property; and

(C) report to the Court within 20 days after the seizure-or different time if the Court directs- regarding the property sequestered, including the date and time of the property's seizure.

(5) The sequestrator may seize property that is, or appears to be, not susceptible of physical seizure by serving on the person with possession, custody, or control of the property a writing directing the person to:

(A) retain the property until the Court's further order or notice from the sequestrator;

(B) promptly notate that the property is sequestered by Court's order; and

(C) within 10 days after service of the order, deliver an affidavit:

(i) providing a reasonable description of property being sequestered, including the estimated value of the property;

(ii) describing the nature of the defendant's title or interest in the property;

(iii) identifying the name and address of the beneficial owner if the defendant only holds legal title or the legal owner if the defendant is the beneficial owner; and

(iv) providing the reasons for omitting any information.

(6) The Court may modify these procedures except as required by statute.

(7) Service is accomplished upon compliance with the Court order.

(h)Other Means of Service. Whenever a statute, rule, agreement, or Court order provides for other means of serving process, service may be made according to the statute, rule, agreement, or order.

(i)Proof of Service. Proof of service of process must be filed promptly with the Register in Chancery. Except for service by the sheriff, service must be proven by affidavit. Failure to prove service does not affect the validity of service.

(j)Amendment. The Court may allow the amending of any process or proof of service unless it would clearly cause material prejudice to the substantial rights of a defendant.

Del. R. Ch. Ct. 4

Amended May 31, 2024, effective 6/14/2024.

Comment

In 2024, Rule 4 was revised to align its language in certain respects with Federal Rule of Civil Procedure 4 and to conform Rule 4 more closely to current practice.

Except as noted, no substantive change in the interpretation of the rule was intended, and prior Delaware authorities interpreting the rule remain applicable.

The revision makes the following changes to conform Rule 4 more closely to current practice:

It clarifies that process means service of both the summons and the complaint.

It clarifies the procedures for service by publication and service by publication and seizure.

Prior Rule 4(dc) was modified significantly to address generally service under 6 Del. C. § 15-114, 6 Del. C. § 17109, 6 Del. C. § 18-109, and 10 Del. C. § 3114. The only substantive changes intended were to rely expressly on the language of the pertinent statute and to avoid any mismatch between the provisions of the Rule and the provisions of the pertinent statute.

Rule 4(h) was added to clarify that service may be made by any authorized means-in particular, 10 Del. C. § 3104(d).

Rule 4(i) was revised slightly to conform to practice.