Del. R. Ch. Ct. 5

As amended through May 31, 2024

Rule 5 - [Effective 6/14/2024] Service and Filing of Pleadings and Other Papers; Appearance and Withdrawal

(a)Service: When Required.

(1)In General. Unless these rules or the Court provides otherwise, each of the following papers must be served on every party:

(A) an order stating that service is required;

(B) a pleading filed after the original complaint;

(C) a discovery paper required to be served on a party;

(D) a written motion, brief, or letter-except one that may be heard ex parte; and

(E) a written notice, appearance, demand, or any similar paper.

(2)For a Party in Default. No service is required on a party in default. But a pleading that asserts a new claim for relief against a party in default must be served on that party under Rule 4.

(3)Following the Seizing of Property. If service of process was accomplished by seizing property, any service under this rule before the filing of an appearance must be made on the person who had custody, possession, or control of the property when it was seized.

(b)Service: How Made.

(1)Serving an Attorney. If a party is represented by an attorney, service under this rule must be made on the attorney unless a statute or the Court requires service on the party. Service on an attorney has the same effect as service made on the party represented by that attorney.

(2)Service in General. A paper is served under this rule by:

(A) serving it electronically;

(B) handing it to the person;

(C) leaving it:

(i) at the person's office with a clerk or other person in charge or, if no one is in charge, in a conspicuous place in the office; or

(ii) if the person has no office or the office is closed, at the person's dwelling or usual place of abode with someone of suitable age and discretion who resides there;

(D) mailing it to the person's last-known address- in which event service is complete upon mailing;

(E) leaving it with the Register in Chancery if the person has no known address; and

(F) delivering it by any other means that the person consented to in writing-in which event service is complete when the person making service delivers it to the agency designated to make delivery.

(c)Filing.

(1)In General. Except for discovery requests and responses or as directed by the Court, any paper after the original complaint that is required to be served must be filed with the Court.

(2)Method of Filing.

(A) Any paper required to be filed with the Court must be filed electronically, unless the Court otherwise directs. All filings must comply with any administrative procedures for electronic filing that the Chancellor establishes.

(B) A self-represented party may deliver a paper for filing to the Register in Chancery with the required filing fee. For determining timeliness, the paper is deemed filed when delivered to the Register in Chancery for filing.

(3)Discovery.

(A) The following discovery requests and any responses to them must not be filed with the Court: interrogatories; requests for documents, electronically stored information, or tangible things, or to permit entry onto land; physical or mental examinations of persons; and requests for admission.

(B) A party requesting or responding to discovery or furnishing an expert report must file with the Court a notice of service containing the following information:

(i) a certification that the paper was served;

(ii) the person on which service was made; and

(iii) the date and manner of service.

(C) If a request or response is served electronically, then the electronically served version constitutes the original for purposes of these rules. Otherwise, the party serving the request or response must retain the original and becomes its custodian.

If a Delaware attorney has appeared, then a Delaware attorney must be the custodian.

(D) If a discovery request or response is used in the proceeding-or if the Court orders-then the request or response, or a relevant portion, must be filed with the Court.

(E) Depositions need not be filed with the Court. But if used in the proceeding-or if the Court orders-then the deposition transcript, or a relevant portion, must be filed with the Court.

(4)Documents Used at Hearings or Trials. Unless otherwise ordered by the Court, a party must file:

(A) any presentation used at a hearing within 10 days after the hearing; and

(B) its testifying expert reports and demonstrative exhibits within 10 days after the conclusion of the trial or hearing where the expert testifies or the report is used.

(d)Deadlines for Electronic Service and Filing. To be served or filed on the date of its service or filing:

(1) an original complaint or a notice of appeal must be filed by midnight;

(2) any paper in a summary proceeding or an action that the Court has ordered expedited must be served or filed by midnight; and

(3) any other paper in any other action must be served or filed by 5:00 p.m.

(e)Unsuccessful Electronic Service or Filing. The Court may deem, upon satisfactory proof, that a paper was served or filed on the date of the first attempt at electronic service or filing if the first attempt was unsuccessful due to:

(1) an error in the transmission of the paper to the electronic filing system that the filer did not know about or could not resolve;

(2) a failure by the electronic filing system to process the paper;

(3) rejection by the Register in Chancery; or

(4) other technical problems.

(f)Certificate of Service. No certificate of service is required when a paper is served on a person electronically. But if a person serves a paper other than electronically, then the person must file an affidavit or attorney certification showing that and how service has been made.

(g)Submission of Documents for In Camera Review. If a person submits a document to the Court for in camera review, then the person must file a letter noting the submission.

(h)Notice by Publication. The Court may make an appropriate order when a statute, rule, or Court order requires notice of publication within the State.

(i)Appearances.

(1)Appearance of Defendants. Unless a statute provides otherwise, a defendant may appear even if process has not been served on that defendant.

(2)Appearance of Counsel.

(A) Counsel may appear by filing:

(i) notice of the appearance; or

(ii) a motion or pleading purporting to respond to the complaint.

(B) An appearance of counsel must bear the name of an individual attorney-not just a firm's name.

(C) A Delaware attorney may withdraw an appearance by notice-and without obtaining the Court's permission-if another Delaware attorney from the same law firm continues to appear as an attorney of record for the party or if the attorney's client is no longer or does not become a party. Otherwise, withdrawing an appearance requires Court approval.

(j)Electronic Filing System.

(1) No one who has been issued credentials on the Court's electronic filing system may allow another person to use those credentials for filing papers.

(2) A filing on the Court's electronic filing system must be made or authorized by a Delaware attorney or by a party, if unrepresented.

(k)Personally Identifying Information. Unless otherwise ordered by the Court, parties must not include- or must redact where inclusion is unavoidable-the following personal identifiers in papers filed with the Court:

(1) social security numbers;

(2) names of minor children;

(3) dates of birth; and

(4) complete financial account numbers.

Del. R. Ch. Ct. 5

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

Comment

In 2024, Rule 5 was revised to align its language in certain respects with Federal Rule of Civil Procedure 5 so that authorities interpreting the federal rule could be cited more easily as persuasive authority for the interpretation of Rule 5. Rule 5 was also revised in a number of ways to conform to current practice. Prior Delaware authorities interpreting the rule nevertheless remain applicable.

Among the principal changes made are the following:

Rule 5(a)(1) provides that the Court may order otherwise as to each of the types of papers that must be served, and briefs and letters were added to Rule 5(a)(1)(D). The "offer of judgment" was deleted from prior Rule 5(a) given the absence of Rule 68.

Prior Rule 5(aa)(2) was amended to provide that Delaware attorneys may withdraw with notice (and without Court approval) if another Delaware attorney from the same firm continues to represent the party.

Prior Rule 5(c) was omitted because electronic service allows for service on numerous defendants.

Rule 5(b)(2)(F) adopts the concept of consented-to service from Federal Rule 5(b)(2)(F).

Rule 5(b)(2)(A) clarifies that electronic service is a recognized method of service.

Provisions regarding electronic service and filing were incorporated from former Rule 79.1 -which has been deleted in this revision.

The obligation to "file" a deposition transcript or the relevant portion that is used in the proceeding under Rule 5(c)(3)(E) contemplates filing in accordance with Rule 5.1. It is distinct from a lodged deposition as contemplated by Rule 5.1(f)(1).

Rule 5(c)(4) adds requirements for filing of certain documents used at hearings or trials.

Prior Rule 5(e) was combined with Rule 5(c)(2) and clarified to include electronic filing.

Prior Rule 5(d)(2) was modified to conform to current practice, and prior Rules 5(d)(6)-(7) were deleted to conform to current practice.

Rule 5(f) provides that a certificate of service is not needed for a paper served electronically (except for discovery, which still requires a notice of service).

Rule 5(g) provides that when a person submits a document to the Court for in camera review (i.e., documents which will not be seen by other case participants or made publicly available), the person must also file a letter noting the submission.

Rule 5(h) provides the Court with full discretion when ordering notice of publication within the State.

Rule 5(i) addresses the use of the electronic filing system. Any person who secures credentials from the system provider has the technical ability to file papers. Rule 5(i)(1) makes clear that no one may allow any other person to use their credentials to make filings. Rule 5(i)(2) emphasizes the role of Delaware counsel. A Delaware lawyer must make or authorize every filing, thereby ensuring that the filing complies with the Court's rules. Parties who are self-represented do not have Delaware counsel. They can make filings on their own behalf and must ensure for themselves their filings comply with the rules.