TITLE 10

Courts and Judicial Procedure

Procedure

CHAPTER 31. PROCESS; COMMENCEMENT OF ACTIONS


Every writ used for the commencement of an action shall bear date on the day it was issued and shall be returnable on the day fixed by the rules of the court issuing the writ, or, if there be no such rule, on the day fixed by statute.

Code 1852, § 2237; Code 1915, § 4085; Code 1935, § 4576; 10 Del. C. 1953, § 3101.;

No prothonotary, Register in Chancery, clerk of any court, or justice of the peace in this State shall be compelled to issue any writ or other original process in a civil action, or any writ of execution on any judgment, in favor of any person not a resident of this State, unless the costs of the issuing of such writ are first paid or tendered to such officer; nor shall any sheriff, coroner, or constable be compelled to execute any such writ until the legal fees for such services are first paid or tendered to such officer by the plaintiff in such action, his or her attorney or agent; any law, custom or usage of this State to the contrary notwithstanding.

12 Del. Laws, c. 266; Code 1915, § 4086; Code 1935, § 4577; 10 Del. C. 1953, § 3102; 70 Del. Laws, c. 186, § 1.;

(a) A writ of summons may be served on the defendant in the manner prescribed by any rule of court, or by stating the substance of it to the defendant personally, or by leaving a copy of it at the defendant's usual place of abode, in the presence of some adult person, 6 days before the return thereof.

(b) The officer serving a summons shall state the officer's return the time and manner of service.

(c) No service of summons upon the State, or upon any administrative office, agency, department, board or commission of the state government, or upon any officer of the state government concerning any matter arising in connection with the exercise of his or her official powers or duties, shall be complete until such service is made upon the person of the Attorney General or upon the person of the State Solicitor or upon the person of the Chief Deputy Attorney General.

Code 1852, §§ 2238, 2239; Code 1915, § 4087; Code 1935, § 4578; 10 Del. C. 1953, § 3103; 59 Del. Laws, c. 159, § 1; 70 Del. Laws, c. 186, § 1.;

(a) The term "person" in this section includes any natural person, association, partnership or corporation.

(b) The following acts constitute legal presence within the State. Any person who commits any of the acts hereinafter enumerated thereby submits to the jurisdiction of the Delaware courts.

(c) As to a cause of action brought by any person arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident, or a personal representative, who in person or through an agent:

(1) Transacts any business or performs any character of work or service in the State;

(2) Contracts to supply services or things in this State;

(3) Causes tortious injury in the State by an act or omission in this State;

(4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if the person regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from services, or things used or consumed in the State;

(5) Has an interest in, uses or possesses real property in the State; or

(6) Contracts to insure or act as surety for, or on, any person, property, risk, contract, obligation or agreement located, executed or to be performed within the State at the time the contract is made, unless the parties otherwise provide in writing.

(d) When the law of this State authorizes service of process outside the State, the service, when reasonably calculated to give actual notice, may be made:

(1) By personal delivery in the manner prescribed for service within this State.

(2) In the manner provided or prescribed by the law of the place in which the service is made for service in that place in an action in any of its courts of general jurisdiction.

(3) By any form of mail addressed to the person to be served and requiring a signed receipt.

(4) As directed by a court.

(e) Proof of service outside this State may be made by affidavit of the individual who made the service or in the manner provided or prescribed by the law of this State, the order pursuant to which the service is made, or the law of the place in which the service is made for proof of service in an action in any of its courts of general jurisdiction. When service is made by mail, proof of service shall include a receipt signed by the addressee or other evidence of personal delivery to the addressee satisfactory to the court.

(f) Service outside this State may be made by an individual permitted to make service of process under the law of this State or under the law of the place in which the service is made or who is designated by a court of this State.

(g) If service is made pursuant to paragraph (d)(3) of this section, the time in which defendant shall serve an answer shall be computed from the date of the mailing which is the subject of the return receipt or other official proof of delivery or the notation of refusal of delivery; provided, however, that the court in which the action is pending may, at any time before or after the expiration of the prescribed time for answering, order such continuances as may be necessary to afford the defendant therein reasonable opportunity to defend the action.

(h)(1) Proof of the defendant's nonresidence and of the mailing and receipt or refusal of the notice shall be made in such manner as the court, by rule or otherwise, shall direct.

(2) The return receipt or other official proof of delivery shall constitute presumptive evidence that the notice mailed was received by the defendant or the defendant's agent; and the notation of refusal shall constitute presumptive evidence that the refusal was by the defendant or the defendant's agent.

(i) Nothing herein contained limits or effects the rights to serve process in any other manner now or hereafter provided by law. This section is an extension of and not a limitation upon the rights otherwise existing of service of legal process upon nonresidents.

(j) When jurisdiction over a person is based solely upon this section, only a cause of action arising from any act enumerated in this section may be asserted against the person.

(k) This section does not invalidate any other section of the Code that provides for service of summons on nonresidents. This section applies only to the extent that the other statutes that already grant personal jurisdiction over nonresidents do not cover any of the acts enumerated in this section.

(l) In any cause of action arising from any of the acts enumerated in this section, the court may provide for a stay or dismissal of action if the court finds, in the interest of justice, that the action should be heard in another forum.

11 Del. Laws, c. 192; Code 1915, § 4088; Code 1935, § 4579; 10 Del. C. 1953, § 3104; 61 Del. Laws, c. 471, § 1; 64 Del. Laws, c. 52, § 1; 70 Del. Laws, c. 186, § 1; 76 Del. Laws, c. 329, § 1.;

In every case in which a writ of scire facias may by law be issued, it shall be served and returned in the same manner as is provided in case of an original summons.

Code 1852, § 2241(a); Code 1915, § 4090; Code 1935, § 4581; 10 Del. C. 1953, § 3105.;

A writ of capias ad respondendum is served by arresting the defendant, but the defendant shall be discharged upon giving sufficient bail.

Code 1852, § 2242; Code 1915, § 4091; Code 1935, § 4582; 10 Del. C. 1953, § 3106; 70 Del. Laws, c. 186, § 1.;

It shall not be lawful, at the suit of any nonresident, to arrest and hold to bail on mesne process any person who is a nonresident of this State at the time of issuing such process against such person, for any debt contracted without the limits of this State. If any such nonresident is so arrested, he or she may apply by petition in writing to any judge of this State, setting forth his or her residence and the state in which the debt was contracted, and the judge, on the production of satisfactory proof that the plaintiff was a nonresident at the time of issuing the process, and also that the petitioner is a nonresident of this State, and that the debt on which the petitioner was arrested was not contracted in this State, shall discharge the petitioner from custody. This section shall not be construed as affecting in any degree the law of attachment.

12 Del. Laws, c. 211; Code 1915, § 4092; Code 1935, § 4583; 10 Del. C. 1953, § 3107; 70 Del. Laws, c. 186, § 1.;

(a) No writ of capias ad respondendum shall be issued against any citizen of this State, in any civil action, unless the plaintiff therein, or if there be more than 1, some 1 or more of the plaintiffs, has made a written affidavit, and filed the same in the office of the prothonotary of the Superior Court of the county out of which the writ is to issue, stating that, to the best of his or her belief, the defendant has absconded, or is about to abscond from the place of the defendant's usual abode; or that the defendant is justly indebted to the plaintiff, in a sum exceeding $50, and that he or she verily believes the defendant has secreted, conveyed away, assigned, settled or disposed of, either money, goods, chattels, stock, securities for money, or other personal estate or real estate of the value of more than $100, with intent to defraud his or her creditors, and shall, moreover, in such affidavit, specify and set forth the supposed fraudulent transactions. This section shall not apply where the action is for libel, slander or injury to the person or property, accompanied by violence, if any affidavit of the cause of action is filed with the praecipe.

(b) The Superior Court, upon the petition of any person arrested and upon reasonable notice in writing to the party in whose favor the process issued, or such party's attorney or agent, shall investigate the allegations contained in any affidavit made and filed under this section, that the defendant has absconded or is about to abscond from the place of his or her usual abode, and the allegations and specifications of fraud contained in such affidavit. If, upon such investigation, the Court or Judge considers that there was not or is not sufficient cause for the arrest, the person arrested shall be discharged, and the plaintiff shall pay the costs. The Court or Judge may make and enforce all necessary and proper orders in the premises.

15 Del. Laws, c. 180; 16 Del. Laws, c. 530; Code 1915, § 4093; Code 1935, § 4584; 10 Del. C. 1953, § 3108; 70 Del. Laws, c. 186, § 1.;

Any persons willing to become parties to an amicable action may enter into an agreement in writing for that purpose, either personally or by their agents or attorneys. On filing such agreement with the prothonotary, the prothonotary shall docket the action in the Superior Court, and from the time of such entry the action shall be deemed to be depending in the same manner as if the defendant had appeared to a summons issued against him or her by the plaintiff.

Code 1852, § 2243; Code 1915, § 4094; Code 1935, § 4585; 10 Del. C. 1953, § 3109; 70 Del. Laws, c. 186, § 1.;

Actions may be begun by attachment as provided in Chapter 35 of this title.

Code 1915, § 4097; Code 1935, § 4588; 10 Del. C. 1953, § 3110.;

(a) Actions may be brought against any corporation, at law or in chancery, by summons. Process may be served on the president, or head officer, if residing in the State, and if not, on any officer, director, or manager of the corporation. When a cause of action arises in this State against any corporation incorporated outside of this State, and there is no president or head officer of such corporation or any officer, director or manager thereof resident in this State, nor any certified agent thereof, for the service of process, resident in this State, process against such corporation may be served upon any agent of such corporation then being in the State. If such corporation appears, the action shall proceed as in other cases, and if it fails to appear, the plaintiff shall have judgment by default, service of the process being first proved. In an action upon the note of a bank, payable at one of its branches, service of process upon the president or cashier of that branch shall be sufficient. Copies of any rules of court, notice, proceeding, or order, may be served in the same way as original process or upon the attorney of record.

(b) In any action against a corporation whose officers reside out of the State, process may be served by publishing the substance thereof in a newspaper of this State, and of the state where the head officer resides, 20 days before the return thereof, and such service shall be sufficient.

(c) In respect to such corporation, 10 days notice of any motion, rule, order, or other matter or proceeding is sufficient. Such notice may be served personally on the president, any director or manager, or on the attorney of the corporation, or by copy of the rule or other matter sent by mail to the president or head officer at his or her usual place of abode, or by publishing the same in a newspaper near thereto.

(d) Service upon corporations may also be made as provided by § 321 of Title 8.

Code 1852, §§ 1246-1248; 21 Del. Laws, c. 273, § 43; 22 Del. Laws, c. 166, § 2; Code 1915, § 4098; 29 Del. Laws, c. 257; Code 1935, § 4589; 10 Del. C. 1953, § 3111; 70 Del. Laws, c. 186, § 1.;

Repealed by 76 Del. Laws, c. 329, § 3, effective Oct. 7, 2008.;

Section 3104 of this title shall also apply to a resident who departs from the State subsequent to the accident or collision and remains absent therefrom for 30 days continuously, whether such absence is intended to be temporary or permanent, and to any executor or administrator of such resident.

10 Del. C. 1953, § 3113; 54 Del. Laws, c. 249; 76 Del. Laws, c. 329, § 4.;

(a) Every nonresident of this State who after September 1, 1977, accepts election or appointment as a director, trustee or member of the governing body of a corporation organized under the laws of this State or who after June 30, 1978, serves in such capacity, and every resident of this State who so accepts election or appointment or serves in such capacity and thereafter removes residence from this State shall, by such acceptance or by such service, be deemed thereby to have consented to the appointment of the registered agent of such corporation (or, if there is none, the Secretary of State) as an agent upon whom service of process may be made in all civil actions or proceedings brought in this State, by or on behalf of, or against such corporation, in which such director, trustee or member is a necessary or proper party, or in any action or proceeding against such director, trustee or member for violation of a duty in such capacity, whether or not the person continues to serve as such director, trustee or member at the time suit is commenced. Such acceptance or service as such director, trustee or member shall be a signification of the consent of such director, trustee or member that any process when so served shall be of the same legal force and validity as if served upon such director, trustee or member within this State and such appointment of the registered agent (or, if there is none, the Secretary of State) shall be irrevocable.

(b) Every nonresident of this State who after January 1, 2004, accepts election or appointment as an officer of a corporation organized under the laws of this State, or who after such date serves in such capacity, and every resident of this State who so accepts election or appointment or serves in such capacity and thereafter removes residence from this State shall, by such acceptance or by such service, be deemed thereby to have consented to the appointment of the registered agent of such corporation (or, if there is none, the Secretary of State) as an agent upon whom service of process may be made in all civil actions or proceedings brought in this State, by or on behalf of, or against such corporation, in which such officer is a necessary or proper party, or in any action or proceeding against such officer for violation of a duty in such capacity, whether or not the person continues to serve as such officer at the time suit is commenced. Such acceptance or service as such officer shall be a signification of the consent of such officer that any process when so served shall be of the same legal force and validity as if served upon such officer within this State and such appointment of the registered agent (or, if there is none, the Secretary of State) shall be irrevocable. As used in this section, the word "officer" means an officer of the corporation who:

(1) Is or was the president, chief executive officer, chief operating officer, chief financial officer, chief legal officer, controller, treasurer or chief accounting officer of the corporation at any time during the course of conduct alleged in the action or proceeding to be wrongful;

(2) Is or was identified in the corporation's public filings with the United States Securities and Exchange Commission because such person is or was 1 of the most highly compensated executive officers of the corporation at any time during the course of conduct alleged in the action or proceeding to be wrongful; or

(3) Has, by written agreement with the corporation, consented to be identified as an officer for purposes of this section.

(c) Service of process shall be effected by serving the registered agent (or, if there is none, the Secretary of State) with 1 copy of such process in the manner provided by law for service of writs of summons. In addition, the prothonotary or the Register in Chancery of the court in which the civil action or proceeding is pending shall, within 7 days of such service, deposit in the United States mails, by registered mail, postage prepaid, true and attested copies of the process, together with a statement that service is being made pursuant to this section, addressed to such director, trustee, member or officer:

(1) At the corporation's principal place of business; and

(2) At the residence address as the same appears on the records of the Secretary of State, or, if no such residence address appears, at the address last known to the party desiring to make such service;

provided, however, that if any such director's, trustee's, member's or officer's address as described in paragraph (c)(2) of this section shall be the same as the address described in paragraph (c)(1) of this section, then the prothonotary or Register in Chancery shall be required to make only 1 such mailing to such director, trustee, member or officer, at the address described in paragraph (c)(1) of this section.

(d) In any action in which any such director, trustee, member or officer has been served with process as hereinabove provided, the time in which a defendant shall be required to appear and file a responsive pleading shall be computed from the date of mailing by the prothonotary or the Register in Chancery as provided in subsection (c) of this section; however, the court in which such action has been commenced may order such continuance or continuances as may be necessary to afford such director, trustee, member or officer reasonable opportunity to defend the action.

(e) Nothing herein contained limits or affects the right to serve process in any other manner now or hereafter provided by law. This section is an extension of and not a limitation upon the right otherwise existing of service of legal process upon nonresidents.

(f) The Court of Chancery and the Superior Court may make all necessary rules respecting the form of process, the manner of issuance and return thereof and such other rules which may be necessary to implement this section and are not inconsistent with this section.

61 Del. Laws, c. 119, § 1; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 83, §§ 1-5; 77 Del. Laws, c. 24, § 1.;