Del. Super. Ct. Civ. R. 4

(a) Issuance of writs. Upon the commencement of an action, the party requesting the issuance of process

shall prepare a form thereof for signature by the Prothonotary under the seal of the Court. That form shall

be filed with the complaint. Blank forms shall be provided by the Prothonotary on request of a party.

Upon direction of the plaintiff in the praecipe, separate or additional process shall issue against any

defendants. The Prothonotary shall forthwith issue the process specified in the praecipe and shall add the

signed and sealed process to the electronic docket. After the process is added to the electronic docket, the

plaintiff shall deliver the necessary service documents to the sheriff of the county or counties specified in

the praecipe or to a person especially appointed by the Court to serve it.

(b) Attachment under Chapter 35, Title 10, Delaware Code.

(1) The proof required for the issuance of a mesne writ of attachment under Chapter 35, Title 10,

Delaware Code, will be satisfied by filing with the complaint an affidavit of plaintiff or some credible

person setting forth the facts required by the applicable statute. In addition to the facts required by the

applicable statute, such affidavit shall also state:

(A) As to each nonresident defendant whose appearance is sought to be compelled, that

defendant’s last known address or a statement that such address is unknown and cannot with due

diligence be ascertained.

(B) The following information as to the property of each defendant sought to be seized:

(I) A reasonable description thereof.

(II) The estimated amount and value thereof.

(III) The nature of the defendant’s title or interest therein, and if such title or interest be

equitable in nature, the name of the holder of the legal title.

(IV) The source of affiant’s information as to any of the items as to which the affidavit is

made on information and belief.

(V) The reason for the omission of any of the required statements.

(2) Bond required of plaintiff. No mesne writ of attachment shall be issued until plaintiff, in such

proceedings, shall give bond, in an amount and with surety to be approved by the Court out of which

the writ is to be issued, conditioned that if the suit shall not be prosecuted with effect, or if the

judgment rendered therein shall be in favor of a defendant, the plaintiff will pay any and all costs

which may be awarded to a defendant, together with any and all damages, not exceeding the amount

of the bond, which a defendant in the suit may have sustained by reason of such attachment; for this

purpose, a bond executed by an approved surety company alone, without joinder of plaintiff, shall be

deemed a compliance with the provisions of this Rule. In fixing the amount of such bond, the Court

may consider the kind of property to be seized, the estimated value thereof, the possibility of loss to a

defendant as the result of the seizure, and other relevant matters. No inferior court shall authorize the

attachment of any property of an estimated value greater than the jurisdictional amount for which suit

in such court may be brought.

(3) Release of attached property.

(A) Any nonresident defendant whose property shall have been seized upon a writ of foreign

attachment and who shall have entered a general appearance in the cause may move for an order

releasing such property or any part thereof from seizure. The Court shall then release such

property forthwith unless the plaintiff shall satisfy the Court that because of other circumstances

there is a reasonable possibility that such release may render it substantially less likely that

plaintiff will obtain satisfaction of any judgment thereafter secured and in that event plaintiff shall

also give bond with approved surety, in an amount at least equal to the current value of the

property seized, conditioned that if the cause shall not be prosecuted with effect, or if judgment

rendered therein shall be in favor of a defendant, the plaintiff will pay all damages, including

costs, which such defendant may have sustained by reason of such seizure, not exceeding the

amount of such bond.

(B) Any property seized under a mesne writ of attachment will be released from seizure, in whole

or in part, upon defendant’s furnishing such security for its release as is approved by the Court,

conditioned for the payment of any judgment that may be recovered in the proceedings with

costs, in an amount at least equal to the current value of the property to be released or the amount

claimed in the suit, whichever is the lesser; provided, however, that the furnishing of such

security shall not of itself constitute a general appearance.

(4) A writ of foreign attachment may issue against any individual or unincorporated association not

an inhabitant of this State or against a foreign corporation, although joined as parties defendant with

other nonresident or resident parties, with the same effect as if such nonresident defendant were the

only defendant.

(5) Every mesne writ of attachment issued shall specify therein a reasonable description of the

property to be seized, and the amount claimed by the plaintiff. The Prothonotary shall cause to be

published a copy of such writ in a newspaper of general circulation in the county in which the writ is

issued at least once within 20 days after the issuance of such writ. Within 7 days after the filing of the

sheriff’s return of a writ of mesne attachment, the Prothonotary shall, in addition to making the

required publication, send by registered mail to every nonresident defendant whose appearance is

sought to be compelled, at the address furnished by plaintiff, if such address is known, certified

copies of the complaint, affidavit, writ and return filed in the case. No publication will be required if

all defendants shall have been personally served prior to the time publication would otherwise take

place, and no mailing will be required to any defendant who has been personally served.

(6) Except in cases of garnishment, if it appears from the description of the property to be seized that

it is not susceptible of physical seizure within the State, the plaintiff shall upon institution of suit

obtain from the Court an order, a certified copy of which shall be served with the writ, upon the

person, persons or corporation having possession or custody of the property or control of its transfer,

directing such person, persons or corporation to:

(A) Retain the property and recognize no transfer thereof until further order of the Court;

(B) Forthwith make a notation upon any records pertaining to the property that such property is

held pursuant to the order of the Court; and

(C) Within 10 days after the date of such service, file a certificate under oath with the

Prothonotary, specifying:

(I) Such defendant’s property, if any, of which it has possession, custody or control, or

control of its transfer;

(II) Whether the title or interest of each such defendant is legal or beneficial; and

(III) If legal, the name and address of the holder of any equitable or beneficial title or interest

therein, if known, and, if beneficial, the name and address of the holder of the legal title

thereto, if known.

(7) Costs. The plaintiff shall deposit with the Prothonotary an amount sufficient to defray the cost of

publication in any case where such publication is required in addition to the usual deposit for costs,

before a writ of foreign attachment will be issued.

(8) In any action commenced by mesne writ of attachment, the defendant shall serve the answer (and

if the complaint contains a specific notation under Rule 3(b) requiring the defendant to answer any or

all allegations of the complaint by affidavit an affidavit of defense), within 40 days after the date of

the attachment of the property or the service of the writ upon a garnishee, as the case may be. After

the expiration of such 40 day period, or after the defendant’s appearance, whichever first occurs, the

action shall proceed as in suits commenced by summons.

(9) If any attached property is of a perishable nature, or will cause undue expense in its keeping, the

Court may order the attaching officer, on due notice, to sell the same, and retain the proceeds of sale,

subject to the order of the Court. No property attached under a mesne writ of attachment or

garnishment shall be sold except upon order of the Court, which order shall specify the notice

required and all other pertinent matters relating to such sale.

(c) Contents of writ: Generally. The process shall bear the date of its issuance, be signed by the

Prothonotary or one of the Deputy Prothonotaries, be under the seal of the Court, contain the name of the

Court and the names of the parties, state the name of the official or other person to whom it is directed,

the name and address of the plaintiff’s attorney, if any, otherwise the plaintiff’s address, and the time

within which these Rules require the defendant to appear and defend, and shall notify the defendant that

in case of the failure to do so, judgment by default will be rendered against the defendant for the relief

demanded in the complaint. When the complaint contains a specific notation under Rule 3(b) requiring

the defendant to answer any or all allegations of the complaint by affidavit, the process shall also notify

the defendant that unless an affidavit of defense, in conformity with the statute, shall be served by the

defendant not later than the time for service of the answer, judgment by default will be rendered against

the defendant for the amount specified in the complaint.

(1) Summons. The writ of summons shall be directed to the defendant.

(2) Attachment. The writ of attachment shall be directed to the person serving the writ and command

that person to attach the defendant by all the defendant’s real and personal property in the county to

which the writ is issued and to summon defendant’s garnishees to appear within 20 days after service

of the writ to answer or plead and shall notify them that, on failure to do so, they may be compelled

by attachment.

(3) Capias ad respondendum. The writ of capias shall be directed to the person serving the writ and

command that person to arrest the defendant and produce the defendant in Court on or before the

return day of the writ.

(d) By whom served. Service of process shall be made by the sheriff to whom the writ is directed, by a

deputy or by some person specially appointed by the Court for that purpose, except that a subpoena may

be served as provided in Rule 45.

(1) Except in cases governed by subsection (d)(2) of this Rule, no person shall be specially appointed

by the Court to make service unless moving papers affirmatively demonstrate that:

(i) the Sheriff has made one return non est inventus; or,

(ii) it is necessary that service be accomplished after 10:00 p.m. on any weekday other than a

holiday; or,

(iii) it is necessary that service be accomplished on a holiday or weekend; or,

(iv) some other exigent reason is shown why the Sheriff cannot or will not accomplish service.

Except in cases governed by subsection (d)(2) of this Rule, with respect to each filed motion, the

Sheriff shall be served with notice of the motion and may offer reason as to why the Sheriff should

not be disqualified from making service.

(2) In cases governed by 10 Del. C. § 3104, 10 Del. C. § 3112, and 10 Del. C. § 3114, special

appointments to accomplish service upon the Secretary of State as required by these statutes may be

made freely by the Court.

(e) Process and complaint to be served together. The process, complaint and affidavits, if any, shall be

served together. After the process is issued, the plaintiff shall deliver the necessary service documents to

the sheriff of the county or counties specified in the praecipe or to a person especially appointed by the

Court to serve it. Service shall be made as follows:

(f) Service of process; how made.

(1) Summons. Service of summons shall be made as follows:

(I) Upon an individual other than an infant or an incompetent person by delivering a copy of the

summons, complaint and affidavit, to that individual personally or by leaving copies thereof at

that individual’s dwelling house or usual place of abode with some person of suitable age and

discretion then residing therein, or by delivering copies thereof to an agent authorized by

appointment or by law to receive service of process.

(II)(a) Upon an infant of 18 years of age or more, in the same manner as upon an adult individual

unless such infant has a guardian in this State; and if there is such a guardian, then upon such

guardian in the same manner as upon an individual, if the guardian is an individual, or in the same

manner as upon a corporation, if the guardian is a corporation.

(b) Upon an infant under the age of 18 years, if such infant has a guardian in this State, by

service upon such guardian in the same manner as upon an individual, if the guardian is an

individual, or in the same manner as upon a corporation, if the guardian is a corporation; and

if there is no such guardian, by service in the same manner as upon an individual, upon an

adult person with whom such infant resides or who has the infant’s place of abode.

(c) Upon an incompetent person, if such person has a trustee or guardian in this State, by

service upon such trustee or guardian, in the same manner as upon an individual, if the trustee

or guardian is an individual; or in the same manner as upon a corporation, if such trustee or

guardian is a corporation; and if there is no such trustee or guardian, by service in the same

manner as upon an individual, upon an adult person with whom such incompetent person

resides or who has the incompetent person’s place of abode.

(d) As used herein, trustee or guardian refers to one appointed by the Court of competent

jurisdiction in this State; provided, however, that a trustee or guardian duly appointed by a

court of competent jurisdiction of another state may accept service and/or appear, upon filing

proof of such appointment in the cause here pending.

(e) Upon an infant or incompetent person, not a resident of the State, in the same manner as

upon a competent adult person who is not an inhabitant of or found within the State.

(III) Upon a domestic or foreign corporation or upon a partnership or unincorporated association

which is subject to suit under common name by delivering copies of the summons, complaint and

affidavit, if any, to an officer, a managing or general agent or to any other agent authorized by

law to receive service of process and if the agent is one authorized by statute to receive service

and the statute so requires, by also mailing a copy to the defendant.

(IV) Upon a municipal corporation or other governmental organization subject to suit by

delivering a copy of the summons, complaint and affidavit, if any, to the chief executive officer

thereof or by serving copies thereof in the manner prescribed by law for the service of summons

upon such defendant.

(V) Upon a defendant of any class referred to in subsection (I) and (III) of this Rule, it is also

sufficient if the summons, complaint and affidavit, if any, are served in the manner prescribed by

any statute.

(VI) Whenever a statute, rule of court or an order of court provides for service of summons or of

a notice or of an order in lieu of summons upon a party not an inhabitant of or found within the

State, service shall be made under the circumstances and in the manner prescribed by the statute,

rule or order.

(2) Attachment. Service of attachment or garnishee process shall be made in the same manner as

provided in Rule 4(f), on those persons, firms or corporations subject to such service in this State. If

garnishees are summoned upon a writ of mesne attachment, the person serving the writ shall leave

with them a copy of the writ, the complaint and affidavit. If execution of the writ requires seizure of

real or personal property, the sheriff shall levy thereon and make his return in the same manner as

heretofore.

(3) Capias. The writ of capias shall be served as provided by statute. The person serving the writ shall

deliver to the defendant a copy of the writ, complaint and affidavit.

(4) Scire Facias. In actions begun by scire facias, 2 returns without service of 2 consecutive writs,

being the original writ and an alias writ, followed by a certification by the sheriff that he has posted a

copy of the alias writ on the subject property and has mailed a copy of the alias writ by both certified

mail, return receipt requested, and first class mail to the last known address (as stated in the praecipe)

of the defendants, shall constitute legal and sufficient service.

Not later than ten (10) days following the filing of an action begun by scire facias, the plaintiff, or his

counsel of record, shall send by certified mail, postage prepaid, return receipt requested, to holders of

liens on the real estate which is the subject of such action who have acquired such liens at the time the

action is filed and to tenants holding or possessing a leasehold estate for years or at will in such real

estate, a notice consisting of a copy of the complaint and a written Notice to Lien Holders and

Tenants of Filing of Action substantially similar to Form 36 Appendix of Forms (Superior Court).

The notice shall be addressed to holders of liens at the address which appears upon the recorded or

filed instrument creating the lien or upon the record of the lien, or to the counsel of record for the

holder of the lien, or, if such addresses are not ascertainable from the public records, at the last known

available or reasonably ascertainable address of the holders of such liens. The notice shall be

addressed to tenants holding or possessing a leasehold estate for years or at will at the last known

available or reasonably ascertainable address of such tenants, and in addition, the plaintiff or his

counsel of record or a representative of the plaintiff or his counsel of record shall post such notice on

the common entrance door or in a common area of any building or buildings on the real estate which

is the subject of such action. No judgment shall be entered in such action unless the plaintiff or his

counsel of record shall file with the Court proof of the mailing and posting of such notice which shall

consist of the usual receipt given by the post office of mailing to the person mailing the certified

article, the return receipt, or, in the case of an undelivered notice, the original returned envelope, and

a copy of the Notice to Lien Holders and Tenants of Filing of Action mailed with such notice together

with an affidavit made by plaintiff or his counsel of record or a representative of the plaintiff or his

counsel of record specifying:

(i) The names and addresses of holders of liens and tenants holding or possessing a leasehold

estate for years or at will in such real estate and the dates upon which the notice was mailed by

certified mail to such lien holders and tenants;

(ii) That the copy of the Notice to Lien Holders and Tenants of Filing of Action attached to the

affidavit is a true and correct copy of the Notice to Lien Holders and Tenants of Filing of Action

mailed by certified mail;

(iii) That the notice was posted on the common entrance door or in a common area of any

building or buildings on the real estate which is the subject of the action and the date of such

posting;

(iv) That the receipt obtained at the time of mailing by the person mailing the envelope containing

the notice is the receipt filed with the affidavit;

(v) That the return receipt obtained at the time of delivery of the envelope containing the notice is

the return receipt filed with the affidavit;

(vi) The date upon which the envelope containing any undelivered notice was returned to the

sender; and

(vii) If the identity or address of any lien holders and tenants cannot be reasonably ascertained, a

description of the reasonably diligent efforts that were made by plaintiff or his counsel to

ascertain such identity or address and that plaintiff or his counsel of record caused a copy of the

Notice to Lien Holders and Tenants (but not Exhibit “A” to such Notice) to be published once in

a newspaper of general circulation in the County which is the venue of such action. Notice given

to lien holders and tenants holding or possessing a leasehold estate for years or at will in

accordance with this paragraph shall be sufficient notice to such parties in lieu of joinder of such

parties as a defendant.

(5) Ejectment. Not later than ten (10) days following the filing of an action begun in ejectment under

a lease of an interest in real estate, which lease or a notice or memorandum of which has been

recorded in the Office of the Recorder of Deeds, the plaintiff, or his counsel of record, shall send by

certified mail, postage prepaid, return receipt requested, to holders of liens on the real estate

(including but not limited to liens on the leasehold interest of the lessee), which is the subject of such

action, who have acquired such liens at the time the action is filed and to tenants holding or

possessing a leasehold estate for years or at will in such real estate (other than the parties to the

ejectment action; hereafter “Non-party Tenants”), a notice consisting of a copy of the complaint and a

written Notice to Lien Holders and Non-party Tenants of Filing of Action substantially similar to

Form 36 Appendix of Forms (Superior Court). The notice shall be addressed to holders of liens at the

address which appears upon the recorded or filed instrument creating the lien or upon the record of

the lien, or to the counsel of record for the holder of the lien, or, if such addresses are not

ascertainable from the public records, at the last known available or reasonably ascertainable address

of the holders of such liens. The notice shall be addressed to Non-party Tenants at the last known

available or reasonably ascertainable address of such Non-party Tenants, and in addition, the plaintiff

or his counsel of record or a representative of the plaintiff or his counsel of record shall post such

notice on the common entrance door or in a common area of any building or buildings on the real

estate which is the subject of such action. No judgment shall be entered in such action unless the

plaintiff or his counsel of record shall file with the Court proof of the mailing and posting of such

notice which shall consist of the usual receipt given by the post office of mailing to the persona

mailing the certified article, the return receipt, or, in the case of an undelivered notice, the original

returned envelope, and a copy of the Notice to Lien Holds and Non-party Tenants of Filing of Action

mailed with such notice together with an affidavit made by plaintiff or his counsel of record or a

representative of the plaintiff or his counsel of record specifying:

(i) The names and addresses of holders of liens and Non-party Tenants in such real estate and the

dates upon which the notice was mailed by certified mail to such lien holders and Non-party

Tenants;

(ii) That the copy of the Notice to Lien Holders and Non-party Tenants of Filing of Action

attached to the affidavit is a true and correct copy of the Notice to Lien Holders and Non-party

Tenants of Filing of Action mailed by certified mail;

(iii) That the notice was posted on the common entrance door or in a common area of any

building or buildings on the real estate which is the subject of the action and the date of such

posting;

(iv) That the receipt obtained at the time of mailing by the person mailing the envelope containing

the notice is the receipt filed with the affidavit;

(v) That the return receipt obtained at the time of delivery of the envelope containing the notice is

the return receipt filed with the affidavit;

(vi) The date upon which the envelope containing any undelivered notice was returned to the

sender; and

(vii) If the identity or address of any lien holders and Non-party Tenants cannot be reasonably

ascertained, a description of the reasonably diligent efforts that were made by plaintiff or his

counsel to ascertain such identity or address and that plaintiff or his counsel of record caused a

copy of the Notice to Lien Holders and Non-party Tenants (but not Exhibit “A” to such Notice) to

be published once in a newspaper of general circulation in the County which is the venue of such

action. Notice given to lien holders and Non-party Tenants in accordance with this paragraph

shall be sufficient notice to such parties in lieu of joinder of such parties as a defendant.

(6) Service of original process other than summons, attachment, capias or scire facias. Service of

original process other than summons, attachment, capias or scire facias, shall be made as provided by

statute or order of court.

(g) Return of process. Original process, whether an original, alias or pluries writ shall be returnable 20

days after the issuance of the writ, except that in actions for mandamus the Court may, upon application

for cause shown, direct that the writ be returnable in a shorter time. The person serving the process shall

make return thereof to the Court promptly after service and in any event on the return day thereof. Process

which cannot be served before the return day thereof shall be returned on the return day and such return

shall set forth the reasons why service could not be had. If service is made by a person other than by an

officer or his deputy his return shall be verified. Failure to make a return or proof of service shall not

affect the validity of service.

(h) Actions in which service of process is secured pursuant to 10 Del. C. § 3104, § 3112 or § 3113. In

an action in which the plaintiff serves process pursuant to 10 Del. C. § 3104, § 3112 or § 3113, the

defendant’s return receipt and the affidavit of the plaintiff or the plaintiff’s attorney of the defendant’s

nonresidence and the sending of a copy of the complaint with the notice required by the statute shall be

filed as an amendment to the complaint within 10 days of the receiving by the plaintiff or the plaintiff’s

attorney of the defendant’s return receipt; provided, however, that the amendment shall not be served

upon the parties in accordance with the provisions of Rule 5(a).

(i) Amendment of process. At any time in its discretion and upon such terms as it deems just, the Court

may allow any process or return of proof of service to be amended unless it clearly appears that material

prejudice would result to the substantial rights of the party against whom the process issued.

(j) Summons: Time limit for service. If a service of the summons and complaint is not made upon a

defendant within 120 days after the filing of the complaint and the party on whose behalf such service

was required cannot show good cause why such service was not made within that period, the action shall

be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such

party or upon motion.

(k) Service in actions for judgment by confession or execution thereon. Action for judgment by

confession or execution thereon shall comply with Rules 58.1, 58.2, and 58.3.