Del. Super. Ct. Civ. R. 56

(a) For claimant. A party seeking to recover upon a claim, counterclaim, or crossclaim or to obtain a

declaratory judgment may, at any time after the expiration of 20 days from the commencement of the

action or after service of a motion for summary judgment and at any time prior to the marking of the case

for trial, move, with or without supporting affidavits, for a summary judgment in the party’s favor upon

all or any part thereof, subject to provisions of Rule 56(bb).

(b) For defending party. A party against whom a claim, counterclaim or crossclaim is asserted or a

declaratory judgment is sought may, at any time, move, with or without supporting affidavits for a

summary judgment in the party’s favor as to all or any part thereof, subject to the provisions of Rule

56(bb).

(bb) The limitation of time for the filing of motions for summary judgments in accordance with Rule

56(a) and Rule 56(b) shall not prohibit the filing of a motion for summary judgment by any party when,

as a result of a pretrial conference, in the opinion of the Court, the filing of such motion is desirable. This

Rule shall not affect in any way the provisions of Rule 12(b) and Rule 12(c) with respect to motions for

summary judgment.

(c) Motion and proceedings thereon. The motion shall be served at least 10 days before the time fixed for

the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment

sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment,

interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue

as to the amount of damages.

(d) Case not fully adjudicated on motion. If on motion under this Rule, judgment is not rendered upon the

whole case or for all the relief asked and a trial is necessary, the Court at the hearing of the motion, by

examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable

ascertain what material facts exist without substantial controversy and what material facts are actually and

in good faith controverted. It shall thereupon make an order specifying the facts that appear without

substantial controversy, including the extent to which the amount of damages or other relief is not in

controversy, and directing such further proceedings in the action as are just. Upon the trial of the action

the facts so specified shall be deemed established, and the trial shall be conducted accordingly.

(e) Form of affidavits; further testimony; defense required. Supporting and opposing affidavits shall be

made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show

affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies

of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The

Court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or

affidavits. When a motion for summary judgment is made and supported as provided in this Rule, an

adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the

adverse party’s response, by affidavits or as otherwise provided in this Rule, must set forth specific facts

showing that there is a genuine issue for trial. If the adverse party does not so respond, summary

judgment, if appropriate, shall be entered against the adverse party.

(f) When affidavits are unavailable. Should it appear from the affidavits of a party opposing the motion

that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition,

the Court may refuse the application for judgment or may order a continuance to permit affidavits to be

obtained or depositions to be taken or discovery to be had or make such other order as is just.

(g) Affidavits made in bad faith. Should it appear to the satisfaction of the Court at any time that any of

the affidavits presented pursuant to this Rule are presented in bad faith, or solely for the purpose of delay,

the Court shall forthwith order the party employing them to pay to the other party the amount of the

reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable

attorney’s fees, and any offending party or attorney may be adjudged guilty of contempt.

(h) Cross motions. Where the parties have filed cross motions for summary judgment and have not

presented argument to the Court that there is an issue of fact material to the disposition of either motion,

the Court shall deem the motions to be the equivalent of a stipulation for decision on the merits based on

the record submitted with the motions.