Delaware Process Server Laws & Requirements

By: Undisputed Legal/Process Service Department

The requirements for Delaware process service in the state of Delaware vary by court. The Court of Chancery, the Court of Common Please, and the Justice of the Peace Courts all require registration for special process servers.

Court – Requirement

Court of Chancery –Annual registration requirement/No education requirement

Superior Court -No Requirements

Family Court–Delaware Family Court Civil Rule 4(c) requires that “[s]ervice of process shall be made by the sheriff to whom the writ is directed, by a sheriff’s deputy, by a deputy designated and sworn by the Chief Judge, or by some person specially appointed by the Court for that purpose. . . “

Court of Common Pleas–Annual registration requirement. The court has developed a packet with guidance for applicants. There is no separate court order outlining the process.

Justice of the Peace–Annual registration process. The court has developed a packet with guidance for applicants. There is no separate court order outlining the Delaware process Service. Process servers must complete an application and undergo a criminal justice background check.

Appended Applicable Materials:

Court of Common Pleas for the State of Delaware Process Service Requirements
Information on the Use of Special Process Servers for Cases Filed in the Justice of the Peace Courts

COURT OF CHANCERY

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

IN RE: SPECIAL PROCESS SERVER REQUIREMENTS

STANDING ORDER

On this 31st day of March 2008, it appears that a uniform procedure should be established for registration with the Court as a Special Process Server, as contemplated under Rule 4 of the Court of Chancery Rules, it is hereby ORDERED as follows: Beginning May 1, 2008, it will be necessary for all persons serving process for Court of Chancery matters to be registered with the Court. This will be a license renewable annually on May 1 of each year. All companies and law firms who have in their employ individuals who want to register to be eligible to serve process must pay an initial registration fee of $300 and an annual renewal fee of $300. The company/firm must also list the names of those individuals within their organization that they want to register as process servers. There will be an additional fee of $50 per person named, renewable annually as well. Fees paid for the company/firm and individuals can be combined on one check made payable to the Register in Chancery. Assessments should be remitted to the attention of Ken Lagowski, Register in Chancery Office Administrator, in Wilmington.

This process will eliminate the need to file Motions and Proposed Orders for Special Process Server, and beginning May 1, 2008, such Motions and Proposed Orders will no longer be accepted. Copies of the approved Application for Designation as a Special Process Server shall be the document the process server must carry with them to show authorization by the Court to serve the process. The only thing the Register’s Office will still require in each case is a letter of instructional information to assist them in preparing summonses in those instances where a lawyer or party still wants the Register in Chancery to draft the subpoenas. Filing of a Praecipe and using the Sheriff is also always an option.

Any questions concerning registration and implementation as a Special Process Server should be directed to Ken Lagowski at 255-0539 or his designee.

FAMILY COURT

Del. Fam. Ct. Civ. R. 4

*** THIS DOCUMENT IS CURRENT THROUGH OCTOBER 26, 2009 *** *** ANNOTATIONS ARE CURRENT THROUGH AUGUST 29, 2009 ***

FAMILY COURT RULES OF CIVIL PROCEDURE
II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS

AND ORDERS: DEPOSIT AND SECURITY FOR COSTS Del. Fam. Ct. Civ. R. 4 (2009)

Review Court Orders which may amend this Rule.

Rule 4. Delaware Process Service

(a) Issuance of summons. — Subject to subsections (d)(6) and (7) of this Rule, upon the commencement of an action, the Clerk shall forthwith issue the summons and shall deliver it together with a copy of the petition for service to the sheriff of the county or counties specified or to a person specially appointed by the Court to serve it. Upon direction of the petitioner, a separate or additional process shall issue against any respondents.

(b) Contents of summons. — The warrant shall bear the date of its issuance, be signed by the Clerk or one of the Clerk’s deputies, 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 petitioner’s attorney, if any, otherwise the petitioner’s speech, and the time within which these Rules require the respondent to appear and respond, and shall notify the respondent that in case the respondent fails to do so, judgment by default may be rendered for the relief demanded in the complaint.

(c) By whom served. — Service of process shall be made by the sheriff to whom the writ is directed, by a sheriff’s deputy, by a deputy designated and sworn by the Chief Judge, or by some person specially appointed by the Court for that purpose, except that a subpoena may be served as provided in Rule 45.

(d) Delaware Process Service; how made. — The summons and petition shall be served together. The Clerk shall furnish the person doing service with such copies as are necessary. Service shall be made as follows:

(1) Upon an individual other than an infant or an incompetent person by delivering a copy of the summons and petition to the respondent personally or by leaving copies thereof at the respondent’s dwelling 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 Delaware process service.

(2) Upon an infant under the age of 18 years, if such infant has a parent, custodian or guardian in this State, by service upon such parent, custodian or guardian in the same manner as upon an individual, if the parent, custodian or guardian is an individual, or in the same way as upon a corporation if the parent, custodian or guardian is a corporation; and if there is no such parent, custodian or guardian, by service in the same manner as upon an individual, upon an adult person with whom such infant resides or has a place of abode.

(3) 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 way 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 has a place of abode.

(4) 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 a proof of such appointment in the cause here pending.

(5) 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.

(6) Whenever a statute, Rule or Order provides for service of summons or of notice or order instead of a subpoena upon a party, not an inhabitant of or found within the State, service shall be made under the circumstances in the manner prescribed by the statute, Rule or Order.

(7) Whenever, by statute or other Rule or Order, some other method or service of process is required for a particular action, including service by publication. The law or other Rule or Order of this Court shall control and supersede the method(s) of service provided herein and, whenever by statute (10 Del. C. Section 1065, 13 Del. C. Section 807(b), 10 Del. C. Section 3104, or other) or other Rule or Order of this Court, some other method(s) of service of process may be permitted which is not in contravention of a specific statute or Rule or Order of this Court, then the Clerk is authorized and empowered to utilize such alternative method(s) of service.

(e) Return of process. — The summons provided in paragraph (a) hereof shall be returnable 20 days after the issuance thereof unless otherwise specially ordered. The person serving the process shall promptly make return thereof to the Court after service and in any event on the return day. A process which cannot be done 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 assistance is made by a person other than by the officer or the officer’s deputy or a deputy appointed by the Chief Judge, that return shall be verified. Failure to make a return or proof of service shall not affect the validity of service.

(f) 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.

(g) Notices. — After a party or attorney has been served with a summons and/or has entered an appearance, notice of the time, date, and place of any proceeding may be (1) given in Court or (2) sent by ordinary first-class mail to the last known address of the parties, or (3) served personally, or (4) communicated in any such other reasonable manner as the Court may direct.

SERVICE EFFECTIVE. –Service of process on a parent was adequate and complete under 13 Del. C. 1107A, Fam. Ct. Civ. R. 4(d)(1), and Fam. Ct. Civ. R. 5(c) when the parent’s sibling received parental rights papers’ termination at the parent’s “last known address.” Waters v. Div. of Family Servs., 918 A.2d 339 (Del. 2006), appeal dismissed, 957 A.2d 2 (Del. 2008).

COURT OF COMMON PLEAS

IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE

SPECIAL PROCESS SERVER REQUIREMENTS

All applicants seeking designation as a unique process server must complete the attached affidavit. The affidavit attests that the applicant has never been convicted of a felony or been dishonorably discharged from the military. First-time applicants must also include a resume. Servers are approved as individuals – a company or corporation must apply for each individual they employ to serve summons for this Court in New Castle County.

All applications must be accompanied by a motion from an attorney who intends to utilize the proposed particular process server’s services.

Approval will be granted for a calendar year, and applicants must re-apply and pay a $50 fee each January with the appropriate affidavit and motion. A review before the Chief Judge may be scheduled if indicated by past service or if complaints have been filed.

If your case is an isolated one where an individual is required on an “as needed” basis for a specific service, a motion must be provided for a Judge’s signature. The move should show the particular process server’s qualifications, the reason that “standard” (sheriff, etc.) service is not adequate, and any other information the Judge should rely on to make a decision. These may also be used for execution (wage attachment service) in extreme or unusual circumstances; usually, a unique process server is approved only to benefit summonses and subpoenas.

All civil cases must include the NAME of an approved process server on the praecipe (direction for service.) The Court requires the service affidavit to include the name of the process server identified on the praecipe.

APPLICATION FOR DESIGNATION AS A SPECIAL PROCESS SERVER FOR CASES FILED IN THE COURT OF COMMON PLEAS

1. NAME OF INDIVIDUAL: ____________________________________________________

2. ADDRESS: _________________________________________________________________

3. HOME PHONE: (___)_______________
5. DRIVERS LICENSE NO: _______________
7. HEIGHT: _______ WEIGHT: _______
9. EYE COLOR: _________________
10. OCCUPATION: ____________________________________________________________

11. COMPANY NAME: _________________________________________________________

12. COMPANY ADDRESS: ____________________________________________________

13. COMPANY PHONE: (____)__________________________________________________

14. HOW LONG WITH COMPANY: ______YRS. ______MOS.

15. DOES THE COMPANY MAINTAIN A STATE OF DELAWARE BUSINESS LICENSE? (A business license is required for designation.) Yes No. A copy of the request must be attached to this application.

16. STANDARD FEE CHARGED TO CLIENTS FOR SERVING PROCESS: $______

17. STANDARD TERMS FOR SERVING PROCESS (i.e., payment required only if process is served on defendant, or specified number of attempts of service which will be made per fee): ______________________________________________________________________

______________________________________________________________________

18. EMPLOYMENT REFERENCES:

(a)

(b)

(c)

CONTACT PERSON: ___________________

Address:________________________________________________________ _________________________________________________________________ _________________________________________________________________

PHONE: (___)______________ FAX: (___)_______________

CONTACT PERSON: __________________

Address________________________________________________________ _________________________________________________________________

_________________________________________________________________

PHONE: (___)______________ FAX: (___)_______________

CONTACT PERSON:___________________

Address:________________________________________________________ _________________________________________________________________

_________________________________________________________________

PHONE: (___)______________ FAX: (___)_______________

19. Have you ever been arrested and convicted of anything other than a violation?

YES NO

traffic

If yes, please attach a copy of your criminal history record (THIS APPLICATION WILL NOT BE PROCESSED WITHOUT A CERTIFIED COPY OF YOUR CRIMINAL HISTORY RECORD.) A copy of your record may be obtained through the State Bureau of Identification, State Police Headquarters, 1441 N. DuPont Highway, Dover, DE 19901. The telephone number is (302) 739-5871.

CERTIFICATION OF APPLICANTS SEEKING DESIGNATION AS SPECIAL PROCESS SERVER FOR THE COURT OF COMMON PLEAS IN NEW CASTLE COUNTY:

I, ___________________________________, swear/affirm under oath that I have never been convicted of a felony and have never been dishonorably discharged from the military. I will perform a process server’s duties in compliance with the provisions of law governing the service of process in this state.

I further swear/affirm under oath that: will perform personal service of Court of Common Pleas documents in a business-like manner according to toll applicable statutes, rules of procedure a, and Court of Common Pleas policies procedures regarding personal service.

I acknowledge that I may not represent myself as an officer of the Court. I will return personally “served” documents to the Court of Common Pleas no later than three (3) days following service, except forthwith summonses and subpoenas must be returned immediately to the Court.

I will return process documents bearing no scheduled hearing or trial date information to the Court no later than thirty (30) days from pick up, whether served or non-est.

I will return documents bearing a hearing date to the Court of Common Pleas at least four (4) business days before the hearing date, whether served or non-est.

I will accurately, ultimately, and legibly provide the requisite information on each document relative to service, as specified by the Court.

I will indemnify and hold the State of Delaware and all its agencies harmless from and against any injury claims, loss of life, or damage to or loss of use of property caused by or alleged to be caused by my acts or omissions and which arise out of my performance or failure to perform as specified above.

I authorize Delaware’s State to perform a background investigation as part of this application process for designation as a process server in cases filed in the Court of Common Pleas. I authorize the release of any information from my references.

I acknowledge that payments related to the serving of process or subpoenas in cases filed in the Court of Common Pleas will come from private parties. The State of Delaware or the Court of Common Pleas is not responsible for payments or any other matters related to these services in any capacity.

I will not serve a process or a subpoena in a case where I am, or my spouse is related to any of the parties involved in the subject or has a personal or financial interest or involvement.

I am 21 years of age or older.

Under penalty, under the laws of the State of Delaware, I declare that the foregoing is true and correct.

________________________ _______________________________________

Date Signature of Special Process Server

SWORN AND SUBSCRIBED before me this _____day of __________, _______

______________________________________ Notary Public

PRESIDENT/BUSINESS MANAGER OR OFFICER OF A CORPORATION OR COMPANY MUST COMPLETE THE FOLLOWING (if applicable):

I swear or affirm under oath that:

The information provided by the business and the individual is true and accurate to the best of my knowledge.

It is the corporation or business’s responsibility to ensure that all persons who provide service of process or subpoenas for the corporation or company comply with the Court’s requirements as outlined in this application.

The corporation or business will indemnify and hold the State of Delaware and all its agencies harmless from and against any injury claims, loss of life, or damage to or loss of use of property caused or alleged to be caused by acts or omissions of its contractors or employees and which arise out of the contractors or employees’ performance or failure to perform as specified above.

The corporation or business acknowledges that payments related to the serving of process or subpoenas in cases filed in the Court of Common Pleas will come from private parties with whom it contracts and that the State of Delaware or the Court of Common Pleas is not responsible for payments or other matters related to the service of process or subpoenas in any capacity.

The corporation or business shall maintain a Delaware business license. Under penalty of perjury, under the laws of the State of Delaware, I declare that the foregoing is true and correct.

__________________ __________________________________________

Date Office/Business Manager of Company

SWORN TO AND SUBSCRIBED before this ______ day of, ______________, _______

For Court Use Only:

_______________________________________ Notary Public

Name of Applicant: ___________________________
Application reviewed by Karen Gallagher on ___________________

Submission to Chief Judge Alex J. Smalls:

Approved _____________

Denied ______________

Expiration Date _____________

_________________________________ Chief Judge

JUSTICE OF THE PEACE COURTS

J.P. Civ. Form No. 39 (Rev. 6/15/00)

INFORMATION ON THE USE OF SPECIAL PROCESS SERVERS FOR CASES FILED IN THE JUSTICE OF THE PEACE COURTS
1. The proper forms, including the Complaint (J.P. Civ. Form 1) and the appropriate Summons form (one of J.P. Civ. Form 2, 3 or 4), and Answer to Complaint

(J.P. Civ. Form 7) for debt actions, must be filed in the Justice of the Peace Courts, a
case number assigned to the case, and the summons signed by the court official. Once

these forms have been processed, the Justice of the Peace Court will notify a Plaintiff
who wishes to use a special process server designated by the Chief Magistrate of the

availability of the forms for service by the designated special process server.
2. A Plaintiff wishing to use a unique process server may only use a business
or individual who has been designated by the Chief Magistrate of the Justice of the Peace Courts as a particular process server for cases filed in the Justice of the Peace Courts. The unique process server is not an officer of the court and does not have an
official function with the Peace Courts’ Justice.
3. Designation as a unique process server in Justice of the Peace Courts must
be renewed annually and automatically expires one year after the designation date, unless the Chief Magistrate or designee withdraws the designation before
that time. The unique process servers are responsible for renewing their title (or
refiling an application).
4. All Justice of the Peace Civil Courts maintain a list of all designated
special process servers and will make a list available for review by individuals upon
request.
5. Special process servers must perform the Justice of the Peace Court documents’ personal service in a businesslike manner by all applicable statutes, rules of procedure, and Justice of the Peace Court policies and practices regarding personal service.
6. Special process servers must return personally “served” documents to the Peace Court’s Justice noted on the documents no later than three (3) days following service, except forthwith summonses must be returned immediately to the court. 7. Special process servers must return processed documents bearing no J.P. Civ. Form No. 39 (Rev. 6/15/00) scheduled hearing or trial date information to the Justice of the Peace Court noted on the document no later than thirty (30) days from the date the form was picked up from the court, whether served or non-est.
8. Special process servers must return documents bearing a hearing date at
At least four (4) business days before the hearing date, whether served or non- est.
9. Special process servers must accurately, ultimately, and legibly provide to
the court the requisite information on each document relative to service, including process server’s signature and date and time of service, and the signature of the person
accepting service if required.
10. For landlord/tenant cases: If service other than personal service is made,
proof of satisfaction of all the requirements for service must be provided to the court
(i.e., certification of posting of notice and complaint on the rental unit and proof of mailing
notice and complaint, within one day of posting, by certified or registered mail to the
Defendant.) See 25 Del. C. § 5706.
11. Payments related to the serving of process in cases filed in the Justice of
the Peace Court will come from the parties utilizing the special process servers and the
The state of Delaware or the Justice of the Peace Courts are not responsible for payments or
for any other matters related to services provided by special process servers in any capacity.
12. Special process servers may not serve process in a case where they or their spouses are related to any of the parties in the case, or they have a personal or financial interest or involvement in the case.
13. Special process servers must be 21 years of age or older and a resident of
the State of Delaware.

APPLICATION FOR DESIGNATION AS SPECIAL PROCESS SERVER FOR ALL CASES FILED IN THE JUSTICE OF THE PEACE COURTS

NAME OF CORPORATION/BUSINESS/INDIVIDUAL
ADDRESS:
PHONE: ( ) 4. YEARS IN BUSINESS:
NAME OF PRESIDENT/MANAGING OFFICER:
DO YOU HAVE A STATE OF DELAWARE BUSINESS LICENSE? (A business license is required for designation) YES NO A COPY OF THE LICENSE MUST BE ATTACHED TO THIS APPLICATION.
STANDARD FEE CHARGED TO CLIENTS FOR SERVING PROCESS: $
STANDARD TERMS FOR SERVING PROCESS (i.e., payment required only if the process is served on the defendant, or a specified number of attempts of service which will be made per fee):

9. EMPLOYMENT REFERENCES: (1)

10. INDIVIDUALS WHO WILL BE SERVING PROCESS (All individuals who will be serving process must complete questions 10 and 11 (additional blank forms for questions 10 and 11 are attached))

FULL NAME:

ADDRESS:

LAST STREET

FIRST MIDDLE

STATE SOCIAL SECURITY NO.: DRIVERS LICENSE NO.:

SUFFIX ZIP CODE

HOME PHONE:

WORK PHONE: ( BIRTH DATE:
HAIR COLOR: OCCUPATION: COMPANY NAME: COMPANY ADDRESS: COMPANY PHONE:

HEIGHT: EYES:

WEIGHT:

HOW LONG:

YRS. MOS.

HAVE YOU EVER BEEN ARRESTED AND CONVICTED FOR ANYTHING OTHER THAN A TRAFFIC VIOLATION? YES NO Please attach a copy of your criminal history records (THIS APPLICATION WILL NOT BE PROCESSED WITHOUT A CERTIFIED COPY OF YOUR CRIMINAL HISTORY)

11. CERTIFICATION, EACH INDIVIDUAL WHO WILL SERVE PROCESS IN A JUSTICE OF THE PEACE COURT CASE MUST COMPLETE THE FOLLOWING OATH OR AFFIRMATION:

I swear or affirm under oath that – I will perform the Justice of the Peace Court documents’ personal service in a business-like manner by all applicable statutes, rules of procedure, and Justice of the Peace Court policies and procedures regarding personal service.

– I acknowledge that I may not represent myself as an officer of the Court.
– I will return personally “served” documents to the Peace Court’s Justice noted on the documents no later than three (3) days following service except forthwith summonses and subpoenas must be returned immediately to the court.

– For landlord/tenant cases only: If service other than personal service is made, proof of satisfaction of all the requirements for service must be provided to the court (i.e., certification of posting of notice and complaint on the rental unit and proof of mailing information and complaint within one day of posting, by certified or registered mail to the Defendant. See 25 Del. C. §5706.

– I will return process documents bearing no scheduled hearing or trial date information to the Court no later than thirty (30) days from pick up, whether served or non-est.

– I will return documents bearing a hearing date to the Justice of the Peace Court noted on the documents to the Court at least four (4) business days before the hearing date, whether served or non-est.

– I will accurately, ultimately, and legibly provide the requisite information on each document relative to service, as specified by the Court. This will include affidavits of service and the signature of the person accepting assistance when required.

– I will indemnify and hold the State of Delaware and all of its agencies harmless from and against any injury claims, loss of life, or damage to or loss of use of property caused or alleged to be caused by my acts or omissions and which arise out of my performance or failure to perform as specified above.

– authorize tDelaware’sState to perform a background investigation as part of the application process for designation and a process server in cases filed in the Justice of the Peace Court. I authorize the release of any information from my references.

– I acknowledge that payments related to the serving of process or subpoenas in cases filed in the Justice of the Peace Court will come from private parties and that the State of Delaware or the Justice of the Peace Courts are not responsible for payments or other matters related to these services in any capacity.

– I will not serve process or a subpoena in a case where I am, or my spouse is related to any of the parties in the subject or has a personal or financial interest or involvement in the case.

– I am 21 years of age or older and a resident of the State of Delaware.

DateA.D. 20. Signature of Special Process Server SWORN TO AND SUBSCRIBED before me this day of

Notary Public

12. PRESIDENT/BUSINESS MANAGER OR OFFICER OF A CORPORATION/COMPANY MUST COMPLETE THE FOLLOWING (if applicable):

I swear or affirm under oath that – the information provided above by the business and the individual is true and accurate to the best of my knowledge.

It is the corporation/business’s responsibility to ensure that all persons who provide service of process or subpoenas for the corporation/business comply with the requirements stated in question #11 above.

– the corporation /business will indemnify and hold the State of Delaware. All of its agencies harmless from and against any injury claims, loss of life, or damage to or loss of use of property caused or alleged to be caused by acts or omissions of its contractors or employees and which arise out of the contractors or employees’ performance or failure to perform as specified above.

– the corporation/business acknowledges that payments related to the serving of process or subpoenas in cases filed in the Justice of the Peace Court will come from private parties with whom it contracts and that the State of Delaware or the Justice of the Peace Courts are not responsible for payment or other matters related to the service of process or subpoenas in any capacity.

Date Officer/Business Manager of Company

SWORN TO AND SUBSCRIBED before me this day of A.D. 20. Notary Public

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