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PROCEDURES FOR SERVICE WHEN SUING A CORPORATION

Service should be made on an officer, director, agent of the corporation, or upon the Secretary of State when suing a corporation. You should list the name of the person to be served above that of the corporation and put in parentheses next to the name the words "service only" as follows:

John Doe (Service Only)

Big Donut Corp.

Secretary of State (Service Only)

Big Donut Corp.

If you are suing a Delaware corporation, the individual named for service should be an officer, director or registered agent of the corporation. If you do not have this information, you may obtain it from the Secretary of State’s Office at 739-3073.

If service cannot be made upon an officer, director, or registered agent of the corporation, the Court will notify you that service could not be made. In this event, you should name the Secretary of State as the person to be served, file two extra copies of your complaint with the Court and include a special $50 fee. (Checks should be made payable to the Delaware Secretary of State and drawn on a United States bank.)

If you are suing a corporation not incorporated in Delaware, you should use the following procedures:

  1. You should determine if the defendant is "qualified to do business" in Delaware under 8 Del. C. § 371, by calling the Secretary of State's Office ((302) 739-3073). If the defendant corporation is qualified under 8 Del. C. § 371, you can obtain the name and address of the registered agent of the corporation from the Secretary of State's office and provide that information to the Justice of the Peace Court in order to serve the defendant/garnishee.

  2. If the defendant/garnishee is qualified to do business in Delaware but there is no registered agent listed, you should determine if there are any officers, agents or directors of the corporation in Delaware. If there are, then you should name them for service.

  3. If the defendant is qualified to do business in Delaware but attempts to serve the registered agent or officers or directors of the corporation in Delaware are unsuccessful, then you can have the Secretary of State served by supplying the Court with two copies of the process and the $50.00 service fee for the Secretary of State. The Court then serves Secretary of State's office (one copy will be sent by certified mail to the defendant by the Secretary of State's office). Checks should be made payable to the Delaware Secretary of State and drawn on a United States bank.

  4. If the Secretary of State's office tells you that the defendant corporation is not qualified to do business in Delaware, then you can have the Secretary of State served and assert jurisdiction over the defendant under 8 Del. C. § 382 by supplying two copies of the process and the $50.00 service fee for the Secretary of State to the Court (one copy will be sent by certified mail to the defendant by the Secretary of State's office). See J.P. Civil Form No. 31. Checks should be made payable to the Delaware Secretary of State and drawn on a United States bank. This method of service will only provide jurisdiction over the defendant if the defendant transacts business in Delaware (there is a pattern of business activity by the defendant in the state) and the cause of action (what the lawsuit is about) directly relates to the defendant's business activities in Delaware.

  5. If you cannot show that the defendant transacts business in Delaware and that the cause of action arose out of a business transaction in Delaware, then you cannot obtain jurisdiction over the defendant by service under 8 Del. C. § 382 as described above. You, can, however, attempt to serve the foreign corporation under 10 Del. C. § 3104 if your claim meets the requirements of that statute. See J.P. Civ. Form No. 31 for instructions on how to serve the defendant/garnishee under 10 Del. C. § 3104.

REMEMBER: For a defendant who is a corporation located outside of Delaware, the Plaintiff must first have the Court try to serve the corporation's registered agent (if the corporation is qualified to do business in Delaware under 8 Del. C. § 371), its other agents, directors or officers located in Delaware (if qualified under 8 Del. C. § 371), or through the Secretary of State's office (if qualified, but other attempts at service have failed or if not qualified to do business in Delaware). Only if jurisdiction cannot be obtained through those methods can the plaintiff look to 10 Del. C. § 3104 (see J.P. Civ. Form No. 31 for instructions) to assert jurisdiction.