HOW TO START A CIVIL ACTION IN THE JUSTICE OF THE PEACE COURT

How do I know what type of claim to file?
How much can the claim be for?
Do I need an attorney?
How to name a defendant
How to locate a person or business
How to fill out and file a complaint
After the complaint has been filed and served
How the defendant is notified of the suit (service of process)
Fees
How to file an application for waiver of fees

HOW DO I KNOW WHAT TYPE OF CLAIM TO FILE?

The Justice of the Peace Court handles four basic types of civil cases which are described below.

DEBT ACTIONS
      A debt action is a claim for a sum of money. Examples of debt actions include money claimed on a loan, money claimed for purchases made, money claimed because work for which payment has been made was not completed or properly done, money claimed for unpaid rent, security deposits not returned, etc.

TRESPASS ACTIONS
      A civil trespass action involves the wrongful, intentional, or negligent actions of a person that resulted in damage to another’s property. For example, damages caused by an improper act of another person may involve an automobile as a result of a traffic accident, to a home, lawn, bicycle, or to any other personal property. Information describing the incident, the type and amount of damage, how the damages were calculated, and how the Defendant’s conduct was improper must be stated in the complaint filed with the Court or in a letter attached to the complaint.

Please note that the Justice of the Peace Court cannot hear actions involving personal injuries, mental anguish, etc.

REPLEVIN ACTIONS
      A replevin action may be filed by a person to get back an article or item of personal property that is being withheld from them by another person. A detailed description, serial number and value of the personal property must be included with the complaint.

LANDLORD/TENANT (SUMMARY POSSESSION) ACTIONS
      This action may be filed by the landlord for possession of a rented property because of unpaid rent or abuse and misuse of the rented property. If the landlord is seeking back rent along with possession of the unit, this claim may be included in the summary possession action. However, if the landlord is seeking back rent only and not possession of the unit, a debt action should be filed. Tenants may also file a landlord/tenant action if they have been wrongfully kept out of the rented property. However, a claim for the return of a security deposit only should be filed as a debt action.

      Before the action may be filed by a landlord, notice in writing must be given or sent to the Tenant by the landlord. This notice must state that the tenant as at least five days to pay the rent or at least seven days to correct the abuse or misuse (ten days, if a mobile home) and that if the tenant does not do so as instructed, a suit for possession may be filed with the Court.

      Summary Possession actions may involve either residential or commercial units, as well as mobile homes.

      For more information see the booklet, How to File and Defend a Summary Possession Action in the State of Delaware and the Landlord-Tenant Code and/or Mobile Homes Lots and Leases Act, as appropriate.

HOW MUCH CAN THE CLAIM BE FOR?

      The Justice of the Peace Court may not award any amount exceeding $15,000. If your claim exceeds $15,000 you may use the Justice of the Peace Court if you are willing to limit your relief to $15,000. If you choose to do so, you will lose the right to the amount of the claim over $15,000.

      If you are a corporation or other artificial entity or a public body, you may only appear in a Justice of the Peace Court without a lawyer if you file a Certificate of Representation (Civil Form 50) with the Chief Magistrate. and comply with the other provisions of Supreme Court Rule 57. This Certificate must be filed prior to filing your complaint or answer. The Certificate of Representation must be renewed annually. There is a $15.00 annual registration fee.

HOW TO FIND A LAWYER

      If you need help in finding a lawyer, you may wish to contact the Legal Help Link at one of the following phone numbers:

      If you wish to obtain free legal assistance, when you call the Legal Help Link, you will be asked questions concerning your income and the type of case in which you are involved make you eligible for such assistance. No fee generating cases may be handled.

      If you are not eligible for free legal assistance, the Legal Help Link will refer you to the Lawyer Referral Program. This program will select an attorney, convenient to you, with whom you can meet to discuss your particular problem. The selected attorney will consult with you for 30 minutes for a fee of $35. Often, this initial visit may answer your questions or enable you to solve the problem on your own, If, however, additional services are needed and you decide to hire the referred attorney, fees and additional costs would be arranged between you and the attorney.

      The Legal Help Link is a collaborative effort among the Delaware State Bar Association, Delaware Volunteer Legal Services, Inc., Widener University School of Law, Community Legal Aid Society, Inc., and the Legal Services Corporation of Delaware, Inc.

 

It is very important to name the Defendant correctly because you will only be able to collect from the party or parties whose name is exactly the same as the name that appears on your claim. You must know the full name and correct address of the party being sued and whether the party is an individual, sole proprietorship, corporation, partnership, limited liability company, association, estate or trust.

If you are suing an individual, write his or her first name, middle initial (if known) and last name.

If you are suing an unincorporated business owned by one person, you must write both the owner and the company name. You should also name the owner as the individual to increase your chances of collecting if you win. Write the letters "dba" which stands for "Doing Business As" between the name of the owner and the company name, if the owner is doing business under a fictitious name. For example, you would write John A. Doe, individual & dba Delaware Donuts.

If you are suing both a husband and wife, write both their full names. For example, John A. Doe and Mary B. Doe. They will be served separately.

If you are suing a corporation, you should write the name of the corporation as, for example:

John’s Donuts, Inc.

If a corporation owns a division or subsidiary, it should be written as in the following example:

Doe Corporation, doing business as "John’s Donuts"

HOW TO LOCATE A PERSON OR BUSINESS

It is important that you have the correct name and address of the defendant so that the Court can serve them with notice that they are being sued. Street addresses are preferable to post office boxes. For a summary possession action, you must have the address of the rental unit.

Locating a Person:
If you can’t find the person you want to sue, you may find the following information helpful in locating them.

If the person has moved, address an envelope to him or her at his or her last known address. Several spaces below your return address, write, "Address Service Requested." If the Post Office has a change of address for the person, the Post Office will take the following steps:

• Month 1 through 12: Piece forwarded, separate notice of new address provided to sender.
• Months 13 through 18: Piece returned with new address attached.
• After month 18: Piece returned with reason for non-delivery attached

If the Post Office does not have a change of address, the mail will be returned with the reason for non-delivery attached.

The County Recorder of Deed’s Office maintains a listing of property owners by name and lists the location of the property owned. The Recorder of Deed’s Offices are located as follows:

If the only information you have concerning the other party is a telephone number, and the number is one that is listed, the Cross Directory will provide the address.

Businesses:

Corporations

The Secretary of State’s Office maintains information on Delaware corporations and corporations which have qualified to do business in Delaware. The Secretary of State’s Office may be contacted at 739-3073 for information.

Sole Proprietorships and Partnerships

The Prothonotary’s office in each county maintains a listing of the names and addresses of owners of businesses operating under a name different from that of the owners.

The address and phone number of the Prothonotary’s office for each county is listed below:

Please be aware that the court clerks cannot help you in locating a person or business.

 

HOW TO FILL OUT AND FILE THE COMPLAINT

To start an action, you must fill out a complaint.

Before filling out your complaint, you should:

1. Determine whether the type (see How do I know what type of claim to file?) and amount (see How much can the claim be for?)of your claim can be handled in the Justice of the Peace Court. If so, you should be sure to remember which type of claim you have as this will be important in filling out the complaint.

    

2. Obtain and use the correct name (see How to name a defendant) and address of the defendant.

    

3. Determine whether anyone other than the defendant needs to be named for service (This is necessary if you are suing a corporation, an insurance company, or the State of Delaware or one of its agencies or officials.) and read the information on service to determine whether any special procedures for service are required.

    

4. Obtain a complaint form (Civil Form No.1). The complaint form may be obtained at any Justice of the Peace Civil Court or may be downloaded.

Now you are ready to fill out your complaint. The same form is used for all types of civil complaints. However, there are specific statutory requirements as to what must be included for some types of actions. In addition, in Landlord/tenant (summary possession) actions, there are also specific notice requirements which must be met by landlords. These notice requirements and other information relating to summary possession actions are explained in the booklet "How to File and Defend a Summary Possession Action in the Justice of the Peace Court".

It is important that you familiarize yourself with the requirements for the type of action which you are filing. Information on these requirements and sample complaints which explain and illustrate the information which should be included are available to help you in filling out your complaint.

The following sample complaints are available to assist you in filling out your complaint.

      For debt actions (payment of money), there are two sample forms.

• general contract -- sample form and instructions
• return of a security deposit -- sample form and instructions
  
  


The following additional sample complaints for other types of civil actions are also available:

If you are filing a landlord/tenant (summary possession) action, you should be sure to familiarize yourself with the special requirements for landlord/tenant (summary possession) actions which are explained in the booklet Filing and Defending a Summary Possession Action in the Justice of the Peace Court of the State of Delaware and in the Landlord- Tenant Code and/or Mobile Homes Lots and Leases Act, as appropriate.

After you have completed the complaint, if you are using a complaint form that you obtained online, you should make four copies of the complaint and any attachments. You should retain one copy for your records and take, or mail, the original plus three copies, along with the filing fee to the Court. (If you are using a carbonized copy of the complaint supplied by the Court, you do not need to make any additional copies, other than one for your own records.) If you mail the complaint, you must enclose a check or money order for the filing fee.  

If you are filing on behalf of a business and your business files five or more cases a year, you will be required to e-file your pleadings.  If you are required to e-file, you must first obtain e-filing training that is offered, free of charge, through the Court.  Read more about e-filing and its requirements or view the next training session and sign up for e-filing training.

For summary possession cases, the complaint must be filed in the court nearest the rental property and in the county in which the property is located.

For all other types of cases, unless otherwise provided by law, you will not be able to recover your court costs in any suit against a Delaware resident unless you bring your action in a court in the county in which the defendant resides.

Click here for a list of Civil Courts and their addresses.

If you are unable to afford the filing fee, you may fill out a request to have the fees waived. If you wish to have the fees waived, you should either ask for an in forma pauperis application from the Court or you may download the necessary forms.

If you are suing on behalf of a corporation, partnership, or other artificial entity, or public body and do not plan to use a lawyer to represent the entity, you should be sure to file a Certificate of Representation (Civil Form 50).

Once you have filed your complaint with the court,the documents must be served on the defendant. Please read the section on How to notify the defendant of the suit (service of process).

AFTER YOUR COMPLAINT HAS BEEN FILED AND SERVED

After your complaint has been filed and served, you will receive a notice from the Court as to the time and date set for trial (unless the defendant in a debt or trespass action admits to the amount owed). If you do not appear at the date and time scheduled for trial a nonsuit judgment may be entered against you and your case will be dismissed.

If you cannot appear at the date and time set for trial, you should notify the Court immediately and request a continuance (a rescheduling). This request should be in writing and should explain why you are unable to attend at the scheduled time. If you wish, you may fax this request to the Court instead of mailing or delivering it.

If you have filed a debt action, the defendant may, after receiving the complaint, demand that you file a bill of particulars. A bill of particulars is a statement by the Plaintiff stating with particularity the basis for the claim and how the amount claimed was determined. It is used in debt actions only.

In completing the bill of particulars, you must include an affidavit notarized by a Notary Public. (For corporate plaintiffs, the affidavit must be signed by an officer of the corporation. For partnerships, the affidavit must be signed by a partner.) You must file the original of your bill of particulars with the Court and send a copy to the defendant within 10 days counting the date of mailing as the first day. A statement as to how service of the copy was made upon the defendant must be included in the bill of particulars and if the copy was sent by mail, the date of the mailing and the address to which it was sent must be included.

General Procedures:

After you have filed your complaint with the Court, the Court will attempt to serve (deliver the documents to) the defendant unless you tell the Court that you wish to hire a special process server or if you are suing an out-of-state resident (including a corporation).

The cost of service by the Court is included in the filing fee. However, there are additional fees, as well as special procedures involved when suing an out-of-state resident, an insurance company, or corporations or limited partnerships. You should also be aware that special procedures apply if you are serving the State of Delaware or any of its agencies or officers.

Also, if you choose to use a special process server, you will have to pay the process server a fee in addition to your filing fee.

If the Court attempts to serve the complaint (or any other court documents) on the defendant and is unable to do so, you will receive a Notice of Failure to Serve Complaint (Civil Form No. 9) which will state the reason the Court was unable to serve the papers. (When the Court is unable to serve the papers, this is called a "non est" return of service.)

Once you have additional information as to the location where the parties may be served, you will need to file an "alias" request for service. ("Alias is the second attempt of service after the first attempt was unsuccessful.) There is an additional fee for issuing an alias summons and you will need a new complaint form (J.P. Civ. Form No. 1) to begin the action.

Special Procedures apply when suing:

 

• Corporations
• Defendants Not Located In Delaware
• Insurance Companies
• The State
  
  

Special Process Servers

FEES (10 Del. C. § 9801)

Filing Fee for Landlord/Tenant $40 Filing Fee for Debt and Trespass Claims where the amount in controversy exceeds $5,000 $40 Filing Fee for Debt and Trespass Claims where the amount in controversy equals or is between $1,000-$5,000 $35 Filing Fee for Debt and Trespass Claims where the amount in controversy is less than $1,000 $30 Filing Fee for Replevin Action $50 Alias (Second Attempt at Service) $15 Attachment in Lieu of Summons $50 Execution $25 Sale Fee $20 Subpoena $5 Lienholder Without Hearing $10 Lienholder with Hearing $15 Motion to Vacate a Default/Nonsuit Judgment $10 Landlord/Tenant Appeal $50 Constable Sale (Vendition Exponas) $20 Transcript $10 Service of Writ of Summary Possession $35 Revival of Judgment (Scire Facias) $10 Third Party Action for Landlord/Tenant Claims $40 Third Party Action for Debt and Trespass Claims where the amount in controversy exceeds $5,000 $40 Third Party Action for Debt and Trespass Claims where the amount in controversy equals or is between $1,000-$5,000 $35 Third Party Action for Debt and Trespass Claims where the amount in controversy is less than $1,000 $30 Filing Fee for an Abandoned Property Suit $40

If the Plaintiff (person who files the case) wins the case, the court may award the court costs (in addition to the principal claim, interest, and other relief requested as a part of the judgment). If the Plaintiff files the case outside of the county where the Defendant (person whom the claim is against) resides, court costs will not be awarded.

HOW TO FILE AN APPLICATION FOR A WAIVER OF COURT FEES

The application for filing a fee waiver is contained below. You may either obtain the necessary forms from the Court or you may download them. All applicants must fill in the Application and Affidavit to Proceed in Forma Pauperis (Civil Form 49). Only persons who have been told by a Delaware Court that they may not file future claims without the permission of the court due to having filed frivolous or malicious litigation, should fill out the second form, the Affidavit of Good Cause (Civil Form 49A).

The application (and the Affidavit of Good Cause, if you are required to file it) must be signed in front of a notary public or a justice of the peace. You should be aware that in signing the application (and the Affidavit of Good Cause, if necessary), you are swearing or affirming, under penalty of perjury, that the information is true and correct. If you wish to sign in front of a notary, and do not know of one, you may find a list of notaries in the yellow pages of the telephone book.

The signed and notarized fee waiver documents should be filed with the Court along with your complaint.

Also included, for your information, are the income eligibility guidelines which are used by the Court in determining whether an in forma pauperis application should be granted. When applicants have both income and assets at or below the guidelines, the Court will generally approve the application. At income or asset levels above those shown in the guidelines, the Court will determine whether the applicant has any unusual necessary expenses which may cause the Court to grant the application.

In addition to looking at the applicant’s income and asset levels, the Court will review the applicant’s complaint to determine whether the action is factually frivolous (baseless, or of no importance), malicious (designed to injure or harass), or legally frivolous (without legal merit). If the complaint fits within any of these categories, the Court will deny the request for the fee waiver and will dismiss the action.