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DE Filing a Small Claims Suit

Do you have a customer who refuses to pay you for the repairs you made to her car? Or maybe the roofer you hired didn't finish the work? These are just a couple of examples of the types of claims or disputes that are resolved by the Delaware justice of the peace courts, which are similar to the small claims courts in other states.

And, now that you're ready to file a small claims lawsuit, you need to know the mechanics of what to do and how to do it. In general, you have to have to know exactly who you're suing (called the "defendant"), have the right paperwork and file the suit in the right court.

Where to File

You, the "plaintiff," file a small claims case with the clerk of the appropriate justice of the peace court. In Delaware, there nearly 20 justice of the peace courts, but only four of them handle non-criminal cases (called "civil" cases), and there's at least one in each of the state's three counties. Generally, you can file your lawsuit in any justice of the peace court you want. However, if you want the court to order the other party to pay your filing fees and attorney's fees after you win, then you have to file suit in the court for the county where the defendant lives. Also, if you're a landlord and you're filing an eviction or "summary possession" case, you have to file suit in the in the county where the property is located.

Complaint

Lawsuits begin when the plaintiff, the person who's suing, files a "complaint." In Delaware, there's a special Complaint for filing cases in the justice of the peace courts. The form is straightforward, but if you need help completing it, the court clerk can give you some assistance, but don't expect legal advice about your suit.

When filling out the form, you need to give information about your case in a clear and simple way. Print neatly and just give the facts about your claim. Specifically, you'll need to give:

  • Your name, address and a telephone number where you can be contacted during the day
  • The defendant's name and address
  • The type of lawsuit you're filing, which typically is either: (1) Trespass, which is an action to recover money for damages to personal property, like your car; (2) Debt, which is to get money you're owed, like back rent or a security deposit; (3) Replevin, which is an action to recover specific personal property, like a car or equipment, or; (4) Summary Possession, which is an eviction action
  • The amount of money you want the defendant to pay, or what property you want returned to you
  • Reasons why the defendant owes you money or why the property you want rightfully belongs to you

It's very important that you have the proper name and address of the party you're suing. If you're suing:

  • A business that's not a corporation, like a sole proprietorship or a "dba" (meaning "doing business as"), you should check the local telephone book and contact the Prothonotary's office in the superior court for the county where the business is located to get the legal names and addresses for the business and its owner. The local Better Business Bureau (BBB) may also be able to help with this information
  • A corporation, you can get its exact name and address from Delaware's Department of State. You'll also find the name of the company's "registered agent," the person who accepts important documents for the corporation
  • A partnership, you should list the name of the partnership as well as the individual partners as defendants. Again the Department of State can help you get that information for some partnerships, and you may also want to check with the Prothonotary's office and the BBB

In Delaware, you can file your Statement in person or by mail. If you file by mail, you'll need four copies of the Complaint: One for you, and send three to the court clerk.

Filing Fees

At the time you file your forms, you will need to pay a filing fee. In Delaware, the amount of the fee depends on what type of lawsuit you're filing and how much money you want the defendant to pay. Generally, however, you can expect to pay between $35 and $50 when you file your Complaint. The court clerk can tell you the exact fee for your case, or you can find it online. The fees can change at anytime so it's a good idea to talk to the clerk about the fees in any event.

Generally, if you win your case, the small claims court will order the defendant to pay your filing fee (called "court costs"). This will be in addition to any other money or "damages" the court awards you on your claim.

Service of Process

"Service of process" is when one party gives the other party notice that he's being sued. Generally, this is done by making sure that the defendant gets a copy of the Compliant you filed. When you file your Complaint, the clerk will give you detailed instructions about this, but generally the clerk will arrange for the defendant to be served unless you tell him that you're going to pay a special process server to serve your court papers.

Make sure you have the right name and address! If the defendant isn't served properly your case can't go forward, and it may be dismissed, or "thrown out" of court, and you'll then have to start all over again. If you're suing a corporation, you need to serve its "registered agent." She's the person named by the corporation who's responsible for accepting important documents and papers on behalf of or for the corporation. If you're suing a sole proprietorship or "dba," you need to serve the business's owner or its registered agent, if it has one. If you're suing a partnership, you need to serve its general or managing partner.

Along with your Complaint, the defendant will get a form called a Summons, which basically tells him when and where to appear for trial (if the suit is an eviction or replevin action), or how and when to file an Answer. The Answer is his reply or response to your suit. An Answer form will also be delivered along with your Complaint.

If you file a trespass or debt action, the defendant must file a written Answer within 15 days after he gets the Complaint and Summons. A trial date will be scheduled after he files it. If you file an eviction or replevin action, the defendant doesn't have to file an Answer; a trial date is set as soon as you file the case.

Defendant's Options

Once you've filed suit, the defendant can do any number of things, such as :

  • Settle the claim, that is, simply agree with you and pay what he owes or turn over the property you want. There's a box he can check on the Answer form he gets with you Complaint if he chooses to settle
  • Answer the suit. This is where the defendant gives the court a written and signed statement that sets out in clear and simple language why you shouldn't win the case. He does this by completing and filing an the form he gets with your Complaint
  • Default. If the defendant doesn't file an Answer when he's required to and within the time allowed, or if he doesn't show up for trial when scheduled, he "defaults," and you may win automatically if you can show the judge that the defendant was properly served you're your Complaint and that your claim against him is valid
  • Counterclaim, or file a claim against you. The defendant has to file it with the clerk, usually within 5 days of the scheduled trial date, and he has to be able to prove to the judge that you got a copy of it before trial. Generally, if the claim is for more than $15,000, the defendant can either file a separate lawsuit against you in a different court, or he can let the justice of the peace court decide the claim, but the most he can recover is $15,000. If you don't have enough time to prepare a defense to a counterclaim, you may ask the court for more time, which is called a continuance
  • Demand a bill of particulars, but only if your suit is an action for a debt. This Bill requires you to give the defendant more information about why you think he owes you money and how much money you think he owes. You're required to answer the Bill, and if you don't, the defendant may ask the court to order you to do so
  • Demand a jury trial, but only if your suit is an eviction action

Questions for Your Attorney

  • I filed a small claims suit against a dog owner, who lives the next street over from me, because her dog bit me. She says that she never received my Complaint, but I know it was mailed to the right address. What can I do now?
  • The defendant filed a counterclaim against me, and I needed more time to get ready for it, but the magistrate refused my request for a continuance. I lost on the counterclaim. What can I do?
  • The defendant offered to settle the lawsuit I filed against him, but he didn't check the box on the Answer agreeing to my claim. What should I do?

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