Voluntarily transferring cases from the Delaware Court of Chancery to the Delaware Superior Court is neither an intuitive nor a simple process. Rather, it is an amalgamation of several steps that are not all found in court rules or in court guidelines. This step-by-step guide was created after many years of “trial and error” and eventual success transferring several cases from the Court of Chancery to Superior Court. We will note from the onset that voluntary transfer was not contested in any of the cases on which this guide is based, and in our experience members of both courts may not always share a unanimous viewpoint on what needs to happen in order to voluntarily transfer a case. Typically, voluntary transfer is an economic decision to avoid wasting time and money responding to a motion to dismiss a Chancery Court complaint based on lack of equitable jurisdiction—even if one does not agree with the motion. This also may require a slightly amended complaint. Nonetheless, the following steps have worked for us.
Basic Steps for Voluntary Transfer of Case From Court of Chancery to Superior Court:
- E-file/serve the following in Chancery Court:
- Election of transfer to Superior Court.
- Motion to transfer.
- Proposed order granting motion to transfer.
- Certificate of service of motion and proposed order.
- File letter to the chancellor/vice chancellor:
- Stating that the motion to transfer is unopposed (if true).
- Enclosing courtesy copies of the documents above in paragraph 1(a) through 1(d).
- E-file letter, and hand-deliver letter along with courtesy copies of 1(a) through 1(d) to the chancellor/vice chancellor.
- Upon receipt of an order transferring the case to Superior Court, e-file/serve the following in Superior Court:
- Complaint (same complaint filed in Chancery Court, but change the name of the court and the date, and delete the Chancery Court case number).
- Superior Court case information sheet.
- Submit a letter to the president judge of Superior Court:
- Stating that the action originated in the Court of Chancery; and that the Court of Chancery granted a motion to transfer the case to Superior Court.
- Enclosing courtesy copies of the documents in paragraphs 3(a) and 3(b).
- Stating that the complaint is substantially the same, with the exception of the name of the court, and civil case action number.
A Few Notes Regarding the Above Steps
- Election of transfer: Although an election of transfer is seemingly unnecessary in light of a motion to transfer, we recommend filing both an election and a motion because:
- Last year we filed an election of transfer (without a motion to transfer) and we were informed, by the court, that we had to file a motion to transfer in addition to the election of transfer.
- In our most recent transfer of a case from Chancery Court to Superior Court, we filed both an election of transfer and a motion to transfer, and it was smooth sailing—our motion to transfer was promptly granted and we were on our way to Superior Court.
- Re-service of Superior Court complaint not needed: “Chancery pleadings do not have to be refiled or reserved” in Superior Court. Lorenzetti v. Hodges, 2012 Del. Super. LEXIS 41, at *10 (Del. Super. Ct. Jan. 27, 2012)
- Changes to Superior Court complaint beyond court name and date: Once the motion to transfer is granted, we suggest filing the complaint in Superior Court without any substantive changes (as noted above). If any substantive changes are needed, an amended complaint may be filed after the original complaint is accepted for filing.
If any readers have had a different experience or have suggestions to supplement this short overview, please let us know.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.
For questions call 1-877-256-2472 or contact us at [email protected]