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Barry M. Klayman and Mark E. Felger Barry M. Klayman and Mark E. Felger

Does a defendant in a complaint brought under 10 Del. C. Section 3901 concede or default on the allegations against it by moving to dismiss under Rule 12 only one of the counts in the complaint without first answering the complaint in whole or in part by affidavit? The answer is no, according to Judge Paul Wallace in his recent opinion in Unbound Partners Limited Partnership v. Invoy Holdings, C.A. No. N20C-09-302 PRW CCLD (Del. Super. March 17, 2021). In reaching this conclusion, Wallace discusses the related issue whether Rule 12 pre-answer motions for partial dismissal toll the period for answering a complaint in general.

Title 10, Section 3901 of the Delaware Civil Code obligates defendants in promissory note actions to answer by affidavit. The statute provides that in an action on a note, the plaintiff may require the defendant to answer any or all of the complaint with an affidavit setting forth the specific nature of any defense by stating on the face of the complaint that those allegations must be answered by affidavit. According to Wallace, the purpose of Section 3901’s answer-by-affidavit requirement is to dispose of legally uncontested matters quickly. The statute empowers the court to deem allegations admitted and to enter a default judgment if the defendant fails to comply strictly with the statute’s terms.

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