Delaware Superior Court Motion for Continuance

MOTION FOR CONTINUANCE OF [TRIAL / HEARING / PROCEEDING]

DELAWARE SUPERIOR COURT

PART I: CASE CAPTION AND FILING INFORMATION

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR [________________________________] COUNTY

MOTION FOR CONTINUANCE OF [TRIAL / HEARING / PROCEEDING]

Date Filed: [__/__/____]
Event Currently Scheduled: [________________________________]
Current Date of Event: [__/__/____]
Requested New Date: [__/__/____] or the first available date convenient to the Court
Filing Attorney: [________________________________]
Bar ID No.: [________________________________]

PART II: MOTION

COMES NOW [________________________________] ("Moving Party"), [☐ Plaintiff / ☐ Defendant / ☐ Other: ________________________________], by and through undersigned counsel, and respectfully moves this Honorable Court pursuant to Delaware Superior Court Civil Rule 40(b) and Civil Rule 7(b) for a continuance of the [trial / hearing / proceeding] currently scheduled for [__/__/____], and in support thereof states as follows:

A. Procedural Background

1. This action was commenced on or about [__/__/____].

2. The [trial / hearing / proceeding] in this matter is currently scheduled for [__/__/____] at [____] [a.m./p.m.] before the Honorable [________________________________].

3. The case has been assigned to the [________________________________] track under the Court's case management order entered [__/__/____].

4. The following prior continuances have been granted in this matter:

☐ No prior continuances have been requested or granted.

☐ Prior continuances:

B. Grounds for Continuance

5. The Moving Party respectfully requests a continuance based on the following grounds (check all that apply):

☐ Scheduling Conflict of Counsel. Undersigned counsel is scheduled to [appear at trial / attend a hearing / participate in a proceeding] in [________________________________] (Court/Case No. [________________________________]) on [__/__/____], which was set [before / after] the current date in this matter. A copy of the conflicting scheduling order is attached as Exhibit [____].

☐ Unavailability of Material Witness. [________________________________], a material witness whose testimony is essential to the Moving Party's [case-in-chief / defense / rebuttal], is unavailable on the scheduled date because [________________________________]. The witness is expected to be available on or after [__/__/____].

☐ Unavailability of Party. [________________________________], a named party in this action, is unavailable on the scheduled date due to [________________________________].

☐ Incomplete Discovery. Discovery remains incomplete through no fault of the Moving Party. Specifically, [________________________________]. The Moving Party has diligently pursued outstanding discovery, including [________________________________].

☐ Recently Produced or Disclosed Evidence. On [__/__/____], [________________________________] produced or disclosed [________________________________], which requires additional time for [review / analysis / expert evaluation / deposition].

☐ Pending Dispositive Motion. A [motion for summary judgment / motion to dismiss / other: ________________________________] was filed on [__/__/____] and remains pending. Resolution of the motion may narrow the issues for trial or render the trial unnecessary.

☐ Settlement Negotiations. The parties are engaged in active and good faith settlement negotiations [and/or have a mediation scheduled for [__/__/____]]. A brief continuance would allow the parties to explore resolution without incurring trial costs.

☐ Expert Witness Issues. The Moving Party's expert, [________________________________], [is unavailable on the trial date / requires additional time to complete analysis / has recently been retained as a replacement for prior expert].

☐ Medical or Health Emergency. [Counsel / a party / a material witness] is experiencing a medical condition that prevents [attendance / meaningful participation] on the scheduled date. Supporting documentation is attached as Exhibit [____].

☐ New Counsel / Substitution of Counsel. New counsel has recently entered an appearance on [__/__/____] and requires additional time to become familiar with the case, which involves [________________________________].

☐ Other Good Cause. [________________________________]

C. Detailed Factual Statement

6. The specific facts supporting this request are as follows:

[________________________________]

[________________________________]

[________________________________]

D. Diligence of Moving Party

7. The Moving Party has exercised due diligence in preparing this case and in seeking this relief. Specifically:

a. The Moving Party learned of the need for a continuance on [__/__/____].

b. This motion is being filed [____] days before the scheduled event.

c. The Moving Party has taken the following steps to mitigate the need for a continuance and to minimize any delay: [________________________________].

d. The Moving Party has complied with all prior scheduling orders and deadlines in this matter.

PART III: CERTIFICATE OF CONFERRAL

8. Pursuant to the requirements of the Superior Court and consistent with professional practice, undersigned counsel certifies that:

☐ On [__/__/____], counsel conferred with counsel for [________________________________] regarding this motion. Opposing counsel's position is as follows:

☐ Opposing counsel does not oppose the requested continuance.

☐ Opposing counsel opposes the requested continuance for the following reasons: [________________________________]

☐ Opposing counsel takes no position on the requested continuance.

☐ On [__/__/____], counsel conferred with all other parties or their counsel. Their positions are:

☐ Despite diligent efforts on [__/__/____] and [__/__/____], counsel was unable to reach opposing counsel to confer. Efforts included [________________________________].

PART IV: PREJUDICE ANALYSIS AND IMPACT ON TRIAL SCHEDULE

9. Lack of Prejudice to Opposing Party. The requested continuance will not unduly prejudice the opposing party because: [________________________________].

10. Impact on Court's Docket. The Moving Party acknowledges the Court's interest in the efficient management of its docket and represents that: [________________________________].

11. Impact on Witnesses. [________________________________].

12. Proposed Revised Schedule. If the continuance is granted, the Moving Party proposes the following revised schedule:

PART V: LEGAL STANDARD

13. Delaware Superior Court Civil Rule 40(b) authorizes the Court to grant continuances for good cause shown. The decision whether to grant or deny a continuance rests within the sound discretion of the trial court. See Coastal Barge Corp. v. Coastal Zone Indus. Control Bd., 492 A.2d 1242, 1246 (Del. 1985).

14. To establish good cause, the moving party must demonstrate:

a. Diligence -- that the party acted diligently in preparing for the scheduled event and in seeking the continuance;

b. Meritorious Reason -- that a legitimate basis exists for the postponement;

c. Likelihood of Cure -- that the continuance will resolve the problem necessitating the delay;

d. Proportional Inconvenience -- that the inconvenience to the Court, opposing parties, witnesses, and jurors is insubstantial relative to the prejudice that would result from denial.

See Sammons v. Doctors for Emergency Servs., P.A., 913 A.2d 519, 528 (Del. 2006); Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991).

15. Delaware Superior Court Civil Rule 6(b) further provides that the Court may, for cause shown, enlarge the time within which any act is required or allowed under the rules or by court order.

16. Courts consider additional factors including: (a) the length of the requested continuance; (b) prior continuances in the case; (c) the stage of the proceedings; (d) the complexity of the issues; and (e) the availability of alternative remedies short of a full continuance. See Emerson v. State, 497 A.2d 782, 785 (Del. 1985).

PART VI: DECLARATION OF COUNSEL

DECLARATION OF [________________________________]

I, [________________________________], Esquire, declare under penalty of perjury pursuant to 10 Del. C. Section 3927 as follows:

1. I am a member of the Bar of the State of Delaware, Bar ID No. [________________________________], and counsel of record for [________________________________] in the above-captioned matter.

2. The [trial / hearing / proceeding] is currently scheduled for [__/__/____] at [____] [a.m./p.m.] before the Honorable [________________________________].

3. A continuance is necessary because: [________________________________]

4. I first became aware of the circumstances necessitating this continuance on [__/__/____] and promptly took steps to seek relief from the Court.

5. On [__/__/____], I conferred with counsel for [________________________________] regarding this request. Opposing counsel [does not oppose / opposes / takes no position on] this motion.

6. [If applicable:] I have a scheduling conflict because I am required to appear in [________________________________] (Case No. [________________________________]) on [__/__/____]. That matter was set [before / after] the date in this case. A copy of the scheduling order is attached hereto as Exhibit [____].

7. The requested continuance is made in good faith and not for purposes of delay, harassment, or any improper purpose.

8. Granting this continuance will not unduly prejudice any party to this action.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on [__/__/____].

[________________________________]
[________________________________], Esquire
Bar ID No. [________________________________]
[________________________________] (Firm Name)
[________________________________] (Address)
[________________________________] (City, State, ZIP)
Telephone: [________________________________]
Email: [________________________________]

PART VII: PRAYER FOR RELIEF

WHEREFORE, the Moving Party respectfully requests that this Honorable Court:

1. GRANT this Motion for Continuance;

2. CONTINUE the [trial / hearing / proceeding] currently scheduled for [__/__/____] to [__/__/____] or the first available date convenient to the Court;

3. AMEND the case management order to reflect revised deadlines as proposed herein or as the Court deems appropriate;

4. GRANT such other and further relief as the Court deems just and proper.

Respectfully submitted,

Date: [__/__/____]

[________________________________]
[________________________________], Esquire
Delaware Bar ID No. [________________________________]
[________________________________] (Firm Name)
[________________________________] (Address)
[________________________________] (City, State, ZIP)
Telephone: [________________________________]
Facsimile: [________________________________]
Email: [________________________________]

Counsel for [☐ Plaintiff / ☐ Defendant / ☐ ________________________________]

PART VIII: PROPOSED ORDER

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR [________________________________] COUNTY

ORDER [GRANTING / DENYING] MOTION FOR CONTINUANCE

This matter having come before the Court upon the Motion for Continuance filed by [________________________________], and the Court having considered the motion, the declaration of counsel, any opposition filed, and the record in this case, and for the reasons stated [on the record / herein]:

IT IS HEREBY ORDERED that:

☐ The Motion for Continuance is GRANTED.

1. The [trial / hearing / proceeding] previously scheduled for [__/__/____] is hereby CONTINUED to [__/__/____] at [____] [a.m./p.m.].

2. The case management order is amended as follows:

Event	Revised Deadline
Discovery Cutoff	[__/__/____]
Expert Reports Due	[__/__/____]
Dispositive Motion Deadline	[__/__/____]
Pretrial Submissions	[__/__/____]
Final Pretrial Conference	[__/__/____]
Trial	[__/__/____]

3. Counsel shall promptly notify all witnesses and parties of the new schedule.

4. No further continuances will be granted absent extraordinary circumstances.

☐ The Motion for Continuance is DENIED.

The [trial / hearing / proceeding] shall proceed as scheduled on [__/__/____].

☐ The Motion for Continuance is GRANTED IN PART.

[________________________________]

SO ORDERED this [____] day of [________________________________], 20[____].

________________________________________
The Honorable [________________________________]
Judge, Superior Court of the State of Delaware

PART IX: CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], a true and correct copy of the foregoing MOTION FOR CONTINUANCE, together with the DECLARATION OF COUNSEL, PROPOSED ORDER, and all exhibits, was served upon the following via File & ServeXpress and the Court's electronic filing system:

☐ Service was also made by the following additional method(s):

☐ U.S. Mail, first class, postage prepaid

☐ Hand delivery

☐ Overnight courier

☐ Email (with consent of recipient)

________________________________________
[________________________________], Esquire
Delaware Bar ID No. [________________________________]

PART X: EXHIBITS CHECKLIST

The following exhibits are attached in support of this Motion:

☐ Exhibit A: Conflicting scheduling order from [________________________________]

☐ Exhibit B: Documentation of witness unavailability

☐ Exhibit C: Medical documentation (if applicable, filed under seal)

☐ Exhibit D: Correspondence regarding discovery issues

☐ Exhibit E: Correspondence with opposing counsel regarding conferral

☐ Exhibit F: [________________________________]

Sources and References

• Delaware Superior Court Civil Rules: https://courts.delaware.gov/rules/
• Delaware Superior Court Civil Rule 40 (Assignment of Actions for Trial; Continuances): https://courts.delaware.gov/superior/pdf/civil_rules_2016.pdf
• Delaware Superior Court Continuance Request Form: https://courts.delaware.gov/Forms/Download.aspx?id=6038
• Coastal Barge Corp. v. Coastal Zone Indus. Control Bd., 492 A.2d 1242 (Del. 1985)
• Sammons v. Doctors for Emergency Servs., P.A., 913 A.2d 519 (Del. 2006)
• Bailey v. State, 588 A.2d 1121 (Del. 1991)
• Emerson v. State, 497 A.2d 782 (Del. 1985)
• Delaware Judicial Case Management Preferences: https://courts.delaware.gov/superior/judgespref/