Motion for Continuance in Delaware

Background

“It is well-settled in this state that [p]arties must be mindful that scheduling orders are not mere guidelines but have full force and effect as any other order of the [Superior] Court.” (See Brewington-Carr v. University Whist, C.A. No. 06C-06-299 RRC, at *2 (Del. Super. Ct. Apr. 6, 2009).)

“Adherence to case scheduling orders is essential to the orderly administration of the Court's docket.” (See id.)

Therefore, “[r]equests for [a] continuance may be granted only upon good cause.” (See Electric Hose Rubber CO. v. NAI, C.A. No. 02A-08-016, at *1 (Del. Super. Ct. Feb. 6, 2004)

General Information for Complaints and Motions

“Every motion for continuance upon the ground of the absence of or unavailability of a material witness shall be filed as soon as said absence or unavailability becomes known and shall be accompanied by an affidavit on behalf of the party applying therefor, setting forth the facts which he expects to prove by such witness, the efforts made to procure his attendance, and the date when the absence or unavailability of the witness became known.” (See Gulf Oil Corp. v. Slattery (1961) 53 Del. 504, 507.)

“If it be stipulated by the opposite party, that the witness if called would testify as set forth in the affidavit, the court, in its discretion, may refuse the motion, and under such circumstances, the affidavit may be offered in evidence at the trial.” (See id.)

“After providing the trial judge with the reasons for and the length of the continuance, the party seeking the continuance must also demonstrate:

1. that it was diligent in preparing for the presentation of the testimony;
2. that the continuance will be likely to satisfy the need to present the testimony;
3. that the inconvenience to the Court, opposing parties, witnesses and jurors is insubstantial in relation to the likely prejudice which would result from the denial of the continuance.”

(See id.)

Standard of Review and Burdens of Proof

“Matters of scheduling are within the discretion of the trial judge, and the court may deny a motion for a continuance when the movant caused the dilemma that created the need for the continuance.” (See Carlton v. Zepski, No. 243, 2017, at *6 (Del. Feb. 7, 2018).)

“The decision to grant a continuance of trial is a matter that rests in the sound discretion of the trial judge. The denial of a motion for a continuance will not be disturbed on appeal unless the denial was arbitrary and capricious.” (See Miller v. Pennymac Corp. (2013) 77 A.3d 272.)

“The standard for a motion to amend a scheduling order is set forth in Superior Court Civil Rule 16. A schedule shall not be modified except by leave of the Court upon a showing of good cause.” (See Brewington-Carr v. University Whist, C.A. No. 06C-06-299 RRC, at *1 (Del. Super. Ct. Apr. 6, 2009).)

“To show ‘good cause,’ a party must establish that he has made diligent efforts to meet the trial scheduling deadlines." (See Candlewood Timber Group LLC v. Pan American Energy LLC, 2006 WL 25803, *4 (Del.Super.); Brewington-Carr v. University Whist, C.A. No. 06C-06-299 RRC, at *1 (Del. Super. Ct. Apr. 6, 2009).)

“Such orders and their enforcement are regarded as the essential mechanism for cases becoming trial-ready in an efficient, just and certain manner. The control of these schedules is deliberately reposed in the court, and not in counsel, so that this end may be achieved.” (See id.)

“We review Superior Court rulings on scheduling issues for abuse of discretion.” (See Manerchia v. Kirkwood Fitness and Racq. Clubs (2010) 992 A.2d 1237.)

The Court’s Decisions

It is well settled that “the party seeking the continuance has the burden of establishing a clear record of the relevant facts relating to the criteria for a continuance, including the length of the requested continuance.” (See Roache v. Charney (2012) 38 A.3d 281, 287.)

It is also well settled that “Family Court Rule of Civil Procedure 40 discusses motions for continuances in civil proceedings. In particular, the Rule provides that all motions for continuances must be made in a timely manner and in writing to the judge or master assigned to hear the case, however, the judge or master may consider an oral or incomplete request for a continuance when an emergency or unforeseeable situation prevents full compliance with Rule 40(a).” (See Del.Fam. Ct. R. Civ. P. 40(d); F.C. v. B.C. (2013) 64 A.3d 867, 875 n.49.)