A couple of weeks ago, in an opinion on a motion to dismiss, Judge Andrews mentioned the the defendant had filed a "speaking motion":
Curt and U-Haul now move to dismiss for failure to state a claim under Rule 12(b)(6) solely on the grounds that the statutes of limitations for the negligence and breach of implied warranties claims have run. . . . Curt argues that, under Delaware law, both claims are time-barred; its speaking motion makes no reference at all to Massachusetts law. (See D.I. 65).
Street Retail LLC v. Curt Mfg., LLC, C.A. No. 24-731-RGA, 2025 U.S. Dist. LEXIS 54442, at *2 (D. Del. Mar. 24, 2025).
The document he referred to at D.I. 65, though, is a brief—not a motion. This made me wonder: what does the Court mean by "speaking motion" in this context?
This led me down an absurd rabbit hole, which I will attempt to recount for you here.
A Short Motion Without a Separate Brief?
I've always understood a "speaking motion" in the District of Delaware to be a format for a motion. It's a short motion, typically 10 pages or less, that is not accompanied by a brief and that instead sets forth the basis for relief in the body of the motion. It typically includes numbered paragraphs and lacks a tables of contents, table of authorities, and all the required sections of a brief.
This is consistent with, for example, the 2012 version of the Delaware Chancery Court guidelines, which said under "motions" that:
A submission of 15 pages or less may be submitted appropriately as a speaking motion with numbered paragraphs.
The 2021 amendment to these guidelines later removed this description—but I've still occasionally heard this term bouncing around.
The District of Delaware has also used this term in this way. Back in 2013, Judge Thynge called a 4-page motion with no accompanying brief a "speaking motion." See Commonwealth Constr. Co. v. James T. Redding, Inc., C.A. No. 12-1344-MPT, 2013 U.S. Dist. LEXIS 38960, at *2 (D. Del. Mar. 21, 2013). This example speaking motion is attached below.
But the District of Delaware's current Local Rules do not provide any guidelines for these kinds of motions, and do not use the term "speaking motion" at all. Nor do any of the versions of the local rules since at least 2005.
In searching around, I found a 2007 article by Potter Anderson and Carroon LLP (a major Delaware firm) that mentions a "speaking motion" in relation to the local rule for motions. Of course, another major Delaware firm, Young Conaway Stargatt & Taylor, published annotated versions of the local rules back in 2007 and 2010—and they didn't mention speaking motions at all.
An Actual Spoken Motion?
But that's not the only definition of a "speaking motion." The District Court itself links to a handbook for pro se litigants, presented by the Federal Bar Association, which defines a "speaking motion" as an oral motion made live in court:
SPEAKING MOTION: A motion first made in the courtroom without motion papers being filed first.
So there's that.
A Motion That Addresses Matters Not Raised in the Pleadings?
Black's Law Dictionary (the small version, at least) provides yet another definition for a "speaking motion":
speaking motion. A motion that addresses matters not raised in the pleadings.
This definition is also applied—stay with me here—in the Notes of the Advisory Committee on the 1946 amendments to Rule 12 of the Federal Rules of Civil Procedure:
Rule 12(b)(6), permitting a motion to dismiss for failure of the complaint to state a claim on which relief can be granted, is substantially the same as the old demurrer for failure of a pleading to state a cause of action. Some courts have held that as the rule by its terms refers to statements in the complaint, extraneous matter on affidavits, depositions or otherwise, may not be introduced in support of the motion, or to resist it. . . . It has . . . been suggested that this practice could be justified on the ground that the federal rules permit “speaking” motions. . . . The Committee believes that such practice, however, should be tied to the summary judgment rule. The term “speaking motion” is not mentioned in the rules, and if there is such a thing its limitations are undefined. Where extraneous matter is received, by tying further proceedings to the summary judgment rule the courts have a definite basis in the rules for disposing of the motion.
It's good to know that people were confused about what a "speaking motion" means all the way back in 1946!
In any case, I believe this final definition is basically what Judge Andrews meant in the Street Retail opinion, given that the Court was dealing with a 12(b) motion.
Regardless, it's worth keeping in mind that, even within the District of Delaware, practitioners use "speaking motion" to mean multiple different things.
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