Petitioners Brief — Harold R. Berk, Petitioner v. Wilson C. Choy, et al.
Supreme Court briefMay 27, 2025
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No. 24-440
In the Supreme Court of the United States
HAROLD R. BERK, PETITIONER,
v.
WILSON C. CHOY, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
BRIEF FOR THE PETITIONER
JAKE W. MURPHY
ARNOLD & PORTER
KAYE SCHOLER LLP
Suite 3100
1144 Fifteenth Street
Denver, CO 80202
(303) 863-1000
DEVIN M. ADAMS
ARNOLD & PORTER
KAYE SCHOLER LLP
Suite 4000
700 Louisiana Street
Houston, TX 77002
(713) 576-2400
R. STANTON JONES
ANDREW T. TUTT
Counsel of Record
ANTHONY J. FRANZE
KOLYA D. GLICK
SAMUEL I. FERENC
DANA KAGAN MCGINLEY
JILLIAN M. WILLIAMS
JENNIFER F. KAPLAN
KATIE WENG
ARNOLD & PORTER
KAYE SCHOLER LLP
601 Massachusetts Ave., NW
Washington, DC 20001
(202) 942-5000
andrew.tutt@arnoldporter.com
QUESTION PRESENTED
Whether a state law providing that a complaint must
be dismissed unless it is accompanied by an expert
affidavit may be applied in federal court.
(i)
PARTIES TO THE PROCEEDING
Petitioner Harold R. Berk was plaintiff in the district
court and appellant in the court of appeals.
Respondents Wilson C. Choy, MD and Beebe Medical
Center, Inc. were defendants in the district court and
appellees in the court of appeals.
Respondent Encompass Health Rehabilitation
Hospital of Middletown, LLC was a defendant in the
district court and appellee in the court of appeals.
Pursuant to this Court’s Rule 12.6, Encompass no longer
has an interest in the outcome of the petition for
certiorari.
(ii)
TABLE OF CONTENTS
Page
Opinions Below ..................................................................... 1
Jurisdiction ........................................................................... 1
Statutory Provisions Involved ............................................ 1
Statement .............................................................................. 2
A. Factual Background ............................................... 3
B. The Proceedings Below.......................................... 6
Summary of Argument ........................................................ 8
Argument ............................................................................ 12
I. Delaware’s Law Requiring the Dismissal of a
Complaint Unless it is Accompanied By an
Affidavit Attesting to the Merit of the Claims
Cannot be Applied in Federal Court ........................ 12
A. Under Shady Grove, if a Federal Rule and
State Law Answer the Same Question, the
Federal Rule Controls ......................................... 12
B. Federal Rules 8 and 9 Answer the Same
Question as Delaware’s Affidavit-of-Merit
Law ......................................................................... 13
C. Other Federal Rules Answer the Same
Question as Delaware’s Affidavit-of-Merit
Law ......................................................................... 23
D. The Federal Rules Are Valid and Do Not
Violate the Rules Enabling Act ........................... 27
E. The Third Circuit’s Conflict Analysis and
Erie Analysis Were Both Wrong ........................ 30
II. The Court Should Stick To Its Plain-Meaning
Approach to Procedural Conflicts ............................. 34
Conclusion ........................................................................... 44
(iii)
iv
Appendix
18 Del. C. § 6853 .......................................................... 1a
Fed. R. Civ. P. 3 .......................................................... 5a
Fed. R. Civ. P. 8 .......................................................... 6a
Fed. R. Civ. P. 9 .......................................................... 9a
Fed. R. Civ. P. 11 ...................................................... 11a
Fed. R. Civ. P. 12 ...................................................... 14a
Fed. R. Civ. P. 26 ...................................................... 19a
Fed. R. Civ. P. 37 ...................................................... 39a
TABLE OF AUTHORITIES
Cases
Page(s)
Abbas v. Foreign Pol’y Grp.,
783 F.3d 1328 (D.C. Cir. 2015) ............... 10, 24, 29, 32, 39
Albright v. Christensen,
24 F.4th 1039 (6th Cir. 2022) ...... 21, 22, 23, 24, 25, 26, 29
Beckett v. Beebe Med. Ctr., Inc.,
897 A.2d 753 (Del. 2006).................................................. 14
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) .......................................................... 19
Burlington N. R. Co. v. Woods,
480 U.S. 1 (1987) ............................ 9, 12, 27, 28, 29, 30, 31
Bus. Guides, Inc. v. Chromatic Commc’ns
Enters.,
498 U.S. 533 (1991) .......................................... 9, 27, 28, 29
Byrd v. Blue Ridge Rural Elec. Coop.,
356 U.S. 525 (1958) .......................................................... 13
Carbone v. Cable News Network, Inc.,
910 F.3d 1345 (11th Cir. 2018) ................................. 21, 39
Chamberlain v. Giampapa,
210 F.3d 154 (3d Cir. 2000) ....................................... 30, 31
Cooke v. Jackson Nat’l Life Ins. Co.,
919 F.3d 1024 (7th Cir. 2019) ......................................... 21
Corley v. United States,
11 F.4th 79 (2d Cir. 2021) ......................................... 22, 39
Dishmon v. Fucci,
32 A.3d 338 (Del. 2011).............................................. 14, 15
Duross v. Connections CSP, Inc.,
No. N19C-05-048, 2019 WL 4391231
(Del. Super. Ct. Sept. 13, 2019) ...................................... 15
Erickson v. Pardus,
551 U.S. 89 (2007) ...................................................... 19, 20
(v)
vi
Cases—Continued
Page(s)
Erie R. Co. v. Tompkins,
304 U.S. 64 (1938) ...................2, 7, 8, 11, 12, 33, 34, 40, 43
Est. of C.A. v. Grier,
752 F. Supp. 2d 763 (S.D. Tex. 2010) ............................. 37
Farzana K. v. Ind. Dep’t of Educ.,
473 F.3d 703 (7th Cir. 2007) ........................................... 24
Gallivan v. United States,
943 F.3d 291 (6th Cir. 2019) ... 10, 12-13, 21-22, 24, 29, 39
Gasperini v. Ctr. for Humans., Inc.,
518 U.S. 415 (1996) ............................................... 12-13, 42
Gates v. L.G. DeWitt, Inc.,
528 F.2d 405 (5th Cir. 1976) ........................................... 37
Guaranty Tr. Co. v. York,
326 U.S. 99 (1945) ................................................ 12, 28, 29
Hall v. Sorouri,
996 A.2d 793, 2010 WL 2255048
(Del. 2010) ........................................................................ 15
Hanna v. Plumer,
380 U.S. 460 (1965) .............................. 9, 13, 22, 27, 28, 33
Hertz Corp. v. Friend,
559 U.S. 77 (2010) ............................................................ 38
Hilderman v. Enea TekSci, Inc.,
No. 05cv1049, 2010 WL 143440
(S.D. Cal. Jan. 8, 2010) .................................................... 37
Hill v. McDonough,
547 U.S. 573 (2006) .......................................................... 19
Jennings v. Rodriquez,
583 U.S. 281 (2018) .......................................................... 18
Johnson v. City of Shelby,
574 U.S. 10 (2014) ...................................................... 19, 20
vii
Cases—Continued
Page(s)
Jones v. Bock,
549 U.S. 199 (2007) .................................................... 19, 43
Kalinowski v. Adams,
No. 12C-01-063, 2012 WL 1413999
(Del. Super. Ct. Mar. 9, 2012) ........................................ 15
Kirkland v. Guardian Life Ins. Co. of Am.,
352 F. App’x 293 (11th Cir. 2009) .................................. 37
Klocke v. Watson,
936 F.3d 240 (5th Cir. 2019) ............................... 24, 39, 41
Lapides v. Bd. of Regents of Univ. Sys. of
Georgia,
535 U.S. 613 (2002) .......................................................... 38
Leatherman v. Tarrant Cnty. Narcotics
Intelligence & Coordination Unit,
507 U.S. 163 (1993) .............................................. 18, 20, 43
Loper Bright Enters. v. Raimondo,
603 U.S. 369 (2024) .......................................................... 35
Love v. United States,
17 F.4th 753 (7th Cir. 2021) ............................................ 26
Makaeff v. Trump Univ., LLC,
715 F.3d 254 (9th Cir. 2013) ......................... 32, 33, 40, 41
Mammarella v. Evantash,
93 A.3d 629 (Del. 2014).................................................... 14
Martin v. Pierce County,
34 F.4th 1125 (9th Cir. 2022) .................................... 22, 29
Miss. Publ’g Corp. v. Murphree,
326 U.S. 438 (1946) .................................................... 28, 29
Navarro Sav. Ass’n v. Lee,
446 U.S. 458 (1980) .......................................................... 38
viii
Cases—Continued
Page(s)
Nichols v. Christiana Care Health Sys.,
266 A.3d 976, 2021 WL 5349943
(Del. 2021) ........................................................................ 15
Nuveen Mun. Tr. ex rel. Nuveen High
Yield Mun. Bond Fund v. WithumSmith
Brown, P.C.,
692 F.3d 283 (3d Cir. 2012) ....................................... 40, 41
Palacio ex rel. Mitchell v. Premier
Healthcare, Inc.,
No. N15C-04-207, 2015 WL 13697664
(Del. Super. Ct. Aug. 11, 2015)....................................... 15
Passmore v. Baylor Health Care Sys.,
823 F.3d 292 (5th Cir. 2016) ............................... 26, 27, 29
Pledger v. Lynch,
5 F.4th 511 (4th Cir. 2021) ................. 13, 22-25, 29, 31, 39
Royalty Network, Inc. v. Harris,
756 F.3d 1351 (11th Cir. 2014) ....................................... 24
Sanders v. Centurion L.L.C.,
319 A.3d 307, 2024 WL 2105545
(Del. 2024) ........................................................................ 15
Schlagenhauf v. Holder,
379 U.S. 104 (1964) .......................................................... 28
Schmigel v. Uchal,
800 F.3d 113 (3d Cir. 2015) ............................................. 40
Shady Grove Orthopedic Assocs., P.A. v.
Allstate Ins. Co., 559 U.S. 393 (2010)
.................... 2-3, 8-13, 16, 21-22, 27-31, 33-35, 37-39, 41-43
Sibbach v. Wilson & Co.,
312 U.S. 1 (1941) .............................................................. 28
Sisson v. Ruby,
497 U.S. 358 (1990) .......................................................... 38
ix
Cases—Continued
Page(s)
Skinner v. Switzer,
562 U.S. 521 (2011) .............................................. 18, 19, 20
Smith v. Kobasa,
113 A.3d 1081, 2015 WL 1903546
(Del. 2015) .................................................................. 14, 15
Standard Fire Ins. Co. v. Knowles,
568 U.S. 588 (2013) .......................................................... 38
Steward v. Irgau,
No. N18C-12-197, 2019 WL 2743714
(Del. Super. Ct. June 21, 2019) ...................................... 14
Stewart Org., Inc. v. Ricoh Corp.,
487 U.S. 22 (1988) ............................................................ 30
Swierkiewicz v. Sorema, N.A.,
534 U.S. 506 (2002) .......................................................... 18
Tutor Time Child Care Sys., Inc. v.
Franks Inv. Grp., Inc.,
966 F. Supp. 1188 (S.D. Fla. 1997) ................................. 37
Tyra v. Organ Procurement Agency of
Mich., 869 N.W.2d 213 (Mich. 2015) .............................. 23
Walker v. Armco Steel Corp.,
446 U.S. 740 (1980) ...................................................... 7, 30
Woods v. Interstate Realty Co.,
337 U.S. 535 (1949) .................................................... 42, 43
Young v. United States,
942 F.3d 349 (7th Cir. 2019) ........................................... 21
Statutes
28 U.S.C. § 1254(1) ............................................................... 1
42 U.S.C. § 1983 ............................................................ 18, 19
The Rules Enabling Act ................................ 3, 9, 27, 29, 35
28 U.S.C. § 2072 ............................................................... 12
28 U.S.C. § 2072(a) .......................................................... 28
x
Statutes—Continued
Page(s)
28 U.S.C. § 2072(b) .......................................................... 28
Del. Code Ann. tit. 11, § 1223 ............................................ 14
Del. Code Ann. tit. 18,
§ 6801(6) ............................................................................ 33
§ 6853 ...................................................................... 8, 13, 15
§ 6853(a) ................................................................ 24, 31, 33
§ 6853(a)(1) ........................................... 2, 13, 14, 23, 25, 26
§ 6853(a)(2) ................................................................... 6, 15
§ 6853(b) ..................................................................... 14, 20
§ 6853(c) ............................................................ 2, 14, 15, 20
§ 6853(e) ...................................................................... 14, 20
N.Y. C.P.L.R. 5501(c) ........................................................ 42
Rules
Fed. R. Civ. P. 1.................................................................. 36
Fed. R. Civ. P. 3.................................. 3, 9, 10, 23, 25, 27, 29
Fed. R. Civ. P. 4(d)(1) ........................................................ 28
Fed. R. Civ. P. 4(f).............................................................. 28
Fed. R. Civ. P. 8................... 2, 7-10, 13, 16-23, 27-31, 37, 43
Fed. R. Civ. P. 8(a) ................................................. 16, 31, 37
Fed. R. Civ. P. 8(a)(1) ........................................................ 16
Fed. R. Civ. P. 8(a)(2) .................................................. 18, 19
Fed. R. Civ. P. 8(a)(3) ........................................................ 16
Fed. R. Civ. P. 9................... 2, 8-10, 13, 17-23, 27-29, 31, 43
Fed. R. Civ. P. 9(b) ....................................................... 17, 18
Fed. R. Civ. P. 9(g) ............................................................. 37
Fed. R. Civ. P. 11.........................3, 7, 9-10, 22-25, 27-29, 32
Fed. R. Civ. P. 11(a) ..................................................... 24, 37
Fed. R. Civ. P. 11(b) ........................................................... 25
xi
Rules—Continued
Page(s)
Fed. R. Civ. P. 11(b)(2) ...................................................... 25
Fed. R. Civ. P. 11(b)(3) ...................................................... 25
Fed. R. Civ. P. 11(c) ........................................................... 25
Fed. R. Civ. P. 12...................3, 7, 9-10, 22-24, 27-29, 32, 40
Fed. R. Civ. P. 23.......................................................... 29, 34
Fed. R. Civ. P. 26.....................3, 9, 10, 23, 25, 26, 27, 28, 29
Fed. R. Civ. P. 26(a) ........................................................... 26
Fed. R. Civ. P. 26(a)(2)(D) ................................................. 26
Fed. R. Civ. P. 35................................................................ 28
Fed. R. Civ. P. 37...........................3, 9, 10, 23, 25, 27, 28, 29
Fed. R. Civ. P. 37(c) ........................................................... 27
Fed. R. Civ. P. 38................................................................ 28
Fed. R. Civ. P. 56.......................................................... 10, 32
Fed. R. Civ. P. 81................................................................ 36
Fed. R. Civ. P. 84 (2014) .................................................... 17
Fed. R. Civ. P. 84 advisory committee’s
note to 2015 amendment ................................................. 17
Other Authorities
5 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1215 (3d ed. 2004) ............... 19
Antonin Scalia & Bryan A. Garner,
Reading Law (2012) ........................................................ 18
Adam N. Steinman, Notice Pleading In Exile,
41 Cardozo L. Rev. 1057 (2020) ..................................... 16
Alan M. Trammell, Toil and Trouble: How the
Erie Doctrine Became Structurally Incoherent
(and How Congress Can Fix It),
82 Fordham L. Rev. 3249 (2014) .................................... 39
xii
Other Authorities—Continued
Page(s)
Alexander Holtzoff, Origin and Sources of the
Federal Rules of Civil Procedure,
30 N.Y.U. L. Rev. 1057 (1955) ........................................ 35
Amy Coney Barrett, Substantive Canons and
Faithful Agency, 90 B.U. L. Rev. 109 (2010) ............... 35
Benjamin Grossberg, Comment, Uniformity,
Federalism, and Tort Reform: The Erie
Implications of Medical Malpractice Certificate
of Merit Statutes, 159 U. Pa. L. Rev. 217 (2010).......... 39
Charles E. Clark, Pleading Under the Federal
Rules, 12 Wyo. L.J. 177 (1958) ....................................... 16
Charles E. Clark, Practice & Procedure,
328 Annals Am. Acad. Pol. & Soc. Sci. 61 (1960) .......... 36
Complaint for a Civil Case Alleging Negligence
(Form Pro Se 5), U.S. Courts,
https://www.uscourts.gov/formsrules/forms/complaint-a-civil-case-allegingnegligence ........................................................................ 17
D. Chanslor Gallenstein, Whose Law Is It
Anyway? The Erie Doctrine, State Law
Affidavits of Merit, and the Federal Tort
Claims Act,
60 U. Louisville L. Rev. 19 (2021) .... 20, 24, 25, 36, 38, 39
Federal Rules of Civil Procedure: Proceedings of
the Institute at Washington D.C. October 6, 7, 8
and of the Symposium at New York City October
17, 18, 19, 1938 (Edward H. Hammond ed., 1939) .. 35-36
Jeffrey W. Stempel, Shady Grove & the Potential
Democracy-Enhancing Benefits of Erie
Formalism, 44 Akron L. Rev. 907 (2011) ..................... 38
xiii
Other Authorities—Continued
Page(s)
Jennifer J. Hendricks, In Defense of the
Substance-Procedure Dichotomy,
89 Wash. U. L. Rev. 103 (2011) ...................................... 38
Kevin M. Clermont, The Repressible Myth of
Shady Grove, 86 Notre Dame L. Rev. 987 (2011) ........ 38
In the Supreme Court of the United States
No. 24-440
HAROLD R. BERK, PETITIONER
v.
WILSON C. CHOY, ET AL.
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
BRIEF FOR THE PETITIONER
OPINIONS BELOW
The opinion of the United States Court of Appeals for
the Third Circuit (Pet. App. 1a-11a) is unpublished but
available at 2024 WL 3534482. The decision of the United
States District Court for the District of Delaware
(Pet. App. 12a-15a) is unpublished but available at 2023
WL 2770573.
JURISDICTION
The judgment of the court of appeals was entered on
July 25, 2024. The petition for a writ of certiorari was filed
on October 16, 2024, and granted on March 10, 2025. The
jurisdiction of this Court is invoked under 28 U.S.C.
§ 1254(1).
STATUTORY PROVISIONS INVOLVED
Relevant statutory provisions are reproduced in the
Appendix.
(1)
2
STATEMENT
Before 1938, the federal courts were consigned to
apply the procedural rules of the forum state’s courts,
yielding a chaotic patchwork of divergent standards in
federal diversity cases. But that practice had its day in the
sun. With the promulgation of the Federal Rules of Civil
Procedure, federal judges and litigants were promised a
uniform, comprehensive system of federal procedure.
To maintain uniform procedures in federal courts,
this Court has instructed that when a valid federal rule
and state law “attempt[] to answer the same question” of
procedure, the federal rule alone controls. Shady Grove
Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393,
399 (2010). Courts “do not wade into Erie’s murky waters
unless the Federal Rule is inapplicable or invalid.” Id. at
398.
Delaware enacted an “affidavit-of-merit” statute that
adds an extra pleading requirement for medical
malpractice complaints. The statute requires dismissal of
a complaint alleging medical negligence if the plaintiff
does not include an affidavit stating a qualified expert’s
opinion that “there are reasonable grounds to believe that
the applicable standard of care was breached by the
named defendant or defendants and that the breach was
a proximate cause” of the plaintiff’s alleged injuries. Del.
Code Ann. tit. 18, § 6853(c); see id. § 6853(a)(1).
The question in this case is whether Delaware’s
affidavit-of-merit statute applies in federal court. It does
not. Federal Rules 8 and 9 answer the same question as
the Delaware law and set forth what a plaintiff must
include in a complaint filed in federal court. And neither
requires a medical malpractice plaintiff to attach an
affidavit of merit to a complaint to avoid dismissal.
Delaware’s law goes beyond imposing more stringent
pleading requirements than the Federal Rules. To avoid
3
dismissal, the Delaware statute demands an expert
disclosure and sworn verification of the merit of the
claims—questions already answered by Federal Rules 3,
11, 12, 26, and 37. Because these Federal Rules answer
the same question and are within the “statutory
authorization” of the Rules Enabling Act and “Congress’s
rulemaking power,” they alone apply in federal court.
Shady Grove, 559 U.S. at 398.
This conclusion is commanded not only by a
straightforward application of this Court’s jurisprudence,
but also the very purposes of the Federal Rules:
uniformity, simplicity, and avoiding civil cases turning on
mere technicalities. These goals are defeated if judges
and parties must stitch together a fifty-state quilt of
idiosyncratic procedural preferences. That is why the
overwhelming majority of courts of appeals have held that
similar state affidavit-of-merit statutes do not apply in
federal court. This Court should reverse the Third
Circuit’s contrary view and hold that Delaware’s affidavitof-merit statute must give way to the Federal Rules of
Civil Procedure.
A.
Factual Background
In August 2020, petitioner Harold R. Berk injured his
left ankle and foot in his Delaware home. Pet. App. 34a35a (Am. Compl. ¶ 8). He was taken by ambulance to the
emergency room at Beebe Healthcare, a facility owned by
respondent Beebe Medical Center, Inc. Pet. App. 34a-35a
¶ 8. After an X-ray revealed fractures to his tibia and
fibula, respondent Dr. Wilson C. Choy recommended
placing petitioner’s ankle in a splint. Pet. App. 35a ¶¶ 1011. Because of chronic injuries in petitioner’s lower
extremities, however, Dr. Choy opted instead to use a
controlled ankle monitor (CAM) boot. Pet. App. 35-36a
¶ 11.
Beebe Healthcare staff attempted to forcibly fit
petitioner with the CAM boot. Pet. App. 36a-37a ¶ 13. The
4
staff repeatedly twisted and turned petitioner’s fractured
leg and manipulated his ankle in an unsuccessful attempt
to force the boot onto his foot. Pet. App. 36a-37a ¶ 13.
These efforts aggravated and worsened petitioner’s
existing fractures and caused him extreme pain.
Pet. App. 36a-37a, 45a ¶¶ 13, 55. But Beebe Healthcare
staff never performed an additional X-ray of petitioner’s
ankle. Pet. App. 38a ¶ 21.
Petitioner remained hospitalized following the failed,
painful effort to apply the CAM boot. Pet. App. 37a-38a
¶¶ 14-21. Dr. Choy visited petitioner that evening and
advised him that surgery would not be required for the
fractures. Pet. App. 37a ¶ 16. Dr. Choy also advised that
petitioner should not put weight on his left leg for eight
weeks. Pet. App. 39a ¶¶ 16, 27. Dr. Choy did not indicate
that he had consulted with staff about the botched CAM
boot placement, nor did Dr. Choy order additional X-rays.
Pet. App. 37a-38a ¶¶ 17-18, 21.
After three days at Beebe Healthcare, petitioner was
transferred to a hospital owned by Encompass Health
Rehabilitation
Hospital
of
Middletown,
LLC.
Pet. App. 38a ¶¶ 21-22.1 While at the Encompass Health
facility, petitioner noticed his left leg appeared deformed
and was oriented at an unusual leftward angle.
Pet. App. 38a ¶ 23. Petitioner informed Encompass
Health staff, who recorded that petitioner’s left foot was
“somewhat rotated externally.” Pet. App. 38a, 39a ¶¶ 23,
28. But Encompass staff performed no X-rays or other
treatment. Pet. App. 38a ¶ 23. Instead, petitioner
underwent physical and occupational therapy requiring
Pursuant to Supreme Court Rule 12.6, Encompass Health and
petitioner notified the Court that “Encompass no longer has an
interest in the outcome of the petition for certiorari . . . as a result
of [Encompass’s] settlement” with petitioner. Letter from Andrew
Tutt to Hon. Scott S. Harris (Dec. 13, 2024).
1
5
him to place weight on his injured left leg, despite Dr.
Choy’s orders to the contrary. Pet. App. 38a-39a ¶¶ 24, 30.
One week after his discharge from Encompass
Health, petitioner went to an appointment at Dr. Choy’s
office, but Dr. Choy was not present. Pet. App. 40a ¶¶ 3234. Dr. Choy’s physician assistant ordered an X-ray of
petitioner’s left ankle. Pet. App. 40a ¶ 34. That imaging
showed petitioner’s leg was severely deformed, as his
fractured bones were pointing in three different
directions—a serious injury known as a trimalleolar ankle
fracture. Pet. App. 40a-41a ¶¶ 34, 37-38. After consulting
with Dr. Choy by phone, the physician assistant informed
petitioner that he needed immediate surgery to correct
these deformities. Pet. App. 41a ¶ 34.
Petitioner contacted Dr. Steven Raikin, then-head of
the ankle and foot practice at the Rothman Orthopaedic
Institute in Philadelphia. See Pet. App. 41a ¶ 36.
Reviewing the imaging, Dr. Raikin confirmed that it
showed major deformities in petitioner’s left ankle that
required urgent surgery. Pet. App. 41a-42a ¶¶ 37-38.
Petitioner was taken that day to Thomas Jefferson
University Hospital. Pet. App. 42a ¶ 39. After conducting
a procedure to reduce fluid in petitioner’s lungs, Dr.
Raikin performed the needed surgery. Pet. App. 43a ¶ 40.
At the conclusion of the operation, an external fixator
device was installed into petitioner’s bones to hold the
ankle in alignment while healing. Pet. App. 41a, 43a ¶¶ 38,
40.
After petitioner endured four months of constant pain
from the external fixator and repeated treatments for leg
ulcers, Dr. Raikin performed a second successful surgery
to remove the fixator. Pet. App. 43a-44a ¶¶ 42-47. Months
of extensive physical and occupational therapy followed.
Pet. App. 44a ¶¶ 48-51. More than a year after the original
incident, petitioner was finally able to walk short
distances with a cane. Pet. App. 44a ¶ 51.
6
B. The Proceedings Below
1. Proceeding pro se, petitioner filed a federal
diversity action in the District of Delaware in November
2022, alleging claims of medical negligence against Dr.
Choy, Beebe, and Encompass Health. Attempting to
comply with Delaware’s affidavit-of-merit statute,
petitioner filed with the complaint a motion under Del.
Code Ann. tit. 18, § 6853(a)(2) for an extension of time to
file an affidavit, which was granted. J.A. 24, 27.
Petitioner sought an affidavit of merit from Dr.
Raikin, who had performed the successful surgeries
following petitioner’s treatment by respondents.
Although Dr. Raikin had previously advised petitioner
that he had a good malpractice case, Dr. Raikin would not
provide an affidavit. J.A. 175-176. Attempting to further
comply with the affidavit-of-merit statute, petitioner
sought an affidavit from other medical providers who had
previously treated him, but several stated that they do not
provide affidavits of merit on claims against third parties.
J.A. 190-192. Unable to secure an affidavit, petitioner filed
under seal his medical records. J.A. 64-65.
2. In opposition to motions by respondents seeking
in camera review of petitioner’s sealed filings, petitioner
argued, inter alia, that Delaware’s affidavit-of-merit
statute does not apply in federal diversity actions. J.A. 83101. The district court dismissed petitioner’s claims,
concluding that Third Circuit precedent required the
court to apply the Delaware affidavit-of-merit statute.
Pet. App. 13a-15a.
3. The Third Circuit affirmed in an unpublished
opinion. Pet. App. 1a-2a. Relying on its prior decisions
holding that similar state affidavit-of-merit laws apply in
federal court, the court held that the district court
properly dismissed petitioner’s complaint for failing to
include an affidavit of merit. Pet. App. 5a-10a.
7
The Third Circuit first addressed whether the
Federal Rules and the state law conflicted. The court
concluded that the Delaware affidavit-of-merit statute did
not conflict with Federal Rules 8 or 9 because an affidavit
of merit “is not a pleading and serves a different purpose
than pleadings do.” Pet. App. 7a.
The Third Circuit also concluded that the Delaware
law’s requirement of a sworn affidavit attesting that the
case is meritorious does not conflict with Federal Rule 11
because “Rule 11 governs attorney conduct, whereas the
Delaware statute governs what an expert must do in a
particular type of case.” Pet. App. 7a. The court concluded
that “[t]hese two rules therefore have different ‘sphere[s]
of coverage’ and do not conflict.” Id. (quoting Walker v.
Armco Steel Corp., 446 U.S. 740, 752 (1980)).
Finally, the Third Circuit found no conflict between
the Delaware law and Federal Rule 12, concluding that
Rule 12 provides “a mechanism to test the sufficiency of
the complaint’s factual allegations,” while the affidavit-ofmerit statute “serves an entirely different purpose.”
Pet. App. 7a-8a.
Finding no conflict with the Federal Rules, the court
addressed the second step of the Erie inquiry, evaluating:
(1) whether the state law is outcome determinative; and
(2) whether failure to apply the state law would frustrate
the twin aims of Erie—discouraging forum shopping and
avoiding inequitable administration of the law.
Pet. App. 8a-9a. The court held that Delaware’s affidavitof-merit statute is outcome determinative because failure
to comply “can result in the dismissal of [a] case.”
Pet. App. 9a. The court also held that failure to apply
Delaware’s statute would frustrate the twin aims of Erie
by (1) encouraging plaintiffs unable to secure an affidavit
of merit to forum shop by “seek[ing] relief in a federal
court,” Pet. App. 9a; and (2) inequitably forcing
defendants sued for medical negligence “to engage in
8
additional litigation and expense in a non-meritorious
malpractice suit simply because the plaintiff was from a
different state.” Pet. App. 9a-10a.
In footnotes, the Third Circuit brushed aside
petitioner’s arguments that its precedent clashed with the
legal framework set forth in Shady Grove Orthopedic
Associates, P.A. v. Allstate Insurance Co., 559 U.S. 393
(2010). Pet. App. 4a-5a nn. 5-6. And the court found
distinguishable decisions from the overwhelming
majority of circuits holding that Shady Grove precludes
federal courts from applying state affidavit-of-merit laws.
See Pet. App. 8a n.10.
SUMMARY OF ARGUMENT
I. A straightforward application of Shady Grove
compels reversal of the decision below.
A. In Shady Grove, this Court held that a federal
court exercising diversity jurisdiction should not apply a
state statute or rule if (1) a Federal Rule of Civil
Procedure “answer[s] the same question” as the state
provision; and (2) the Federal Rule is within “statutory
authorization [and] Congress’s rulemaking power.” Id. at
398-99. If those two conditions are satisfied, the Federal
Rule applies—full stop. Courts do not “wade into Erie’s
murky waters unless the federal rule is inapplicable or
invalid.” Id. at 398.
B. Here, Federal Rules of Civil Procedure 8 and 9,
which govern the “general” and “special” requirements
for pleadings in federal court, answer the same question
as Del. Code Ann. tit. 18, § 6853, which imposes a pleading
requirement more stringent than the Federal Rules.
Federal Rule 8 identifies the three items a complaint
“must contain,” and none include an accompanying
affidavit of merit. And Federal Rule 9 identifies when a
complaint
must
satisfy
heightened
pleading
9
requirements, but does not require the heightened
allegations of merit imposed by the Delaware law.
C. Delaware’s law goes beyond imposing pleading
requirements that are more demanding than the Federal
Rules; it also imposes expert disclosure and verification
requirements under threat of dismissal. But Federal
Rules 3, 11, 12, 26, and 37 answer the same question. Rule
3 states what is required to commence a federal action,
Rule 11 states when a complaint must be verified, Rule 12
identifies when a complaint must be supported by
evidence, and Rules 26 and 37 prescribe the timing of
expert opinions and consequences for failing to file them.
D. Because the Delaware law “attempts to answer
the same question” as these Federal Rules, the Delaware
law does not apply unless the Federal Rules are invalid.
Shady Grove, 559 U.S. at 399. They are not.
Federal Rules 3, 8, 9, 11, 12, 26, and 37 do not
“exceed[] statutory authorization or Congress’s
rulemaking power,” but rather fall squarely within it.
Shady Grove, 559 U.S. at 398. The Federal Rules enjoy
“presumptive validity,” Burlington N. R. Co. v. Woods,
480 U.S. 1, 6 (1987), and a Federal Rule is invalid “only if
the Advisory Committee, this Court, and Congress erred
in their prima facie judgment that the Rule . . .
transgresses neither the terms of the Enabling Act nor
constitutional restrictions,” Bus. Guides, Inc. v.
Chromatic Commc’ns Enters., 498 U.S. 533, 552 (1991)
(quoting Hanna v. Plumer, 380 U.S. 460, 471 (1965)). This
Court has “rejected every statutory challenge to a
Federal Rule that has come before [it].” Shady Grove, 559
U.S. at 407 (plurality opinion) (collecting cases). “[A]ny
Rules Enabling Act challenge . . . has a large hurdle to get
over.” Bus. Guides, Inc., 498 U.S. at 552. That hurdle is
insurmountable here.
“What matters” in determining a federal rule’s
validity “is what the rule itself regulates: If it governs only
10
the manner and means by which the litigant’s rights are
enforced, it is valid; if it alters the rules of decision by
which the court will adjudicate those rights, it is not.”
Shady Grove, 559 U.S. at 407 (plurality opinion) (cleaned
up). Here, Rules 3, 8, 9, 11, 12, 26, and 37 undeniably
regulate “only the manner and the means” of enforcing
substantive rights: They merely specify what a complaint
must include at the outset to avoid dismissal and the
timing of expert disclosures. See, e.g., Abbas v. Foreign
Pol’y Grp., 783 F.3d 1328, 1337 (D.C. Cir. 2015)
(Kavanaugh, J.) (holding Rule 12 is valid because
“pleading standards . . . are procedural”). That is why
multiple courts of appeals considering affidavit-of-merit
laws have found “no reason to doubt the validity of the
Federal Rules at issue here.” Gallivan v. United States,
943 F.3d 291, 294 (6th Cir. 2019).
E. The Third Circuit erred in its analysis from start
to finish. The court found “no conflict” between any of the
Federal Rules and the Delaware affidavit-of-merit
statute, explicitly rejecting the argument that requiring
plaintiffs to attach an affidavit of merit to a complaint, on
pain of dismissal, conflicts with Rules 8, 9, 11, and 12. The
Third Circuit reached that erroneous conclusion by failing
to identify the question those rules seek to answer. Rules
8 and 9 answer the question: “what must a plaintiff do to
state a claim for relief?” Rule 11 answers the question:
“what mechanisms does the court use to limit frivolous
filings?” And Rule 12 is one of the two rules (the other is
Rule 56) that answer the question: “what are the
circumstances under which a court must dismiss a case
before trial?” Delaware’s affidavit-of-merit statute also
attempts to answer each of these questions, and it
provides markedly different answers than the Federal
Rules do. The Third Circuit found no conflict because it
did not ask these questions.
11
After finding no conflict, the Third Circuit waded into
Erie’s murky waters and held that Delaware’s statute is
the kind of substantive law that must apply in federal
court. That, too, was error. Delaware’s affidavit-of-merit
law is procedural from tip to tail. The provision is
addressed to Delaware state courts and specifies
procedures they should use in certain cases. It does not
address what federal courts, or courts applying Delaware
law in other states, should do. The affidavit-of-merit law
is also trans-substantive, applicable to all health-care
negligence suits regardless of the sovereign whose law
creates the cause of action. Procedural statutes like
Delaware’s affidavit-of-merit law are exactly the types of
rules that do not apply in federal courts after Erie.
II. The plain-meaning approach to the Federal Rules
reaffirmed in Shady Grove offers the clearest, most
faithful method for resolving clashes between the Federal
Rules and state procedural statutes. It mirrors this
Court’s broader practice of interpreting laws according to
their ordinary meaning—not by reshaping them to
accommodate nebulous policy concerns. It also protects
the uniformity of federal procedure by providing that
whenever the Rules speak directly to an issue, they
control. That bright-line test also enhances efficiency and
predictability, sparing litigants and courts from wasteful
collateral litigation over which procedural device governs
a particular case. And it is the most federalism-protective
approach: it applies the Federal Rules as written, leaving
within the states’ prerogative any procedural regimes
they craft for their own courts, without compelling federal
courts to shoehorn arcane and incompatible procedures
into the federal system and mangle the state provisions in
the process. For these reasons, the Court should reaffirm
and reapply its straightforward plain-meaning approach
to the conflict in this case.
12
ARGUMENT
I.
DELAWARE’S LAW REQUIRING THE DISMISSAL OF A
COMPLAINT UNLESS IT IS ACCOMPANIED BY AN
AFFIDAVIT ATTESTING TO THE MERIT OF THE
CLAIMS CANNOT BE APPLIED IN FEDERAL COURT
A straightforward application of Shady Grove
Orthopedic Associates, P.A. v. Allstate Insurance Co., 559
U.S. 393 (2010), compels reversal of the decision below.
Delaware’s statute has no place in federal court.
A.
Under Shady Grove, if a Federal Rule and State
Law Answer the Same Question, the Federal Rule
Controls
Courts employ a multi-step framework for “resolving
conflicts between state law and the Federal Rules.”
Burlington N. R. Co. v. Woods, 480 U.S. 1, 4 (1987). The
first step is to determine whether the state law “attempts
to answer the same question” as any Federal Rule. Shady
Grove, 559 U.S. at 399. If so, the next step is evaluating
whether the Federal Rule is a valid exercise of Congress’s
rulemaking authority under the Constitution and the
Rules Enabling Act, 28 U.S.C. § 2072. See Shady Grove,
559 U.S. at 398-99 (citing Burlington, 480 U.S. at 5). If
both requirements are satisfied, the inquiry is complete
and the Federal Rule—not the state law—applies. See
Gallivan v. United States, 943 F.3d 291, 295 (6th Cir.
2019) (“The Federal Rules have the same status as any
other federal law under the Supremacy Clause.”).
Only if the Federal Rules and the state provision do
not answer the same question do courts wade into the
perennially troublesome Erie analysis. Id. In that case,
the operative question shifts to whether declining to apply
the state’s law would “significantly affect[] the result of a
litigation.” Shady Grove, 559 U.S. at 406 (plurality
opinion) (quoting Guaranty Tr. Co. v. York, 326 U.S. 99,
109 (1945)). That inquiry “must be guided by ‘the twin
aims of the Erie rule: discouragement of forum shopping
13
and avoidance of inequitable administration of the laws.’”
Gasperini v. Ctr. for Humans., Inc., 518 U.S. 415, 428
(1996) (quoting Hanna v. Plumer, 380 U.S. 460, 468
(1965)). But even if the state provision is outcome
determinative, it will be displaced if there is an
irreconcilable conflict with “countervailing [federal]
considerations” or a “federal policy.” Byrd v. Blue Ridge
Rural Elec. Coop., 356 U.S. 525, 537-38 (1958); see also
Gasperini, 518 U.S. at 432-33, 437.
The Third Circuit never asked the threshold question
under Shady Grove: whether the Delaware affidavit-ofmerit law and the Federal Rules “answer the same
question.” They do. Rules 8 and 9 say “implicitly, but with
unmistakable clarity” that compliance with their terms is
all that is required to state a claim in federal court.
Hanna, 380 U.S. at 470. And other Federal Rules likewise
answer the same questions as the Delaware law.
B. Federal Rules 8 and 9 Answer the Same Question
as Delaware’s Affidavit-of-Merit Law
1. The question asked by the state law here is: what
must a complaint include to state a claim for relief? See
Pledger v. Lynch, 5 F.4th 511, 519 (4th Cir. 2021);
Gallivan, 943 F.3d at 293. Federal Rules 8 and 9 answer
that question. They list the items a complaint “must
contain” and the matters that must be pled with
specificity.
Under Del. Code Ann. tit. 18, § 6853, all complaints
alleging medical negligence must include an affidavit of
merit or face dismissal:
No health-care negligence lawsuit shall be
filed in this State unless the complaint is
accompanied by . . . [a]n affidavit of merit
as to each defendant signed by an expert
witness, as defined in § 6854 of this title,
and accompanied by a current curriculum
14
vitae of the witness, stating that there are
reasonable grounds to believe that there
has been health-care medical negligence
committed by each defendant.
Del. Code Ann. tit. 18, § 6853(a)(1) (emphasis added). To
comply with the statute, the expert’s affidavit must “set
forth the expert’s opinion that there are reasonable
grounds to believe that the applicable standard of care
was breached by the named defendant or defendants and
that the breach was a proximate cause of injury or injuries
claimed in the complaint.” Id. § 6853(c). “[A]n affiant is
under the penalty of perjury for any false assertion.”
Dishmon v. Fucci, 32 A.3d 338, 342 (Del. 2011) (citing Del.
Code Ann. tit. 11, § 1223).
Further, “[i]f the required affidavit does not
accompany the complaint or if a motion to extend the time
to file said affidavit . . . has not been filed with the court,
then the Prothonotary or clerk of the court shall refuse to
file the complaint and it shall not be docketed with the
court.” Del. Code Ann. tit. 18, § 6853(a)(1). And if the court
has granted an extension to file an affidavit of merit and
the plaintiff still fails to submit one, the complaint must be
dismissed. See, e.g., Smith v. Kobasa, 113 A.3d 1081, 2015
WL 1903546, at *2-3 (Del. 2015); Steward v. Irgau, 2019
WL 2743714, at *1 (Del. Super. Ct. June 21, 2019).2
Put simply, an affidavit of merit is required to “get
through the courthouse doors.” Mammarella v.
Evantash, 93 A.3d 629, 637 (Del. 2014). “[W]here a party
For claims involving negligence per se, not applicable here, “[a]n
affidavit of merit shall be unnecessary if the complaint alleges” that
“the personal injury or death occurred” because (1) a “foreign
object was unintentionally left within the [patient’s] body,” (2) a
“substance used in treatment” caused an “explosion or fire,” or (3) a
“surgical procedure was performed on the wrong patient or . . . part
of the patient’s body.” Del. Code Ann. tit. 18, § 6853(b), (e); see
Beckett v. Beebe Med. Ctr., Inc., 897 A.2d 753, 756-57 (Del. 2006).
2
15
fails to file an Affidavit of Merit with the Superior Court,
the Court will not entertain the case.” Dishmon, 32 A.3d
at 344-45; see also, e.g., Sanders v. Centurion L.L.C., 319
A.3d 307, 2024 WL 2105545, at *2 (Del. 2024) (affidavit of
merit is required “before a medical-negligence lawsuit
may proceed”); Hall v. Sorouri, 996 A.2d 793, 2010 WL
2255048, at *1 (Del. 2010) (lack of an “affidavit of merit
constitutes grounds [for] dismissal of medical negligence
claims as a matter of law”); Duross v. Connections CSP,
Inc., 2019 WL 4391231, at *3 (Del. Super. Ct. Sept. 13,
2019) (medical malpractice “[c]omplaint is statutorily
deficient” if it lacks an affidavit of merit).
Delaware state courts strictly enforce § 6853’s
requirements. See, e.g., Nichols v. Christiana Care
Health Sys., 266 A.3d 976, 2021 WL 5349943, at *2 (Del.
2021) (rejecting affidavit of merit because it stated nurse
was “certified,” instead of “licensed” as § 6853(c)
requires); Palacio ex rel. Mitchell v. Premier Healthcare,
Inc., 2015 WL 13697664, at *1 (Del. Super. Ct. Aug. 11,
2015) (rejecting affidavit of merit because it failed to state
in “simple, clear language” that the defendant’s
“negligence proximately caused [the plaintiff’s] injuries”);
Kalinowski v. Adams, 2012 WL 1413999, at *1-2 (Del.
Super. Ct. Mar. 9, 2012) (same).
The Delaware statute provides that the court may
grant “a single 60-day extension for the time of filing the
affidavit of merit,” Del. Code Ann. tit. 18, § 6853(a)(2),
which is also enforced strictly. See, e.g., Smith, 2015 WL
1903546, at *2 (prohibiting a second extension).3
The district court granted petitioner the single 60-day extension
in this case, but petitioner encountered difficulties in finding a
doctor willing to review medical records and prepare the affidavit of
merit. For example, petitioner’s treating surgeon had retired for
medical reasons; the surgeon’s former employer adopted a policy
against providing affidavits for their own patients in claims against
third parties; and other medical practices that treated petitioner
3
16
2. The Delaware affidavit-of-merit statute “attempts
to answer the same question” as the Federal Rules
because it “imposes additional requirements” beyond
what the Rules prescribe. Shady Grove, 559 U.S. at 399,
401.
Federal Rule 8, titled the “General Rules of
Pleading,” identifies only three things a complaint “must
contain”:
(a) CLAIM FOR RELIEF. A pleading that
states a claim for relief must contain:
(1) a short and plain statement of the
grounds for the court’s jurisdiction, unless
the court already has jurisdiction and the
claim needs no new jurisdictional support;
(2) a short and plain statement of the
claim showing that the pleader is entitled
to relief; and
(3) a demand for the relief sought, which
may include relief in the alternative or different types of relief.
Fed. R. Civ. P. 8(a). None of those requirements includes
an affidavit of merit or other attachment to the pleading.
That has been true since the advent of the Federal
Rules. When the Rules took effect in 1938, Rule 8 was
accompanied by a set of forms—including form
complaints—to “illustrate[]” the rules. Charles E. Clark,
Pleading Under the Federal Rules, 12 Wyo. L.J. 177, 181
(1958); Adam N. Steinman, Notice Pleading In Exile, 41
Cardozo L. Rev. 1057, 1068-71 (2020). Each of the form
complaints included only three requirements: an
allegation of jurisdiction, a short and plain statement of
had similar policies. J.A. 190-192. Delaware’s statutory extension
limitation is unlike federal practice where motions for extension are
committed to the discretion of the district court.
17
the claim showing entitlement to relief, and a demand for
the relief sought. Fed. R. Civ. P. 84 (2014) (abrogated
2015). Nothing more, nothing less. And none required the
complaint to include an affidavit of merit, nor any other
attachment, for that matter.4
When the Federal Rules require more than the
general requirements under Rule 8, they say so. Rule 9,
titled “Pleading Special Matters,” sets forth rules for
specific matters, including how to plead capacity or
authority to sue, fraud, conditions precedent, special
damages, and admiralty claims. Perhaps most well-known
is Rule 9(b), which provides that “[i]n alleging fraud or
mistake, a party must state with particularity the
circumstances constituting fraud or mistake. Malice,
intent, knowledge, and other conditions of a person’s mind
may be alleged generally.”
The form complaint for a negligence action, for instance, included
only the following: “1. Allegation of jurisdiction. 2. On June 1, 1936,
in a public highway called Boylston Street in Boston,
Massachusetts, defendant negligently drove a motor vehicle against
plaintiff who was then crossing said highway. 3. As a result plaintiff
was thrown down and had his leg broken and was otherwise injured,
was prevented from transacting his business, suffered great pain of
body and mind, and incurred expenses for medical attention and
hospitalization in the sum of one thousand dollars. Wherefore
plaintiff demands judgment against [defendant] in the sum of
______ dollars and costs.” That’s it. Further, when the Advisory
Committee removed the forms in 2015 because their “purpose of
providing illustrations for the rules . . . ha[d] been fulfilled,” the
Committee noted that the forms were no longer necessary because
“there are many excellent alternative sources for forms, including
the website of the Administrative Office of the United States
Courts” and other sources. Fed. R. Civ. P. 84 advisory committee’s
note to 2015 amendment. Those forms, too, include only the three
requirements of Rule 8. See, e.g., Complaint for a Civil Case Alleging
Negligence
(Form
Pro
Se
5),
U.S.
Courts,
https://www.uscourts.gov/forms-rules/forms/complaint-a-civil-casealleging-negligence (last visited May 26, 2025).
4
18
Consistent with the text of the rules, this Court has
repeatedly held that Rule 8 includes the only
requirements for a complaint unless another federal rule,
like Rule 9, expressly imposes additional requirements. In
Leatherman v. Tarrant County Narcotics Intelligence &
Coordination Unit, 507 U.S. 163 (1993), for instance, this
Court reversed the Fifth Circuit’s application of a
pleading rule that complaints alleging § 1983 civil rights
claims against municipalities needed to include “factual
detail and particularity [of] the basis for the claim,”
including “why the defendant-official cannot successfully
maintain the defense of immunity.” Id. at 167. This Court
held that the Fifth Circuit’s “heightened pleading
standard” could not stand because it was “more stringent”
than Rule 8(a)(2), which “requires that a complaint
include only ‘a short and plain statement of the claim
showing that the pleader is entitled to relief.’” Id. at 164,
167.
The Court observed that “Rule 9(b) does impose a
particularity requirement,” and thus the “Federal Rules
do address . . . the question of the need for greater
particularity in pleading certain actions.” Id. at 168. But
the Rules “do not include among the enumerated actions
any reference to complaints alleging municipal liability
under § 1983. Expressio unius est exclusio alterius.” Id.
In other words, “[t]he expression of one thing implies the
exclusion of others.” Jennings v. Rodriquez, 583 U.S. 281,
300 (2018) (quoting Antonin Scalia & Bryan A. Garner,
Reading Law 107 (2012)).
Thus, in case after case, this Court has rejected
pleading requirements that go beyond those set forth in
Rules 8 and 9. See, e.g., Swierkiewicz v. Sorema, N.A., 534
U.S. 506, 512 (2002) (“[I]mposing the Court of Appeals’
heightened pleading standard . . . conflicts with Federal
Rule of Civil Procedure 8(a)(2), which provides that a
complaint must include only ‘a short and plain statement
19
of the claim showing that the pleader is entitled to
relief.’”); Hill v. McDonough, 547 U.S. 573, 582 (2006)
(rejecting the argument that § 1983 suits challenging a
method of execution must identify an acceptable
alternative: “Specific pleading requirements are
mandated by the Federal Rules of Civil Procedure, and
not, as a general rule, through case-by-case
determinations of the federal courts.”); Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (per curiam) (reversing
lower court standard requiring complaints to include
specific facts of “substantial harm” in Eighth Amendment
actions because Rule 8 “requires only ‘a short and plain
statement of the claim showing that the pleader is entitled
to relief’”); Skinner v. Switzer, 562 U.S. 521, 530 (2011)
(“Rule 8(a)(2) of the Federal Rules of Civil Procedure
generally requires only a plausible ‘short plain’ statement
of the plaintiff’s claim, not an exposition of his legal
argument”); see also Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007) (“Here, the Court is not requiring
heightened fact pleading of specifics, but only enough
facts to state a claim to relief that is plausible on its face.”).
The principle is so settled that the Court has
summarily reversed lower federal courts that imposed
requirements beyond those set by Rule 8. In Johnson v.
City of Shelby, 574 U.S. 10, 11 (2014) (per curiam), for
example, the Court summarily rejected a lower court
requirement that plaintiffs asserting civil rights actions
expressly invoke § 1983, reasoning that the text of Rule 8
provides the only requirements for a complaint and
“indicates that a basic objective of the rules is to avoid civil
cases turning on technicalities.” Id. (quoting 5 Charles
Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1215 (3d ed. 2004)); see also Jones v. Bock,
549 U.S. 199, 212 (2007) (advising that courts should
generally “not depart from the usual practice under the
Federal Rules on the basis of perceived policy concerns”).
20
3. The Federal Rules and Delaware law at issue here
“answer the same question” on their face. See D. Chanslor
Gallenstein, Whose Law Is It Anyway? The Erie
Doctrine, State Law Affidavits of Merit, and the Federal
Tort Claims Act, 60 U. Louisville L. Rev. 19, 46 (2021)
(“So, do [affidavit-of-merit laws] answer the same
question as Rule 8? Undoubtedly so.”); id. at 47 (similar
for Rule 9). Rule 8 identifies what a federal complaint
“must contain”; Rule 9 expands on the requirements for
special matters; and Delaware’s law mandates that a
complaint must be accompanied by an affidavit attesting
to the claims’ merit, or else plead allegations that fall
within an exception, Del. Code Ann. tit. 18, § 6853(b), (e).
Indeed, the Delaware affidavit-of-merit requirement
is every bit the kind of “heightened pleading standard”
this Court has repeatedly held runs afoul of Rules 8 and
9. Unless “the complaint alleges” specific facts supporting
a negligence per se claim, the Delaware law requires a
complaint to include an affidavit that “set[s] forth the
expert’s opinion that there are reasonable grounds to
believe that the applicable standard of care was breached
by the named defendant or defendants and that the
breach was a proximate cause of injury or injuries claimed
in the complaint.” Id. § 6853(b), (c). Requiring a complaint
to include an affidavit that attests to the legal
requirements of breach and proximate causation is
materially identical to requiring a complaint to include
specific facts as to why the plaintiff suffered cognizable
“substantial harm,” Erickson, 551 U.S. at 93, “why the
defendant-official cannot successfully maintain the
defense of immunity,” Leatherman, 507 U.S. 167, or why
the conduct alleged violates specific legal requirements or
statutes, Skinner, 562 U.S. at 530; see Johnson, 574 U.S.
at 11. Federal courts cannot impose pleading
requirements that exceed what a complaint “must
contain” under Rules 8 and 9, so it would be passing
21
strange to allow a state law to impose such elevated
requirements in federal court. Federal Rules 8 and 9 and
Delaware’s affidavit-of-merit requirement cannot coexist.
4. For these reasons, the overwhelming majority of
the courts of appeals have held that state affidavit-ofmerit laws like Delaware’s do not apply in federal court.
Applying Shady Grove, the Sixth Circuit held that Rule 8
sets forth the requirements for a complaint and thus
“implicitly ‘excludes other requirements that must be
satisfied for a complaint to state a claim for relief.’”
Gallivan v. United States, 943 F.3d 291, 293 (6th Cir.
2019) (quoting Carbone v. Cable News Network, Inc., 910
F.3d 1345, 1352 (11th Cir. 2018)). The Sixth Circuit
further reasoned that “Rule 9 confirms the point by
specifying the few situations when heightened pleading is
required—for instance, when a party alleges fraud or
mistake.” Id. at 293; accord Albright v. Christensen, 24
F.4th 1039, 1048-49 (6th Cir. 2022) (finding Michigan’s
affidavit-of-merit statute does not apply in federal court
because inter alia Rule 8 answers the same question).
The Seventh Circuit has also held that state affidavitof-merit requirements mirroring Delaware’s conflict with
Rule 8. Young v. United States, 942 F.3d 349, 351 (7th Cir.
2019). “Rule 8 of the Federal Rules of Civil Procedure
specifies what a complaint must contain,” and “does not
require attachments.” Id. at 351. The Seventh Circuit
emphasized that, in federal court, a plaintiff can “initiate
a contract case . . . without attaching the contract, an
insurance case without attaching the policy, a securities
case without attaching the registration statement, and a
tort case without attaching an expert’s report.” Id. “Many
cases hold that federal, not state, rules apply to
procedural matters—such as what ought to be attached to
pleadings—in all federal suits, whether they arise under
federal or state law.” Id. (quoting Cooke v. Jackson Nat’l
Life Ins. Co., 919 F.3d 1024, 1027 (7th Cir. 2019)).
22
The Second Circuit, too, has held that state affidavitof-merit laws like Delaware’s do not apply in federal court.
Corley v. United States, 11 F.4th 79, 83 (2d Cir. 2021). “All
that Federal Rule of Civil Procedure 8 requires,” the
Second Circuit explained, “is a ‘short and plain statement
of the claim showing that the pleader is entitled to relief.’”
Id. at 88-89 (quoting Fed. R. Civ. P. 8(a)(2)). “The Rule
embodies a policy of ‘notice pleading’ that eschews the
need to plead specific types of documentary evidence to
establish a plausible claim.” Id. at 89. “This is in direct
contrast to the heightened pleading requirement”
imposed by affidavit-of-merit statutes. Id.
The Fourth Circuit has likewise joined the “growing
consensus” of circuits and held that affidavit-of-merit
statutes do not apply in federal court because they answer
the same questions already answered by Federal Rules 8
and 9, as well as other rules. Pledger v. Lynch, 5 F.4th 511,
518-20 (4th Cir. 2021). The Fourth Circuit held that “the
Federal Rules governing the sufficiency of pleadings . . .
answer the ‘question in dispute’ here, and thus supplant”
state affidavit-of-merit laws. Id. at 519; see also Martin v.
Pierce County, 34 F.4th 1125, 1130 (9th Cir. 2022) (“Rule
8’s requirement of a ‘short and plain statement’ of the
plaintiff’s claim, jurisdictional statement, and explanation
of the relief sought is ‘a list of elements that implicitly
excludes other requirements.’” (quoting Pledger, 5 F.4th
at 519)).
The Sixth Circuit, building on its decision in Gallivan
and drawing further on Shady Grove and Hanna v.
Plumer, has also held that Michigan’s affidavit-of-merit
requirement does not apply in diversity actions because it
conflicts with Rules 8 and 9 (and 11 and 12). Albright, 24
F.4th at 1045-46. The court further held that Michigan’s
“pre-suit notice” provision, which requires prospective
plaintiffs to notify providers that they intend to sue before
commencing the action, is also inapplicable in diversity
23
cases. Id. at 1043, 1046-48. The Sixth Circuit explained
that, per the Michigan Supreme Court, the pre-suit notice
and affidavit-of-merit statutes impose mandatory
preconditions to filing a complaint. Id. at 1046 (citing Tyra
v. Organ Procurement Agency of Mich., 869 N.W.2d 213,
226 (Mich. 2015)). Both requirements therefore conflicted
not only with Rules 8 and 9, and 11 and 12, but also
Federal Rule 3, which imposes no such prerequisites to
commencing a suit. Id. at 1047-49 (citing Pledger, 5 F.4th
at 516, 519).
C.
Other Federal Rules Answer the Same Question as
Delaware’s Affidavit-of-Merit Law
Beyond imposing pleading requirements more
stringent than Federal Rules 8 and 9, the Delaware
affidavit-of-merit statute answers the same questions as
other Federal Rules, reinforcing that the judgment below
must be reversed.
The Delaware law requires that the affidavit of merit
be signed by a qualified expert witness, attach the
expert’s curriculum vitae, and state that there “are
reasonable grounds to believe that there has been healthcare medical negligence committed by each defendant.”
Del. Code Ann. tit. 18, § 6853(a)(1). If a litigant fails to
submit the affidavit, the court must dismiss the case. But
the questions those provisions attempt to answer are
already answered by the Federal Rules. Rule 12 answers
the question of on what bases a case may be dismissed
before trial. Rule 11 answers the question of when a
complaint must be verified with an affidavit. Further,
Rule 3 answers the question of what is needed to
commence a lawsuit. And Rules 26 and 37 answer the
question of when a plaintiff must produce expert
testimony or face dismissal.
1. Federal Rule 12 sets forth the grounds for
dismissing a complaint before a responsive pleading is
filed in federal court, and those grounds do not include
24
failure to attach an affidavit. Compare Fed. R. Civ. P. 12,
with Del. Code Ann. tit. 18, § 6853(a). Like the Delaware
statute, Rule 12 answers the question: under what
circumstances must a court dismiss a case before trial?
Abbas v. Foreign Pol’y Grp., 783 F.3d 1328, 1333-34 (D.C.
Cir. 2015) (Kavanaugh, J.); see also Pledger, 5 F.4th at
520. “Rule 12 does not demand any evidentiary support—
in an affidavit, certificate, or any other form—for a claim
to be plausible and thus survive a motion to dismiss.”
Gallenstein, supra, at 48-49. “State affidavit of merit
statutes, on the other hand, do require that a plaintiff put
forth evidentiary support at the pleading stage in the form
of an affidavit or certificate of merit.” Id. at 49; see
Gallivan, 943 F.3d at 293 (“Rule 12 does not demand
‘evidentiary support’—in an affidavit or in any other
form—for a claim to be plausible.”).
The Delaware affidavit-of-merit statute attempts to
answer the same question as Rule 12 because it “imposes
additional procedural requirements not found in the
federal rules . . . for a case to proceed at the same stage of
litigation.” Klocke v. Watson, 936 F.3d 240, 245 (5th Cir.
2019); Pledger, 5 F.4th at 520 (similar); see also Abbas, 783
F.3d at 1334 (similar).
2. Federal Rule 11 and the Delaware affidavit-ofmerit statute also answer the same question. Rule 11
states that “a pleading need not be verified or
accompanied by an affidavit”—precisely what Delaware
demands. Fed. R. Civ. P. 11(a) (emphasis added).5 Rule 11
Rule 11(a) states that “[u]nless a rule or statute specifically states
otherwise, a pleading need not be verified or accompanied by an
affidavit.” Fed. R. Civ. P. 11(a). But “[t]he rule’s reference to other
rules or statutes . . . means other federal rules or statutes.” Albright,
24 F.4th at 1045 n.2 (quoting Royalty Network, Inc. v. Harris, 756
F.3d 1351, 1360 (11th Cir. 2014)); Farzana K. v. Ind. Dep’t of Educ.,
473 F.3d 703, 705 (7th Cir. 2007) (holding that Rule 11’s reference to
a “‘rule or statute’ . . . means federal rule or federal statute, because
5
25
further establishes that “presenting to the court a
pleading, written motion, or other paper—whether by
signing, filing, submitting, or later advocating it”—is
sufficient to verify that the claims are “warranted by
existing law or by a nonfrivolous argument for extending,
modifying, or reversing” it, and that the “factual
contentions have evidentiary support or . . . will likely
have evidentiary support.” Fed. R. Civ. P. 11(b)(2)-(3).
Delaware’s law, by contrast, provides that a pleading
must be accompanied by an expert’s “state[ment] that
there are reasonable grounds to believe that there has
been health-care medical negligence.” Del. Code Ann. tit.
18, § 6853(a)(1). These are opposing answers to the same
question: what mechanisms does the court use to limit
frivolous filings?
Rule 11 provides the mechanisms that federal courts
must use for that purpose: Rule 11(b)’s certification
requirements and Rule 11(c)’s sanctions provisions. Yet
affidavit-of-merit statutes like Delaware’s attempt to
answer the same question as Rule 11 “through a
mechanism—an early affidavit from an expert—that Rule
11 specifically disclaims.” Pledger, 5 F.4th at 520;
Albright, 24 F.4th at 1045 (finding Rule 11 answers same
question as affidavit-of-merit statute); Gallenstein, supra,
at 48 (“State AOM statutes effectively resurrected an
oath requirement by requiring parties to attest to the
validity of their claims in addition to what the text of Rule
11 mandates.”).
3. Were all this not enough, Federal Rules 3, 26 and
37—though not addressed by the court below—also
answer the same questions as the Delaware law.
Rule 3 provides that “[a] civil action is commenced by
filing a complaint with the court.” It answers the question
state requirements for pleading do not apply in federal litigation”
(quoting Fed. R. Civ. P. 11(a))).
26
of what must be filed to commence a lawsuit. Delaware’s
affidavit-of-merit law answers the same question. It says
to commence a suit, a complaint must be “accompanied by
. . . [a]n affidavit of merit.” Del. Code Ann. tit. 18,
§ 6853(a)(1). “If the required affidavit does not accompany
the complaint or if a motion to extend the time to file said
affidavit . . . has not been filed with the court, then the
Prothonotary or clerk of the court shall refuse to file the
complaint and it shall not be docketed with the court.” Del.
Code Ann. tit. 18, § 6853(a)(1). Cf. Albright, 24 F.4th at
1047 (“Because both [Michigan’s pre-suit notice
requirement] and Rule 3 govern how a lawsuit is
commenced, the two clearly conflict.”).
Rule 26 addresses the timing of expert disclosures
and the consequences for failing to offer expert support
for a claim. That is the same question answered by
Delaware’s law, which requires an expert affidavit to
accompany a complaint. Rule 26 provides that parties
must generally disclose required expert testimony “at the
times and in the sequence that the court orders”;
“[a]bsent a stipulation or a court order, the disclosures
must be made (i) at least 90 days before the date set for
trial or for the case to be ready for trial; or (ii) if the
evidence is intended solely to contradict or rebut evidence
on the same subject matter identified by another party . . .
within 30 days after the other party’s disclosure.” Fed. R.
Civ. P. 26(a)(2)(D); see, e.g., Passmore v. Baylor Health
Care Sys., 823 F.3d 292, 298 (5th Cir. 2016) (identifying
conflict between Rule 26 and Texas provision that “[i]f
applied in federal court” would “significantly interfere
with federal control of discovery, an area governed
exclusively by federal law”); Love v. United States, 17
F.4th 753, 755 (7th Cir. 2021) (finding Rule 26, along with
federal evidentiary rules, is the “source of authority to
control expert evidence” and “specifies when and how
expert evidence must be produced”).
27
Rule 37(c), in turn, states the consequences for a
party’s failure to comply with requirements of Rule 26(a).
In addition to other available sanctions, Rule 37(c)
permits federal courts to dismiss an action for failure to
comply with Rule 26. An affidavit-of-merit statute
requiring an expert disclosure with a complaint or face
dismissal thus “answer[s] the same question as Rules 26
and 37,” and must give way to the Federal Rules.
Passmore, 823 F.3d at 297. Rule 37’s “discretionary mode
of operation unmistakably conflicts with the mandatory”
dismissal required by Delaware’s law. Burlington, 480
U.S. at 7.
The Delaware affidavit-of-merit law “attempts to
answer the same question” as each of these Federal
Rules. Shady Grove, 559 U.S. at 399. Thus, the Federal
Rules alone apply as long as they are valid. They are.
D. The Federal Rules Are Valid and Do Not Violate
the Rules Enabling Act
Where, as here, a Federal Rule answers the same
question as a state law, the Federal Rule applies in federal
court unless it is invalid. Shady Grove, 559 U.S. at 398.
Federal Rules 3, 8, 9, 11, 12, 26, and 37 are valid exercises
of Congress’s rulemaking authority under the
Constitution and the Rules Enabling Act.
“Congress has undoubted power to supplant state
law, and undoubted power to prescribe rules for the
courts it has created, so long as those rules regulate
matters ‘rationally capable of classification’ as
procedure.” Shady Grove, 559 U.S. at 406 (plurality
opinion) (quoting Hanna, 380 U.S. at 472). To this end, the
Federal Rules enjoy “presumptive validity,” Burlington,
480 U.S. at 6, and a Federal Rule is invalid “only if the
Advisory Committee, this Court, and Congress erred in
their prima facie judgment that the Rule . . . transgresses
neither the terms of the Enabling Act nor constitutional
restrictions,’” Bus. Guides, Inc. v. Chromatic Commc’ns
28
Enters., 498 U.S. 533, 552 (1991) (quoting Hanna, 380
U.S. at 471).
This Court has “rejected every statutory challenge to
a Federal Rule that has come before [it].” Shady Grove,
559 U.S. at 407 (plurality) (collecting cases). “[A]ny Rules
Enabling Act challenge . . . has a large hurdle to get over.”
Bus. Guides, Inc., 498 U.S. at 552.
In the Rules Enabling Act, Congress authorized this
Court to prescribe “general rules of practice and
procedure and rules of evidence,” with the limitation that
rules that “abridge, enlarge or modify any substantive
right” are invalid. 28 U.S.C. § 2072(a)-(b). Valid rules
regulate “the judicial process for enforcing rights and
duties recognized by substantive law,” Sibbach v. Wilson
& Co., 312 U.S. 1, 14 (1941); “the manner and the means
by which a right to recover . . . is enforced,” Miss. Publ’g
Corp. v. Murphree, 326 U.S. 438, 446 (1946) (quoting
Guar. Tr. Co. of N.Y. v. York, 326 U.S. 99, 109 (1945)); or
are otherwise “reasonably necessary to maintain the
integrity of that system of rules,” Burlington, 480 U.S. at
5; see also Shady Grove, 559 U.S. at 407-10 (plurality
opinion). “What matters is what the rule itself regulates:
If it governs only the manner and means by which the
litigant’s rights are enforced, it is valid; if it alters the
rules of decision by which the court will adjudicate those
rights, it is not.” Shady Grove, 559 U.S. at 407 (plurality
opinion) (cleaned up).
The Court has thus upheld as valid Federal Rules
regulating service of process, Miss. Publ’g Corp., 326 U.S.
at 445-46 (Rule 4(f)); Hanna, 380 U.S. at 463-65 (Rule
4(d)(1)); compelled mental or physical examinations,
Sibbach, 312 U.S. at 14-16 (Rule 35); Schlagenhauf v.
Holder, 379 U.S. 104, 113-14 (1964) (same); sanctions for
frivolous appeals, Burlington, 480 U.S. at 8 (Rule 38); and
sanctions for signing court papers without reasonable
inquiry into the facts asserted, Bus. Guides, 498 U.S. at
29
551-54 (Rule 11). Adding to these decisions, Shady Grove
found that Rule 23’s class action mechanism is “valid” as
it “merely enables a federal court to adjudicate claims of
multiple parties at once, instead of in separate suits.” 559
U.S. at 408 (plurality opinion) (Rule 23); see id. at 416, 436
(Stevens, J., concurring).
The Federal Rules at issue here are likewise valid.
Nothing in Rules 3, 8, 9, 11, 12, 26, or 37 changes litigants’
substantive rights—i.e., the scope of liability or the
available remedies. See, e.g., Shady Grove, 559 U.S. at 408;
Burlington, 480 U.S. at 5-6. Rather, the Rules are at the
core of “practice and procedure” in federal district courts.
Miss. Publ’g, 326 U.S. at 445. The Rules undeniably
regulate “the manner and the means” of enforcing
substantive rights: They merely specify what a complaint
must include at the outset to avoid dismissal and the
timing of expert disclosures and consequences for failing
to file them. Id. at 446 (quoting Guaranty Tr. Co., 326 U.S.
at 109); see Abbas, 783 F.3d at 1337 (Kavanaugh, J.)
(holding Rule 12 is valid because “pleading standards . . .
are procedural”); Bus. Guides, 498 U.S. at 552 (“Rule 11
is reasonably necessary to maintain the integrity of the
system of federal practice and procedure”).
Courts of appeals considering affidavit-of-merit laws
thus have correctly and repeatedly found “no reason to
doubt the validity of the Federal Rules at issue here.”
Gallivan, 943 F.3d at 294; Pledger, 5 F.4th at 521 (same);
Martin, 34 F.4th at 1132 (same); Albright, 24 F.4th at
1048 (finding this “conclusion comes easily”); Passmore,
823 F.3d at 299 (concluding that “Rules 26 and 37 are valid
under the Rules Enabling Act”).
Because Federal Rules 3, 8, 9, 11, 12, 26, and 37 are
valid and answer the question in dispute, this Court
should reverse the decision below.
30
E. The Third Circuit’s Conflict Analysis and Erie
Analysis Were Both Wrong
Shady Grove brought much needed clarity to the
framework for deciding whether state provisions conflict
with the Federal Rules. The Court emphasized that
courts should give the Federal Rules their “reasonable
reading.” Shady Grove, 559 U.S. at 405 n.7. “[F]ederal
courts cannot rewrite the rules” to accommodate state
interests, nor should the meaning of the Federal Rules be
“contorted” to do so. Id. at 421 n.5, 431 (Stevens, J.,
concurring in part and concurring in the judgment); see
also id. at 403 (plurality opinion) (rejecting an approach
that would elevate alleged evidence of nebulous state
legislative purposes over the Federal Rules).6
1. The Third Circuit below erred by failing to read
the Federal Rules to mean what they plainly say. The
court relied on circuit precedents predating Shady Grove
that do not accord the Federal Rules their plain meaning,
but instead interpret them to “avoid” “creat[ing]
significant disuniformity between state and federal courts
. . . if the [Rules’] text permits” that result. Chamberlain
v. Giampapa, 210 F.3d 154, 159 (3d Cir. 2000); see
Pet. App. 3a-6a, 9a-11a (relying extensively on
Chamberlain). Shady Grove emphatically rejected that
approach. It made clear that when “the literal terms” of a
state provision “address the same subject” as a federal
That mirrored earlier holdings of this Court. The Court had
earlier held that the rules should be “fairly construed.” Burlington,
480 U.S. at 4; see Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29
(1988) (similar). “The Federal Rules should be given their plain
meaning” even if “a direct collision with state law arises from that
plain meaning,” Walker, 446 U.S. at 750 n.9; see also Stewart, 487
U.S. at 26 n.4 (“federal [procedural] law and state law [need not] be
perfectly coextensive and equally applicable to the issue at hand”;
the federal statute need only “be sufficiently broad to cover the
point in dispute”).
6
31
rule, the state provision does not apply in federal court—
period. 559 U.S. at 402.
Undeterred by Shady Grove, the Third Circuit below
did exactly what this Court forbid: reasoned that the
Delaware affidavit-of-merit statute does not conflict with
Rules 8 or 9 because those Rules can be read to do no more
than “dictate the content of the pleadings and the degree
of specificity that is required.” Pet. App. 6a (quoting
Chamberlain, 210 F.3d at 160). According to the Third
Circuit, there is simply no conflict here because the
affidavit of merit is not a pleading and does not affect what
is included in the pleadings. Pet. App. 6a.
But the Third Circuit overlooked that when
interpreting the Federal Rules, “the step-one inquiry is a
functional one, asking whether the scope of the Federal
Rules, fairly construed, is broad enough either to
‘implicitly . . . control’ the same issue addressed by state
law or to cause a direct conflict with that law.” Pledger, 5
F.4th at 522 (quoting Burlington, 480 U.S. at 4-5).
The Third Circuit failed to recognize that Rules 8 and
9 and the Delaware affidavit-of-merit statute answer the
same question: what must a plaintiff do to state a claim for
relief? As a result, Rules 8 and 9 and the Delaware law
“flatly contradict each other.” Shady Grove, 559 U.S. at
405. A plaintiff cannot follow Rules 8 and 9 while also
adhering to Del. Code Ann. tit. 18, § 6853(a): plaintiffs who
bring a “health-care negligence lawsuit” in Delaware and
include the three matters required by Federal Rule 8(a)
will have their cases dismissed, notwithstanding that they
have met all of Rule 8 and 9’s requirements to state a
claim. The Federal Rules displace a state procedure when
it “imposes additional requirements” beyond those found
in the Federal Rules. Shady Grove, 559 U.S. at 401. That
is exactly what Delaware’s affidavit-of-merit statute does.
The same flawed reasoning tainted the Third
Circuit’s analysis of the interplay between the Delaware
32
statute and Rule 11. In its effort to read the Federal Rules
as narrowly as possible, the Third Circuit ignored the
question Rule 11 seeks to answer in the federal procedural
scheme. The Third Circuit reasoned that Rule 11 is
merely a mechanism by which the Federal Rules limit
frivolous filings, failing to recognize that it is, in fact, the
mechanism for doing so. Pet. App. 7a. The Third Circuit
thus held that the Federal Rules impose no limit
whatsoever on the procedures states may impose on
litigants—over and above what Rule 11 requires—in an
effort to limit frivolous filings. Such a reading of Rule 11
would license states, in the name of curbing meritless
cases, to rewrite the bedrock procedures for initiating
litigation in federal court. That cannot be correct.
Perhaps the Third Circuit’s most egregious error was
its analysis of Rule 12. According to the Third Circuit,
Rule 12 tests only a complaint’s sufficiency. Pet. App. 7a8a. But, the Third Circuit reasoned, whether a complaint
is sufficient has no bearing on a court’s decision to dismiss
an action for failure to comply with the Delaware statute.
Pet. App. 8a. Thus, the court concluded, Delaware law
does not conflict with Rule 12. Pet. App. 8a. That
reasoning gravely misunderstands Rule 12. Rule 12 is not
merely about testing the sufficiency of the complaint. It
reflects the Federal Rules’ policy that “the sufficiency of
a plaintiff’s case will be tested prior to discovery only for
legal sufficiency.” Makaeff v. Trump Univ., LLC, 715
F.3d 254, 274 (9th Cir. 2013) (Kozinski, C.J., concurring).
And under the Rules, a plaintiff who can survive motions
under Rule 12 and Rule 56 “is generally entitled to trial.”
Abbas, 783 F.3d at 1334.
Under the Third Circuit’s approach, states are free to
create entirely parallel systems for pleading claims and
testing their sufficiency, and then to impose those
bespoke regimes on federal courts. That is anathema to
33
the fundamental post-Erie premise that federal courts
apply state substantive law and federal procedural law.
2. The Third Circuit’s Erie analysis was also
fundamentally flawed. Finding no conflict between the
Federal Rules and the Delaware law, the Third Circuit
moved to the second step of the inquiry—whether the
Erie doctrine required application of Delaware’s law.
The Third Circuit wrongly concluded that Delaware’s
law must apply in federal court because it is “substantive.”
Pet. App. 10a. It is not. Delaware’s law is plainly a rule of
procedure. And “state procedural rules have no
application in federal court, no matter how little they
interfere with the Federal Rules.” Makaeff, 715 F.3d at
273 (Kozinski, C.J., concurring). The law is directed to
Delaware’s courts, not Federal courts, nor the courts of
other states. Indeed, it states expressly that an affidavit
of merit must be submitted to the court in an envelope
that “shall state on its face” that its contents “MAY ONLY
BE VIEWED BY A JUDGE OF THE SUPERIOR
COURT.” Del. Code Ann. tit. 18, § 6853(a) (emphasis
added). This is not a law meant to govern substance. And
it is a trans-substantive rule; it applies to all “health-care
negligence lawsuit[s],” not merely those arising under
Delaware law. Id.; see id. § 6801(6).
At bottom, affidavit-of-merit requirements are not
the type of “substantive” state law that Erie requires
federal courts to apply. This Court in Hanna v. Plumer
held that Erie would not require federal courts to apply
state laws “altering the way in which process was served”
because such provisions have so little concrete, practical
effect on a litigation. 380 U.S. at 466-69. The same is true
of the Delaware affidavit-of-merit statute. Indeed, even
the Shady Grove dissent would not have applied
Delaware’s statute in federal court under Erie. The
Shady Grove majority had no reason to reach Erie
because it found that New York’s law answered the same
34
question as Rule 23, but the dissenters, who found no
conflict, did undertake an Erie analysis, and they
explained that laws like affidavit-of-merit statutes are
inapplicable in federal court. See Shady Grove, 559 U.S.
at 456-57 & n.13 (Ginsburg, J., dissenting). State rules
“ostensibly addressed to procedure,” like “pleading
standards,” the dissent wrote, “would not so hugely
impact forum choices” as to warrant application of those
rules in federal courts. Id. at 457 & n.13. The Third
Circuit’s approach finds no safe harbor in any corner of
Shady Grove.
II.
THE COURT SHOULD STICK TO ITS PLAIN-MEANING
APPROACH TO PROCEDURAL CONFLICTS
Shady Grove provides the proper framework for
identifying and resolving conflicts between the Federal
Rules and state laws. Construing laws according to their
ordinary meaning, rather than policy-driven glosses, is
consistent with the approach this Court has directed in
other areas of interpretation. It also secures uniform
federal procedure by applying the Federal Rules
wherever they overlap with state law, preventing an interjurisdictional patchwork; promotes clarity in the law and
efficiency in litigation through a bright-line standard;
avoids ensnaring federal courts in an ever-expanding web
of state procedural devices by limiting the importation of
exotic state procedures into federal practice in the first
instance; and respects federalism by keeping procedures
directed to state courts within those courts and freeing
federal courts from the task of distorting or rewriting
state laws to force them into federal procedural
frameworks, thus protecting federal and state
prerogatives alike. For all these reasons, the Court’s
straightforward plain-meaning approach should continue
to govern conflicts analysis.
A. Consistency. Shady Grove’s approach to conflicts
analysis—which simply asks whether a fairly construed
35
Federal Rule “answers the same question” as a fairly
construed state provision—comports with this Court’s
general approach to textual interpretation. The Court
does not narrowly construe statutes in other areas of law,
nor contort or artificially limit their scope in favor of
“state regulatory policies,” no matter how “important.”
Shady Grove, 559 U.S. at 405 n.7 (cleaned up); contra id.
at 439 (Ginsburg, J., dissenting) (arguing the Federal
Rules should be construed to avoid conflicts with state
laws when the “text permits” that construction). As the
Court has explained, it “makes no sense to speak of a
‘permissible’ interpretation that is not the one the court,
after applying all relevant interpretive tools, concludes is
best.” Loper Bright Enters. v. Raimondo, 603 U.S. 369,
400 (2024). “In the business of statutory interpretation, if
it is not the best, it is not permissible.” Id. “A court cannot
advance even a constitutional value at the expense of a
statute’s plain language.” Amy Coney Barrett,
Substantive Canons and Faithful Agency, 90 B.U. L.
Rev. 109, 181 (2010). That principle holds just as firmly in
the construction of the Federal Rules and state laws that
potentially conflict with them as it does in other areas.
B. Purpose and History. Shady Grove’s approach to
conflicts analysis also accords with the original purposes
of the Federal Rules: uniformity, simplicity, and avoiding
civil cases turning on mere technicalities. The Rules were
enacted to create a uniform system of federal procedure.
The Rules Enabling Act eliminated the Conformity Acts
and code pleading, under which “there were forty-nine
different categories of procedure in the federal courts in
actions at law, one in each of the states, and one in the
District of Columbia.” Alexander Holtzoff, Origin and
Sources of the Federal Rules of Civil Procedure, 30
N.Y.U. L. Rev. 1057, 1057 (1955). The “chaos” of this
patchwork system, id., proved deeply problematic: it was
“impossible either under the rules or decisions of the
36
courts . . . to reach a definite opinion as to what course
[was] proper to pursue under [the Conformity Act].”7
“The confusion and conflicts resulting from this system
were so great that federal practice became an activity only
for specialists and an abomination for the profession
generally.” Charles E. Clark, Practice & Procedure, 328
Annals Am. Acad. Pol. & Soc. Sci. 61, 64 (1960).
The Federal Rules dispensed with the morass that
came before, establishing in its place a single, uniform
system of procedure with a goal of increasing ease of
access to the federal judiciary. The very first rule, Rule 1,
provides that “[t]hese rules govern the procedure in all
civil actions and proceedings in the United States district
courts, except as stated in Rule 81.” Fed. R. Civ. P. 1; see
Fed. R. Civ. P. 81 (listing limited exceptions). Rule 1
further directs that the Rules “should be construed,
administered, and employed by the court and the parties
to secure the just, speedy, and inexpensive determination
of every action and proceeding.” Permitting a cavalcade
of exotic state procedural rules to invade federal litigation
would inevitably result in traps for the unwary and
barriers that hinder relief for litigants with substantive
rights to a day in court. In particular, allowing state
affidavit-of-merit laws into federal court would mean that
federal diversity cases involving medical malpractice
would import new procedural rules from some twentynine states. See Gallenstein, supra, at 30-34.
That is the opposite of the procedural uniformity the
Rules were promulgated to establish. And it is only the tip
of the iceberg. In the world as the Third Circuit would
have it, any number of other unique state-law pleading
Federal Rules of Civil Procedure: Proceedings of the Institute at
Washington D.C. October 6, 7, 8 and of the Symposium at New York
City October 17, 18, 19, 1938, at 38 (Edward H. Hammond ed., 1939)
(Statement of Chairman D. Lawrence Groner) (also describing
Conformity Act procedures as “archaic to the last degree”).
7
37
requirements could apply in contexts far beyond medical
malpractice cases, creating an impenetrable hodgepodge
of pleading requirements for different areas of law. State
law might require parties to attach contracts to their
complaint in insurance cases. See, e.g., Gates v. L.G.
DeWitt, Inc., 528 F.2d 405, 411 (5th Cir. 1976) (finding
Georgia law requiring plaintiff to attach insurance
contract to complaint inapplicable based on conflict with
Rule 8). Other states might require affidavits of merit for
all suits claiming “professional negligence by a licensed or
registered professional,” including architects and
engineers, as Texas has done. Est. of C.A. v. Grier, 752 F.
Supp. 2d 763, 765 (S.D. Tex. 2010) (declining to apply
Texas affidavit of merit requirement in negligence suit
against architect).
The list goes on. See, e.g., Kirkland v. Guardian Life
Ins. Co. of Am., 352 F. App’x 293, 297 (11th Cir. 2009)
(holding that Georgia law requiring a verified answer
when a complaint is verified conflicts with Federal Rule of
Civil Procedure 11(a) and thus does not apply in federal
court); Hilderman v. Enea TekSci, Inc., 2010 WL 143440,
at *1, 3 (S.D. Cal. Jan. 8, 2010) (holding California statute
that conditions discovery regarding trade secrets on
plaintiff identifying the trade secret “with reasonable
particularity” is inapplicable in federal court); Tutor Time
Child Care Sys., Inc. v. Franks Inv. Grp., Inc., 966 F.
Supp. 1188, 1192 (S.D. Fla. 1997) (declining to apply
Florida statute precluding punitive damages claims
without certain evidentiary showing because the statute
conflicted with and “would upset the notice pleading
system constructed by” Rules 8(a) and 9(g)).
C. Clarity and Efficiency. Shady Grove’s approach
also promotes clarity and efficiency in the resolution of
procedural disputes. In the analogous area of rules
governing jurisdiction, this Court has consistently
recognized the importance of straightforward,
38
predictable doctrine. In these kinds of matters, the Court
has said, “simplicity is a virtue.” Standard Fire Ins. Co. v.
Knowles, 568 U.S. 588, 595 (2013); see also Lapides v. Bd.
of Regents of Univ. Sys. of Georgia, 535 U.S. 613, 621
(2002) (“jurisdictional rules should be clear”); Sisson v.
Ruby, 497 U.S. 358, 375 (1990) (Scalia, J., concurring in
the judgment) (explaining that “vague boundar[ies]” are
“to be avoided” in administering subject-matter
jurisdiction). Uncertainty over procedural rules “eat[s] up
time and money as the parties litigate” collateral issues
instead of the merits of their claims. Hertz Corp. v.
Friend, 559 U.S. 77, 94 (2010). Litigation over which
procedural rules should govern a dispute, no less than
litigation over whether a case is in the proper forum, is
“essentially a waste of time and resources.” Navarro Sav.
Ass’n v. Lee, 446 U.S. 458, 464 n.13 (1980).
Shady Grove’s “answers the same question”
framework solves for that concern by providing “greater
simplicity, consistency, and predictability” than the
alternative approach, and helps ensure that “the tail of
odd state procedural provisions or practices cannot wag
the federal litigation dog.” Jeffrey W. Stempel, Shady
Grove & the Potential Democracy-Enhancing Benefits of
Erie Formalism, 44 Akron L. Rev. 907, 909 n.7, 973
(2011). It also “avoid[s] judicial debate over the
background and merits of state legislation,” “lowering
adjudication costs and conserving judicial resources,” and
perhaps “prompting states to more often engage in
greater scrutiny of procedural rules and the policies
imbedded in them.” Id. at 970-71; see also Jennifer J.
Hendricks, In Defense of the Substance-Procedure
Dichotomy, 89 Wash. U. L. Rev. 103, 138-39 (2011)
(similar); Kevin M. Clermont, The Repressible Myth of
Shady Grove, 86 Notre Dame L. Rev. 987, 1017 (2011)
(similar). Shady Grove’s test represents an “easily
administrable rule[]”—“instead of engaging in a complex
39
analysis to determine if there is a conflict, if a state law
‘answers the same question’ as a valid Federal Rule, then
there is a conflict and the Federal Rule wins.” Gallenstein,
supra, at 30 (cleaned up).
The alternative regime some courts followed before
Shady Grove, and to which the Third Circuit clung
below—wherein Federal Rules were twisted to avoid
conflict with state laws whenever possible—has been
roundly criticized as “structurally incoherent,”
“unpredictab[le],” and “notoriously difficult for lower
courts to apply.” Alan M. Trammell, Toil and Trouble:
How the Erie Doctrine Became Structurally Incoherent
(and How Congress Can Fix It), 82 Fordham L. Rev.
3249, 3291 (2014); accord, e.g., Benjamin Grossberg,
Comment, Uniformity, Federalism, and Tort Reform:
The Erie Implications of Medical Malpractice Certificate
of Merit Statutes, 159 U. Pa. L. Rev. 217, 232 (2010)
(“[D]efining when a Federal Rule is coextensive with state
law to the point that the Federal Rule controls is . . . a
difficult and abstract question.”); Gallenstein, supra, at
22-30 (tracing history of difficulties and conflicting
decisions through Shady Grove).
Shady Grove’s benefits for litigation clarity have been
illustrated by the decisions of the courts of appeals that
have readily applied the straightforward standard to
assess affidavit-of-merit provisions and other state laws.
See, e.g., Gallivan, 943 F.3d at 293; Pledger, 5 F.4th at 519;
Corley, 11 F.4th at 88; Abbas, 783 F.3d at 1333; Klocke,
936 F.3d at 245 (same); Carbone, 910 F.3d at 1352 (same).
The Court should not reanimate the confused and
confusing approach that it rejected in Shady Grove.
D. Simplicity. Shady Grove’s approach also saves
federal courts from the troublesome task of trying to
incorporate state-law procedural frameworks into federal
court practice. State procedural rules do not exist in
vacuums. To function correctly, state-court procedural
40
rules require additional state-court procedural rules that
function alongside them. Affidavit-of-merit laws are a
prime example. In addition to the required affidavit of
merit, they often include special motions, special
discovery procedures, special opportunities to cure
deficiencies, special expert qualification requirements,
special filing fees, special notices, special forms, special
status conferences, and special sanctions. Cf. Makaeff, 715
F.3d at 274 (Kozinski, C.J., concurring).
Importing only one or some of these procedures into
federal court, without the others, undermines the very
purpose of Erie to ensure that state and federal courts
function similarly.
For example, Pennsylvania has a special procedure
governing its special motions to dismiss for failure to file
an affidavit of merit that the Third Circuit shoehorned
into federal procedure in Schmigel v. Uchal, 800 F.3d 113
(3d Cir. 2015). In essence, the defendant is required to
give the plaintiff who lacks an affidavit notice and an
opportunity to cure before the defendant moves to
dismiss. See id. at 119. To make the scheme work similarly
in federal court as it would in a Pennsylvania state court,
the Third Circuit was forced to graft a new procedure onto
Rule 12. See id. at 117-19; id. at 123 n.15 (collecting cases
in which this occurred in district courts). As a dissenting
judge recognized, this procedural freelancing does not
appear permissible under this Court’s cases. See id. at
126-27 (Rendell, J., dissenting) (“[O]ur Court cannot add
a notice requirement to a rule that plainly has none.”).
In New Jersey, the affidavit-of-merit law requires a
special notation on the State’s case-initiating
“Information Sheet” to disclose that a case alleges
professional malpractice, and further requires a special,
early case management conference at which the plaintiff
is reminded to file the affidavit. Nuveen Mun. Tr. ex rel.
Nuveen High Yield Mun. Bond Fund v. WithumSmith
41
Brown, P.C., 692 F.3d 283, 291 (3d Cir. 2012). Yet the
Third Circuit has found that district courts should apply
the New Jersey law without these two components—even
though the court deemed them “safeguards to aid
plaintiffs in complying with the [affidavit-of-merit]
[s]tatute”—because “[t]he protections are procedural”
and thus inapplicable in federal court under Erie. Id. at
304-05. The Third Circuit thereby conjured a modified
affidavit-of-merit scheme—solely for use in federal
court—that New Jersey never enacted. Id. at 305.
Importing state procedural rules all too often “cuts an
ugly gash through” the Federal Rules. Makaeff, 715 F.3d
at 274 (Kozinski, C.J., concurring); see Klocke, 936 F.3d at
246. And if a federal court only incorporates some of the
possible array of special state rules into federal
procedure, it creates a Frankenstein’s monster that does
not resemble the procedural balance sought by either the
Federal Rules or state legislatures. Incorporating only
some state provisions could in fact make the disparity in
outcomes between state and federal courts worse.
Shady Grove avoids these absurd results by
preventing them at the start. By reading the Federal
Rules to prevent the introduction of exotic state rules into
federal courts that “answer the same question[s]” they do,
Shady Grove diminishes the need to introduce into federal
court whole parallel procedural schemes of special
pleadings and special motions alongside the pleadings and
motions authorized by the Federal Rules.
E. Federalism. Defenders of the Third Circuit’s
conflicts framework sometimes argue that the approach
is necessary to show sufficient respect and deference to
state interests. But properly understood, it is Shady
Grove’s approach that best respects state interests. Often
the only way to apply state procedural law in a federal
court is by distorting it beyond recognition. But “concern
for state prerogatives is frustrated rather than furthered
42
by revising state laws when a potential conflict with a
Federal Rule arises; the state-friendly approach would be
to accept the law as written and test the validity of the
Federal Rule.” Shady Grove, 559 U.S. at 403-04.
This Court’s own cases demonstrate the wisdom of
this approach. In Gasperini v. Center for Humanities,
Inc., the Court examined a New York law that provided
for appellate review of jury verdicts by the state Supreme
Court’s Appellate Division. 518 U.S. 415, 426 (1996). The
law was specifically written as an instruction to that
intermediate appellate court. Id. To make the statute
work in federal court, this Court was compelled to rewrite
the statute from the bottom up, assigning the task of
reviewing the jury’s verdict under the New York
Appellate Division standard to the federal district judge
who presided over the trial, while assigning a different
(and more deferential) standard of review to the federal
appellate courts reviewing the district judge’s decision.
Id. at 419. Only in this contorted form could a New York
law, written as an instruction to its own appellate courts,
apply in federal court. See N.Y. C.P.L.R. 5501(c). There is
no evidence that New York intended that result. And
revising square-peg state statutes to fit in the round hole
of federal procedures is a difficult and unusual task for
lower federal courts to undertake.
Justice Robert Jackson recognized a similar problem
in Woods v. Interstate Realty Co., 337 U.S. 535 (1949)
(Jackson, J., dissenting). There, a Mississippi statute
provided that if a corporation did not qualify to do
business within the state, it would “not be permitted to
bring or maintain any action or suit in any of the courts of
this state.” Id. at 539. This Court held that both state and
federal courts in Mississippi could not entertain any suits
by unqualified corporations. Id. at 536, 538. Yet the law,
by its own terms, referred only to state courts, not federal
courts. The majority “refuse[d] to give the statute that
43
limited effect.” Id. at 539. As Justice Jackson noted in
dissent, by construing the statute to bar actions in federal
court, “we seem to be doing the very thing we profess to
avoid; that is, give the state law a different meaning in
federal court than the state courts have given it.” Id.
Shady Grove avoids these pitfalls by reading the
Federal Rules to mean what they fairly say, and by
reading state laws to mean what they fairly say. State laws
that refer to procedures in state courts and describe state
courts by name should not apply in federal court, for the
simple reason that they are by their own terms limited to
the state’s own courts. States know how to write
substantive laws that apply in state and federal court
when they want to. And by making the methods of
interpretation clear, Shady Grove makes it possible for
them to do so without having to confront a moving target.
If states intend to prescribe substantive law that applies
in state and federal courts alike, their statutes can—and
generally do—make that clear. And if the Federal Rules
are to incorporate state-established rules that do not, by
their own terms, apply in federal court, that result should
“be obtained by the process of amending the Federal
Rules, and not by judicial interpretation.” Jones, 549 U.S.
at 213 (quoting Leatherman, 507 U.S. at 168).
*****
This case involves a straightforward application of
Shady Grove. Delaware’s affidavit-of-merit law answers
the same question as Rules 8 and 9 and several other
Federal Rules. Even if it did not, it would not apply in
federal court under Erie. The Court should stick to the
plain-meaning approach to procedural conflicts it applied
in Shady Grove, because doing so furthers all of the
important purposes behind the Federal Rules while
respecting state prerogatives to determine the
substantive law that applies in diversity actions in federal
court.
44
CONCLUSION
The judgment of the court of appeals should be
reversed.
Respectfully submitted.
JAKE W. MURPHY
ARNOLD & PORTER
KAYE SCHOLER LLP
Suite 3100
1144 Fifteenth Street
Denver, CO 8020
(303) 863-1000
DEVIN M. ADAMS
ARNOLD & PORTER
KAYE SCHOLER LLP
Suite 4000
700 Louisiana Street
Houston, TX 77002
(713) 576-2400
May 2025
R. STANTON JONES
ANDREW T. TUTT
Counsel of Record
ANTHONY J. FRANZE
KOLYA D. GLICK
SAMUEL I. FERENC
DANA KAGAN MCGINLEY
JILLIAN M. WILLIAMS
JENNIFER F. KAPLAN
KATIE WENG
ARNOLD & PORTER
KAYE SCHOLER LLP
601 Massachusetts Ave., NW
Washington, DC 20001
(202) 942-5000
andrew.tutt@arnoldporter.com
APPENDIX
TABLE OF CONTENTS
Page
18 Del. C. § 6853 ................................................................. 1a
Fed. R. Civ. P. 3.................................................................. 5a
Fed. R. Civ. P. 8.................................................................. 6a
Fed. R. Civ. P. 9.................................................................. 9a
Fed. R. Civ. P. 11.............................................................. 11a
Fed. R. Civ. P. 12.............................................................. 14a
Fed. R. Civ. P. 26.............................................................. 19a
Fed. R. Civ. P. 37.............................................................. 39a
18 Del. C. § 6853
Affidavit of Merit, expert medical testimony
(a) No health-care negligence lawsuit shall be filed in this
State unless the complaint is accompanied by:
(1) An affidavit of merit as to each defendant
signed by an expert witness, as defined in § 6854 of
this title, and accompanied by a current curriculum
vitae of the witness, stating that there are
reasonable grounds to believe that there has been
health-care medical negligence committed by each
defendant. If the required affidavit does not
accompany the complaint or if a motion to extend
the time to file said affidavit as permitted by
paragraph (a)(2) of this section has not been filed
with the court, then the Prothonotary or clerk of
the court shall refuse to file the complaint and it
shall not be docketed with the court. The affidavit
of merit and curriculum vitae shall be filed with the
court in a sealed envelope which envelope shall
state on its face:
“CONFIDENTIAL SUBJECT TO 18 DEL. C.,
SECTION 6853. THE CONTENTS OF THIS
ENVELOPE MAY ONLY BE VIEWED BY A
JUDGE OF THE SUPERIOR COURT.”
Notwithstanding any law or rule to the contrary the
affidavit of merit shall be and shall remain sealed and
confidential, except as provided in subsection (d) of this
section, shall not be a public record and is exempt from
Chapter 100 of Title 29.
(2) The court, may, upon timely motion of the
plaintiff and for good cause shown, grant a single
60-day extension for the time of filing the affidavit
of merit. Good cause shall include, but not be
(1a)
2a
limited to, the inability to obtain, despite
reasonable efforts, relevant medical records for
expert review.
(3) A motion to extend the time for filing an
affidavit of merit is timely only if it is filed on or
before the filing date that the plaintiff seeks to
extend. The filing of a motion to extend the time
for filing an affidavit of merit tolls the time period
within which the affidavit must be filed until the
court rules on the motion.
(4) The defendant or defendants not required to
take any action with respect to the complaint in
such cases until 20 days after plaintiff has filed the
affidavit or affidavits of merit.
(b) An affidavit of merit shall be unnecessary if the
complaint alleges a rebuttable inference of medical
negligence, the grounds of which are set forth below in
subsection (e) of this section.
(c) Qualifications of expert and contents of affidavit.--The
affidavit or affidavits of merit shall set forth the expert’s
opinion that there are reasonable grounds to believe that
the applicable standard of care was breached by the
named defendant or defendants and that the breach was
a proximate cause of injury or injuries claimed in the
complaint. An expert signing an affidavit of merit shall be
licensed to practice medicine as of the date of the affidavit;
and in the 3 years immediately preceding the alleged
negligent act has been engaged in the treatment of
patients and/or in the teaching/academic side of medicine
in the same or similar field of medicine as the defendant
or defendants, and the expert shall be Board certified in
3a
the same or similar field of medicine if the defendant or
defendants is Board certified. The Board Certification
requirement shall not apply to an expert that began the
practice of medicine prior to the existence of Board
certification in the applicable specialty.
(d) Upon motion by the defendant the court shall
determine in camera if the affidavit of merit complies with
paragraph (a)(1) and subsection (c) of this section. The
affidavit of merit shall not be discoverable in any medical
negligence action. The affidavit of merit itself, and the fact
that an expert has signed the affidavit of merit, shall not
be admissible nor may the expert be questioned in any
respect about the existence of said affidavit in the
underlying medical negligence action or any subsequent
unrelated medical negligence action in which that expert
is a witness.
(e) No liability shall be based upon asserted negligence
unless expert medical testimony is presented as to the
alleged deviation from the applicable standard of care in
the specific circumstances of the case and as to the
causation of the alleged personal injury or death, except
that such expert medical testimony shall not be required
if a medical negligence review panel has found negligence
to have occurred and to have caused the alleged personal
injury or death and the opinion of such panel is admitted
into evidence; provided, however, that a rebuttable
inference that personal injury or death was caused by
negligence shall arise where evidence is presented that
the personal injury or death occurred in any 1 or more of
the following circumstances:
(1) A foreign object was unintentionally left within
the body of the patient following surgery;
4a
(2) An explosion or fire originating in a substance
used in treatment occurred in the course of
treatment; or
(3) A surgical procedure was performed on the
wrong patient or the wrong organ, limb or part of
the patient’s body.
Except as otherwise provided herein, there shall be no
inference or presumption of negligence on the part of a
health-care provider.
Fed. R. Civ. P. 3.
Commencing an Action
A civil action is commenced by filing a complaint with the
court.
(5a)
Fed. R. Civ. P. 8.
General Rules of Pleading
(a) CLAIM FOR RELIEF. A pleading that states a claim for
relief must contain:
(1) a short and plain statement of the grounds for
the court’s jurisdiction, unless the court already
has jurisdiction and the claim needs no new
jurisdictional support;
(2) a short and plain statement of the claim
showing that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may
include relief in the alternative or different types
of relief.
(b) DEFENSES; ADMISSIONS AND DENIALS.
(1) In General. In responding to a pleading, a
party must:
(A) state in short and plain terms its
defenses to each claim asserted against it;
and
(B) admit or deny the allegations asserted
against it by an opposing party.
(2) Denials—Responding to the Substance. A
denial must fairly respond to the substance of the
allegation.
(3) General and Specific Denials. A party that
intends in good faith to deny all the allegations of a
pleading—including the jurisdictional grounds—
may do so by a general denial. A party that does
not intend to deny all the allegations must either
specifically deny designated allegations or
(6a)
7a
generally deny all except those specifically
admitted.
(4) Denying Part of an Allegation. A party that
intends in good faith to deny only part of an
allegation must admit the part that is true and
deny the rest.
(5) Lacking Knowledge or Information. A party
that lacks knowledge or information sufficient to
form a belief about the truth of an allegation must
so state, and the statement has the effect of a
denial.
(6) Effect of Failing to Deny. An allegation—other
than one relating to the amount of damages— is
admitted if a responsive pleading is required and
the allegation is not denied. If a responsive
pleading is not required, an allegation is
considered denied or avoided.
(c) AFFIRMATIVE DEFENSES.
(1) In General. In responding to a pleading, a
party must affirmatively state any avoidance or
affirmative defense, including:
•
•
•
•
•
•
•
•
•
•
•
•
accord and satisfaction;
arbitration and award;
assumption of risk;
contributory negligence;
duress;
estoppel;
failure of consideration;
fraud;
illegality;
injury by fellow servant;
laches;
license;
8a
•
•
•
•
•
•
payment;
release;
res judicata;
statute of frauds;
statute of limitations; and
waiver.
(2) Mistaken Designation. If a party mistakenly
designates a defense as a counterclaim, or a
counterclaim as a defense, the court must, if justice
requires, treat the pleading as though it were
correctly designated, and may impose terms for
doing so.
(d) PLEADING TO BE CONCISE AND
ALTERNATIVE STATEMENTS; INCONSISTENCY.
DIRECT;
(1) In General. Each allegation must be simple,
concise, and direct. No technical form is required.
(2) Alternative Statements of a Claim or Defense.
A party may set out 2 or more statements of a claim
or defense alternatively or hypothetically, either in
a single count or defense or in separate ones. If a
party makes alternative statements, the pleading
is sufficient if any one of them is sufficient.
(3) Inconsistent Claims or Defenses. A party may
state as many separate claims or defenses as it has,
regardless of consistency.
(e) CONSTRUING PLEADINGS.
construed so as to do justice.
Pleadings
must
be
Fed. R. Civ. P. 9.
Pleading Special Matters
(a) CAPACITY OR AUTHORITY TO SUE; LEGAL EXISTENCE.
(1) In General. Except when required to show that
the court has jurisdiction, a pleading need not
allege:
(A) a party’s capacity to sue or be sued;
(B) a party’s authority to sue or be sued in
a representative capacity; or
(C) the legal existence of an organized
association of persons that is made a party.
(2) Raising Those Issues. To raise any of those
issues, a party must do so by a specific denial,
which must state any supporting facts that are
peculiarly within the party’s knowledge.
(b) FRAUD OR MISTAKE; CONDITIONS OF MIND. In
alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or
mistake. Malice, intent, knowledge, and other conditions
of a person’s mind may be alleged generally.
(c) CONDITIONS PRECEDENT. In pleading conditions
precedent, it suffices to allege generally that all conditions
precedent have occurred or been performed. But when
denying that a condition precedent has occurred or been
performed, a party must do so with particularity.
(d) OFFICIAL DOCUMENT OR ACT. In pleading an official
document or official act, it suffices to allege that the
document was legally issued or the act legally done.
(e) JUDGMENT. In pleading a judgment or decision of a
domestic or foreign court, a judicial or quasi-judicial
tribunal, or a board or officer, it suffices to plead the
(9a)
10a
judgment or decision without showing jurisdiction to
render it.
(f) TIME AND PLACE. An allegation of time or place is
material when testing the sufficiency of a pleading.
(g) SPECIAL DAMAGES. If an item of special damage is
claimed, it must be specifically stated.
(h) ADMIRALTY OR MARITIME CLAIM.
(1) How Designated. If a claim for relief is within
the admiralty or maritime jurisdiction and also
within the court’s subject-matter jurisdiction on
some other ground, the pleading may designate
the claim as an admiralty or maritime claim for
purposes of Rules 14(c), 38(e), and 82 and the
Supplemental Rules for Admiralty or Maritime
Claims and Asset Forfeiture Actions. A claim
cognizable only in the admiralty or maritime
jurisdiction is an admiralty or maritime claim for
those purposes, whether or not so designated.
(2) Designation for Appeal. A case that includes
an admiralty or maritime claim within this
subdivision (h) is an admiralty case within 28
U.S.C. § 1292(a)(3).
Fed. R. Civ. P. 11.
Signing Pleadings, Motions, and Other Papers;
Representations to the Court; Sanctions
(a) SIGNATURE. Every pleading, written motion, and
other paper must be signed by at least one attorney of
record in the attorney’s name—or by a party personally if
the party is unrepresented. The paper must state the
signer’s address, e-mail address, and telephone number.
Unless a rule or statute specifically states otherwise, a
pleading need not be verified or accompanied by an
affidavit. The court must strike an unsigned paper unless
the omission is promptly corrected after being called to
the attorney’s or party’s attention.
(b) REPRESENTATIONS TO THE COURT. By presenting to
the court a pleading, written motion, or other paper—
whether by signing, filing, submitting, or later advocating
it—an attorney or unrepresented party certifies that to
the best of the person’s knowledge, information, and
belief, formed after an inquiry reasonable under the
circumstances:
(1) it is not being presented for any improper
purpose, such as to harass, cause unnecessary
delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal
contentions are warranted by existing law or by a
nonfrivolous argument for extending, modifying,
or reversing existing law or for establishing new
law;
(3) the factual contentions have evidentiary
support or, if specifically so identified, will likely
have evidentiary support after a reasonable
opportunity for further investigation or discovery;
and
(11a)
12a
(4) the denials of factual contentions are warranted
on the evidence or, if specifically so identified, are
reasonably based on belief or a lack of information.
(c) SANCTIONS.
(1) In General. If, after notice and a reasonable
opportunity to respond, the court determines that
Rule 11(b) has been violated, the court may impose
an appropriate sanction on any attorney, law firm,
or party that violated the rule or is responsible for
the violation. Absent exceptional circumstances, a
law firm must be held jointly responsible for a
violation committed by its partner, associate, or
employee.
(2) Motion for Sanctions. A motion for sanctions
must be made separately from any other motion
and must describe the specific conduct that
allegedly violates Rule 11(b). The motion must be
served under Rule 5, but it must not be filed or be
presented to the court if the challenged paper,
claim, defense, contention, or denial is withdrawn
or appropriately corrected within 21 days after
service or within another time the court sets. If
warranted, the court may award to the prevailing
party the reasonable expenses, including
attorney’s fees, incurred for the motion.
(3) On the Court’s Initiative. On its own, the court
may order an attorney, law firm, or party to show
cause why conduct specifically described in the
order has not violated Rule 11(b).
(4) Nature of a Sanction. A sanction imposed
under this rule must be limited to what suffices to
deter repetition of the conduct or comparable
conduct by others similarly situated. The sanction
13a
may include nonmonetary directives; an order to
pay a penalty into court; or, if imposed on motion
and warranted for effective deterrence, an order
directing payment to the movant of part or all of
the reasonable attorney’s fees and other expenses
directly resulting from the violation.
(5) Limitations on Monetary Sanctions.
court must not impose a monetary sanction:
The
(A) against a represented party for
violating Rule 11(b)(2); or
(B) on its own, unless it issued the showcause order under Rule 11(c)(3) before
voluntary dismissal or settlement of the
claims made by or against the party that is,
or whose attorneys are, to be sanctioned.
(6) Requirements for an Order. An order imposing
a sanction must describe the sanctioned conduct
and explain the basis for the sanction.
(d) INAPPLICABILITY TO DISCOVERY. This rule does not
apply to disclosures and discovery requests, responses,
objections, and motions under Rules 26 through 37.
Fed. R. Civ. P. 12.
Defenses and Objections: When and How Presented;
Motion for Judgment on the Pleadings;
Consolidating Motions; Waiving Defenses; Pretrial
Hearing
(a) TIME TO SERVE A RESPONSIVE PLEADING.
(1) In General. Unless another time is specified by
this rule or a federal statute, the time for serving a
responsive pleading is as follows:
(A) A defendant must serve an answer:
(i) within 21 days after being served
with the summons and complaint; or
(ii) if it has timely waived service
under Rule 4(d), within 60 days after
the request for a waiver was sent, or
within 90 days after it was sent to the
defendant outside any judicial
district of the United States.
(B) A party must serve an answer to a
counterclaim or crossclaim within 21 days
after being served with the pleading that
states the counterclaim or crossclaim.
(C) A party must serve a reply to an answer
within 21 days after being served with an
order to reply, unless the order specifies a
different time.
(2) United States and Its Agencies, Officers, or
Employees Sued in an Official Capacity. The
United States, a United States agency, or a United
States officer or employee sued only in an official
capacity must serve an answer to a complaint,
(14a)
15a
counterclaim, or crossclaim within 60 days after
service on the United States attorney.
(3) United States Officers or Employees Sued in
an Individual Capacity. A United States officer
or employee sued in an individual capacity for an
act or omission occurring in connection with duties
performed on the United States’ behalf must serve
an answer to a complaint, counterclaim, or
crossclaim within 60 days after service on the
officer or employee or service on the United States
attorney, whichever is later.
(4) Effect of a Motion. Unless the court sets a
different time, serving a motion under this rule
alters these periods as follows:
(A) if the court denies the motion or
postpones its disposition until trial, the
responsive pleading must be served within
14 days after notice of the court’s action; or
(B) if the court grants a motion for a more
definite statement, the responsive pleading
must be served within 14 days after the
more definite statement is served.
(b) HOW TO PRESENT DEFENSES. Every defense to a
claim for relief in any pleading must be asserted in the
responsive pleading if one is required. But a party may
assert the following defenses by motion:
(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
16a
(6) failure to state a claim upon which relief can be
granted; and
(7) failure to join a party under Rule 19
A motion asserting any of these defenses must be made
before pleading if a responsive pleading is allowed. If a
pleading sets out a claim for relief that does not require a
responsive pleading, an opposing party may assert at trial
any defense to that claim. No defense or objection is
waived by joining it with one or more other defenses or
objections in a responsive pleading or in a motion.
(c) MOTION FOR JUDGMENT ON THE PLEADINGS. After the
pleadings are closed—but early enough not to delay
trial—a party may move for judgment on the pleadings.
(d) RESULT OF PRESENTING MATTERS OUTSIDE THE
PLEADINGS. If, on a motion under Rule 12(b)(6) or 12(c),
matters outside the pleadings are presented to and not
excluded by the court, the motion must be treated as one
for summary judgment under Rule 56. All parties must
be given a reasonable opportunity to present all the
material that is pertinent to the motion.
(e) MOTION FOR A MORE DEFINITE STATEMENT. A party
may move for a more definite statement of a pleading to
which a responsive pleading is allowed but which is so
vague or ambiguous that the party cannot reasonably
prepare a response. The motion must be made before
filing a responsive pleading and must point out the defects
complained of and the details desired. If the court orders
a more definite statement and the order is not obeyed
within 14 days after notice of the order or within the time
the court sets, the court may strike the pleading or issue
any other appropriate order.
(f) MOTION TO STRIKE. The court may strike from a
pleading an insufficient defense or any redundant,
17a
immaterial, impertinent, or scandalous matter. The court
may act:
(1) on its own; or
(2) on motion made by a party either before
responding to the pleading, or if a response is not
allowed, within 21 days after being served with the
pleading.
(g) JOINING MOTIONS.
(1) Right to Join. A motion under this rule may be
joined with any other motion allowed by this rule.
(2) Limitation on Further Motions. Except as
provided in Rule 12(h)(2) or (3), a party that makes
a motion under this rule must not make another
motion under this rule raising a defense or
objection that was available to the party but
omitted from its earlier motion.
(h) WAIVING AND PRESERVING CERTAIN DEFENSES.
(1) When Some Are Waived. A party waives any
defense listed in Rule 12(b)(2)-(5) by:
(A) omitting it from a motion in the
circumstances described in Rule 12(g)(2); or
(B) failing to either:
(i) make it by motion under this rule;
or
(ii) include it in a responsive pleading
or in an amendment allowed by Rule
15(a)(1) as a matter of course.
(2) When to Raise Others. Failure to state a claim
upon which relief can be granted, to join a person
18a
required by Rule 19(b), or to state a legal defense
to a claim may be raised:
(A) in any pleading allowed or ordered
under Rule 7(a);
(B) by a motion under Rule 12(c); or
(C) at trial.
(3) Lack of Subject-Matter Jurisdiction. If the
court determines at any time that it lacks subjectmatter jurisdiction, the court must dismiss the
action.
(i) HEARING BEFORE TRIAL. If a party so moves, any
defense listed in Rule 12(b)(1)–(7)—whether made in a
pleading or by motion—and a motion under Rule 12(c)
must be heard and decided before trial unless the court
orders a deferral until trial.
Fed. R. Civ. P. 26.
Duty to Disclose; General Provisions
Governing Discovery
(a) REQUIRED DISCLOSURES.
(1) Initial Disclosure.
(A) In General. Except as exempted by
Rule 26(a)(1)(B) or as otherwise stipulated
or ordered by the court, a party must,
without awaiting a discovery request,
provide to the other parties:
(i) the name and, if known, the
address and telephone number of
each individual likely to have
discoverable
information—along
with
the
subjects
of
that
information—that the disclosing
party may use to support its claims
or defenses, unless the use would be
solely for impeachment;
(ii) a copy—or a description by
category and location—of all
documents, electronically stored
information, and tangible things that
the disclosing party has in its
possession, custody, or control and
may use to support its claims or
defenses, unless the use would be
solely for impeachment;
(iii) a computation of each category
of damages claimed by the disclosing
party—who must also make
available for inspection and copying
(19a)
20a
as under Rule 34 the documents or
other evidentiary material, unless
privileged or protected from
disclosure,
on
which
each
computation is based, including
materials bearing on the nature and
extent of injuries suffered; and
(iv) for inspection and copying as
under Rule 34, any insurance
agreement
under
which
an
insurance business may be liable to
satisfy all or part of a possible
judgment in the action or to
indemnify
or
reimburse
for
payments made to satisfy the
judgment.
(B) Proceedings Exempt from Initial
Disclosure. The following proceedings are
exempt from initial disclosure:
(i) an action for review on an
administrative record;
(ii) a forfeiture action in rem arising
from a federal statute;
(iii) a petition for habeas corpus or
any other proceeding to challenge a
criminal conviction or sentence;
(iv) an action brought without an
attorney by a person in the custody
of the United States, a state, or a
state subdivision;
21a
(v) an action to enforce or quash an
administrative
summons
or
subpoena;
(vi) an action by the United States to
recover benefit payments;
(vii) an action by the United States
to collect on a student loan
guaranteed by the United States;
(viii) a proceeding ancillary to a
proceeding in another court; and
(ix) an action to
arbitration award.
enforce
an
(C) Time for Initial Disclosures—In
General. A party must make the initial
disclosures at or within 14 days after the
parties’ Rule 26(f) conference unless a
different time is set by stipulation or court
order, or unless a party objects during the
conference that initial disclosures are not
appropriate in this action and states the
objection in the proposed discovery plan. In
ruling on the objection, the court must
determine what disclosures, if any, are to be
made and must set the time for disclosure.
(D) Time for Initial Disclosures—For
Parties Served or Joined Later. A party
that is first served or otherwise joined after
the Rule 26(f) conference must make the
initial disclosures within 30 days after being
served or joined, unless a different time is
set by stipulation or court order.
22a
(E) Basis for Initial Disclosure;
Unacceptable Excuses. A party must make
its initial disclosures based on the
information then reasonably available to it.
A party is not excused from making its
disclosures because it has not fully
investigated the case or because it
challenges the sufficiency of another party’s
disclosures or because another party has
not made its disclosures.
(2) Disclosure of Expert Testimony.
(A) In General.
In addition to the
disclosures required by Rule 26(a)(1), a
party must disclose to the other parties the
identity of any witness it may use at trial to
present evidence under Federal Rule of
Evidence 702, 703, or 705.
(B) Witnesses Who Must Provide a Written
Report. Unless otherwise stipulated or
ordered by the court, this disclosure must
be accompanied by a written report—
prepared and signed by the witness—if the
witness is one retained or specially
employed to provide expert testimony in
the case or one whose duties as the party’s
employee regularly involve giving expert
testimony. The report must contain:
(i) a complete statement of all
opinions the witness will express and
the basis and reasons for them;
(ii) the facts or data considered by
the witness in forming them;
23a
(iii) any exhibits that will be used to
summarize or support them;
(iv) the witness’s qualifications,
including a list of all publications
authored in the previous 10 years;
(v) a list of all other cases in which,
during the previous 4 years, the
witness testified as an expert at trial
or by deposition; and
(vi) a statement of the compensation
to be paid for the study and
testimony in the case.
(C) Witnesses Who Do Not Provide a
Written Report.
Unless otherwise
stipulated or ordered by the court, if the
witness is not required to provide a written
report, this disclosure must state:
(i) the subject matter on which the
witness is expected to present
evidence under Federal Rule of
Evidence 702, 703, or 705; and
(ii) a summary of the facts and
opinions to which the witness is
expected to testify.
(D) Time to Disclose Expert Testimony. A
party must make these disclosures at the
times and in the sequence that the court
orders. Absent a stipulation or a court
order, the disclosures must be made:
(i) at least 90 days before the date set
for trial or for the case to be ready
for trial; or
24a
(ii) if the evidence is intended solely
to contradict or rebut evidence on
the same subject matter identified
by another party under Rule
26(a)(2)(B) or (C), within 30 days
after the other party’s disclosure.
(E) Supplementing the Disclosure. The
parties must supplement these disclosures
when required under Rule 26(e).
(3) Pretrial Disclosures.
(A) In General.
In addition to the
disclosures required by Rule 26(a)(1) and
(2), a party must provide to the other
parties and promptly file the following
information about the evidence that it may
present at trial other than solely for
impeachment:
(i) the name and, if not previously
provided, the address and telephone
number of each witness—separately
identifying those the party expects
to present and those it may call if the
need arises;
(ii) the designation of those
witnesses whose testimony the party
expects to present by deposition and,
if not taken stenographically, a
transcript of the pertinent parts of
the deposition; and
(iii) an identification of each
document or other exhibit, including
summaries of other evidence—
separately identifying those items
25a
the party expects to offer and those
it may offer if the need arises.
(B) Time for Pretrial Disclosures;
Objections.
Unless the court orders
otherwise, these disclosures must be made
at least 30 days before trial. Within 14 days
after they are made, unless the court sets a
different time, a party may serve and
promptly file a list of the following
objections: any objections to the use under
Rule 32(a) of a deposition designated by
another party under Rule 26(a)(3)(A)(ii);
and any objection, together with the
grounds for it, that may be made to the
admissibility of materials identified under
Rule 26(a)(3)(A)(iii). An objection not so
made—except for one under Federal Rule
of Evidence 402 or 403—is waived unless
excused by the court for good cause.
(4) Form of Disclosures. Unless the court orders
otherwise, all disclosures under Rule 26(a) must be
in writing, signed, and served.
(b) DISCOVERY SCOPE AND LIMITS.
(1) Scope in General. Unless otherwise limited by
court order, the scope of discovery is as follows:
Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s
claim or defense and proportional to the needs of
the case, considering the importance of the issues
at stake in the action, the amount in controversy,
the parties’ relative access to relevant information,
the parties’ resources, the importance of the
discovery in resolving the issues, and whether the
burden or expense of the proposed discovery
26a
outweighs its likely benefit. Information within
this scope of discovery need not be admissible in
evidence to be discoverable.
(2) Limitations on Frequency and Extent.
(A) When Permitted. By order, the court
may alter the limits in these rules on the
number of depositions and interrogatories
or on the length of depositions under Rule
30. By order or local rule, the court may also
limit the number of requests under Rule 36.
(B) Specific Limitations on Electronically
Stored Information. A party need not
provide discovery of electronically stored
information from sources that the party
identifies as not reasonably accessible
because of undue burden or cost. On motion
to compel discovery or for a protective
order, the party from whom discovery is
sought must show that the information is
not reasonably accessible because of undue
burden or cost. If that showing is made, the
court may nonetheless order discovery
from such sources if the requesting party
shows good cause, considering the
limitations of Rule 26(b)(2)(C). The court
may specify conditions for the discovery.
(C) When Required. On motion or on its
own, the court must limit the frequency or
extent of discovery otherwise allowed by
these rules or by local rule if it determines
that:
(i) the discovery sought
unreasonably
cumulative
is
or
27a
duplicative, or can be obtained from
some other source that is more
convenient, less burdensome, or less
expensive;
(ii) the party seeking discovery has
had ample opportunity to obtain the
information by discovery in the
action; or
(iii) the proposed discovery is
outside the scope permitted by Rule
26(b)(1).
(3) Trial Preparation: Materials.
(A) Documents and Tangible Things.
Ordinarily, a party may not discover
documents and tangible things that are
prepared in anticipation of litigation or for
trial by or for another party or its
representative (including the other party’s
attorney, consultant, surety, indemnitor,
insurer, or agent). But, subject to Rule
26(b)(4), those materials may be discovered
if:
(i) they are otherwise discoverable
under Rule 26(b)(1); and
(ii) the party shows that it has
substantial need for the materials to
prepare its case and cannot, without
undue hardship, obtain their
substantial equivalent by other
means.
(B) Protection Against Disclosure. If the
court orders discovery of those materials, it
28a
must protect against disclosure of the
mental impressions, conclusions, opinions,
or legal theories of a party’s attorney or
other representative concerning the
litigation.
(C) Previous Statement. Any party or
other person may, on request and without
the required showing, obtain the person’s
own previous statement about the action or
its subject matter. If the request is refused,
the person may move for a court order, and
Rule 37(a)(5) applies to the award of
expenses. A previous statement is either:
(i) a written statement that the
person has signed or otherwise
adopted or approved; or
(ii)
a
contemporaneous
stenographic, mechanical, electrical,
or
other
recording—or
a
transcription of it—that recites
substantially verbatim the person’s
oral statement.
(4) Trial Preparation: Experts.
(A) Deposition of an Expert Who May
Testify. A party may depose any person
who has been identified as an expert whose
opinions may be presented at trial. If Rule
26(a)(2)(B) requires a report from the
expert, the deposition may be conducted
only after the report is provided.
(B) Trial-Preparation Protection for Draft
Reports or Disclosures. Rules 26(b)(3)(A)
and (B) protect drafts of any report or
29a
disclosure required under Rule 26(a)(2),
regardless of the form in which the draft is
recorded.
(C) Trial-Preparation Protection for
Communications Between a Party’s
Attorney and Expert Witnesses. Rules
26(b)(3)(A) and (B) protect communications
between the party’s attorney and any
witness required to provide a report under
Rule 26(a)(2)(B), regardless of the form of
the communications, except to the extent
that the communications:
(i) relate to compensation for the
expert’s study or testimony;
(ii) identify facts or data that the
party’s attorney provided and that
the expert considered in forming the
opinions to be expressed; or
(iii) identify assumptions that the
party’s attorney provided and that
the expert relied on in forming the
opinions to be expressed.
(D) Expert Employed Only for Trial
Preparation. Ordinarily, a party may not,
by interrogatories or deposition, discover
facts known or opinions held by an expert
who has been retained or specially
employed by another party in anticipation
of litigation or to prepare for trial and who
is not expected to be called as a witness at
trial. But a party may do so only:
(i) as provided in Rule 35(b); or
30a
(ii)
on
showing
exceptional
circumstances under which it is
impracticable for the party to obtain
facts or opinions on the same subject
by other means.
(E) Payment. Unless manifest injustice
would result, the court must require that
the party seeking discovery:
(i) pay the expert a reasonable fee
for time spent in responding to
discovery under Rule 26(b)(4)(A) or
(D); and
(ii) for discovery under (D), also pay
the other party a fair portion of the
fees and expenses it reasonably
incurred in obtaining the expert’s
facts and opinions.
(5) Claiming Privilege or Protecting TrialPreparation Materials.
(A) Information Withheld. When a party
withholds
information
otherwise
discoverable by claiming that the
information is privileged or subject to
protection as trial-preparation material, the
party must:
(i) expressly make the claim; and
(ii) describe the nature of the
documents, communications, or
tangible things not produced or
disclosed—and do so in a manner
that, without revealing information
itself privileged or protected, will
31a
enable other parties to assess the
claim.
(B) Information Produced. If information
produced in discovery is subject to a claim
of privilege or of protection as trialpreparation material, the party making the
claim may notify any party that received the
information of the claim and the basis for it.
After being notified, a party must promptly
return, sequester, or destroy the specified
information and any copies it has; must not
use or disclose the information until the
claim is resolved; must take reasonable
steps to retrieve the information if the party
disclosed it before being notified; and may
promptly present the information to the
court under seal for a determination of the
claim. The producing party must preserve
the information until the claim is resolved.
(c) PROTECTIVE ORDERS.
(1) In General. A party or any person from whom
discovery is sought may move for a protective
order in the court where the action is pending—or
as an alternative on matters relating to a
deposition, in the court for the district where the
deposition will be taken. The motion must include
a certification that the movant has in good faith
conferred or attempted to confer with other
affected parties in an effort to resolve the dispute
without court action. The court may, for good
cause, issue an order to protect a party or person
from annoyance, embarrassment, oppression, or
undue burden or expense, including one or more of
the following:
32a
(A) forbidding the disclosure or discovery;
(B) specifying terms, including time and
place or the allocation of expenses, for the
disclosure or discovery;
(C) prescribing a discovery method other
than the one selected by the party seeking
discovery;
(D) forbidding inquiry into certain matters,
or limiting the scope of disclosure or
discovery to certain matters;
(E) designating the persons who may be
present while the discovery is conducted;
(F) requiring that a deposition be sealed
and opened only on court order;
(G) requiring that a trade secret or other
confidential research, development, or
commercial information not be revealed or
be revealed only in a specified way; and
(H)
requiring
that
the
parties
simultaneously file specified documents or
information in sealed envelopes, to be
opened as the court directs.
(2) Ordering Discovery. If a motion for a
protective order is wholly or partly denied, the
court may, on just terms, order that any party or
person provide or permit discovery.
(3) Awarding Expenses. Rule 37(a)(5) applies to
the award of expenses.
(d) TIMING AND SEQUENCE OF DISCOVERY.
(1) Timing. A party may not seek discovery from
any source before the parties have conferred as
33a
required by Rule 26(f), except in a proceeding
exempted from initial disclosure under Rule
26(a)(1)(B), or when authorized by these rules, by
stipulation, or by court order.
(2) Early Rule 34 Requests.
(A) Time to Deliver. More than 21 days
after the summons and complaint are
served on a party, a request under Rule 34
may be delivered:
(i) to that party by any other party,
and
(ii) by that party to any plaintiff or to
any other party that has been
served.
(B) When Considered Served. The request
is considered to have been served at the
first Rule 26(f) conference.
(3) Sequence. Unless the parties stipulate or the
court orders otherwise for the parties’ and
witnesses’ convenience and in the interests of
justice:
(A) methods of discovery may be used in
any sequence; and
(B) discovery by one party does not require
any other party to delay its discovery.
(e) SUPPLEMENTING DISCLOSURES AND RESPONSES.
(1) In General. A party who has made a disclosure
under Rule 26(a) —or who has responded to an
interrogatory, request for production, or request
for admission—must supplement or correct its
disclosure or response:
34a
(A) in a timely manner if the party learns
that in some material respect the disclosure
or response is incomplete or incorrect, and
if the additional or corrective information
has not otherwise been made known to the
other parties during the discovery process
or in writing; or
(B) as ordered by the court.
(2) Expert Witness. For an expert whose report
must be disclosed under Rule 26(a)(2)(B), the
party’s duty to supplement extends both to
information included in the report and to
information given during the expert’s deposition.
Any additions or changes to this information must
be disclosed by the time the party’s pretrial
disclosures under Rule 26(a)(3) are due.
(f) CONFERENCE
DISCOVERY.
OF THE
PARTIES; PLANNING
FOR
(1) Conference Timing. Except in a proceeding
exempted from initial disclosure under Rule
26(a)(1)(B) or when the court orders otherwise, the
parties must confer as soon as practicable—and in
any event at least 21 days before a scheduling
conference is to be held or a scheduling order is
due under Rule 16(b).
(2) Conference Content; Parties’ Responsibilities.
In conferring, the parties must consider the nature
and basis of their claims and defenses and the
possibilities for promptly settling or resolving the
case; make or arrange for the disclosures required
by Rule 26(a)(1); discuss any issues about
preserving discoverable information; and develop
a proposed discovery plan. The attorneys of record
35a
and all unrepresented parties that have appeared
in the case are jointly responsible for arranging the
conference, for attempting in good faith to agree
on the proposed discovery plan, and for submitting
to the court within 14 days after the conference a
written report outlining the plan. The court may
order the parties or attorneys to attend the
conference in person.
(3) Discovery Plan. A discovery plan must state
the parties’ views and proposals on:
(A) what changes should be made in the
timing, form, or requirement for
disclosures under Rule 26(a), including a
statement of when initial disclosures were
made or will be made;
(B) the subjects on which discovery may be
needed, when discovery should be
completed, and whether discovery should
be conducted in phases or be limited to or
focused on particular issues;
(C) any issues about disclosure, discovery,
or preservation of electronically stored
information, including the form or forms in
which it should be produced;
(D) any issues about claims of privilege or
of protection as trial-preparation materials,
including—if the parties agree on a
procedure to assert these claims after
production—whether to ask the court to
include their agreement in an order under
Federal Rule of Evidence 502;
(E) what changes should be made in the
limitations on discovery imposed under
36a
these rules or by local rule, and what other
limitations should be imposed; and
(F) any other orders that the court should
issue under Rule 26(c) or under Rule 16(b)
and (c).
(4) Expedited Schedule. If necessary to comply
with its expedited schedule for Rule 16(b)
conferences, a court may by local rule:
(A) require the parties’ conference to occur
less than 21 days before the scheduling
conference is held or a scheduling order is
due under Rule 16(b); and
(B) require the written report outlining the
discovery plan to be filed less than 14 days
after the parties’ conference, or excuse the
parties from submitting a written report
and permit them to report orally on their
discovery plan at the Rule 16(b) conference.
(g) SIGNING DISCLOSURES AND DISCOVERY REQUESTS,
RESPONSES, AND OBJECTIONS.
(1) Signature Required; Effect of Signature.
Every disclosure under Rule 26(a)(1) or (a)(3) and
every discovery request, response, or objection
must be signed by at least one attorney of record
in the attorney’s own name—or by the party
personally, if unrepresented—and must state the
signer’s address, e-mail address, and telephone
number. By signing, an attorney or party certifies
that to the best of the person’s knowledge,
information, and belief formed after a reasonable
inquiry:
37a
(A) with respect to a disclosure, it is
complete and correct as of the time it is
made; and
(B) with respect to a discovery request,
response, or objection, it is:
(i) consistent with these rules and
warranted by existing law or by a
nonfrivolous
argument
for
extending, modifying, or reversing
existing law, or for establishing new
law;
(ii) not interposed for any improper
purpose, such as to harass, cause
unnecessary delay, or needlessly
increase the cost of litigation; and
(iii) neither unreasonable nor unduly
burdensome
or
expensive,
considering the needs of the case,
prior discovery in the case, the
amount in controversy, and the
importance of the issues at stake in
the action.
(2) Failure to Sign. Other parties have no duty to
act on an unsigned disclosure, request, response,
or objection until it is signed, and the court must
strike it unless a signature is promptly supplied
after the omission is called to the attorney’s or
party’s attention.
(3) Sanction for Improper Certification. If a
certification violates this rule without substantial
justification, the court, on motion or on its own,
must impose an appropriate sanction on the signer,
the party on whose behalf the signer was acting, or
38a
both. The sanction may include an order to pay the
reasonable expenses, including attorney’s fees,
caused by the violation.
Fed. R. Civ. P. 37.
Failure to Make Disclosures or to Cooperate in
Discovery; Sanctions
(a) MOTION FOR AN ORDER COMPELLING DISCLOSURE OR
DISCOVERY.
(1) In General. On notice to other parties and all
affected persons, a party may move for an order
compelling disclosure or discovery. The motion
must include a certification that the movant has in
good faith conferred or attempted to confer with
the person or party failing to make disclosure or
discovery in an effort to obtain it without court
action.
(2) Appropriate Court. A motion for an order to a
party must be made in the court where the action
is pending. A motion for an order to a nonparty
must be made in the court where the discovery is
or will be taken.
(3) Specific Motions.
(A) To Compel Disclosure. If a party fails
to make a disclosure required by Rule 26(a),
any other party may move to compel
disclosure and for appropriate sanctions.
(B) To Compel a Discovery Response. A
party seeking discovery may move for an
order compelling an answer, designation,
production, or inspection. This motion may
be made if:
(i) a deponent fails to answer a
question asked under Rule 30 or 31;
(39a)
40a
(ii) a corporation or other entity fails
to make a designation under Rule
30(b)(6) or 31(a)(4);
(iii) a party fails to answer an
interrogatory submitted under Rule
33; or
(iv) a party fails to produce
documents or fails to respond that
inspection will be permitted—or
fails to permit inspection—as
requested under Rule 34.
(C) Related to a Deposition. When taking
an oral deposition, the party asking a
question may complete or adjourn the
examination before moving for an order.
(4) Evasive or Incomplete Disclosure, Answer, or
Response. For purposes of this subdivision (a), an
evasive or incomplete disclosure, answer, or
response must be treated as a failure to disclose,
answer, or respond.
(5) Payment of Expenses; Protective Orders.
(A) If the Motion Is Granted (or Disclosure
or Discovery Is Provided After Filing). If
the motion is granted—or if the disclosure
or requested discovery is provided after the
motion was filed—the court must, after
giving an opportunity to be heard, require
the party or deponent whose conduct
necessitated the motion, the party or
attorney advising that conduct, or both to
pay the movant’s reasonable expenses
incurred in making the motion, including
41a
attorney’s fees. But the court must not
order this payment if:
(i) the movant filed the motion before
attempting in good faith to obtain
the disclosure or discovery without
court action;
(ii)
the
opposing
party’s
nondisclosure,
response,
or
objection was substantially justified;
or
(iii) other circumstances make an
award of expenses unjust.
(B) If the Motion Is Denied. If the motion
is denied, the court may issue any
protective order authorized under Rule
26(c) and must, after giving an opportunity
to be heard, require the movant, the
attorney filing the motion, or both to pay
the party or deponent who opposed the
motion its reasonable expenses incurred in
opposing the motion, including attorney’s
fees. But the court must not order this
payment if the motion was substantially
justified or other circumstances make an
award of expenses unjust.
(C) If the Motion Is Granted in Part and
Denied in Part. If the motion is granted in
part and denied in part, the court may issue
any protective order authorized under Rule
26(c) and may, after giving an opportunity
to be heard, apportion the reasonable
expenses for the motion.
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(b) FAILURE TO COMPLY WITH A COURT ORDER.
(1) Sanctions Sought in the District Where the
Deposition Is Taken. If the court where the
discovery is taken orders a deponent to be sworn
or to answer a question and the deponent fails to
obey, the failure may be treated as contempt of
court. If a deposition-related motion is transferred
to the court where the action is pending, and that
court orders a deponent to be sworn or to answer
a question and the deponent fails to obey, the
failure may be treated as contempt of either the
court where the discovery is taken or the court
where the action is pending.
(2) Sanctions Sought in the District Where the
Action Is Pending.
(A) For Not Obeying a Discovery Order. If
a party or a party’s officer, director, or
managing agent—or a witness designated
under Rule 30(b)(6) or 31(a)(4)— fails to
obey an order to provide or permit
discovery, including an order under Rule
26(f), 35, or 37(a), the court where the action
is pending may issue further just orders.
They may include the following:
(i) directing that the matters
embraced in the order or other
designated facts be taken as
established for purposes of the
action, as the prevailing party
claims;
(ii) prohibiting the disobedient party
from supporting or opposing
designated claims or defenses, or
43a
from
introducing
matters in evidence;
designated
(iii) striking pleadings in whole or in
part;
(iv) staying further proceedings until
the order is obeyed;
(v) dismissing the action
proceeding in whole or in part;
or
(vi) rendering a default judgment
against the disobedient party; or
(vii) treating as contempt of court
the failure to obey any order except
an order to submit to a physical or
mental examination.
(B) For Not Producing a Person for
Examination. If a party fails to comply
with an order under Rule 35(a) requiring it
to produce another person for examination,
the court may issue any of the orders listed
in Rule 37(b)(2)(A)(i) —(vi), unless the
disobedient party shows that it cannot
produce the other person.
(C) Payment of Expenses. Instead of or in
addition to the orders above, the court must
order the disobedient party, the attorney
advising that party, or both to pay the
reasonable expenses, including attorney’s
fees, caused by the failure, unless the
failure was substantially justified or other
circumstances make an award of expenses
unjust.
44a
(c) FAILURE TO DISCLOSE, TO SUPPLEMENT AN EARLIER
RESPONSE, OR TO ADMIT.
(1) Failure to Disclose or Supplement. If a party
fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party is not
allowed to use that information or witness to
supply evidence on a motion, at a hearing, or at a
trial, unless the failure was substantially justified
or is harmless. In addition to or instead of this
sanction, the court, on motion and after giving an
opportunity to be heard:
(A) may order payment of the reasonable
expenses, including attorney’s fees, caused
by the failure;
(B) may inform the jury of the party’s
failure; and
(C) may impose other appropriate
sanctions, including any of the orders listed
in Rule 37(b)(2)(A)(i)–(vi).
(2) Failure to Admit. If a party fails to admit what
is requested under Rule 36 and if the requesting
party later proves a document to be genuine or the
matter true, the requesting party may move that
the party who failed to admit pay the reasonable
expenses, including attorney’s fees, incurred in
making that proof. The court must so order unless:
(A) the request was held objectionable
under Rule 36(a);
(B) the admission sought was of no
substantial importance;
45a
(C) the party failing to admit had a
reasonable ground to believe that it might
prevail on the matter; or
(D) there was other good reason for the
failure to admit.
(d) PARTY’S FAILURE TO ATTEND ITS OWN DEPOSITION,
SERVE ANSWERS TO INTERROGATORIES, OR RESPOND TO
A REQUEST FOR INSPECTION.
(1) In General.
(A) Motion; Grounds for Sanctions. The
court where the action is pending may, on
motion, order sanctions if:
(i) a party or a party’s officer,
director, or managing agent—or a
person designated under Rule
30(b)(6) or 31(a)(4)—fails, after
being served with proper notice, to
appear for that person’s deposition;
or
(ii) a party, after being properly
served with interrogatories under
Rule 33 or a request for inspection
under Rule 34, fails to serve its
answers, objections, or written
response.
(B) Certification. A motion for sanctions for failing
to answer or respond must include a certification
that the movant has in good faith conferred or
attempted to confer with the party failing to act in
an effort to obtain the answer or response without
court action.
46a
(2) Unacceptable Excuse for Failing to Act. A
failure described in Rule 37(d)(1)(A) is not excused
on the ground that the discovery sought was
objectionable, unless the party failing to act has a
pending motion for a protective order under Rule
26(c).
(3) Types of Sanctions. Sanctions may include any
of the orders listed in Rule 37(b)(2)(A)(i)–(vi).
Instead of or in addition to these sanctions, the
court must require the party failing to act, the
attorney advising that party, or both to pay the
reasonable expenses, including attorney’s fees,
caused by the failure, unless the failure was
substantially justified or other circumstances
make an award of expenses unjust.
(e) FAILURE TO PRESERVE ELECTRONICALLY STORED
INFORMATION. If electronically stored information that
should have been preserved in the anticipation or conduct
of litigation is lost because a party failed to take
reasonable steps to preserve it, and it cannot be restored
or replaced through additional discovery, the court:
(1) upon finding prejudice to another party from
loss of the information, may order measures no
greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the
intent to deprive another party of the information’s
use in the litigation may:
(A) presume that the lost information was
unfavorable to the party;
(B) instruct the jury that it may or must
presume the information was unfavorable
to the party; or
47a
(C) dismiss the action or enter a default
judgment.
(f) FAILURE TO PARTICIPATE IN FRAMING A DISCOVERY
PLAN. If a party or its attorney fails to participate in good
faith in developing and submitting a proposed discovery
plan as required by Rule 26(f), the court may, after giving
an opportunity to be heard, require that party or attorney
to pay to any other party the reasonable expenses,
including attorney’s fees, caused by the failure.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.