Reply Brief — Harold R. Berk, Petitioner v. Wilson C. Choy, et al.

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

REPLY 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

TABLE OF CONTENTS

Page

Argument ................................................................................ 3

I. The Clash Between Delaware’s Law And The

Federal Rules Is Unmistakable ................................... 3

A. The Conflict With Rules 8 and 9 Is Plain ............. 3

B. The Conflict With A Host of Other Federal

Rules Is Equally Flagrant...................................... 5

C. The Federal Rules Are Valid and Do Not

Violate the Rules Enabling Act ............................. 7

II. Rule 11(a) Does Not Authorize Affidavit-ofMerit Laws...................................................................... 9

III. Respondents’ Proposed Approach to Federal

Procedure Invites Chaos ............................................ 16

Conclusion ............................................................................ 21

(i)

TABLE OF AUTHORITIES

Cases

Page(s)

Albright v. Christensen,

24 F.4th 1039 (6th Cir. 2022) ........................................... 14

Ariz. State Legislature v. Ariz. Indep.

Redistricting Comm’n,

576 U.S. 787 (2015) ..................................................... 12, 13

Ashcroft v. Iqbal,

556 U.S. 662 (2009) ............................................................. 5

Biden v. Nebraska,

600 U.S. 477 (2023) ....................................................... 9, 15

Bostock v. Clayton Cnty.,

590 U.S. 644 (2020) ........................................................... 12

Burlington N. R.R. Co. v. Woods,

480 U.S. 1 (1987) ............................................................. 4, 8

Bus. Guides, Inc. v. Chromatic Commc’ns

Enters., Inc.,

498 U.S. 533 (1991) ....................................................... 8, 12

Cohen v. Beneficial Indus. Loan Corp.,

337 U.S. 541 (1949) ......................................................... 4, 5

Employers Mut. Lib. Ins. Co. of Wis. v. Blunt,

227 F.2d 312 (5th Cir. 1955) ............................................ 14

Farzana K. v. Ind. Dep’t of Educ.,

473 F.3d 703 (7th Cir. 2007) ............................................ 14

FCC v. AT&T Inc.,

562 U.S. 397 (2011) ....................................................... 9, 10

FDA v. R. J. Reynolds Vapor Co.,

145 S. Ct. 1984 (2025) ....................................................... 12

Gallivan v. United States,

943 F.3d 291 (6th Cir. 2019) ...................................... 3, 5, 6

Gundy v. United States,

588 U.S. 128 (2019) ........................................................... 15

(ii)

iii

Cases—Continued

Page(s)

Hanna v. Plumer,

380 U.S. 460 (1965) ......................................................... 3, 8

Jerome v. United States,

318 U.S. 101 (1943) ............................................................. 9

Joe v. United States,

772 F.2d 1535 (11th Cir. 1985) .......................................... 9

King v. Burwell,

576 U.S. 473 (2015) ........................................................... 16

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) ........................................................... 16

MCI Telecomms. Corp. v. Am. Tel. & Tel. Co.,

512 U.S. 218 (1994) ........................................................... 15

Miss. Publ’g Corp. v. Murphree,

326 U.S. 438 (1946) ......................................................... 7, 8

Nelson v. United States,

40 F.4th 1105 (10th Cir. 2022) ........................................... 9

Pledger v. Lynch,

5 F.4th 511 (4th Cir. 2021) ......................................... 3, 4, 6

Richmond Newspapers, Inc. v. Virginia,

448 U.S. 555 (1980) ........................................................... 17

Royalty Network, Inc. v. Harris,

756 F.3d 1351 (11th Cir. 2014) ........................................ 14

Schlagenhauf v. Holder,

379 U.S. 104 (1964) ............................................................. 8

Shady Grove Orthopedic Assocs., P.A. v.

Allstate Ins. Co.,

559 U.S. 393 (2010) ..................................... 3, 4, 7, 8, 19, 20

Sibbach v. Wilson & Co., Inc.,

312 U.S 1 (1941) .............................................................. 7, 8

Truskett v. Closser,

236 U.S. 223 (1915) ............................................................. 9

iv

Cases—Continued

Page(s)

Tyson Foods, Inc. v. Bouaphakeo,

577 U.S. 442 (2016) ............................................................. 8

United States v. Hansen,

599 U.S. 762 (2023) ........................................................... 12

Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338 (2011) ............................................................. 8

Whitman v. Am. Trucking Ass’ns, Inc.,

531 U.S. 457 (2001) ........................................................... 15

Woods v. Interstate Realty Co.,

337 U.S. 535 (1949) ......................................................... 4, 5

ZF Auto. US, Inc. v. Luxshare, Ltd.,

596 U.S. 619 (2022) ........................................... 9, 10, 11, 14

Statutes

28 U.S.C.

§ 381 (1937) ........................................................................ 12

§ 762 (1937) ........................................................................ 12

§ 1332(a) ............................................................................. 19

§ 1367(a) ............................................................................. 19

§ 2412 .................................................................................... 9

Cal. Civ. Proc. Code § 446 .................................................. 13

Del. Code Ann. Title 18

§ 6853 ...................................................................... 1, 3, 4, 19

§ 6853(a) ....................................................................... 18, 19

§ 6853(a)(1) ............................................................ 1, 3, 7, 17

§ 6853(a)(2) .......................................................................... 7

§ 6853(a)(4) ...................................................................... 3, 4

§ 6853(b) ............................................................................... 3

§ 6853(d) ............................................................................. 18

v

Rules

Page(s)

Federal Rules of Civil Procedure

Rule 3 ................................................................. 1, 6, 7, 8, 15

Rule 5.1 ............................................................................. 16

Rule 6(a)(4) .................................................................. 11, 16

Rule 7(b)(2) ........................................................................ 10

Rule 8 ................................................................. 1, 3, 7, 8, 15

Rule 9 ................................................................. 1, 3, 7, 8, 15

Rule 11 ....................................... 1, 2, 7, 8, 11, 12, 13, 14, 16

Advisory Committee’s note to 1937 adoption ....... 11, 12

Rule 11(a)........................... 2, 7, 9, 10, 11, 12, 13, 14, 15, 16

Rule 12 ......................................................... 1, 6, 7, 8, 15, 18

Rule 16(c)(2)(I) ............................................................ 11, 16

Rule 23(b) (1937) ............................................................... 12

Rule 23(g)(1) ................................................................ 11, 16

Rule 24 ............................................................................... 16

Rule 26 ............................................................. 2, 7, 8, 15, 18

Rule 35

Advisory Committee’s note to 1970 amendment ........ 10

Rule 35(b)(6) ...................................................................... 10

Rule 37 ................................................................... 2, 7, 8, 15

Rule 40 ............................................................................... 10

Rule 53(a)(1) ................................................................ 11, 16

Rule 54(d)(2)(B) .......................................................... 11, 16

Rule 54(d)(2)(B)(ii) ........................................................... 10

Rule 56 ................................................................................. 6

Rule 65 (1937).................................................................... 12

Rule 78(b) .......................................................................... 10

Rule 81(a)(5) ................................................................ 11, 16

Fed. R. Evid. 613(b) ............................................................ 18

Rules of Practice for the Courts of Equity of the

United States

Equity Rule 21 .................................................................. 12

Equity Rule 24 .................................................................. 12

vi

Rules—Continued

Page(s)

Rules of the District Court of the United States

for the District of Columbia

Rule 17 (1937) .................................................................... 10

N.Y. C.P.L.R. § 3020 ........................................................... 13

Tex. R. Civ. P. 93 ................................................................. 13

Other Authorities

2 Moore’s Federal Practice § 11.10[2] (3d

ed. 2025) ............................................................................. 13

5A Wright & Miller's Federal Practice and

Procedure § 1339 (4th ed. 2025)........................ 2, 9, 13, 14

5C Wright & Miller's Federal Practice and

Procedure § 1360 (3d ed. 2025) ......................................... 6

Alexander Holtzoff, Origin and Sources of

the Federal Rules of Civil Procedure,

30 N.Y.U. L. Rev. 1057 (1955)................................... 14, 15

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) .......................................... 14

Black’s Law Dictionary (12th ed. 2024) .......................... 4, 7

Charles E. Clark, Handbook of the Law of

Code Pleading (2d ed. 1947) .................................. 2, 12, 13

Charles E. Clark, Simplified Pleading,

2 F.R.D. 456 (1943) ..................................................... 13, 14

Charles E. Clark & James Wm. Moore,

A New Federal Civil Procedure I. the

Background, 44 Yale L.J. 387 (1935) ............................. 12

Elwood Hutcheson, The New Federal

Rules of Civil Procedure,

13 Wash. L. Rev. & St. B.J. 198 (1938) .................... 12, 13

vii

Other Authorities—Continued

Page(s)

James Love Hopkins, The New Federal

Equity Rules (1913) ......................................................... 12

Proceedings of the Institute at Washington,

D.C. October 6, 7, 8, 1938 and of the

Symposium at New York City October 17-18,

19, 1938 (Edward H. Hammond, ed., 1939) .................. 10

Royal H. Brin, Jr., Verification of

Pleadings in Federal Court As Affected

by Requirements of State Statutes,

25 Ins. Counsel J. 219 (1958) ........................................... 13

Steven S. Gensler, Federal Rules of Civil

Procedure: Rules and Commentary

(2010) .................................................................................. 14

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

REPLY BRIEF FOR THE PETITIONER

Delaware’s affidavit-of-merit law cuts deeply into the

Federal Rules of Civil Procedure, shredding a half dozen

rules in the process. But this case can be decided on its

conflict with only two: Rules 8 and 9.

Rule 8 sets the “General Rules of Pleading.” Rule 9

sets the rules for “Pleading Special Matters.” Delaware’s

law rewrites both: it demands that “[a] complaint [be]

accompanied by . . . [a]n affidavit of merit as to each

defendant signed by an expert witness.” Del. Code Ann.

tit. 18, § 6853(a)(1). Pleading rules set forth what is

required to have a case proceed to discovery. Section 6853

is a pleading rule, plain as day. By dictating that a

complaint needs an accompanying affidavit it goes beyond

what Rules 8 and 9 require. The conflict is direct under

any standard.

The collision goes beyond Rules 8 and 9. Rule 3 says

filing a complaint starts a suit; Delaware says not without

an affidavit. Rule 11 makes a lawyer’s signature the

guarantor of good faith; Delaware piles on an expert’s

verification. Rule 12 imposes no requirement to produce

(1)

2

evidence to state a claim; Delaware’s law does. Rule 26

sets the timing of expert disclosures; Delaware demands

them before suit begins. Rule 37 leaves discovery

sanctions to judicial discretion; Delaware makes dismissal

mandatory.

Respondents have little to say about these conflicts.

Instead, they put virtually all of their eggs in a new

basket: Rule 11. Respondents’ newfound lead argument

relies on a long-dormant proviso in Rule 11(a)—not

argued below, not the basis of the decision below, and not

adopted by any of the courts of appeals that have

considered the question. The best respondents muster is

that Wright & Miller call the argument “plausibl[e].” 5A

Wright & Miller’s Federal Practice and Procedure § 1339

(4th ed. 2025). But Rule 11(a) offers no escape. Its proviso

simply prevented a few pre-1938 federal rules and

statutes from displacement by Rule 11’s abolition of

verification and affidavit rules in federal court.

Respondents’ Rule 11 argument is meritless. Rule 11

did not, as respondents maintain, override a century of

equity practice by requiring federal courts to enforce the

dozens and dozens of state pleading-verification laws in

force when the Rules took effect. See Charles E. Clark,

Handbook of the Law of Code Pleading 217-18 nn.21-23

(2d ed. 1947); see also pp. 9-16, infra.

At bottom, respondents’ vision of federal procedure is

irredeemably flawed, unsound in theory, and unworkable

in practice. They would make federal procedure

hopelessly convoluted and wasteful, with endless battles

over which rules govern. They would have federal courts

contort state laws into shapes no state ever intended. The

Court should not go down that road. Hanna and Shady

Grove point the way: the Federal Rules control.

3

ARGUMENT

I.

THE CLASH BETWEEN DELAWARE’S LAW AND THE

FEDERAL RULES IS UNMISTAKABLE

Delaware’s statute conflicts with the Federal Rules.

Where the Rules “answer the same question” as a state

law, the Rules govern. Shady Grove Orthopedic Assocs.,

P.A. v. Allstate Ins. Co., 559 U.S. 393, 399 (2010); Hanna

v. Plumer, 380 U.S. 460, 471 (1965). Multiple Rules

“answer the same question[s]” Delaware’s law answers.

A.

The Conflict With Rules 8 and 9 Is Plain

Delaware’s statute clashes with Rules 8 and 9. Rules

8 and 9 set forth the pleading rules in federal court. When

a plaintiff satisfies those requirements, the case proceeds.

See Pledger v. Lynch, 5 F.4th 511, 519 (4th Cir. 2021);

Gallivan v. United States, 943 F.3d 291, 293 (6th Cir.

2019). Delaware’s law adds a requirement: every

complaint must be “accompan[ied]” by an expert affidavit.

The problem is simple: a complaint can satisfy Rules 8 and

9 yet still be dismissed for failing Delaware’s requirement.

1. Respondents insist there is no conflict because

Rules 8 and 9 deal with pleadings and “[a]n affidavit of

merit is not a pleading.” Beebe Br. 26; Choy Br. 16

(similar). They reason that an affidavit of merit is not

“attached to a complaint,” is “filed in a separate envelope,”

and may be “temporally distinct” if filed after an

extension. Beebe Br. 23, 25-26, 28; Choy Br. 37-39.

But Rules 8 and 9 set the “[r]ules of [p]leading” in

federal court, and Section 6853 establishes different

pleading rules: “[T]he complaint . . . shall not be

docketed” if no affidavit is filed, Del. Code Ann. tit.

18, § 6853(a)(1); the affidavit must state that “there are

reasonable grounds to believe that there has been healthcare medical negligence committed by each defendant,”

id., unless “the complaint alleges a rebuttable inference of

medical negligence,” id. § 6853(b); defendants are “not

4

required to take any action with respect to the complaint

. . . until 20 days after plaintiff has filed the affidavit . . . .”

id. § 6853(a)(4). It is hard to imagine a law designating

when a complaint can be docketed, what it must say, and

when the defendant must file a responsive pleading as

anything but a pleading rule.

The line between Delaware’s affidavit of merit statute

and a pleading is “entirely artificial.” Shady Grove, 559

U.S. at 399. The conflict “inquiry is a functional one.”

Pledger, 5 F.4th at 522 (citing Burlington N. R.R. Co. v.

Woods, 480 U.S. 1, 4-5 (1987)). Delaware’s affidavit of

merit functions just like a complaint. Like a complaint, it

is “a[] formal document” that “sets forth . . . allegations.”

Beebe Br. 26 (quoting Pleading, Black’s Law Dictionary

(12th ed. 2024)). Like a complaint, filing the affidavit

triggers the defendant’s response deadline. Functionally,

it is no different from requiring plaintiffs to file a second,

sealed, supercharged, physician-verified complaint

alleging healthcare negligence. And, as this case confirms,

securing one addressing multiple defendants who each

played different roles can be extraordinarily difficult.

2. Respondents argue no conflict exists because the

Delaware law is like the state laws in Cohen v. Beneficial

Indus. Loan Corp., 337 U.S. 541 (1949), and Woods v.

Interstate Realty Co., 337 U.S. 535 (1949). Beebe Br. 2627; Choy Br. 20-21, 27. But the laws in those cases bear no

resemblance to Delaware’s § 6853.

In Cohen and Woods, the state laws did not govern

the pleadings at all, much less require that “the complaint

[be] accompanied by” anything “unless the complaint”

made specified allegations. The law in Cohen provided

that in certain shareholder suits, a plaintiff would be liable

for all expenses and attorneys’ fees of the defense if the

plaintiff did not prevail, and required the plaintiff to post

a bond to cover those expenses. 337 U.S. at 544-45 & n.1.

The majority emphasized that the state law “create[d] a

5

new liability where none existed before” and that the bond

was not “a mere procedural device,” rendering it separate

and apart from then-Federal Rule 23’s procedural

requirements for shareholder suits. Id. at 555-56.

Delaware’s law does not create new liability, and even

respondents concede that it “contains . . . procedural

instructions.” Choy Br. 28.

The law in Woods is even further afield. That law

prohibited a foreign corporation to “bring or maintain any

action or suit in any of the courts” of the state unless the

corporation appointed an agent for service of process. 337

U.S. at 536 n.1. Thus in Woods, as in Cohen, the law had

nothing to do with pleading. Id.; Cohen, 337 U.S. at 544-45

& n.1. 1

3. There is a more fundamental issue lurking here—

Shady Grove made clear that the Federal Rules answer

questions beyond their literal text. A basic question Rules

8 and 9 answer is: what evidence must a plaintiff present

to a court to move a suit beyond the pleading stage and

“unlock the doors of discovery”? Ashcroft v. Iqbal, 556

U.S. 662, 678-79 (2009). The answer Rules 8 and 9 give is

unambiguous and foundational: none. See, e.g., id.;

Gallivan, 943 F.3d at 293. Delaware thinks sometimes it

should be some—but that is a question Rules 8 and 9

already answer, and they answer it differently.

B. The Conflict With A Host of Other Federal Rules

Is Equally Flagrant

Delaware’s law conflicts with multiple additional

Federal Rules.

The vitality of the fractured majority decisions in Cohen and

Woods is questionable given this Court’s later Erie jurisprudence

culminating with Shady Grove. While concurring and dissenting

opinions in Shady Grove relied on Cohen and Woods, the majority

did not deem either decision worthy of mention.

1

6

1. Rule 12 and Delaware’s law “answer[] the same

question.” Rule 12 makes clear that a complaint survives

if it alleges facts “sufficient to state a claim to relief that

is plausible on its face,” and it “does not demand

evidentiary support—in an affidavit or any other form—

for a claim to be plausible.” Gallivan, 943 F.3d at 293

(citations omitted); Pledger, 5 F.4th at 519 (similar). Yet

respondents argue that Delaware’s law does exactly that:

they contend it imposes an “evidentiary requirement,”

and a case should be dismissed before discovery for

failure to meet it. Beebe Br. 23, 26; see Choy Br. 41.

Respondents argue there is no conflict because this

case was dismissed outside of Rule 12. Beebe Br. 29; see

Choy Br. 41. But that makes it worse. Only Rule 56

permits termination of a case pre-trial on the basis of

evidentiary sufficiency—yet the district court did not

invoke Rule 56. The court treated Delaware’s law as new

authority to dismiss a case outside Rules 12 and 56,

making it precisely the state-created dismissal device

Shady Grove forbids.

Beebe argues that some federal courts permit

motions to dismiss outside of Rule 12, Beebe Br. 30, but

ignores that—unlike here—those motions are creatures

of federal law (not state law). See 5C Wright & Miller’s

Federal Practice and Procedure § 1360 (3d ed. 2025).

2. Rule 3 also clashes with Delaware’s law. Rule 3 says

an action commences when a complaint is filed.

Delaware’s law precludes commencement without an

affidavit, forbidding even docketing the complaint. Choy

argues that the affidavit is not actually required to

“commence” an action because “[i]t can be filed later”—

after an extension—“as Petitioner did here.” Choy Br. 36.

But that fact does nothing to alleviate the conflict because

the request for an extension is still a precondition to

commencement. Beebe relegates Rule 3 to a footnote,

asserting that Cohen and Woods “foreclose Petitioner’s

7

reliance on Rule 3.” Beebe Br. 27 n.11. But as noted, those

decisions are either inapposite, abrogated, or both.

3. Rule 11 prohibits laws like Delaware’s. Rule 11(a)

says that unless a statute or rule states otherwise,

pleadings “need not be . . . accompanied by an affidavit.”

Fed. R. Civ. P. 11(a). Delaware’s law requires a complaint

to be accompanied by an affidavit within 60 days of filing

suit. Del. Code Ann. tit. 18, § 6853(a)(1), (2). A starker

conflict one could not find. Respondents argue that Rule

11 permits Delaware’s law because the law does not

actually require pleadings to be “accompanied by an

affidavit” because the affidavit can be submitted up to 60

days after the complaint. Choy Br. 39-40; Beebe Br. 28-29.

But “accompany” means “to go along with.” Accompany,

Black’s Law Dictionary (12th ed. 2024). And Delaware’s

law requires an affidavit “to go along with” the

complaint—extension or no extension.

4. Rule 26 also collides with Delaware’s law. Contra

Choy Br. 41-42; Beebe Br. 31-32. Rule 26 dictates when

expert evidence must be produced; Delaware’s law does

too. Under Rule 26, a plaintiff need not produce expert

evidence until Rule 26 requires it; by respondents’ own

admission, Delaware’s law demands an expert affidavit

before the suit is even filed. Beebe Br. 1; Choy Br. 6. This

case confirms the difficulty of securing pre-suit evidence

from experts reluctant to critique other professionals.

Rule 37 likewise conflicts. It leaves sanctions to judicial

discretion; Delaware instead makes dismissal mandatory.

C.

The Federal Rules Are Valid and Do Not Violate

the Rules Enabling Act

Rules 3, 8, 9, 11, 12, 26, and 37 are valid. A Federal

Rule is valid when it “really regulate[s] procedure,” i.e.,

“the judicial process” or “the manner and the means” for

enforcing substantive rights. Shady Grove, 559 U.S. at

407 (plurality opinion) (cleaned up); accord Miss. Publ’g

Corp. v. Murphree, 326 U.S. 438, 446 (1946); Sibbach v.

8

Wilson & Co., Inc., 312 U.S 1, 14 (1941). The Rules at issue

do just that.

Recognizing that a frontal assault on the Rules is

foreclosed, respondents try another tack, insisting that

the Rules Enabling Act permits courts to rewrite the

Rules on an ad hoc “as applied” basis. Beebe Br. 38, 41-42;

see Choy Br. 49-52. The Court has long rejected that

approach. See Shady Grove, 559 U.S. at 409-13 & nn.9-12

(plurality opinion) (collecting cases); Sibbach, 312 U.S. at

13-14; Murphree, 326 U.S. at 445; Schlagenhauf v. Holder,

379 U.S. 104, 113-14 (1964); Hanna, 380 U.S. at 464-65;

Burlington, 480 U.S. at 5-6; Bus. Guides, Inc. v.

Chromatic Commc’ns Enters., Inc., 498 U.S. 533, 552-54

(1991). Courts “cannot contort [a Federal Rule’s] text,

even to avert a collision with state law that might render

it invalid.” Shady Grove, 559 U.S. at 406.

Neither Tyson Foods, Inc. v. Bouaphakeo, 577 U.S.

442 (2016), nor Wal-Mart Stores, Inc. v. Dukes, 564 U.S.

338 (2011), is to the contrary. Contra Beebe Br. 38-39;

Choy Br. 50. In both cases, the Court interpreted Rule

23’s requirements in light of the Enabling Act. See Tyson

Foods, 577 U.S. at 455; Wal-Mart, 564 U.S. at 366-67. But

respondents are not asking for an interpretation; they are

asking for “contort[ion] . . . to avert a collision.” Shady

Grove, 559 U.S. at 406. Because Federal Rules 3, 8, 9, 11,

12, 26, and 37 regulate procedure, they are valid and

displace conflicting state law.

But even under respondents’ proposed rewrite-asyou-go framework, the Rules Enabling Act would not help

them. The relevant Federal Rules displace Delaware’s

law even under the test proposed by Justice Stevens in

Shady Grove because Delaware’s law is procedural and

not “so bound up with the state-created right or remedy

that it defines the scope of that substantive right or

remedy.” Shady Grove, 559 U.S. at 420 (Stevens, J.,

concurring); Pet. Br. 33-34.

9

II.

RULE 11(a) DOES NOT AUTHORIZE AFFIDAVIT-OFMERIT LAWS

Rule 11(a) does not authorize states to require that

federal complaints be “accompanied” by affidavits. When

Rule 11(a) says “a pleading need not be verified or

accompanied by an affidavit” “[u]nless a rule or statute

specifically states otherwise,” it is referring to federal

rules and federal statutes. The Rule’s text, context,

history, and purpose make that clear.

A.1. Text and context. The key phrase here is “a rule

or statute.” Standing alone, the word “statute” sheds little

light on whether Rule 11 refers to all statutes or only

federal ones. The word “statute” in federal law—without

more—typically refers to federal statutes. 2 But some

suggest it could also be used more broadly to mean state

statutes. See 5A Wright & Miller’s Federal Practice and

Procedure § 1339 (4th ed. 2025). “If we had nothing but

this single word to go on, there would be a good case for

including” state statutes within Rule 11(a). ZF Auto. US,

Inc. v. Luxshare, Ltd., 596 U.S. 619, 628 (2022).

“This is where context comes in.” ZF Auto., 596 U.S.

at 628; Biden v. Nebraska, 600 U.S. 477, 511 (2023)

(Barrett, J., concurring). “Statute” does not stand alone—

it belongs to the phrase “a rule or statute.” ZF Auto., 596

U.S. at 628. And accompanied by the word “rule,” it is

clear that the word “statute” refers exclusively to federal

See Nelson v. United States, 40 F.4th 1105, 1112-13 (10th Cir.

2022) (holding that the “use of ‘statute’ alone” in 28 U.S.C. § 2412

“most naturally refers only to federal statutes”); Joe v. United

States, 772 F.2d 1535, 1537 (11th Cir. 1985) (per curiam); see also

Truskett v. Closser, 236 U.S. 223, 228 (1915) (finding “provided by

law” means “Federal law, not state law”); cf. Jerome v. United

States, 318 U.S. 101, 104 (1943) (explaining it is “generally

assume[d], in the absence of a plain indication to the contrary, that

Congress . . . is not making the application of the federal [law]

dependent on state law”).

2

10

statutes. See id. (“[T]wo words together may assume a

more particular meaning than those words in isolation”

(quoting FCC v. AT&T Inc., 562 U.S. 397, 406 (2011))).

The word “rule” here does not have a natural nonfederal referent. When used in the Federal Rules, the

word “rule” could plausibly refer to a federal court local

rule or another Federal Rule. But there is no natural way

to read the word “rule” in Rule 11(a), or elsewhere in the

Rules, to refer to something created by a state.

The Federal Rules as a whole bear out this

commonsense interpretation. The Federal Rules never

use the word “rule” standing alone to refer to anything

other than rules created by federal law. 3 While they also

use “these rules,” Beebe Br. 17, that phrase is narrower

than “a rule” which can also include—and often does

include—local federal court rules. See Rules of the Dist.

Ct. of the U.S. for D.C. R. 17 (1937) (local rule requiring

verified petitions for special writs permitted by Rule

11(a)); Proceedings of the Institute at Washington, D.C.

October 6, 7, 8, 1938 and of the Symposium at New York

City October 17-18, 19, 1938, at 213 (Edward H.

Hammond, ed., 1939) (Statement of Justice Oscar R.

Luhring).

See Fed. R. Civ. P. 7(b)(2) (“The rules governing . . . matters of

form in pleadings apply to motions and other papers.”); Fed. R. Civ.

P. 35(b)(6) (“This subdivision does not preclude obtaining an

examiner's report or deposing an examiner under other rules.”); see

Fed. R. Civ. P. 35 advisory committee’s note to 1970 amendment

(examples of “rules other than Rule 35(b)” are “Rules 34 or 26(b)(3)

or (4)”); Fed. R. Civ. P. 40 (“Each court must provide by rule for

scheduling trials.”); Fed. R. Civ. P. 54(d)(2)(B)(ii) (“[S]pecify the

judgment and the statute, rule, or other grounds entitling the

movant to the award [of attorney’s fees]”); Fed. R. Civ. P. 78(b) (“By

rule or order, the court may provide for submitting and determining

motions on briefs, without oral hearings.”).

3

11

Thus, the words rule and statute in Rule 11(a)

“complement one another,” ZF Auto., 596 U.S. at 631. The

former refers to other Federal Rules and court local rules,

and the latter refers to federal statutes.

That reading of the word “statute” in Rule 11(a) is

borne out by the use of the word “statute” when it appears

alone elsewhere in the Federal Rules. Numerous Federal

Rules use the word “statute” standing alone to mean only

federal statutes. 4 Just like those other Rules, when Rule

11(a) says a pleading need not be verified or accompanied

by an affidavit “[u]nless a rule or statute specifically

states otherwise,” it is referring to federal rules and

federal statutes.

2. History. History confirms Rule 11(a)’s limitation to

federal rules and federal statutes. See ZF Auto., 596 U.S.

at 631. The “rule or statute” proviso was included to

ensure Rule 11 did not displace preexisting federal rules

and statutes requiring verification or affidavits. The 1937

advisory committee said so explicitly: “This rule expressly

continues any statute which requires a pleading to be

verified or accompanied by an affidavit.” Fed. R. Civ. P.

11 advisory committee’s note to 1937 adoption (emphasis

added). The use of the word “continues” in the note would

See Fed. R. Civ. P. 6(a)(4) (the time of day required for filing may

be modified by “statute”); Fed. R. Civ. P. 16(c)(2)(I) (court may

order use of “special procedures to assist in resolving the dispute

when authorized by statute”); Fed. R. Civ. P. 23(g)(1) (court must

appoint class counsel unless a “statute provides otherwise”); Fed.

R. Civ. P. 53(a)(1) (“statute” may authorize appointment of special

masters to perform functions beyond those enumerated in Rule

53(a)(1)); Fed. R. Civ. P. 54(d)(2)(B) (motion for attorney’s fees

must, inter alia, specify the legal basis for the request “[u]nless a

statute” provides otherwise); Fed. R. Civ. P. Rule 81(a)(5) (Federal

Rules apply in proceedings to enforce “a subpoena issued by a

United States officer or agency under a federal statute, except as

otherwise provided by statute, by local rule, or by court order in the

proceedings”).

4

12

be odd if the committee understood the proviso would

open the door to future state statutes. And indeed, the

committee pointed only to preexisting federal statutes

and rules that would “continue,” and did not identify any

state statutes or rules. See id. (identifying 28 U.S.C.

§§ 381, 762 and Rules 23(b) and 65). The Court has relied

on Rule 11’s advisory committee’s notes in the past. See

Bus. Guides, Inc., 498 U.S. at 544. Here, they are virtually

dispositive.

The advisory committee also noted that Rule 11 “is

substantially the content” of Equity Rules 24 and 21—

another signal that the drafters intended to eliminate

state verification requirements. Even before the Federal

Rules, federal courts did not apply state procedural law

when sitting in equity. James Love Hopkins, The New

Federal Equity Rules 13-14 (1913). Rule 11 adhered “to

the practice under equity rule 24, rather than the state

practice, in eliminating verification of pleadings and

substituting therefor the requirement that every pleading

shall be signed by at least one attorney.” Elwood

Hutcheson, The New Federal Rules of Civil Procedure, 13

Wash. L. Rev. & St. B.J. 198, 208 (1938); see Clark, Code

Pleading, supra at 217 n.21. When Rule 11 carried

forward equity rule 24’s rejection of state pleading rules

in federal court, it brought “the old soil” with it. United

States v. Hansen, 599 U.S. 762, 778 (2023); see Charles E.

Clark & James Wm. Moore, A New Federal Civil

Procedure I. the Background, 44 Yale L.J. 387, 394 (1935).

The common understanding of Rule 11(a) at the time

of its enactment and in all the years since is that the

proviso in the Rule refers only to federal rules and

statutes. That is powerful evidence of its original

meaning. See FDA v. R. J. Reynolds Vapor Co., 145 S. Ct.

1984, 1992 (2025) (interpretation with “long lineage” is

“telling”); Bostock v. Clayton Cnty., 590 U.S. 644, 798

(2020) (Kavanaugh, J., dissenting); cf. Ariz. State

13

Legislature v. Ariz. Indep. Redistricting Comm’n, 576

U.S. 787, 824-25 (2015) (Roberts, C.J., dissenting).

When the Federal Rules took effect in 1938,

numerous states required affidavits and verifications for

pleadings. See Clark, Code Pleading, supra at 217-18

nn.21-23, 219 nn.27-28 (collecting patchwork of affidavit

and verification requirements from more than 30 states).

Several of those states still require affidavits and

verifications when pleading today. See, e.g., Cal. Civ. Proc.

Code § 446; N.Y. C.P.L.R. § 3020; Tex. R. Civ. P. 93. The

drafters of the Rules were aware of state affidavit

requirements—Charles Clark wrote the book on code

pleading. Yet they made no mention of the idea that Rule

11 would bring state affidavit and verification

requirements into federal court. They said the opposite:

“Rule 11 does away with the all too barren formality of an

oath to pleadings.” Charles E. Clark, Simplified

Pleading, 2 F.R.D. 456, 463 (1943).

Commentators, too, have long interpreted Rule 11(a)

to abolish verification or affidavits unless a federal rule or

statute provides otherwise. Hutcheson, The New Federal

Rules, supra at 208; Royal H. Brin, Jr., Verification of

Pleadings in Federal Court As Affected by Requirements

of State Statutes, 25 Ins. Counsel J. 219, 223 (1958) (“[I]t

would now seem to be at least reasonably safe for even a

cautious practitioner to omit verification of pleadings in

federal court where it would be required by state statute

or rule.”); 2 Moore’s Federal Practice § 11.10[2] (3d ed.

2025) (“A pleading does not have to be verified or

accompanied by an affidavit, unless there is a specific

provision to that effect in a federal rule or statute.”); 5A

Wright & Miller’s Federal Practice and Procedure § 1339

(4th ed. 2025) (“This language has been presumed to refer

to federal statutes and rules, in which case it would mean

that a federal court need not follow a forum state practice

14

requiring verification or the attachment of an affidavit to

the pleadings.”). 5

Only a handful of litigants have ever attempted to

argue Rule 11(a) refers to state statutes, and every court

of appeals that has considered the question has held that

Rule 11(a) refers only to federal rules and statutes. 6

3. Purpose. Rule 11’s “purpose,” ZF Auto., 596 U.S.

at 632, also points firmly away from respondents’

interpretation. Rule 11’s purpose was to eliminate

verification and affidavit requirements in federal court.

Clark, Simplified Pleading, supra at 463. It would have

been beyond strange for the Rule’s drafters to have then

required their use when pleading under the law of more

than 30 states.

The Rules were also about uniformity and simplicity

and, on that score, reading Rule 11(a) to permit state

affidavit requirements is even more bizarre. The drafters

of the Federal Rules were seeking an escape from the

chaos of the Conformity Acts and code pleading, under

which “there were forty-nine different categories of

procedure in the federal courts in actions at law.”

Alexander Holtzoff, Origin and Sources of the Federal

Steven S. Gensler, Federal Rules of Civil Procedure: Rules and

Commentary (2010) (Rule 11 “supersedes any contrary state law

verification requirement”); Benjamin Grossberg, Comment,

Uniformity, Federalism, and Tort Reform: The Erie Implications

of Medical Malpractice Certificate of Merit Statutes, 159 U. Pa. L.

Rev. 217, 253 (2010) (“In light of judicial precedent, the apparent

intent of Rule 11, and the overall federal orientation of the Rule’s

structure, the logical conclusion is that the exception applies only to

federal enactments.”).

6

See Albright v. Christensen, 24 F.4th 1039, 1045 n.2 (6th Cir.

2022) (rejecting argument that Rule 11(a) refers to state statutes);

Farzana K. v. Ind. Dep’t of Educ., 473 F.3d 703, 705 (7th Cir. 2007)

(same); Royalty Network, Inc. v. Harris, 756 F.3d 1351, 1360 (11th

Cir. 2014) (same); Employers Mut. Lib. Ins. Co. of Wis. v. Blunt,

227 F.2d 312 (5th Cir. 1955) (per curiam) (same).

5

15

Rules of Civil Procedure, 30 N.Y.U. L. Rev. 1057, 1057

(1955). Nothing could be less conducive to simplicity and

uniformity than preserving specialized oath pleading

requirements that vary from state to state.

Finally, given the myriad ways that permitting states

to require affidavits in federal court conflicts with the

basic structure of federal procedure—clashing with Rules

3, 8, 9, 12, 26, and 37—the Rules would not have used the

“subtle device” of a proviso in Rule 11(a) to authorize such

a massive incursion on their basic structure. MCI

Telecomms. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 231

(1994); accord Whitman v. Am. Trucking Ass’ns, Inc., 531

U.S. 457, 468 (2001).

B.1. Respondents counter that “the plain-text” of

Rule 11(a) establishes that it applies to state statutes.

Choy Br. 31; Beebe Br. 15-16. Beebe argues “[t]he phrase

‘a rule or statute’ is not naturally read to mean some rules

or statutes to the exclusion of others” and “[a]n ordinary

speaker of the English language would recognize Section

6853 of the Delaware Code as ‘a . . . statute.’”

Beebe Br. 16.

The basic problem with respondents’ argument is

that it proves too much. The phrase “a rule or statute” is

meaningless standing alone. Biden v. Nebraska, 600 U.S.

477, 511 (2023) (Barrett, J., concurring) (“To strip a word

from its context is to strip that word of its meaning.”);

Gundy v. United States, 588 U.S. 128, 141 (2019) (“This

Court has long refused to construe words ‘in a vacuum’”).

England has statutes. Baseball has rules. And they could

purport to say something about affidavits in federal court.

But no one would think Rule 11(a) is referring to them.

Reading Rule 11(a) to refer to federal rules and statutes

does not “add[] a word that the Rule conspicuously omits.”

Choy Br. 31. It just reads the word “statute” in context.

2. Respondents argue that in fact “context” supports

their interpretation because when the Federal Rules

16

“apply only to federal statutes, they [say] so expressly.”

Choy Br. 32; Beebe Br. 16. The problem with that

argument is that it is false. The Federal Rules repeatedly

use the word “statute” standing alone to mean federal

statutes. See p. 11 & n.4, supra (citing Rules 6(a)(4),

16(c)(2)(I), 23(g)(1), 53(a)(1), 54(d)(2)(B), 81(a)(5)). Beebe

tries to bolster its argument by pointing out that in two

places—Rules 5.1 and 24—the word “a statute” means

both state and federal. Beebe Br. 17. But that does not

move the ball. It does not establish that the word “statute”

when used alone in the Federal Rules always refers to

both state and federal statutes. Indeed, we know it does

not generally or in Rule 11 in particular. See pp. 1011 & n.4, supra.

3. Respondents insist that, even if the Court is

unpersuaded by their other arguments, the Court should

find Rule 11(a) ambiguous and construe it to reach state

statutes. Choy Br. 34-35; Beebe Br. 18-19. The proviso is

not ambiguous. Just because the word “statute” could

have two readings in the abstract, that does not make

Rule 11(a) ambiguous. Cf. King v. Burwell, 576 U.S. 473,

492 (2015); Loper Bright Enters. v. Raimondo, 603 U.S.

369, 400 (2024). There is no ambiguity here. Rule 11 does

not permit the application of state affidavit requirements

in federal court because to do so would fundamentally

alter the pleading rules in federal court diversity suits at

the whims of every state.

III. RESPONDENTS’ PROPOSED APPROACH TO

FEDERAL PROCEDURE INVITES CHAOS

A. Respondents do not dispute that Shady Grove’s

plain-meaning approach provides a test that is simpler,

clearer, more efficient, and more predictable than the one

they propose. Choy Br. 18; Beebe Br. 37. They accept

their approach would lead to endless litigation over how

to crack apart state law to extract the substance while

17

leaving the procedure. See Beebe Br. 2, 12, 14-15, 35-36;

Choy Br. 26-28.

Except for their concession that Delaware’s timing

rules would not apply in federal court, Beebe Br. 36,

respondents never explain how their vague approach

works, never say which aspects of Delaware’s law must

apply in federal court, and never hazard a guess where the

line might be drawn. Nor do respondents explain how

their rule would apply to the bevy of other statutes that

federal courts would have to contort to conform to federal

procedure, Pet. Br. 21-23, 36-37, instead offering the

unsatisfying bromide that “[o]ther state-law provisions

would require a separate analysis,” Choy Br. 47 n.16.

Respondents do not say what that “separate analysis”

would be or how it could possibly work.

B. Respondents’ rule invites all the procedural ills

that the Federal Rules sought to cure. Pet. Br. 35-37. As

the brief amicus curiae of Civil Procedure Professors

demonstrates, Delaware’s law is the poster child for the

procedural chaos they invite this Court to endorse. See

Brief of Civil Procedure Professors as Amici Curiae 1224.

To offer just one example, Delaware’s law

contemplates a category of off-the-docket filings, which

are generally foreign to the federal courts. See, e.g.,

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555,

569 (1980) (plurality opinion). It requires an affidavit to be

“filed with the court in a sealed envelope,” writing on the

envelope that the affidavit is “CONFIDENTIAL” and

“MAY ONLY BE VIEWED BY A JUDGE OF THE

SUPERIOR COURT.” Del. Code Ann. tit. 18,

§ 6853(a)(1). That novel sealed submission requirement

promises to trap wary and unwary litigants alike: A

plaintiff has no guidance as to whether he should send his

affidavit of merit in a sealed envelope to the “superior

court,” whether he should use the same envelope but

18

address it to the federal district judge, whether he should

file the affidavit on the public docket, or whether he

should follow the court’s local rules for submitting

documents in camera. Indeed, it is not clear if any of those

approaches is the correct one or if none are.

Respondents stress, Choy Br. 5-6, that secrecy is

integral to Delaware’s law, but they never articulate how

it could work in federal court. Respondents do not explain

whether the procedure for “in camera” review of an

affidavit upon a motion by the defendant, Del. Code Ann.

tit. 18, § 6853(d), is a necessary “substantive” component

of the law, or merely a state-law procedural nicety that

federal judges can discard by forcing plaintiffs to publicly

disclose the affidavits that the statute suggests should be

secret. Nor do respondents reconcile the statute’s

promise that an expert may not be questioned about the

affidavit, id., with the promise of broad discovery under

Rule 26, and the wide latitude that federal courts grant

parties to cross-examine experts with any prior

inconsistent statements, see Fed. R. Evid. 613(b). Every

district judge will need to decide whether the statute’s

secrecy provisions are “substantive” enough to apply in

federal court.

Respondents’ crack-and-extract approach similarly

provides federal courts (and litigants) no guidance on the

critical question of how to enforce whatever they deem to

be the “substantive” provisions of Delaware’s statute.

While the statute assigns the “Prothonotary” or “clerk of

the court” the responsibility to “refuse” a complaint that

is not accompanied by an affidavit, Del. Code Ann. tit. 18,

§ 6853(a), respondents seem to argue that in federal court

district judges (and not the clerk) should hold that power,

Choy Br. 11-12. Respondents insist that Rule 12 does not

govern the judge’s dismissal power, id. at 27 n.10, yet they

offer no alternative except to implicitly endorse the

19

unwritten ad hoc “show cause” procedure that the district

court used here, id. at 11-12.

These problems are not unique to the Delaware

statute. See Pet. Br. 39-42. Respondents’ approach

ensures that procedure will vary wildly—and will be hotly

disputed—whenever state procedural law is involved in a

federal case. Run-of-the-mill civil diversity suits are

regular fare for federal courts, 28 U.S.C. § 1332(a). And

supplemental jurisdiction only increases the volume of

state law issues that federal judges must confront. Id.

§ 1367(a). 7

C. Respondents’ answer to all this is that § 6853 is

substantive and the federal courts just have to put up with

the chaos. Not so. Delaware’s law is procedural, and Erie

does not compel importing procedural rules into federal

court. Respondents argue that the line between substance

and procedure should be drawn based on the Delaware

law’s effects. Choy Br. 43-47; Beebe Br. 42-44. Delaware’s

law is procedural under that test. It has no effect on the

substantive law of professional negligence. And the

Delaware law’s effect on forum choices, litigation

outcomes, and primary conduct in the world is “not so

huge[]” as to merit treatment as “substantive” even under

respondents’ approach. Shady Grove, 559 U.S. at 456 n.13

(Ginsburg, J., dissenting).

Regardless, Shady Grove announced a different test,

under which § 6853 is squarely procedural. A rule is

procedural “[i]f it governs only ‘the manner and the

On the one hand, because the statute applies to every “healthcare negligence lawsuit” filed in Delaware (not just those arising

under Delaware substantive law), Del. Code Ann. tit. 18, § 6853(a),

respondents’ rule would require a thorny choice-of-law analysis for

any non-Delaware malpractice claim filed in a Delaware federal

court. On the other hand, if § 6853 were truly substantive, it would

apply in a Delaware malpractice claim filed even in other states’

courts—but it is written to apply only in Delaware courts.

7

20

means’ by which the litigants’ rights are ‘enforced.’”

Shady Grove, 559 U.S. at 407. Delaware’s law does exactly

that. It does not define claim elements, alter the standard

of care, cap damages, or change burdens of proof. It

applies to non-Delaware claims filed in Delaware, and

does not apply to Delaware claims filed elsewhere. And

once the affidavit is filed, it is obsolete. The affidavit is a

box to be checked as part of the process of pleading.

D. Respondents declare that, even if their approach

is less than ideal, federalism demands it. Choy Br. 2, 18,

20, 24, 51; Beebe Br. 37. But respondents find no refuge in

federalism. Pet. Br. 41-43. Delaware did not join other

states as an amicus. And federalism is not advanced by

forcing federal courts to mangle state laws. It is respected

by letting Delaware’s law apply where Delaware said it

applies: in Delaware’s own courts.

21

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

August 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