Berk v. Choy · ¶29

After defendants' edits, the Delaware law is no longer a pleading requirement that serves a gatekeeping function; it is a free-foating evidentiary requirement that can serve as the basis for an early dismissal. Yet even were it acceptable to take creative license with the Delaware law, there would be no way to enforce such a requirement. Defendants concede that the absence of an affidavit is not grounds for dismissal under Rule 12(b)(6). They foat the possibility of dismissal for failure to prosecute, but that does not work because Berk actively participated in the litigation. Defendants' first choice is the course the District Court took here: dismissal based on the court's inherent authority. The problem, however, is that the Federal Rules already prescribe a mechanism for putting a plaintiff to his proof: a motion for summary judgment. See Fed. Rule Civ. Proc. 56. And that does not…

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