Berk v. Choy · ¶69

We know the affidavit of merit qualifes as a “matter outside the pleadings” for several reasons. For one thing, Delaware law provides that the affidavit is to “accompany” the complaint. § 6853(a)(1). A thing cannot “accompany” that of which it is already a part.Indeed, Delaware's Legislature apparently felt so strongly about the affidavit not being part of the complaint that it mandated physical separation: By statute, the affidavit must be fled in its own sealed envelope, alongside (but apart from) the complaint. See ibid. Nor do the Federal Rules suggest that affidavits of the nature specified by the Delaware law can qualify as “pleadings.” Rule 7, which sets forth a list of “[p]leadings [a]llowed” in federal court, does not include an “affidavit” (or anything like it) on its list.

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