Berk v. Choy · ¶73

Read for what they are—by their “plain meaning,” sensitive to context yet without distortions created by the task of checking for a confict, see Walker, 446 U. S., at 750, n. 9; Gasperini, 518 U. S., at 427, n. 7—Rules 3 and 12 answer the same questions as Delaware's affidavit requirement. That means that the majority and I share the same conclusion: There is a confict between state law and valid Federal Rules, precluding application of Delaware's affidavit requirement in federal court. For the reasons discussed above, I think the majority is wrong to further maintain that § 6853 answers the same question as Rule 8. And I cannot see how the affidavit that the Delaware law requires can be a “matter outside the pleadings” (for Rule 12-confict purposes) and also part of the “pleadings” (for Rule 8-confict purposes). Therefore, I concur only in the judgment.

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