APRIL 2026 | 41 THE OKLAHOMA BAR JOURNAL A federal rule is valid if it “really regulates procedure,” and if it does, “the substantive nature of [a state] law or its substantive nature makes no difference.”20 The court said it has never invalidated a Federal Rule of Civil Procedure, and it made clear in Berk that it was not about to break that streak.21 What Berk emphasized is that when asking whether a federal rule answers the disputed question, a federal court must take the rule’s “plain meaning” as controlling.22 To begin with, Federal Rule of Civil Procedure 8 requires “a short and plain statement of the claim showing that [the pleader] is entitled to relief.”23 Rule 12, in turn, provides the only merit-based ground for dismissal – based on a “failure to state a claim upon which relief can be granted” – and it prohibits courts from considering “matters outside the pleadings” when evaluating the question of dismissal.24 By contrast, Delaware’s affidavit requirement, the court held, “gives different answers to the question” of what a plaintiff must provide at the pleading stage in order to keep their case alive.25 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.
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