Requiring a plaintiff to provide an affidavit of merit establishes that 2 Engineers are licensed professionals as defined by the Act. N.J.S.A. 2A:53A-26. 2012 N.J. Super. Unpub.

2 Case 3:16-cv-08632-PGS-TJB Document 14 Filed 05/22/17 Page 5 of 9 PageID: 91 B. Assuming arguendo that Plaintiff’s Affidavit of Merit was not timely served, dismissal of Plaintiff’s complaint is not warranted because Plaintiff meets the requirements of the doctrine of substantial compliance. N.J.S.A. 2A:53A-26 to 29 requires a plaintiff in a malpractice action to serve an Affidavit of Merit on a defendant within sixty days of the filing of an answer. N.J.S.A. 2A:53A-27.

Likewise, "the incentives for forum shopping would be strong: electing to bring state-law claims in federal as opposed to state court would allow a plaintiff to avoid [the 9 See, e.g., In re Suprema Specialties, Inc., 285 F. App'x 782, 784 (2d Cir. 2008) (enforcing New Jersey affidavit of merit in federal court and rejecting challenge under Erie that statute "does not apply because it conflicts with the Federal Rules of Civil Procedure") (applying N.J. Stat. 2A:53A-26, requiring plaintiff in professional malpractice action to submit threshold affidavit showing "a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices"); Chamberlain, 210 F.3d at 161 (affidavit of merit statutes are considered "substantive state law"); In re Zyprexa Prods. Liab. Litig., 2011 WL 5563524, at *3-4 (E.D.N.Y. Nov. 15, 2011) (rejecting challenge under Erie to enforcement of Ohio requiring affidavit of merit as condition "to establish the adequacy of the complaint," and noting that a "number of the United States Courts of Appeals have concluded that similar state-law affidavit requirements are substantive, rather than procedural, under Erie") (citations omitted); Buckley v. Deloitte & Touche USA LLP, 2007 WL 1491403, at *14 (S.D.N.Y. May 22, 2007) (Pennsylvania Rule of Civil Procedur