FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEFFERY S. MARTIN, No. 21-35251
Plaintiff-Appellant,
D.C. No.
v. 3:20-cv-05709-
BHS
PIERCE COUNTY, a Washington
political subdivision; PIERCE
COUNTY, Doe Correction Officers OPINION
1–10; NAPHCARE, INC., an Alabama
corporation doing business in the
State of Washington; MIGUEL
BALDERRAMA, MD, in his official
and individual capacity; JANEL
FRENCH, LPN, in her official and
individual capacity; IRINA HUGHES;
NAPHCARE DOE EMPLOYEES, 1–10;
in their individual and official
capacities,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted February 7, 2022
Seattle, Washington
Filed May 27, 2022
2 MARTIN V. PIERCE COUNTY
Before: Jay S. Bybee and Morgan Christen, Circuit Judges,
and James V. Selna,* District Judge.
Opinion by Judge Selna
SUMMARY**
Federal Rules of Civil Procedure
The panel reversed the district court’s dismissal of
plaintiff’s state medical malpractice claim for failing to file a
declaration declining to submit the case to arbitration
pursuant to Washington state law, and remanded.
Washington state law requires a plaintiff in a medical
malpractice suit to elect or decline to submit a claim to
arbitration at the time suit is commenced. RCW 7.70A.020.
If the plaintiff elects not to submit the dispute to arbitration,
the plaintiff must meet the certain requirements, including
filing a declaration at the time of commencing the action that
the claimant elected not to submit the dispute to arbitration.
The panel held that Washington’s state law declaration
requirement conflicts with Federal Rules of Civil Procedure,
specifically Rule 8’s requirements of a short and plain
statement of plaintiff’s claim, jurisdictional statement and
*
The Honorable James V. Selna, United States District Judge for the
Central District of California, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MARTIN V. PIERCE COUNTY 3
explanation of the relief sought, and Rule 3, which requires
only the filing of a complaint to commence an
action—nothing more. Accordingly, the panel held that
under Hanna v. Plumer, 380 U.S. 460, 470–74 (1965), the
state rule did not apply in federal court.
COUNSEL
Bardi D. Martin (argued), Boyle Martin Thoeny PLLC,
Seattle, Washington, for Plaintiff-Appellant.
Ross C. Taylor (argued) and Jonathan D. Ballard, Fox Ballard
PLLC, Seattle, Washington, for Defendants-Appellees.
4 MARTIN V. PIERCE COUNTY
OPINION
SELNA, District Judge:
This case involves a single issue: does a Washington state
law requiring a claimant to file a declaration declining to
submit the case to arbitration when filing a medical
malpractice suit apply in federal court? We conclude that it
does not. Washington’s declaration requirement conflicts
with the Federal Rules of Civil Procedure. Thus, under
Hanna v. Plumer, 380 U.S. 460, 470–74 (1965), the state rule
does not apply in federal court. Because the district court
mistakenly applied the state rule in Martin’s case, we
REVERSE and REMAND.
I. BACKGROUND
Plaintiff-Appellant Jeffrey Martin appeals the district
court’s dismissal of his state medical malpractice claim for
failing to file a declaration declining to submit the case to
arbitration pursuant to RCW 7.70A.020.
1. RCW 7.70A.020
Washington requires a plaintiff in a medical-malpractice
suit to elect or decline to submit a claim to arbitration at the
time suit is commenced. RCW 7.70A.020. If the plaintiff
does not elect to submit the dispute to arbitration, the plaintiff
must meet the following requirements:
(a) in the case of a claimant, the declaration
must be filed at the time of commencing the
action and must state that the attorney
representing the claimant presented the
MARTIN V. PIERCE COUNTY 5
claimant with a copy of the provisions of this
chapter before commencing the action and
that the claimant elected not to submit the
dispute to arbitration under this chapter[.]
Id.
The Washington state legislature passed this requirement
as part of a series of laws directed at curbing medical
malpractice lawsuits. Since then, the Washington Supreme
Court has struck down several similar provisions, including:
(1) RCW 7.70.150 requiring plaintiffs to file a certificate of
merit at the time of filing a suit (see Putman v. Wenatchee
Valley Med. Ctr., P.S., 216 P.3d 374, 379–80 (Wash. 2009)
(invalidating 7.70.150 as violating the Washington
constitution by unduly burdening the right of access to courts
and jeopardizing the separation of powers between the
legislature and judiciary); (2) RCW 4.16.190 eliminating
tolling of the statute of limitations for minors in the context
of medical malpractice claims (see Schroeder v. Weighall,
316 P.3d 482, 489 (Wash. 2014) (en banc) (invalidating RCW
416.190 as violating the privileges and immunities clause of
the Washington constitution)); and (3) the 2007 revision of
RCW 7.70.100 requiring plaintiffs to give medical
malpractice defendants 90-days’ notice prior to filing suit (see
Waples v. Yi, 234 P.3d 187, 188–89 (Wash. 2010) (en banc)
(invalidating RCW 7.70.100 as violating the separation of
powers under Washington’s constitution)). To date, no
Washington appellate court has considered RCW 7.70A.020.
2. Factual Allegations
Because the district court resolved this case on a motion
to dismiss, we assume the truth of the facts as set out in the
6 MARTIN V. PIERCE COUNTY
complaint. See Wojciechowski v. Kohlberg Ventures, LLC,
923 F.3d 685, 688 n.2 (9th Cir. 2012).
In March 2017, Martin was charged with and pleaded
guilty to driving under the influence and related offenses and
was remanded to serve his sentence for that infraction and
deferred sentences on prior charges. Upon beginning his
incarceration at Pierce County Detention Center, Martin’s
vision was “better than 20/20, and he had no history of eye
ailments.” But within two months, Martin began
experiencing severe pain, dryness, and itchiness in his eyes
for which he requested medical attention. Defendants waited
several days to examine Martin’s eyes and several more days
before providing him with over-the-counter eye drops.
Martin’s eye condition progressively worsened and he was
ultimately diagnosed with severe ocular hypertension.
Despite knowing of Martin’s medical needs, Defendants
denied him adequate medical care while he was detained at
the Pierce County Detention and Corrections Center. As a
result, Martin suffered permanent damage to his vision.
3. Procedural Background
Based on these allegations, Martin filed a lawsuit in the
United States District Court for the Western District of
Washington, asserting two claims: (1) a 42 U.S.C. § 1983
claim for violation of his Eighth Amendment rights, and (2) a
state tort claim for medical malpractice arising under
Washington law. Martin brought these claims against
Defendants Pierce County, John Doe corrections officers,
Miguel Balderrama, MD, NaphCare Inc., Irina Hughes, NP,
and Janel French, LPN. Martin did not file a declaration
MARTIN V. PIERCE COUNTY 7
electing or declining to submit his dispute to arbitration in
accordance with RCW 7.70A.020(2).
Defendants NaphCare, Inc., Irina Hughes, NP, and Janel
French, LPN (collectively, “Appellees”) subsequently moved
to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6).
In part, Appellees argued that Martin’s state medical
malpractice claim should be dismissed for failure to comply
with RCW 7.70A.020, the Washington state law requiring
that a plaintiff elect or decline arbitration when commencing
a medical malpractice claim. In response, Martin filed a First
Amended Complaint, thereby mooting portions of Appellees’
then-pending motion to dismiss. Appellees then answered
Martin’s First Amended Complaint.
On March 4, 2021, the district court granted Appellees’
motion, dismissing Martin’s state medical negligence claims
for failing to comply with RCW 7.70A.020. Finding no
reason for delay, the district court entered final judgment as
to Martin’s medical malpractice claim under Fed. R. Civ.
P. 54(b). Martin timely appealed.
II. JURISDICTION AND STANDARD OF REVIEW
The district court had original jurisdiction over Martin’s
§ 1983 claim under 28 U.S.C. § 1331 and 28 U.S.C. § 1343,
and supplemental jurisdiction over his state medical
malpractice claim under 28 U.S.C. § 1367(a). Because the
district court entered partial final judgment under Rule 54(b),
we have jurisdiction to review the district court’s dismissal of
Martin’s medical malpractice claim under 28 U.S.C. § 1291.
See Jewel v. NSA, 819 F.3d 622, 627–28 (9th Cir. 2015).
8 MARTIN V. PIERCE COUNTY
We review de novo a district court’s order granting a
motion to dismiss. Dowers v. Nationstar Mortg., LLC,
852 F.3d 964, 969 (9th Cir. 2017).
III. DISCUSSION
To determine whether RCW 7.70A.020 applies in this
action, we employ a multistep choice-of-law analysis. First,
under Hanna v. Plumer, we decide whether the state law
conflicts with a valid Federal Rule of Civil Procedure.
380 U.S. 460, 470–74 (1965). In other words, we determine
whether the Federal Rules answer the “same question” as the
state rule. Shady Grove Orthopedic Assocs., P.A. v. Allstate
Ins. Co., 559 U.S. 393, 398–99 (2010); see also Hanna,
380 U.S. at 470–74.
If the Federal Rules do conflict with the state law, they
control unless the Federal Rule is invalid under the
Constitution or Rules Enabling Act. Shady Grove, 559 U.S.
at 398. To determine whether a federal rule applies under the
Rules Enabling Act and relevant constitutional standards, we
ask whether the federal rule is a “general rule[] of practice
and procedure” that does “not abridge, enlarge or modify any
substantive right” and is “procedural in the ordinary use of
the term.” Shady Grove, 559 U.S. at 418, 423 (Stevens, J.,
concurring in part and concurring in the judgment) (citation
omitted).
If the Federal Rules do not answer the same question as
the state rule, the Court follows the Erie doctrine to determine
which law applies. Id. at 468.
MARTIN V. PIERCE COUNTY 9
A. Washington’s Declaration Requirement Conflicts with
Federal Rules
We first consider whether the Federal Rules of Civil
Procedure answer the same question as RCW 7.70A.020:
whether a plaintiff must file a declaration electing or
declining arbitration when filing a medical malpractice suit.
See Shady Grove, 559 U.S. at 398–99. There are multiple
Federal Rules that provide an answer to this question.
1. Rule 8
Federal Rule of Civil Procedure 8(a) (“Rule 8”) provides
that a pleading must include: “(1) a short and plain statement
of the grounds for the court’s jurisdiction . . . ; (2) a short and
plain statement of the claim showing that the pleader is
entitled to relief; and (3) a demand for the relief sought[.]”
Fed. R. Civ. P. 8(a).
While federal circuit courts have not yet addressed a
declaration requirement exactly like Washington’s, various
cases involving state “certificate-of-merit” requirements
provide a useful analogy. Although certificate-of-merit
requirements vary in their details, they generally require
plaintiffs to file a declaration with the pleadings containing
some reassurance, usually by an expert, that the claim has
merit. See, e.g., Corley v. United States, 11 F.4th 79, 85 (2d
Cir. 2021) (describing Connecticut’s requirement that
medical malpractice claimants “must affix to the complaint ‘a
certificate . . . [stating] that such reasonable inquiry gave rise
to a good faith belief that grounds exist for an action” and
“must also attach ‘a written and signed opinion of a similar
health care provider . . . that there appears to be evidence of
medical negligence’ along with a ‘detailed basis for the
10 MARTIN V. PIERCE COUNTY
formation of such opinion’”) (quoting Conn. Gen. Stat. § 52-
190a(a)). Many states have passed such “certificate-of-merit”
or “affidavit-of-merit” requirements for malpractice claims.
In fact, the Washington state legislature imposed its own
requirement that plaintiffs in medical malpractice claims must
submit a certificate of merit when they file suit. See Putman
v. Wenatchee Valley Med. Ctr., P.S., 216 P.3d 374, 376
(Wash. 2009). However, that requirement was subsequently
invalidated by the Washington Supreme Court. Id. (holding
that Washington’s certificate-of-merit requirement violated
the Washington constitution because it unduly burdened the
right of access to the courts and violated the separation of
powers doctrine). The legislature passed this pre-filing
requirement as part of the same series of laws directed at
curbing medical malpractice lawsuits that includes
RCW 7.7A.020.
But there is a “growing consensus” among federal circuit
courts that such certificate requirements do not govern actions
in federal court, because they conflict with and are thus
supplanted by the Federal Rules of Civil Procedure. Pledger
v. Lynch, 5 F.4th 511, 518 (4th Cir. 2021) (holding that West
Virginia’s pre-suit certification requirement did not govern
actions in federal court because it conflicted with and was
thus supplanted by Rules 8, 9, 11, and 12) (citing Gallivan v.
United States, 943 F.3d 291, 294 (6th Cir. 2019) (holding that
Ohio’s certificate-of-merit requirement was incompatible
with Rules 8, 9, and 12 of the Federal Rules of Civil
Procedure and thus unenforceable in federal court)); Young v.
United States, 942 F.3d 349, 351 (7th Cir. 2019) (holding that
a complaint could not be dismissed because it lacked an
affidavit and report as required by Illinois law, because to the
extent that it was a rule of procedure, it gave way to Rule 8 of
the Federal Rules of Civil Procedure); see also Corley,
MARTIN V. PIERCE COUNTY 11
11 F.4th at 88–89 (holding that Connecticut’s certificate of
merit requirement did not apply in federal court because it
was in “direct contrast” to the notice pleading standard of
Rule 8); Albright v. Christensen, 24 F.4th 1039, 1048–49 (6th
Cir. 2022) (holding that Michigan’s affidavit-of-merit and
presuit-notice requirements do not apply in federal court as
they were displaced by Rules 3, 8(a), 9, 11, and 12(b)(6) of
the Federal Rules of Civil Procedure). While courts
identified conflicts with various Federal Rules, in each case
they describe conflict with Rule 8.
Appellees argue that the courts’ reasoning in the cases
rejecting certificate-of-merit requirements is distinguishable
and inapplicable to RCW 7.7A.020. Some earlier cases
concluded that laws requiring statements of expert support for
medical malpractice claims sought evidentiary material that
exceeded the notice pleading standard. See Baird v. Celis,
41 F. Supp. 2d 1358 (N.D. Ga. 1999); Boone v. Knight,
131 F.R.D. 609, 611 (S.D. Ga. 1990); Braddock v. Orlando
Reg’l Health Care Sys., 881 F. Supp. 580, 584 (M.D. Fla.
1995)). However, the recent circuit court opinions to
consider the issue have applied a different line of reasoning.
For example, the Fourth Circuit in Pledger explained that
Rule 8’s requirement of a “short and plain statement” of the
plaintiff’s claim, jurisdictional statement, and explanation of
the relief sought is “a list of elements that ‘implicitly excludes
other requirements.’” 5 F.4th at 519. Similarly, the Sixth
Circuit explained in Gallivan that “[b]y listing these
elements, Rule 8 implicitly ‘excludes other requirements that
must be satisfied for a complaint to state a claim for relief.’”
Gallivan, 943 F.3d at 293 (citing Carbone v. Cable News
Network, 910 F.3d 1345, 1352 (11th Cir. 2018)); Pledger,
5 F.4th at 519 (accord). Likewise, the Seventh Circuit
explained in Young that Rule 8 “does not require
12 MARTIN V. PIERCE COUNTY
attachments” as shown by the fact that “[o]ne can initiate a
contract case in federal court without attaching the contract,
an insurance case without attaching the policy, a securities
case without attaching the registration statement, and a tort
case without attaching an expert’s report.” 942 F.3d at 351.
Thus, it reiterated, “[s]upporting documents come later.” Id.
We agree. Rule 8’s requirement of a “short and plain
statement” of the plaintiff’s claim, jurisdictional statement,
and explanation of the relief sought is “a list of elements that
‘implicitly excludes other requirements.’” Pledger, 5 F.4th
at 519. As such, “Rule 8 does not require litigants to file any
affidavits.” Gallivan, 943 F.3d at 293 (emphasis in original).
The district court concluded that, unlike Rule 8,
RCW 7.7A.020 is not a pleading requirement because “its
purpose [is] to prevent litigation of frivolous medical
malpractice actions rather than to provide notice of claims
and defenses.” Martin v. Pierce Cty., No. C20-5709 BHS,
2021 WL 825377, at *2 (W.D. Wash. March 4, 2021). But as
Gallivan explained, “Shady Grove emphasized that the
purpose of the rules is irrelevant when the text is clear (as
[Rule 8(a)] is here).” 943 F.3d at 296 (citing Shady Grove,
559 U.S. at 403). The relevant inquiry is not whether the
federal and state rules share a purpose but whether the
Federal Rules “answer[] the question in dispute.” Shady
Grove, 559 U.S. at 398.
Because Rule 8 answers the question in dispute, it
displaces RCW 7.7A.020 in federal court.
2. Rule 3
Federal Rule of Civil Procedure 3 (“Rule 3”) states, “[a]
civil action is commenced by filing a complaint with the
MARTIN V. PIERCE COUNTY 13
court.” Fed. R. Civ. P. 3. By that rule, the only requirement
to commence an action is the filing of a complaint. Albright
24 F.4th at 1046 (6th Cir. 2022) (“[Rule 3] requires only the
filing of a complaint to commence an action—nothing
more.”); see also 4 Charles Alan Wright, et al., Federal
Practice and Procedure § 1052 (June 23, 2021 Update) (“In
federal actions based on diversity of citizenship jurisdiction,
federal courts apply state law to decide when a lawsuit was
commenced for purposes of computing limitations periods
. . . . Other than that, what constitutes filing under Rule 3 is
governed by federal law.”).
The Sixth Circuit recently considered a conflict with
Rule 3 in Albright v. Christensen, 24 F.4th 1039 (6th Cir.
2022). The court held that Michigan claimants were not
required to provide notice before filing a medical malpractice
lawsuit because such a requirement directly conflicted with
the Federal Rules. Regarding Rule 3, Albright explained,
“[t]hat rule requires only the filing of a complaint to
commence an action—nothing more.” Id. at 1046. Thus, it
concluded that Rule 3 “most obviously resolve[s] [the]
disputed question” of “whether [a claimant] must supply
presuit notice to file a lawsuit.” Id. Accordingly, the
Michigan pre-suit notice requirement “clearly conflict[ed]”
with Rule 3 by “add[ing] steps to the process of commencing
an action,” and did not apply in federal court. Id. at 1047.
The Sixth Circuit’s analysis is instructive. Like the
presuit-notice requirement, RCW 7.70A.020 conflicts with
Rule 3 by adding additional, procedural steps for
commencing a suit beyond those that Rule 3 contemplates.
See RCW 7.70A.020(2) (“In the case of a claimant, the
declaration must be filed at the time of commencing the
action and must state that the attorney representing the
14 MARTIN V. PIERCE COUNTY
claimant presented the claimant with a copy of the provisions
of this chapter before commencing the actions and that the
claimant elected not to submit the dispute to arbitration under
this chapter.”) (emphasis added). The Washington law not
only requires a claimant to file a declaration when
commencing an action, but it also adds a step before
commencement—an attorney must present the claimant with
a copy of the provisions in the chapter. This directly collides
with Rule 3’s requirement that an action commences with the
filing of the complaint. See Fed. R. Civ. P. 3, Notes of
Advisory Committee ¶ 4 (“[Rule 3] provides that the first step
in an action is the filing of the complaint.”) (emphasis
added).
Nonetheless, the district court found that RCW 7.70A.020
does not conflict with Federal Rule of Civil Procedure Rule 3
because it concluded that, unlike Rule 3, the state law does
“not bear on whether a complaint is considered filed and a
suit commenced.”1 Martin, 2021 WL 825377, at *2. But
Rule 3 governs how a lawsuit is commenced. See Fed. R.
Civ. P. 3, Advisory Committee Notes (Rule 3 “governs the
commencement of all actions”); Albright v. Christensen,
24 F.4th at 1047 (“Rule 3 govern[s] how a lawsuit is
commenced”); 1 Moore’s Fed. Prac. - Civil § 3.02 (“Rule 3
1
Notably, the district court found that RCW 7.70A.020 likely
conflicts with Washington Superior Court Rule 3(a) (“CR 3(a)”), a state-
court rule governing when a suit is commenced. Martin, 2021 WL
825377, at *2. The court explained that “requiring an affidavit to
accompany a complaint [likely] conflicts with the Washington Superior
Court Civil Rules by adding an additional, procedural step beyond those
contemplated by CR 3(a).” Id. But it is difficult to see how that
conclusion is consistent with its finding that there was no conflict with
Fed. R. Civ. P. 3.
MARTIN V. PIERCE COUNTY 15
establishes [a] uniform method of commencing [a] federal
action”) (emphasis added). Under Washington’s law, a
claimant must file a declaration declining arbitration when
commencing a medical malpractice claim. This is in direct
conflict with Rule 3’s assertion that only the complaint must
be filed to commence an action.
As RCW 7.70A.020 answers the “same question” as
Rule 3, they directly conflict.
B. Rules 3 and 8 are Valid and Displace Washington’s
Declaration Requirement
In conclusion, RCW 7.70A.020 is inconsistent with
Rules 3 and 8 of the Federal Rules of Civil Procedure.
Rules 3 and 8(a) are both within Congress’s constitutional
rulemaking power and the statutory authorization provided by
the Rules Enabling Act. Shady Grove, 559 U.S. at 398–99;
see Gallivan, 943 F.3d at 294 (“The Supreme Court has
rejected every challenge to the Federal Rules that it has
considered under the Rules Enabling Act.”) (quoting Abbas
v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1336 (D.C. Cir.
2015)). Like the other courts to consider this issue, “we have
no reason to doubt the validity of the Federal Rules at issue
here.” Id.; see also Pledger, 5 F.4th at 521 (same); Albright,
24 F.4th at 1048 (same).
Thus, Washington’s arbitration declaration requirement
is displaced by those rules in federal court. As there are
valid, on-point Federal Rules of Civil Procedure, we need not
“wade into Erie’s murky waters.” Shady Grove, 559 U.S.
at 398 (Scalia, J.). We hold that Washington’s arbitration
declaration requirement does not apply in the federal courts.
16 MARTIN V. PIERCE COUNTY
The district court should have applied the Federal Rules, not
RCW 7.70A.020 in this case.
IV. CONCLUSION
The district court erred in dismissing Martin’s malpractice
claim because RCW 7.70A.020 does not apply in federal
court. We therefore VACATE the judgment and REMAND
for further proceedings consistent with this opinion.
Martin shall have his costs on appeal.