                                                                    NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT

                                         No. 09-3571

                                     FELICIA VITALE;
                                      LOUIS VITALE,

                                                   Appellants

                                              v.

                                  CARRIER CLINIC, INC.

                         Appeal from the United States District Court
                                for the District of New Jersey
                                  (Civ. No. 3-08-cv-03472)
                           District Judge: Hon. Freda L. Wolfson

                      Submitted pursuant to Third Circuit LAR 34.1(a)
                                    November 8, 2010

                       Before: McKEE, Chief Judge, SLOVITER and
                                 COWEN, Circuit Judges

                             (Opinion filed: December 17, 2010)

                                          OPINION

McKEE, Chief Judge.

         Felicia and Louis Vitale, wife and husband, appeal from the district court’s order

dismissing their medical malpractice action against Carrier Clinic, Inc., with prejudice.

The court dismissed the complaint because they failed to comply with New Jersey’s

Affidavit of Merit statute, N.J.S.A. § 2A:53A-26 to -29.1 For the reasons that follow, we


1
    The district court had jurisdiction pursuant to 28 U.S.C. § 1332. We have jurisdiction
                                              1
will affirm.

                                             I.2

       The Carrier Clinic filed a motion to dismiss pursuant to Rule 12(b)(6) contending

that the Vitales failed to comply with New Jersey’s Affidavit of Merit statute, N.J.S.A. §

2A: 53A-26 to -29.

       New Jersey’s Affidavit of Merit statute states in relevant part:

               In any action for damages for personal injuries, wrongful
               death or property damage resulting from an alleged act of
               malpractice or negligence by a licensed person in his
               profession or occupation, the plaintiff shall, within 60 days
               following the date of filing the answer to the complaint by the
               defendant, provide each defendant with an affidavit of an
               appropriate licensed person that there exists 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. The court may
               grant no more than one additional period, not to exceed 60
               days, to file the affidavit pursuant to this section, upon a
               finding of good cause.

N.J.S.A. § 2A:53A-27. 3

       “The statute applies to all actions for damages based on professional negligence.”

Paragon Contractors, Inc. v. Peachtree Condominium Assoc., 997 A.2d 982, 985 (N.J.

2010) (citations omitted). “The core purpose underlying the statute is to require plaintiffs


pursuant to 28 U.S.C. § 1291.
2
 Because we write primarily for the parties, we will recite only as much of the facts and
procedural history of this case as are helpful to our brief discussion.
3
 New Jersey’s Affidavit of Merit statute must be applied by federal courts sitting in
diversity. Chamberlin v. Giampapa, 210 F.3d 154, 157 (3d Cir. 2000).
                                              2
to make a threshold showing that their claim is meritorious, in order that meritless

lawsuits readily could be identified at an early state of the litigation.” Id. (citation,

internal quotation marks and ellipses omitted). “Importantly, there is no legislative

interest in barring meritorious claims brought in good faith.” Id. (citations and internal

quotation marks omitted). “Indeed, the legislative purpose was not to create a minefield

of hyper-technicalities in order to doom innocent litigants possessing meritorious

claims.” Id. (citation, internal quotation marks and bracket omitted).

       “Under the statute, an affidavit should be filed within sixty days of the filing of the

answer.” Id. (citation omitted). “However, if provided within sixty-one to 120 days

after the answer is filed, the affidavit will be deemed timely so long as (1) leave to file is

sought and (2) good cause is established.” Id. (citations omitted). “Attorney

inadvertence is considered good cause within that sixty-one to 120-day period.” Id.

(citation omitted).

       “Neglecting to provide an affidavit of merit after the expiration of 120 days has

different consequences and generally requires dismissal with prejudice because the

absence of an affidavit of merit strikes at the heart of the cause of action.” Id. (citation

omitted).   However “[w]here extraordinary circumstances are present, a late affidavit

will result in dismissal without prejudice.” Id. at 986 (citation omitted). While the New

Jersey Supreme Court has “yet to define the full scope of extraordinary circumstances as

an equitable remedy for failure to comply with the statute, [it has held] that attorney

inadvertence [does not entitle] plaintiff to a remedy of dismissal of a complaint without

prejudice.” Id. (citation omitted). Indeed, “an attorney’s inadvertence in failing to

                                               3
timely file an affidavit will generally result in dismissal with prejudice.” Id. (citation

omitted).

       In an opinion, dated July 31, 2009, see Vitale v. Carrier Clinic, Inc., 2009 WL

2390602 (D.N.J. July 31, 2009), the district court explained that Dr. Tedesco was not an

appropriately licensed person to sign an Affidavit of Merit because he is “not qualified to

offer an expert opinion as to the professional standards of Carrier Clinic, a psychiatric

facility,” Id. at *4-6. The court also explained why Dr. Goldstein’s affidavit of merit was

untimely, Id. at *6; why the common knowledge exception did not apply, Id. at *7-8;

and why the Vitales could not establish “substantial compliance.” Id. at *8-10. We can

add little, if anything, to the district court’s analysis and discussion. Accordingly, we will

affirm the district court substantially for the reasons set forth in the district court’s

opinion.

       However, one matter remains. The Vitales contend that the district court’s failure

to hold a Ferreira conference constitutes reversible error. In Ferreira v. Rancocas

Orthopedic Assocs., 836 A.2d 779, 780-81 (N.J. 2003), the New Jersey Supreme Court

“require[d] case management conferences in the early stages of malpractice actions to

ensure compliance with the discovery process, including the Affidavit of Merit statute,

and to remind the parties of the sanctions that will be imposed if they do not fulfill their

obligations.”

       The Vitales argue that the district court’s failure to hold a Ferreira conference

constituted error because, had it had such a conference, the district court would have

noticed that Dr. Tedesco’s Affidavit of Merit was inadequate and it would have given

                                                4
them ample time to substitute Dr. Goldstein’s Affidavit of Merit in support of their

claims.

       The argument is meritless. Although New Jersey’s Affidavit of Merit must be

applied by federal courts sitting in diversity, the Vitales offer no authority for their

contention that a federal district court sitting in diversity is required to follow case

management procedures imposed on New Jersey trial courts by the New Jersey Supreme

Court. Moreover, assuming arguendo that the district court should have held a Ferreira

conference, the failure to hold such a conference does not provide the Vitales with any

relief. See Paragon Contractors, 997 A.2d at 987 (“[O]ur creation of a tickler system to

remind attorneys and their clients about critical filing dates plainly cannot trump the

statute. In other words, the absence of a Ferreira conference cannot toll the legislatively

prescribed time frames.”).

                                              II.

       For the above reasons, we will affirm the district court.




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