United States District Court, S.D. Florida
ORDER ON PLAINTIFF'S MOTION TO STRIKE
G. TORRES, UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Garland Creedle's
(“Plaintiff”) motion to strike the U.S.
Government's (the “Government”) statement of
interest as untimely. [D.E. 27]. The Government responded on
October 30, 2017 [D.E. 28] to which Plaintiff replied on
November 6, 2017. [D.E. 29]. Therefore, Plaintiff's
motion is now ripe for disposition. After careful
consideration of the motion, response, reply, relevant
authority, and for the reasons discussed below,
Plaintiff's motion is DENIED.
filed this action on July 5, 2017 on the basis that Carlos A.
Gimenez and Miami-Dade County (collectively,
“Defendants”) unlawfully arrested and detained
Plaintiff for civil immigration purposes even though
Plaintiff claims that he is a U.S. citizen who cannot be
deported. [D.E. 1]. Plaintiff served Defendants with his
complaint on July 7, 2017 and Defendants filed their motion
to dismiss - after a three week extension was granted - on
August 18, 2017. [D.E. 11]. The Government, a non-party,
filed a motion for a fourteen day extension on August 18,
2017 [D.E. 9] to allow it time to consider its statutory
rights to participate in this case. To the extent that the
notice sought a stay of Defendants' answer deadlines or
any other deadlines, the Court denied the Government's
motion. [D.E. 10]. Nine weeks after Defendants filed their
motion to dismiss, the Government filed its statement of
interest on October 23, 2017. [D.E. 26]. Plaintiff concludes
that the Government's submission is untimely and must
therefore be struck from the record.
APPLICABLE LEGAL PRINCIPLES AND LAW
may move to strike pursuant to Rule 12(f) of the Federal
Rules “an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.”
Fed.R.Civ.P. 12(f). While many “courts consider
striking a pleading to be a ‘drastic remedy to be
resorted to only when required for the purposes of justice,
' “Exhibit Icons, LLC v. XP Cos., 609
F.Supp.2d 1282, 1300 (S.D. Fla. 2009), striking is
appropriate in some cases to remove “unnecessary
clutter” from the docket. Heller Fin., Inc. v.
Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir. 1989).
“Striking is appropriate where, for example, a party
fails to seek leave of court before filing an unauthorized
pleading.” Regions Bank v. Commonwealth Land Title
Ins. Co., 2012 WL 5410948, at *2 (S.D. Fla. Nov. 6,
2012) (citing Rogers v. Hartford Life & Accident Ins.
Co., 2012 WL 2395194, at *1 n.1 (S.D. Ala. June 22,
2012) (“There is no doubt that striking an improper
amended pleading filed without leave of court is appropriate
and necessary to enforce Rule 15(a)(2).”). Ultimately,
the decision of whether to strike a pleading rests in the
court's discretion. See Microsoft Corp. v.
Jesse's Computers & Repair, Inc., 211 F.R.D.
681, 683 (M.D.Fla.2002) (“District courts have broad
discretion in disposing of motions to strike under
Fed.R.Civ.P. 12(f).”) (citation omitted).
thrust of Plaintiff's motion is that the Government's
statement of interest is untimely because (1) Defendants'
responsive pleadings were due on August 18, 2017, and (2) the
Court previously denied the Government's motion to extend
any deadlines in this case. [D.E. 10].
28 U.S.C. § 517, an officer of the Department of Justice
is authorized to file a statement of interest and to
“dispatch government lawyers to attend to any . . .
interest of the United States.” Hall v.
Clinton, 285 F.3d 74, 80 (D.C. Cir. 2002) (citing 28
U.S.C. § 517) (internal citations omitted). Generally
speaking, the statement is a “means of communication
from the executive branch to the judicial branch giving
notice that the litigation adversely impacts upon the foreign
policy interests of the United States so that the Court may
take that circumstance into account if it becomes relevant to
any legal arguments advanced by the Defendants in seeking a
dismissal.” Ungaro-Benages v. Dresdner Bank
AG, 2003 WL 25729923, at *2 (S.D. Fla. Feb. 20, 2003),
aff'd, 379 F.3d 1227 (11th Cir. 2004) (citing
Jackson v. People's Republic of China, 794 F.2d
1490 (11th Cir. 1986)). The Government need not be a party in
case to assert its interests. See, e.g., Hunton
& Williams v. United States DOJ, 590 F.3d 272, 291
(4th Cir. 2010) (“A statement of interest, which is
authorized by 28 U.S.C. § 517, is designed to explain to
a courtthe interests of the United States in litigation
between private parties.”).
have found that 28 U.S.C. § 517 “contains no time
limitation and does not require the Court's leave.”
Gil v. Winn Dixie Stores, Inc., 242 F.Supp.3d 1315,
1317 (S.D. Fla. 2017). Courts have also “interpreted 28
U.S.C. § 517 broadly and have generally denied motions
to strike statements of interest.” Id. (citing
Alvey v. Gualtieri, 2016 WL 6071746, at *2 (M.D.
Fla. Oct. 17, 2016) (denying motion to strike United
States' statement of interest because it was timely, not
redundant, and provided the “valuable
perspective” of the DOJ); Ferrand v. Schedler,
2012 WL 1247215, at *1-2 (E.D. La. April 13, 2012) (denying
motion to strike United States' statement of interest and
noting that “the United States has broad discretion to
attend to any interests of the United
only issue presented is whether the Government's
statement of interest - that was filed on October 23, 2017 -
should be struck as untimely. [D.E. 23]. The alleged reason
as to why the Government waited until October to file its
statement of interest is because the Government was exploring
settlement offers with Plaintiff's counsel. The
Government claims that on August 24, 2017, it began
settlement discussions with Plaintiff. The negotiations
supposedly continued until Plaintiff declined the
Government's offer without any counteroffer. Two business
days later, the Government contends that it promptly filed
its statement of interest and that any argument with respect
to timeliness lacks merit.
agree with the Government that there is no express time
limitation provided under 28 U.S.C. § 517 to file a
statement of interest. However, to the extent the Government
contends that it can file a statement of interest at any time
in a case and have it considered, that position is
unavailing. “No statute, rule, or controlling case
defines a federal district court's power to grant or deny
leave to file an amicus brief, ” meaning the
decision on whether a court permits or denies a statement of
interest “lies solely within the court's
discretion.” U.S. ex rel. Gudur v. Deloitte
Consulting LLP, 512 F.Supp.2d 920, 927 (S.D. Tex. 2007),
aff'd sub nom. U.S. ex rel. Gudur v. Deloitte &
Touche, 2008 WL 3244000 (5th Cir. Aug. 7, 2008) (citing
Waste Management of Pa. v. City of York, 162 F.R.D.
34, 36-37 (M.D. Pa. 1995)). The relevant factors that courts
consider “include whether the proffered information is
‘timely and useful' or otherwise necessary to the
administration of justice.” U.S. ex rel.
Gudur, 512 F.Supp.2d at 927 (citing Waste Management
of Pa., 162 F.R.D. at 36).
is no dispute that the Government's statement of interest
was filed after Defendants filed their motion to dismiss on
August 18, 2017. [D.E. 11]. After two motions for extension
of time, Plaintiff responded to Defendants' motion on
October 2, 2017 [D.E. 19] and Defendants replied on October
17, 2017. [D.E. 25]. Six days later, the Government filed its
statement of interest on October 23, 2017. [DE. 26]. While
the Government's statement of interest was filed well
after Defendants' motion to dismiss, it was only filed a
mere six days after it became ripe for the Court's
full consideration of the arguments presented, we find that
the interests of justice weigh in favor of considering the
Government's statement of interest. First, the
Government's brief was filed only six days after
Defendants' motion became ripe, meaning there is no
persuasive argument that Plaintiff has been materially
prejudiced. Second, and more importantly, courts have only
struck statements of interest when they were filed
egregiously late. For example, in Gudur, the
government sought to file a statement of interest more than
five months after a party filed its motion for summary
judgment. The government's submission was untimely in
several respects and the government failed to show good cause
for the untimely filing. See U.S. ex rel. Gudur, 512
F.Supp.2d at 928. The court also found that the record in
that case was already ...