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Bunyan v. United States

United States District Court, M.D. Florida, Tampa Division

September 24, 2019

STEVEN BUNYAN, Plaintiff,
v.
UNITED STATES OF AMERICA, ROBERT L. WILKIE, SECRETARY OF THE DEPARTMENT OF VETERANS AFFAIRS, and DR. IRA AZNEER, individually, Defendants.

          ORDER

          Charlene Edwards Honeywell, United States District Judge

         This cause is before the Court on Steven Bunyan's ("Plaintiff) Motion to Strike and Objection to Defendants' Notice of Substitution (the "Motion"). Doc. 27. The Court, having considered the parties' submissions and being fully advised in the premises, will grant-in-part and deny-in-part the Motion.

         I. Background

         As alleged in the amended complaint, Plaintiff was involved in an altercation with Defendant Dr. Ira Azneer ("Dr. Azneer") at the Bay Pines V.A. Medical Hospital on February 7, 2016. Doc. 39 ¶¶20, 23-30. On that particular date, Plaintiff, who was employed by the Department of Veterans Affairs at the time, "provided temporary relief for a sitter" in one of the hospital's rooms where a patient was located. Id. at ¶¶1, 19-20. Plaintiff asked a nurse to contact the V.A. police department-purportedly in accordance with hospital policy-after the patient threatened him. Id. at ¶23. Shortly thereafter, Dr. Azneer arrived in the room with the nurse. Id. at ¶24. When Plaintiff explained what had occurred, Dr. Azneer allegedly countermanded Plaintiff's request to contact the V. A. police department, pointed his finger at Plaintiff, poked Plaintiff in the forehead, pushed Plaintiffs chest, and told Plaintiff to "sit his black self down and do his job." Id. (internal quotations omitted). Plaintiff "stepped back in a defensive manner" after Dr. Azneer pushed him. Id. at ¶25. Dr. Azneer "raised his cane in a threatening manner" towards Plaintiff, and the two men engaged in a shouting match. Id. at ¶26. Dr. Azneer departed for the nursing station. Id. at ¶29. Later, he returned and swung his cane at Plaintiff in an attempt to hit him. Id. Plaintiff, who was being restrained by a nurse, broke free from this restraint to avoid Dr. Azneer's swing. Id. at ¶30.

         Plaintiffs operative complaint includes a claim for assault against Dr. Azneer individually.[1] Id. at ¶¶63-69. A Notice of Substitution (the "Notice") was filed on January 25, 2019, which advises that, pursuant to the Federal Employees Liability Reform and Tort Compensation Act of 1988, 28 U.S.C. § 2679 (the "Westfall Act"), the United States is substituted, by operation of law, for Dr. Azneer with respect to the causes of action alleged against Dr. Azneer. Doc. 16 at 1-2. In support, the Notice includes a certification by the United States Attorney for the Middle District of Florida (the "Certification"), in which the United States Attorney certifies that Dr. Azneer was a governmental employee acting in the scope of federal office or employment at the time of, and with respect to, the facts out of which Plaintiffs claim arises.[2] Doc. 16-1 at 1.

         Plaintiff objects to-and moves to strike-the Notice, arguing chiefly that: (1)the Westfall Act does not apply to Plaintiffs claim; (2) the Certification is subject to judicial review; and (3) Dr. Azneer was not acting within the scope of his employment. Doc. 27 at 2-5. Plaintiff also requests discovery or an evidentiary hearing to the extent the Court is inclined to allow the substitution. Id. at 1.

         II. Legal Standard

         Rule 12, Federal Rules of Civil Procedure, governs motions to strike. Rule 12 provides that a court may "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R Civ. P. 12(f) (emphasis added). "Pleadings" consist of only: a complaint, an answer to a complaint, an answer to a counterclaim designated as a counterclaim, an answer to a crossclaim, a third-party complaint, an answer to a third-party complaint, and a reply to an answer (if the court orders such reply). Fed.R.Civ.P. 7(a). Numerous courts within the Eleventh Circuit have held that motions to strike filings that do not constitute pleadings, as defined by Rule 7(a), are improper. E.g., Jallali v. Am. Osteopathic Ass'n, No. 11-60604-CIV, 2011 WL 2039532, at *1 (S.D. Fla. May 25, 2001); Croom v. Balkwall, 672 F.Supp.2d 1280, 1285 (M.D. Fla. 2009); Inter-Tel, Inc. v. W. Coast Aircraft Eng'g, Inc., No. 8:04-cv-2224-T-17MSS, 2005 WL 2431267, at *2 (M.D. Fla. Oct. 3, 2005).

         III. Analysis

         A. Motion to Strike

         Preliminarily, the Court notes that Plaintiff "moves this Court to object and move [sic] to strike Defendants' attempt to unilaterally substitute the United States for [Dr. Azneer] by notice only." Doc. 27 at 1 (original emphasis removed). Rule 12(f), which governs motions to strike, allows a party to strike certain matter from a pleading. The Notice is not a pleading. Consequently, to the extent that the Motion requests the Court to strike the Notice, such request is improper and due to be denied. Nonetheless, based on the quoted language above and the nature of the relief sought, the Court construes the Motion as an objection to the Notice and a request for discovery or an evidentiary hearing.

         B. Applicability of the Westfall Act

         Absent a waiver, sovereign immunity shields the United States and its agencies from suit. FDIC v. Meyer, 510 U.S. 471, 475 (1994). "The terms of the federal government's consent to be sued in any court define that court's jurisdiction to entertain the suit." JBP Acquisitions, LP v. United States ex rel. F.D.I.C., 224 F.3d 1260, 1263 (11th Cir. 2000) (internal quotations omitted). Congress must unequivocally express a waiver of sovereign immunity. Albajon v. Gugliotta, 72 F.Supp.2d 1362, 1366 (S.D. Fla. 1999). The Federal Tort Claims Act (the "FTCA") provides a limited waiver of such sovereign immunity to permit persons injured by federal employee tortfeasors to file a lawsuit in federal district court against the United States. 28 U.S.C. §§ 1346(b), 2674. The FTCA provides that federal district courts have exclusive jurisdiction over any claim against the federal government arising out of the act of a federal employee performed within the scope of his employment duties:

Subject to the provisions of chapter 171 of this title, the district courts .. . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a ...

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