United States District Court, M.D. Florida, Tampa Division
Charlene Edwards Honeywell, United States District Judge
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.
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.
operative complaint includes a claim for assault against Dr.
Azneer individually. 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. Doc. 16-1 at 1.
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.
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.
Motion to Strike
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.
Applicability of the Westfall Act
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
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