Alvey v. Gualtieri

Filing 85

ORDER: Defendant Bob Gualtieri's Motion to Strike (Doc. # 79 ) is denied. Signed by Judge Virginia M. Hernandez Covington on 10/17/2016. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
AMBER ALVEY,
Plaintiff,
v.

CASE NO:

8:15-cv-1861-T-33AEP

BOB GUALTIERI, in his
official capacity as
Sheriff of Pinellas
County,
Defendant.
______________________________/
ORDER
This matter comes before the Court pursuant to Defendant
Bob Gualtieri’s Motion to Strike the United States’ Statement
of

Interest,

filed

on

September

28,

2016.

(Doc.

#

79).

Plaintiff Amber Alvey filed a response in opposition on
October 10, 2016. (Doc. # 82). After the Court granted leave,
the United States also filed a response on October 12, 2016.
(Doc. # 84). For the reasons that follow, the Motion is
denied.
Discussion
This case involves the question of what obligations a
government-run homeless shelter has under Title II of the
Americans with Disabilities Act (ADA), and its implementing
regulations, to make a reasonable modification for a disabled

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individual. (Doc. # 1 at ¶ 2). In their cross-motions for
summary judgment, the parties disagree over whether Pinellas
Safe Harbor homeless shelter failed to reasonably accommodate
Alvey, who suffers from physical disabilities, when it did
not provide Alvey with a raised bed. (Doc. ## 49, 50). After
these motions were filed, the United States submitted its
Statement of Interest (Statement), outlining the Department
of Justice’s (DOJ) interpretation of Title II of the ADA and
the obligations imposed on homeless shelters like Pinellas
Safe Harbor by that statute. (Doc. # 75).
The DOJ filed the Statement pursuant to 28 U.S.C. § 517,
which states:
The Solicitor General, or any officer of the
Department of Justice, may be sent by the Attorney
General to any State or district in the United
States to attend to the interests of the United
States in a suit pending in a court of the United
States, or in a court of a State, or to attend to
any other interest of the United States.
Id.

Under

this

provision,

the

United

States

has

broad

discretion “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). The United States need not be a party in
a case in order to assert its interests under the statute.
Cf. Hunton & Williams v. U.S. Dep’t of Justice, 590 F.3d 272,

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291 (4th Cir. 2010) (“A statement of interest, which is
authorized by 28 U.S.C. § 517, is designed to explain to a
court the interests of the United States in litigation between
private parties.”).
Here, the DOJ maintains that it “has a particularly
strong interest in this matter” because it is the agency that
enforces the ADA and promulgates its regulations. (Doc. # 75
at 2); see also Olmstead v. L.C. ex rel. Zimring, 527 U.S.
581, 597-98 (1999)(“Because the Department is the agency
directed by Congress to issue regulations implementing Title
II [of the ADA], its views warrant respect.”). Nevertheless,
Gualtieri urges that the Statement should be stricken as
prejudicial, untimely, and not useful to deciding the crossmotions for summary judgment. (Doc. # 79).
The Court disagrees. Under the Federal Rules of Civil
Procedure, a court “may strike from a pleading an insufficient
defense

or

any

redundant,

immaterial,

impertinent,

or

scandalous matter.” Fed. R. Civ. P. 12(f). However, “[m]otions
to strike on the grounds of insufficiency, immateriality,
irrelevancy, and redundancy are not favored, often being
considered ‘time wasters,’ and will usually be denied unless
the matter sought to be omitted has no possible relationship
to the controversy, may confuse the issues, or otherwise

3

prejudice a party.” Italiano v. Jones Chems., Inc., 908 F.
Supp. 904, 907 (M.D. Fla. 1995) (citations omitted); see also
Augustus v. Bd. of Public Instruction, Escambia Cty., 306
F.2d 862, 868 (5th Cir. 1962)(citing Brown & Williamson
Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th Cir.
1953))(“The motion to strike should be granted only when the
pleading to be stricken has no possible relation to the
controversy.”).
The Statement is related to the issues to be decided in
this case because it discusses Title II of the ADA.

See

Ferrand v. Schedler, No. CIV.A. 11-926, 2012 WL 1247215, at
*2

(E.D.

La.

Apr.

13,

2012)(denying

motion

to

strike

Government’s Statement of Interest where it had “an obvious
relation to the controversy surrounding the [National Voter
Registration Act].”). The Statement is not redundant because
it is the United States’ only briefing in this case and
provides the DOJ’s valuable perspective on Title II of the
ADA. Id. (“Additionally, this Court finds that the Statement
of Interest is not redundant, as it is the United States’
only

pleading

Furthermore,

the

filed

surrounding

Statement

was

this

timely.

controversy.”).
It

was

filed

on

September 8, 2016, the same day on which Alvey and Gualtieri
filed their replies. (Doc. ## 73, 74, 75); compare United

4

States ex rel. Gudur v. Deloitte Consulting, LLP, 512 F. Supp.
2d 920, 927 (S.D. Tex. 2007)(striking United States’ Statement
of Interest, which was filed after the briefing deadline for
the pending motions for summary judgment had passed).
Finally, the Statement does not merely reflect the DOJ’s
litigating position, as it “is not a party and is not seeking
to defend past agency action against attack.” M.R. v. Dreyfus,
697 F.3d 706, 735 (9th Cir. 2012)(quotation omitted). Rather,
the DOJ’s interest lies in providing homeless shelters “clear
guidance about their obligations under the ADA.” (Doc. # 75
at 2). In the Statement, the DOJ states that it takes no
position on “[w]hether Ms. Alvey’s requested modification was
reasonable, and whether [Pinellas Safe Harbor] can establish
that

the

modification

would

have

created

a

fundamental

alteration.” (Id. at 6). Instead, “the Statement [outlines]
the general principles of law that are applicable.” (Id.).
Therefore, Gualtieri is not prejudiced by the filing of the
Statement.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
Defendant Bob Gualtieri’s Motion to Strike (Doc. # 79)
is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this

5

17th day of October, 2016.

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