Creedle v. Gimenez et al
ORDER denying 27 Plaintiff's Motion to Strike. Signed by Magistrate Judge Edwin G. Torres on 11/7/2017. (js02)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-22477-Civ-WILLIAMS/TORRES
CARLOS A. GIMENEZ, in his official
capacity as Mayor of Miami-Dade County,
Florida, and MIAMI-DADE COUNTY, Florida,
ORDER ON PLAINTIFF’S MOTION TO STRIKE
This 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.
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
Plaintiffs 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
A party 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.
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).
The 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.1 [D.E. 10].
Under 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
In the event that the Court permits the Government’s statement of interest,
Plaintiff requests an opportunity to respond.
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.”).
Courts 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 States”)).2
The 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
The Government claims that on August 24, 2017, it began
settlement discussions with Plaintiff. The negotiations supposedly continued until
There is no dispute between the parties that the Government is statutorily
entitled to file a statement of interest. There is also no dispute that the statement
of interest is relevant to the issues presented because the resolution of Defendants’
motion to dismiss implicates the enforcement and removal of illegal immigrants.
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.
We 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).
There 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.
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 review.
After 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 substantial and that additional
briefing would not have been helpful. In sum, the court granted a motion to strike
because the statement of interest was untimely, useless, and unnecessary to the
administration of justice. See id.
By contrast, (1) the record in this case is in its infancy, (2) the Government
was not egregiously late in its filing, and (3) the Government has set forth a
persuasive reason as to why it delayed filing its statement of interest.
coupled with the fact that the federal government has “broad, undoubted power over
the subject of immigration and the status of aliens,” Arizona v. United States, 567
U.S. 387, 394 (2012) (citations omitted), and that courts have previously denied
motions to strike statements of interest filed soon after motions to dismiss, we find
that the Government has set forth good cause to remedy the untimely filing. See
Ungaro-Benages, 2003 WL 25729923, at *1 (“[W]hile discovery was proceeding, the
United States filed a pleading entitled ‘Statement of Interest of The United
States”’). Accordingly, Plaintiff’s motion to strike is DENIED.3
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that
Plaintiff’s motion to strike the Government’s statement of interest is DENIED.
[D.E. 27]. Plaintiff shall file a response to the Government’s statement of interest
within fourteen (14) days from the date of this Order.
DONE AND ORDERED in Chambers at Miami, Florida, this 7th day of
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge
While we deny Plaintiff’s motion to strike the Government’s statement of
interest from the record, it is of course in the purview of the District Judge as to
whether the submission is ultimately considered or not.
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