ANNEMARIE CARNEY AXON, District Judge.
Before the court is Defendant United States' unopposed motion to dismiss or in the alternative for summary judgment (doc. 3), which the court construes as a motion for relief from the judgment, under Federal Rule of Civil Procedure 60(b)(4), and a motion to dismiss the complaint for lack of subject matter jurisdiction, under Federal Rule of Civil Procedure 12(b)(1). For the reasons set out below, the court
On May 22, 2018, Plaintiff Darrel McTerry filed suit in the Small Claims Court of Jefferson County, Alabama, naming Dr. Nirmala Jetty, an employee of the Department of Veterans Affairs, and seeking $3,000 for "defamation and libel due to false official statement written in plaintiff's record." (Doc. 1 at 6, 8). In July 2019, after Dr. Jetty failed to appear in the case, the District Court of Jefferson County entered a default judgment against her in the amount of $1,000.
At this stage, the court must accept as true the factual allegations in the complaint and construe them in the light most favorable to the plaintiff. Butler v. Sheriff of Palm Beach Cty., 685 F.3d 1261, 1265 (11th Cir. 2012). The entirety of Mr. McTerry's factual allegations are that Dr. Jetty engaged in defamation and libel by making a reckless and "false official statement . . . in plaintiff's record." (Doc. 1 at 6, 8).
"When a case is removed the federal court takes it as though everything done in the state court had in fact been done in the federal court." Savell v. S. Ry. Co., 93 F.2d 377, 379 (5th Cir. 1937).
"It is well settled that the United States, as a sovereign entity, is immune from suit unless it consents to be sued." Zelaya v. United States, 781 F.3d 1315, 1321 (11th Cir. 2015). The Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346, waives sovereign immunity from state law tort claims, subject to certain exceptions. 28 U.S.C. § 1346(b)(1); Zelaya v. United States, 781 F.3d 1315, 1321-22 (11th Cir. 2015). One exception is "[a]ny claim arising out of . . . libel [or] slander." 28 U.S.C. § 2680(h). The Eleventh Circuit has held that "a cause of action which is distinct from one of those excepted under § 2680(h) will nevertheless be deemed to `arise out of' an excepted cause of action when the underlying governmental conduct which constitutes an excepted cause of action is `essential' to plaintiff's claim." Metz v. United States, 788 F.2d 1528, 1534 (11th Cir. 1986). Thus, Mr. McTerry's claims for defamation and libel are excepted from the FTCA's waiver of sovereign immunity.
Because the United States has not consented to be sued for claims for defamation and libel, sovereign immunity protects the government from this lawsuit. Accordingly, the court that entered the default judgment lacked subject matter to do so, and this court must vacate the default judgment as void. See Fed. R. Civ. P. 60(b)(4). For the same reason, the court must dismiss the complaint for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). The court
The court will enter a separate order consistent with this opinion.