United States District Court, N.D. Alabama, Southern Division
ANNEMARIE CARNEY AXON UNITED STATES DISTRICT JUDGE
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 WILL GRANT the Rule
60(b)(4) motion for relief from the judgment, WILL GRANT the
Rule 12(b)(1) motion to dismiss the complaint, and WILL
DISMISS this case WITHOUT PREJUDICE for lack of subject
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,
(Id. at 37). In August 2019, the government removed
the case to federal court, moved to substitute itself for Dr.
Jetty, and filed this motion to dismiss or in the alternative
for summary judgment. (Docs. 1, 2, 3). Based on the Attorney
General's certification that this action was brought
against Dr. Jetty for actions she took within the scope of
her office or employment, the court granted the motion to
substitute. See 28 U.S.C. § 2679(d)(1); (Docs.
2, 4). The court also ordered briefing on the motion to
dismiss, but Mr. McTerry has not filed a response. (Docs. 4,
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).
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). Under Federal Rule of Civil
Procedure 60(b)(4), “the court may relieve a party or
its legal representative from a final judgment . . .
[because] the judgment is void.” A judgment is void
“if the court that rendered it lacked jurisdiction of
the subject matter.” Burke v. Smith, 252 F.3d
1260, 1263 (11th Cir. 2001) (quotation marks omitted).
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
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 WILL GRANT the Rule 60(b)(4) motion for relief from
the default judgment, WILL GRANT the Rule 12(b)(1) motion to
dismiss the complaint, and WILL DISMISS this case WITHOUT
PREJUDICE for lack of subject matter jurisdiction.
court will enter a separate order consistent with this
 Despite the unusual procedural posture
of the case, the fact that a judgment has already been
entered against Dr. Jetty does not prevent this court from
ruling on the government's current motion to dismiss for
lack of subject matter jurisdiction. “Objections to
subject-matter jurisdiction . . . may be raised at any time.
Thus, a party, after losing at trial, may move to dismiss the
case because the trial court lacked subject-matter
jurisdiction.” Henderson ex rel. Henderson v.
Shinseki, 562 U.S. 428, 434-35 (2011); see also
Fed. R. Civ. P. 12(h)(3) (“If the court determines at
any time that it lacks subject-matter jurisdiction, the court
must dismiss the action.”).
 In Bonner v. City of
Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc),
the Eleventh Circuit adopted as binding precedent all
decisions of the former Fifth Circuit ...