Boyd v. Carter

Filing 7

OPINION and ORDER granting Defendant's 3 Motion to Dismiss; denying Plaintiff's 4 Motion to Remand to State Court. Signed by Judge William S. Duffey, Jr. on 12/27/2012. (dfb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
THASHA A. BOYD,
Plaintiff,
v.

1:12-cv-2537-WSD

UNITED STATES OF AMERICA,
Defendant.

OPINION AND ORDER
This matter is before the Court on the United of America’s (“Defendant” or
“United States”) Motion to Dismiss [3] and Thasha A. Boyd’s (“Plaintiff”) Motion
for Remand [4].
I.

BACKGROUND
On June 12, 2012, Plaintiff filed her pro se Complaint in the Superior Court

of Fulton County seeking damages for an act of “slander per se” by Brandt Carter
(“Carter”), her former supervisor at the United States Department of Labor.
(Compl. [1.1] at 1). Plaintiff claims Carter provided “subjective, negative, and
inaccurate statements” “in response to a job referral/reference inquiry on Plaintiff.”
(Id. at 1-2).

On July 23, 2012, the United States Attorney for the Northern District of
Georgia certified that Carter was acting within his scope of employment at the time
of the incident out of which Plaintiff’s claim arises and removed the action to this
Court pursuant to 28 U.S.C. § 2679. (Notice of Removal [1] at 1-2; Ex. B to
Notice of Removal [1.2]).
On August 1, 2012, Carter filed his Notice of Substitution [2] and
substituted the United States for himself as Defendant in this action pursuant to 28
U.S.C. § 2679(d)(1).
On August 1, 2012, Defendant also filed its Motion to Dismiss [3] on the
ground that this Court lacks jurisdiction over Plaintiff’s Complaint because the
United States has sovereign immunity for Plaintiff’s claim of “slander per se.”
On August 7, 2012, Plaintiff filed her Motion for Remand and Response and
Oppossition [sic] to Defendant’s Motion to Dismiss [4]. Plaintiff claims this action
should be remanded because the United States Attorney “did not submit evidence
to support its certification that Brandt Carter was indeed acting within his scope of
employment at the time of the incident alleged within Plaintiff’s [C]omplaint.”
(Pl.’s Memo. of Law in Supp. of Pl.’s Mot. for Remand at 4). Because of this
failure “to substantiate its certification of Brandt Carter’s duties,” Plaintiff asserts
the United States cannot substitute itself for Carter, and the Motion to Dismiss

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should be denied because Carter does not enjoy sovereign immunity for the claim
in Plaintiff’s Complaint. (Id. at 8).
II.

DISCUSSION
A.

Plaintiff’s Motion to Remand

As a general matter, the Court must remand a case if the technical
requirements of removal have not been met. See Russell Corp. v. Am. Home
Assur. Co., 264 F.3d 1040, 1044 (11th Cir. 2001). Where the propriety of removal
is in question, the removing party has the burden to show removal is proper and
“this burden is a heavy one.” Williams v. Best Buy Co., 269 F.3d 1316, 1319
(11th Cir. 2001); Lampkin v. Media Gen., Inc., 302 F. Supp. 2d 1293, 1294 (M.D.
Ala. 2004). “[U]ncertainties are resolved in favor of remand.” Burns v. Windsor
Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994).
When the United States Attorney certifies that an employee was acting
within the scope of his employment for purposes of removal pursuant to 28 U.S.C.
§ 2679, that certification is conclusive and unreviewable for the purposes of
removal. See 28 U.S.C. § 2679(d)(2) (“The certification of the Attorney General
shall conclusively establish scope of office or employment for purposes of
removal.”); Osborn v. Haley, 549 U.S. 225, 231 (2007) (“On the jurisdictional
issues, we hold that the Attorney General’s certification is conclusive for purposes

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of removal, i.e., once certification and removal are effected, exclusive competence
to adjudicate the case resides in the federal court, and that court may not remand
the suit to the state court.”); S.J. & W. Ranch, Inc. v. Lehtinen, 913 F.2d 1538,
1540-43 (11th Cir. 1990). Because the United States Attorney’s certification is
conclusive and unreviewable for the purposes of removal, the Court finds that
removal was proper and Plaintiff’s Motion to Remand is denied.
Whether the Notice of Substitution should be stricken1

B.

“[O]nce in federal court[,] a plaintiff is entitled to litigate the question of
whether the employee was acting within the scope of his employment when the
challenged conduct occurred.” S.J. & W. Ranch, Inc., 913 F.2d at 1542.
Unless the plaintiff challenges the scope determination, the
court is entitled to treat the Attorney General’s certification as
prima facie evidence that the employee conduct at issue occurred
within the scope of the employment. The burden of altering the
status quo by proving that the employee acted outside the scope of
employment is, therefore, on the plaintiff.
Although the plaintiff bears the burden of establishing that the
challenged conduct exceeded the scope of employment, the district
court’s adjudication of the matter is de novo.
Id. at 1543.
1

Although Plaintiff has not sought to have the Notice of Substitution stricken, the
Court liberally construes her pro se challenge to Defendant’s claim that Carter’s
actions were in the scope of employment as a motion to strike the Notice of
Substitution. See McNeil v. United States, 508 U.S. 106, 113 (1993); S.J. & W.
Ranch, Inc., 913 F.2d at 1541-43.
4

“The question of whether an employee’s conduct was within the scope of his
employment ‘is governed by the law of the state where the incident occurred.’”
Flohr v. Mackovjak, 84 F.3d 386, 390 (11th Cir. 1996).
In Georgia, the test for whether an employee’s actions fall within the scope
of employment is whether the employee was acting in the course of the employer’s
business and with a desire to benefit the employer at the time of the injury. See
O.C.G.A. § 51-2-2; Bennett v. United States, 102 F.3d 486, 489 (11th Cir. 1996)
(“Georgia courts will hold an employer responsible for the conduct of its employee
if the employee acted in the course of the employer’s business and with a desire to
benefit the employer.”); Chorey, Taylor & Feil, P.C. v. Clark, 539 S.E.2d 139, 140
(Ga. 2000) (quoting Dobbs, The Law of Torts, § 333, p. 905 (2000)) (““Under the
principle of respondeat superior, ‘employers are generally jointly and severally
liable along with the tortfeasor employee for the torts of employees committed
within the scope of employment.’”); Allen Kane’s Major Dodge, Inc. v. Barnes,
257 S.E.2d 186, 188 (Ga. 1979). Where a government employee “acts in the
prosecution and within the scope of his official duties, intentional wrongful
conduct comes within and remains within the scope of employment.” See Ford v.
Caffrey, 666 S.E.2d 623, 626 (Ga. Ct. App. 2008); see also Feist v. Dirr, 609
S.E.2d 111, 114 (Ga. Ct. App. 2004).

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An employee does not act within the scope of employment when his acts are
“for purely personal reasons disconnected from the authorized business of the”
employer and “entirely disconnected” from his employer’s business. See O.C.G.A.
§ 51-2-2; Piedmont Hosp., Inc. v. Palladino, 580 S.E.2d 215, 217 (Ga. 2003)
(quoting Brownlee v. Winn-Dixie Atlanta, 523 S.E.2d 596, 597-98 (Ga. Ct. App.
1999); Lucas v. Hosp. Auth. of Dougherty Cnty., 388 S.E.2d 871, 872-73 (Ga. Ct.
App. 1989)); see also Bennett, 102 F.3d at 489 (“By contrast, when an employee
undertakes an act purely personal in nature, no respondeat superior liability may be
imposed.”); Sweeney v. Athens Reg’l Med. Ctr., 709 F. Supp. 1563, 1581 (M.D.
Ga. 1989) (citing Burrow v. K-Mart Corp., 304 S.E.2d 460, 463 (Ga. Ct. App.
1983)) (no employer liability for damages arising from the speaking of false,
malicious, or defamatory words by an employee).
Here, it is undisputed that Plaintiff’s claims relate to Carter’s responding to
“a job referral/reference inquiry on Plaintiff” that he received in his capacity as a
supervisory employee in the United States Department of Labor. (Compl. ¶¶ 3-4,
Ex. A to Pl.’s Mot. for Remand and Opp’n to Def.’s Mot. to Dismiss). Although
Plaintiff conclusorily asserts that some of Carter’s statements about Plaintiff went
beyond his scope of employment, she has not offered anything to support her
burden of demonstrating that Carter’s response to a reference inquiry was outside

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his scope of employment as a supervisor in the Department of Labor, for purely
personal reasons, or entirely disconnected from the Department of Labor’s
business. (Pl.’s Memo. of Law in Supp. of Pl.’s Mot. for Remand and Resp. and
Opp’n to Def.’s Mot. to Dismiss at 7). The Court thus finds Carter’s statements
were made in the scope of employment and the substitution of the United States as
Defendant in this action was appropriate.
C.

Defendant’s Motion to Dismiss

“A federal court must always dismiss a case upon determining that it lacks
subject matter jurisdiction, regardless of the stage of the proceedings . . . .”
Goodman ex rel. Goodman v. Sipos, 259 F.3d 1327, 1331 n.6 (11th Cir. 2011).
Where, as here, subject matter jurisdiction is challenged by a Rule 12(b)(1) motion,
the court must evaluate whether the plaintiff has sufficiently alleged a basis of
subject matter jurisdiction. Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256,
1261 (11th Cir. 1997).
When considering a motion to dismiss for failure to allege federal subjectmatter jurisdiction, the Court construes the Complaint in the light most favorable to
the Plaintiff and accepts as true the facts alleged in the Complaint. See World
Holdings, LLC v. Fed. Republic of Germany, 613 F.3d 1310, 1312 n.1 (11th

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Cir. 2010).2
Sovereign immunity shields the federal government from claims asserted
against it, and, in the absence of a waiver, federal courts lack subject matter
jurisdiction over claims asserted against the federal government. See FDIC v.
Meyer, 510 U.S. 471, 475 (1994). A plaintiff has the burden of demonstrating that
the federal government has waived its sovereign immunity with regard to the
claims asserted against it. See Ishler v. Internal Revenue, 237 F. App’x 394, 398
(11th Cir. 2007).
While the Federal Tort Claims Act (the “FTCA” or “Act”) waives the
government’s sovereign immunity under certain circumstances, the government’s
liability under the FTCA is limited “to the extent that a private individual would be
held liable under like circumstances.” See 28 U.S.C. § 2674. The FTCA provides
the exclusive remedy for tort actions against the United States and contains a
general waiver of sovereign immunity. See 28 U.S.C. §§ 1346(b), 2679. The
FTCA’s waiver of sovereign immunity does not apply to “[a]ny claim arising out
of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of
process, libel, slander, misrepresentation, deceit, or interference with contract
2

For fact-based attacks on subject-matter jurisdiction, facts outside the pleadings
may be considered and the allegations in the complaint are not required to be taken
as true. See Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel,
657 F.3d 1159, 1169-70 (11th Cir. 2011).
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rights.” 28 U.S.C. § 2680(h); Metz v. United States, 788 F.2d 1528, 1531 (11th
Cir. 1986).
Plaintiff’s Complaint presents a single cause of action for “slander per se.”
Slander is expressly listed in Section 2680(h) of the FTCA as an exception to the
United States’ general waiver of sovereign immunity under the Act. The Court
thus finds Defendant enjoys sovereign immunity for Plaintiff’s claim of slander per
se and her Complaint must be dismissed for a lack of jurisdiction.3
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Remand [4] is

DENIED.

3

The Court further finds that even if the United States did not enjoy sovereign
immunity or Carter were not acting within the scope of his employment and was
personally liable for his comments, the alleged comments about Plaintiff do not
support a claim for slander or slander per se because Plaintiff has not alleged that
the statements about her pertained to criminal activity, contagious diseases, or
debasing acts; that the charges against her were calculated to injure her in reference
to the particular demands or qualifications of her trade, office, or profession; or,
that special damages flowed from allegedly disparaging words about her. See
O.C.G.A. § 51-5-4; Davita v. Nephrology Assocs., P.C., 253 F. Supp. 2d 1370,
1377-78 (S.D. Ga. 2003); Bellemead, LLC v. Stoker, 631 S.E.2d 693, 636-39 (Ga.
2006); Walker v. Walker, 668 S.E.2d 330, 336 (Ga. Ct. App. 2008); Ford, 666
S.E.2d at 626 (“negative comments about a person are not in and of themselves
slanderous”); Am. S. Ins. Group, Inc. v. Goldstein, 660 S.E.2d 810, 820-21 (Ga.
Ct. App. 2008); Adams v. Carlisle, 630 S.E.2d 529, 539 (Ga. Ct. App. 2006).
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IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss [3] is
GRANTED.

SO ORDERED this 27th day of December, 2012.

_________________________________________

WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE

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