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January 23, 1995

UNITED STATES POST OFFICE, ORLANDO J. CHANDLER, JR., JOHN DOE 1-X and THE ABC COMPANY 1-X (said names being fictitious), Defendants.

The opinion of the court was delivered by: ALFRED J. LECHNER, JR.

 LECHNER, District Judge

 This is an action brought by plaintiffs Gloria E. Martinez ("Martinez") and Ursulo Hernandez ("Hernandez") (collectively, the "Plaintiffs") against defendants United States Postal Office (the "Postal Service"), Orlando J. Chandler, Jr. ("Chandler"), John Doe ("Doe") and ABC Company ("ABC") (collectively, the "Defendants") for damages stemming from alleged personal injuries suffered in an automobile accident. See Complaint, filed 23 February 1994 (the "Complaint"). Jurisdiction is alleged pursuant to 28 U.S.C. § 2401, see Complaint, P 3, a provision governing the timing of filing an action against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq..

 Currently before the court is the motion by the Defendants to dismiss for lack of subject matter jurisdiction, lack of personal jurisdiction and failure to timely effectuate service of process, pursuant to Rules 12(b)(1), 12(b)(2) and 12(b)(5) of the Federal Rules of Civil Procedure. Also, before the court is the cross-motion by the Plaintiffs to amend the Complaint to name the United States of America as a defendant. *fn1" For the reasons set forth below, the Defendants' motion to dismiss is granted pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure based on the court's lack of subject matter jurisdiction to hear the instant matter; the Plaintiffs' cross-motion is denied.


 On or about 24 February 1992, the Plaintiffs allege Chandler "while within the scope of his employment for the ... [Postal Service,]" was driving a Postal Service vehicle in a negligent and/or reckless manner and struck an automobile which was driven by Martinez and owned by passenger Hernandez. Id., P 4. Plaintiffs further allege they sustained injuries and damages as a result of Chandler's negligence and the negligence of the Postal Service for "not properly checking the credentials of their employees prior to entrusting them with one of their vehicles...." Id., P 5.

 On 30 July 1992, the Postal Service received a letter from counsel for Plaintiffs, dated 28 July 1992 (the "28 July 1992 Letter"), which purported to give notice of the Plaintiffs' claim against the Defendants. Garces Aff., P 3 and Exhibit A; Bartholf Dec., P 3 and Exhibit 1. The Postal Service, by letter dated 30 July 1992 (the "30 July 1992 Letter"), provided counsel for Plaintiff with blank SF-95 claim forms and instructions, including a telephone number to call for assistance, regarding the filing of an administrative tort claim. Bartholf Dec., P 3 and Exhibit 2; Garces Aff., P 3.

 According to counsel to Plaintiffs: "The claim was completed, containing a response providing the amount of the claim, duplicating the information provided by the ... [28 July 1992 Letter], signed by the [Plaintiffs,] and returned to the U.S. Post Office by myself." Garces Aff., P 3 and Exhibit B (attaching copies of the Plaintiffs' SF-95 claim forms (the "Plaintiffs' Claim Forms")). Plaintiffs allege "thereafter, the Postal Service failed to act on the [Plaintiffs'] Claim [Forms], and the Complaint was filed on February 23, 1994." Id., P 4.

 Counsel for Defendants, by letter dated 2 August 1994, informed counsel to Plaintiffs of the Defendants contention that pursuant to Rule 4(i) of the Federal Rules of Civil Procedure, the attempted service on the Postal Service in Plainfield, New Jersey was improper. Handler-Menahem Dec., P 2 and Exhibit 1.

 Plaintiffs allege a copy of the Complaint was forwarded to the Attorney General of the United States, who acknowledged receipt on 19 August 1994, Garces Aff., P 10 and Exhibit I, and to the office of the Attorney General of the United States, in Trenton, New Jersey, who acknowledged receipt on 18 August 1994. Id., P 11 and Exhibit J. On 22 August 1994, the Complaint was received by the office of the Attorney General of the United States, in Newark New Jersey. Id., P 12; Handler-Menahem Dec., P 4. On 1 November 1994, counsel to Defendants alleges she telephoned the Civil Division of the United States Department of Justice in Washington and was informed there was no record of service on the Attorney General in the instant matter. Handler-Menahem Dec., P 5.

 In the instant motion, Defendants contend the United States is the only proper defendant in this action and therefore the Complaint should be dismissed for lack of jurisdiction as against the Postal Service and Chandler. Moving Brief at 3-4. Next, the Defendants argue the court lacks jurisdiction over the Complaint because the Plaintiffs failed to file an administrative claim under the FTCA within the requisite time period. Id. at 5-7. Finally, the Defendants contend the Complaint must be dismissed because the Plaintiffs failed to timely effect service of process. Id. at 8-14.

 Plaintiffs contend dismissal of the Complaint as against Chandler is premature because it has not yet been determined whether he was acting within the scope of his employment -- a requirement for statutory immunity under the FTCA. Opp. Brief at 3-4. Plaintiffs further argue they timely filed an administrative claim with the Postal Service in compliance with the FTCA. Id. at 5-6. Additionally, Plaintiffs argue service of process on the named defendants has been done properly and in a timely fashion, and they should be permitted to amend the Complaint to substitute the United States as a defendant because failure to do so was harmless error and no prejudice would result. Id. at 7.


 A. Standard of Review Under Rule 12(b)(1) A challenge to the court's subject matter jurisdiction under Rule 12(b)(1) differs from an attack on the merits pursuant to Rule 12(b)(6) or Rule 56 of the Federal Rules of Civil Procedure. Rule 12(b)(1) does not afford a plaintiff all the procedural safeguards provided by Rule 12(b)(6) and Rule 56. Instead, Rule 12(b)(1) challenges a plaintiff's right to be heard in Federal court. Limited procedural safeguards exist depending on the type of Rule 12(b)(1) motion.

 There are two types of Rule 12(b)(1) motions, those which "attack the complaint on its face" and those which "attack the existence of subject matter jurisdiction in fact, quite apart from any pleading." Mortensen v. First Federal Sav. & Loan Ass'n., 549 F.2d 884, 891 (3d Cir. 1977); Schwartz v. Medicare, 832 F. Supp. 782, 787 (D.N.J. 1993); Donio v. United States, 746 F. Supp. 500, 504 (D.N.J. 1990); Frankford Hosp. v. Davis, 647 F. Supp. 1443, 1445 (E.D.Pa. 1986). The facial attack offers a safeguard to the plaintiff similar to a Rule 12(b)(6) motion; the allegations of the complaint are considered to be true. Mortensen, 549 F.2d at 891.

 For a Rule 12(b)(1) motion addressing the existence of subject matter jurisdiction, no presumptive truthfulness attaches to a plaintiff's allegations. Id. Accordingly, unlike a Rule 12(b)(6) motion, consideration of a Rule 12(b)(1) jurisdiction-type motion need not be limited; conflicting written and oral evidence may be considered and a court may "decide for itself the factual issues which determine jurisdiction." Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert. denied, 454 U.S. 897, 70 L. Ed. 2d 212, 102 S. Ct. 396 (1981). This type of a Rule 12(b)(1) motion need not be converted into a Rule 56 motion when extra pleading materials are considered. Williamson, 645 F.2d at 416; Frankford Hosp., 647 F. Supp. at 1445.

 Although motions pursuant to Rule 12(b)(1) and Rule 12(b)(6) are distinct, often jurisdictional issues are intertwined with the merits of a case. "Where an attack on jurisdiction implicates the merits of a plaintiff's Federal cause of action, the district court's role in judging the facts may be more limited...." Williamson, 645 F.2d at 413 n.6.

Where the defendant's challenge to the court's jurisdiction is also a challenge to the existence of a Federal cause of action, the proper course of action for the district court (assuming that the plaintiff's Federal claim is not immaterial and made solely for the purpose of obtaining Federal jurisdiction and is not insubstantial and frivolous) is to find that jurisdiction exists and to deal with the objection as a direct attack on the merits of the plaintiff's case.

 Id. at 415 (citing Bell v. Hood, 327 U.S. 678, 682, 90 L. Ed. 939, 66 S. Ct. 773 (1946)). As further explained by Williamson, however, "a jurisdictional attack which does not implicate the merits of any Federal cause of action is not bound by [this] ... standard." 645 F.2d at 415 n.9 (emphasis in original).

 A Federal court has broad power to decide whether it has jurisdiction to hear a case and may make factual findings which are decisive to the issue of jurisdiction. Id. at 413. The burden of demonstrating the existence of Federal jurisdiction is on the party seeking to invoke it. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.), cert. denied, 501 U.S. 1222, 115 L. Ed. 2d 1007, 111 S. Ct. 2839 (1991); Mortensen, 549 F.2d at 891. In this aspect of the instant motion, the challenge is to the existence of subject matter jurisdiction. *fn2" Additionally, the instant motion to dismiss attacks the Complaint on its face, while not addressing the merits of the Plaintiffs' case.

 B. Sovereign Immunity

 "It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206, 212, 77 L. Ed. 2d 580, 103 S. Ct. 2961 (1983). Moreover, "'the terms of [the United States'] consent to be sued in any court define that court's jurisdiction to entertain the suit.'" United States v. Dalm, 494 U.S. 596, 608, 108 L. Ed. 2d 548, 110 S. Ct. 1361 (quoting United States v. Sherwood, 312 U.S. 584, 586, 85 L. Ed. 1058, 61 S. Ct. 767 (1941)), reh'g denied, 495 U.S. 941 (1990); see Lehman v. Nakshian, 453 U.S. 156, 160, 69 L. Ed. 2d 548, 101 S. Ct. 2698 (1981). The conditional sovereign immunity of the United States extends to its branches and agencies, including the Postal Service. See Franchise Tax Board v. United States Postal Service, 467 U.S. 512, ...

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