The opinion of the court was delivered by: Honorable Joseph E. Irenas
IRENAS, Senior District Judge:
Plaintiffs Jose Santiago and Jean Santiago (collectively "Plaintiffs") initiated this action pursuant to the Federal Tort Claims Act ("FTCA") to recover for personal injuries suffered as a result of a motor vehicle accident.*fn1 Pending before the Court is a Partial Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) by Defendants United States of America ("United States") and United States Army Reserve ("Army Reserve").
On April 10, 2008, Plaintiff Jose Santiago was injured in a motor vehicle accident on Route 206 in Bordentown, NJ. The accident involved a motor vehicle operated by Plaintiff Jose Santiago, a vehicle operated by Defendant Richard Zamparelli, and a vehicle operated by Robert McDonald but owned by Defendant Army Reserve.*fn2
On January 4, 2010, Plaintiff Jose Santiago filed an administrative claim with the Army Reserve. On November 4, 2010, Planitiffs filed a Complaint in this Court. An Amended Complaint was filed on January 28, 2011. The Amended Complaint alleges that Defendants United States and Army Reserve were negligent in that McDonald, an employee of the Army Reserve, operated his motor vehicle in a negligent, careless and/or reckless manner.
The Amended Complaint also includes allegations against Defendant Zamparelli of negligent, careless and/or reckless operation and maintenance of a motor vehicle allegedly causing Plaintiff Jose Santiago's injuries. Plaintiff Jean Santiago's claim arises from an alleged loss of services, companionship and consortium from the injuries allegedly sustained by Plaintiff Jose Santiago.
Defendants United States and Army Reserve filed the instant Partial Motion to Dismiss on August 3, 2011.
Federal Rule of Civil Procedure 12(b)(1) provides that a court may dismiss a complaint for lack of subject matter jurisdiction. Rule 12(b)(1) motions may be based upon the complaint's face or its underlying facts. Mortensen v. First Federal Savings & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977).
"A facial attack questions the sufficiency of the pleading, and in reviewing a facial attack, a trial court accepts the allegations in the complaint as true." Pittman v. Metuchen Police Dept., No. 08-2373, 2009 WL 3207854, *1 (D.N.J. Sept. 29, 2009).
A factual attack permits the court to consider conflicting evidence that may bear on its jurisdiction. Id. "No presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Carpet Group Int'l v. Oriental Rug Importers Ass'n Inc., 227 F.3d 62, 69 (3d ...