The opinion of the court was delivered by: Dennis M. Cavanaugh, U.S. District Judge
This matter comes before the Court on Defendant Sharon Williams' Motion to Dismiss pursuant to FED. R. CIV. P. 12(b)(1) (ECF. No. 6) and Defendant United States Department of Veterans Affairs - New Jersey Health Care System's Motion to Dismiss pursuant to FED. R. CIV. P. 12(b)(1) (ECF. No. 7). These motions were decided without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure. After careful review of the parties' submissions and based upon the following, Defendants' motions are granted.
I. BACKGROUND AND PROCEDURAL HISTORY
This case concerns the termination of an employee by her employer, and the decision by the employee's union not to arbitrate that termination. Plaintiff, Gwendolyn Williams ("Plaintiff"), was a health care aide employed by Defendant United States Department of Veterans Affairs - New Jersey Health Care System ("Defendant VA") in East Orange, Essex County, New Jersey. (Compl. ¶ 1 (ECF. No. 1-2)). Defendant Sharon Williams ("Defendant Williams") is the President of the American Federation of Government Employees Local 2425 ("AFGE"). (Compl ¶ 5). The AFGE is the collective bargaining agent for certain categories of employees at Defendant VA, including the Plaintiff's category. (Compl. ¶ 3). At all times relevant to this complaint, a national collective bargaining agreement ("CBA") was in place which included Plaintiff, Defendant VA, and the AFGE, and which created certain rights and duties between the parties. (Compl. ¶ 4).
On or about April 25, 2007, Defendant VA terminated Plaintiff's employment for alleged acts of misconduct in the course of her employment. (Compl. ¶ 3). Plaintiff alleges that the CBA restricted the right to elect arbitration of her termination to the AFGE, but that the AFGE and Defendant Williams declined to arbitrate, and instead consented to an appointment of private counsel to arbitrate Plaintiff's case. (Compl. ¶¶ 8-12). Plaintiff further alleges that "neither party hastened to schedule a date for the arbitration," and that application was made directly to the arbitrator to establish a specific date for the hearing. (Compl. ¶¶ 13-14). Plaintiff goes on to assert that Defendant Williams, acting both individually and in her official capacity as an agent of AFGE, "maliciously, and in bad faith, and in breach of contract and in violation of the implied covenant of good faith and fair dealings," and in conspiracy with Defendant VA, interfered with Plaintiff's prospective economic advantages by canceling AFGE's consent to allow Plaintiff to prosecute her own grievance in arbitration. (Compl. ¶ 15). Additionally, Plaintiff alleges that Defendant VA and its agents conspired with each other and the other defendants in bad faith, and in violation of the implied covenant of good faith and fair dealing, to "maliciously and negligently" interfere with Plaintiff's contract with AFGE. (Compl. Count Two, ¶ 2).
Plaintiff filed her complaint containing these allegations with the Superior Court of New Jersey, Law Division, Essex County, on May 2, 2011. In that complaint, Plaintiff named as Defendants the VA, Sharon Williams, the AFGE, and John and Jane Doe (fictiously named employees of Defendant VA). (Compl. ¶¶ 1-3). On June 13, 2011, Plaintiff voluntarily dismissed the AFGE from this action. (Def. Defendant Williams' Br. 4 (ECF. No. 6-1)). Plaintiff and Defendant Williams then stipulated that Defendant Williams would have until July 18, 2011 to answer the Complaint. (Def. Defendant Williams' Br. 4-5).
On June 28, 2011, Defendant VA removed the case to this Court. (ECF. No. 1). That same day, the case was referred to arbitration. On July 1, 2011, both Defendant VA and Defendant Williams were granted extensions to answer, set for July 19, 2011 (ECF. No. 2-4). On July 18, 2011, Defendant Williams filed her present Motion to Dismiss for Lack of Subject Matter Jurisdiction, asserting that this Court lacks jurisdiction to hear this case because the claims against Defendant Williams must be resolved before the Federal Labor Relations Authority. (Def. Defendant Williams' Br. 1).
On July 19, 2011, Defendant VA filed their present Motion to Dismiss the Complaint and Vacate Referral to Arbitration, also asserting that claims against Defendant VA must be resolved before the Federal Labor Relations Authority, and further asserting that Defendant VA is a sovereign federal agency, and thus cannot be sued for intentional tort claims. (Def. VA's Br. 3, 7 (ECF. No. 7-1)). As Defendant VA asserts that this Court lacks jurisdiction to hear this case, Defendant VA also contends that the referral to arbitration should be vacated. (Def. VA's Br. 10). On September 6, 2011, Defendant Williams' attorney filed a letter with this Court, correctly noting that Plaintiff's response to their Motion to Dismiss was due on August 1, 2011, and that Plaintiff to date had not responded to the motion, nor had she sought an extension of time for leave to respond. (ECF. No. 9).*fn1
A. FED. R. CIV. P. 12(b)(1)
Plaintiff bears the burden to prove that subject matter jurisdiction exists. Wyeth and Cordis Corp. v. Abbott Labs., 2008 U.S. Dist. LEXIS 38313, * 2, 2008 WL 2036805 (D.N.J. May 8, 2008) (JAP). In Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884 (3d Cir. 1977), the Third Circuit explained that Rule 12(b)(1) motions fall into two categories: facial and factual. Int'l Devs. Corp. v. Richmond, 2009 U.S. Dist. LEXIS 106326, at * 2, 2009 WL 3818141 (D.N.J. Nov. 13, 2009) (GEB). "A facial attack on jurisdiction is directed to the sufficiency of the pleading as a basis for subject matter jurisdiction." Id. Accordingly, under a facial attack, "the court must only consider the allegations of the complaint and documents referenced therein and attached thereto in the light most favorable to the plaintiff." Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000).
In contrast, when the court considers a factual attack on jurisdiction under 12(b)(1), "the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Mortensen, 549 F.2d at 891. No presumption of truthfulness attaches to the allegations of the complaint insofar as they concern subject matter jurisdiction. Id. Should factual issues arise regarding subject ...