JOSEPH H. RODRIGUEZ, District Judge.
This matter comes before the Court upon the motion of the United States of America ("Government") to Dismiss the Complaint for Lack of Subject Matter and Personal Jurisdiction. The Court has considered the written submissions and the arguments advanced at the hearing on September 23, 2013. For the reasons set forth below, and those articulated on the record at the hearing, the Government's motion is granted.
This is a medical negligence case. On July 31, 2009 Plaintiff Ashlie White was diagnosed with Stage IV colon cancer. Plaintiff filed a complaint in the Superior Court of New Jersey, Law Division on July 27, 2011 against numerous defendant health care providers ("White 1"). Three of the named defendants were federal employees and on January 5, 2012, the Government entered its appearance as the proper party pursuant to 28 U.S.C. § 2679(d)(1) and 42 U.S.C. § (c) and (g). The Complaint averred that the three federal defendants were acting in the scope of their employment at the time of the occurrence. As a result, the parties agree that the Plaintiff's exclusive remedy was against the Government under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2679(b).
The action was removed to the United States District Court for the District of New Jersey and assigned to the Honorable Joseph E. Irenas, S.U.S.D.J. The Government successfully moved to dismiss the action for lack of subject matter jurisdiction because Plaintiff did not exhaust her administrative remedies prior to filing suit. On March 1, 2012, the Court dismissed White 1 as to the Government and remanded the remainder of the case to the New Jersey Superior Court. The state action is ongoing. In light of the dismissal, Plaintiff had sixty days from March 1, 2012 to present her claims to the United States Department of Health and Human Services ("HHS"), pursuant to 28 U.S.C. § 2679(d)(5). On April 20, 2012, Plaintiff attempted to serve her FTCA notice on HHS, but "inadvertently" mailed the notice to the New Jersey Department of Treasury, Bureau of Risk Management. See Certification of Roberta Golden, Esquire ("Golden Cert."). On May 10, 2012 Plaintiff presented HHS with notice of her tort claim. See Declaration of James C. Anagnos ("Anagnos Decl.") ¶ 4 and Ex. 1. HHS denied the claim on June 13, 2012 as untimely. Id. at ¶4 and Ex. 2; Golden Cert., Ex. B.
Plaintiff filed the present action on December 11, 2012, within six months of the denial of her claim. The Complaint was amended on December 13, 2012 to correct the address of the United States Attorney's Office.
The Government moves to dismiss the present action for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) because Plaintiff failed to present an administrative tort claim within sixty (60) days after dismissal of White 1. In the alternative, the Government seeks dismissal for lack of personal subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2) because Plaintiff failed to properly serve the Government in accordance with Fed.R.Civ.P. 4(i). The Court will address the arguments.
A. Applicable Standards
Federal Rule of Civil Procedure 12 governs a court's decision to dismiss a claim based on the pleadings. See Fed.R.Civ.P. 12. More specifically, Federal Rule of Civil Procedure 12(b)(1) governs a court's decision to dismiss a claim for "lack of subject matter jurisdiction" and Federal Rule of Civil Procedure 12(b)(6) governs a court's decision to dismiss a claim for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(1); Fed.R.Civ.P. 12(b)(6).
1. Federal Rule of Civil Procedure 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) permits a court to dismiss a case for lack of subject matter jurisdiction. A defendant may contest subject matter jurisdiction by attacking the face of the complaint (i.e., a facial attack) or by attacking "the existence of subject matter jurisdiction in fact, quite apart from any pleadings" (i.e., a factual attack). Mortensen v. First Fed. 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). A facial attack "contest[s] the sufficiency of the pleadings." Common Cause of Pa. v. Pennsylvania , 558 F.3d 249, 257 (3d Cir. 2009) (citation omitted). On a facial attack, the court must read the complaint in the light most favorable to the plaintiff and consider the allegations of the complaint as true. Mortensen , 549 F.2d at 891.
Under a factual attack, a court is not confined to the pleadings but may weigh and consider evidence outside the pleadings, including affidavits, depositions, and exhibits to satisfy itself that it has jurisdiction. Id .; Gould Elecs., Inc. v. United States , 220 F.3d 169, 178 (3d Cir. 2000); Gotha v. United States , 115 F.3d 176, 179 (3d Cir. 1997) (stating that court can consider affidavits, depositions, and testimony to resolve factual issues bearing on jurisdiction). This is because on a factual motion to dismiss for lack of subject matter jurisdiction, the court's very power to hear the case is at issue. Mortensen , 549 F.2d at 891; Gotha , 115 F.3d at 179. Moreover, on a factual attack, no presumptive truthfulness attaches to a plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of the jurisdictional claim. Mortensen , 549 F.2d at 891.
Regardless of which approach is used, a plaintiff has the burden of proving that jurisdiction exists. Lightfoot v. United States , 564 F.3d 625, 627 (3d Cir. 2009) (citing Carpet Grp. Int'l v. Oriental Rug Importers Ass'n , 227 F.3d 62, 69 (3d Cir. 2000)); Mortensen , 549 F.2d at 891. "The court may dismiss the complaint only if it appears to a certainty that the plaintiff will not be able to assert a colorable claim of ...