The opinion of the court was delivered by: Ambrose, Chief District Judge.
OPINION and ORDER OF COURT
Pending before the Court is Defendant's, United States of America's ("United States"), Amended Motion to Dismiss based on lack of jurisdiction. (Docket No. 16). After careful consideration of the Amended Motion and for the reasons discussed below, said Motion is granted.
Plaintiff, CNA and Continental Casualty Company, filed suit on January 30, 2006, as subrogee of Michael Lahoff to recover paid and payable workers' compensation benefits. (Docket No. 1). Thereafter, on February 1, 2006, Plaintiff filed an Amended Complaint. Therein, Plaintiff claims that as a result of the United States' negligence Michael Lahoff was shot on January 3, 2003, by Marty Armstrong*fn1 with a gun owned by Korey Lewis, a recruiter for the United States Army with the rank of Staff Sergeant ("SSG").*fn2 At the time of the shooting, and in violation of both his superior's direct order and United States Army Recruiting Command Regulation ("USAREC") 600-25, SSG Lewis permitted Mr. Armstrong to stay in his personal apartment while he completed his high school education. As a result, the United States is alleged to be liable to Plaintiffs under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346 et seq. The United States moves to dismiss the case based on lack of subject matter jurisdiction pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (Docket No. 16, p. 1). In the alternative, the United States summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Id., p. 2.
A motion to dismiss under Fed.R.Civ.P. 12(b)(1) challenges the jurisdiction of the court to address the merits of the plaintiff's suit, that is, "it attacks . . . the right of a plaintiff to be heard in Federal court." Cohen v. Kurtzman, 45 F. Supp.2d 423, 428 (D. N.J. 1999). A Rule 12(b)(1) motion may argue that the plaintiff's federal claim is immaterial and made solely for the purpose of obtaining federal jurisdiction, is insubstantial and frivolous or, alternatively, the attack may be directed at "the existence of subject matter jurisdiction in fact." Mortensen v. First Federal Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). In a Rule 12(b)(1) motion based on the existence of jurisdiction, no presumption of truthfulness attaches to the allegations of the plaintiff (in contrast to the presumption applied under a Rule 12(b)(6) motion or a Rule 12(b)(1) motion based on immateriality, etc.). Mortensen, id. The plaintiff bears the burden of persuading the court that it has jurisdiction, as compared to the burden of the defendant under a Rule 12(b)(6) motion of convincing the court that the plaintiff has failed to state a claim. Kehr Packages v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991), cert. denied, 501 U.S. 1222 (1991). Because the court must determine whether jurisdiction exists before it may proceed to the merits of a case, the court may make factual findings which are decisive to the issue. Cohen, id. at 429, citing Employers Ins. of Wausau v. Crown Cork & Seal Co., 905 F.2d 42, 45 (3d Cir. 1990). If I determine that this Court does not have subject matter jurisdiction over the case, I must dismiss the action. Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir. 1997).
A. Subject Matter Jurisdiction
The FTCA waives sovereign immunity in limited circumstances. 28 U.S.C. §1346. The FTCA makes the United States liable for "money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1). The issue of jurisdiction in this case turns on whether SSG Lewis was acting within the scope of his employment for the actions detailed in the Amended Complaint. (Docket No. 13). Determination of whether an employee of the United States acted within his scope of employment is a matter of state law. 28 U.S.C. §1346(b)(1). The incident took place in Pennsylvania. Therefore, Pennsylvania law applies.
Pennsylvania has adopted the Restatement (Second) of Agency § 228 which defines conduct in the scope of employment:
(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time ...