The opinion of the court was delivered by: Nora Barry Fischer United States District Judge
Pending before the Court is Defendant Washington County Redevelopment Authority's ("Authority") Motion to Dismiss  under Federal Rule of Civil Procedure 12(b)(1) and/or 12(b)(6). For the following reasons, Defendant's motion is GRANTED.
On October 22, 2007, Plaintiff Joseph B. Koval filed a complaint against the Defendant, his former employer, alleging that the Authority denied him certain retirement health benefits and then failed to later reinstate such benefits for him despite reinstating the benefits of "virtually all the Authority employees." (Docket No. 1). The complaint alleges that Plaintiff is entitled to relief under the Employment Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1132(a)(1)(B) and 1132(a)(5)(B), and under state law theories of breach of contract and quasi-contract. (Docket No. 1). Plaintiff's complaint alleges that federal jurisdiction over the ERISA claim is conferred at 29 U.S.C. § 1132(e)(1).*fn1 (Docket No. 1).
On December 21, 2007, Defendant filed the pending motion to dismiss, arguing that Plaintiff has plead that the Authority is a "duly incorporated municipal authority." (Docket No. 8.) As such, pursuant to ERISA section 1003(b), the retirement health benefit plan is a "governmental plan" not subject to ERISA and therefore Plaintiff's claim should be dismissed for lack of subject matter jurisdiction under Rule 12(b)(1). (Docket No. 8). Defendant further argues that as no original jurisdiction exists over the Plaintiff's alleged ERISA claim, "there is no basis for the exercise of supplemental jurisdiction" for the breach of contract and quasi-contract claims under 28 U.S.C. § 1367(c)(3) which should also be dismissed under Rule 12(b)(1). (Docket No. 8). Alternatively, Defendant argues that the common law claims should be dismissed under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. (Docket No. 8).
Plaintiff thereafter filed a Brief in Opposition on January 30, 2008, in which he argues that the Court has proper subject matter jurisdiction over the ERISA claim because the Authority's retirement benefit plan does not constitute a "governmental plan" exempt from ERISA. (Docket No. 13). Defendant responded by filing a reply brief on February 14, 2008 (Docket No. 14), and after receiving leave of Court, Plaintiff filed a sur-reply brief on March 21, 2008 (Docket No. 18). Defendant's motion is now fully briefed and ripe for disposition.
As set forth above, Defendant moves to dismiss Plaintiff's claims under both Rule 12(b)(1) and 12(b)(6). When a movant invokes multiples bases in support of a motion to dismiss, the court should consider the Rule 12(b)(1) challenge first because all other defenses will become moot if the court must dismiss the complaint for lack of subject matter jurisdiction. See In re Corestates Trust Fee Litig., 837 F. Supp. 104, 105 (E.D. Pa. 1993). Accordingly, the Court will first consider the Defendant's challenge to this Court's subject matter jurisdiction pursuant to Rule 12(b)(1).
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges the lack of subject matter jurisdiction over a plaintiff's claims. See Fed. R. Civ. Pro. 12(b)(1). "At issue in a Rule 12(b)(1) motion is the court's 'very power to hear the case.'" Petruska v. Gannon University, 462 F.3d 294, 302 (quoting Mortenson v. First Federal Savings and Loan Association, 549 F.2d 884, 891 (3d Cir.1977)). As he is the party asserting jurisdiction, Plaintiff "bears the burden of showing that its claims are properly before the district court." Development Fin. Corp. v. Alpha Housing & Health Care, 54 F.3d 156, 158 (3d Cir. 1995); see also Kehr Packages, Inc., 926 F.2d at 1409 ("When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff must bear the burden of persuasion"). In reviewing a motion to dismiss pursuant to Rule 12(b)(1), the court must distinguish between facial attacks and factual attacks. Petruska, 462 F.3d at 302.
A facial attack challenges the sufficiency of the pleadings, and the court must accept the plaintiff's allegations as true. Id. When a defendant attacks a complaint on its face, he "[asserts] that considering the allegations of the complaint as true, and drawing all reasonable inferences in favor of [plaintiff], the allegations of the complaint are insufficient to establish a federal cause of action." Mullen v. Thompson, 155 F.Supp.2d 448, 451 (W.D. Pa. 2001). Dismissal is proper under Rule 12(b)(1) only when "the claim clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or . . . is wholly insubstantial and frivolous." Kehr Packages, Inc. v. Fidelcor, Inc., 1409 (3d Cir. 1991), cert. denied, 501 U.S. 1222 (1991) (quoting Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946)).
When a defendant however launches a factual attack on subject matter jurisdiction, "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." Petruska, 462 F.3d at 302 (quoting Mortenson, 549 F.2d at 891). In a factual attack, the court must weigh the evidence relating to jurisdiction, with discretion to allow affidavits, documents, and even limited evidentiary hearings. United States ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007).
Here, Defendant has asserted a facial attack on the subject matter jurisdiction of the Plaintiff's ERISA claim, arguing that Plaintiff has plead that the Authority is a "duly incorporated municipal authority" and hence, a government entity whose retirement health plan is a "governmental plan" not subject to ERISA. (Docket No. 8). Plaintiff argues that the retirement plan is not a governmental plan within the exception. ...