Begay v. United States (188 F. Supp. 3d 1047, 2016)

MEMORANDUM OPINION AND ORDER

JAMES 0. BROWNING, UNITED . STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the United States of America’s Motion to Dismiss for Lack of Subject Matter Jurisdiction or in the Alternative for Summary Judgment, and Memorandum in Support, filed October 16, 2015 (Doc. 24)(“Motion”). The Court held a hearing on December 15, 2015. The primary issues are: (i) whether, under controlling law, physician Dr. Annicol Mar-rocco was an employee of the federal government or an employee of an independent contractor at the time she performed medical services that Plaintiffs Lydell Marvin Begay (“L. Begay”) and his parents, Martin (Marty) Begay (“Mr. Begay”) and Loren Begay (“Mrs. Be-gay”)(colleetively “the Begays”) allege constituted medical negligence; and (ii) whether the Begays exhausted their administrative remedies with respect to the negligent supervision (Count II) and negligent hiring/credentialing (Count III) claims that they assert. The Court will grant in part and deny in part the Motion. First, the Court concludes that it lacks subject matter jurisdiction over Count I of the Complaint to the extent that it seeks relief for any acts of negligence of' Dr. Marrocco on the grounds that Dr. Marrocco was an - independent contractor, and not a United States em-plóyee. The Court will also deny the Be-gays’ request that the Court postpone ruling on the Motion until additional discovery is conducted with respect to Dr. Marroeco’s employment status. Second, with respect to the Begays’ allegation that other Northern Navajo Medical Center staff members committed medical negligence, the Court concludes that the Complaint complies with the pleading requirements that Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)(»Iqbal”), and Bell Atl, Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)(“TwombIy”) set forth, and that amendment is therefore not required. Third, the Court concludes that Mr. and Mrs. Begay, but not L. Begay, have exhausted the administrative remedies for Count II and Count III with respect to the negligent supervision and hiring of other Northern Navajo Medical Center staff, nurses, and doctors in this case. It will allow them to amend the Complaint on Counts II and III to comply with the pleading requirements that Iqbal and Twombly set forth. Finally, at the December 15, 2015, hearing, the United States withdrew its argument about the insufficiency of exhaustion with respect to Dr. Marroceo for Counts II and III.

FACTUAL BACKGROUND

In the body of its Motion, Defendant United States of America invokes rules 12(b)(1), 12(b)(6), and 56. To get as solid a factual basis as possible, the Court will cite only the undisputed material facts. For the most part, the material facts are largely undisputed.

“On March 6, 2014, Lydell Begay presented to the emergency room of Northern Navajo Medical Center (“NNMC”).” Motion ¶ 1, at 2 (setting forth this fact). See Plaintiffs’ Response .to Defendant United States of America’s Motion to Dismiss for Lack of Subject Matter Jurisdiction or in the Alternative for Summary Judgment; Rule 56(D) Affidavit at 3, filed November 16, 2015 (Doc. 39)(“Response”)(not disputing this fact), “Lydell Begay was seen by physician Dr. Annieol Marroceo.” Motion ¶ 2, at 2 (setting forth this fact). See Response at 3 (not disputing this fact). “On March 6, 2014, Mr. Begay’s initial Emergency Department Examination at NNMC was performed by a registered nurse who is identified both by initials and signature on the ‘Emergency Primary RN’ evaluation form.” Response at 5 ■ (setting forth this fact). “That nurse failed to identify any neurological concerns.” Response at 5 (setting forth this fact), “On March 6, 2014, Mr. Begay was also examined at NNMC by Allen Jones, R.N., who also failed to note neurological concerns.” Response at 6 (setting forth this fact). “Ly-dell Begay was seen again at NNMC on March 13, 2014.” Motion ¶ 3, at 2 (setting forth this fact). See Response at 3 (not disputing this'fact). “Dr. Marroceo was not involved in his treatment or care on March 13, 2014.” Motion ¶ 3, at 2 (setting forth this fact). See Response at 3 (not disputing this fact). “A CT scan conducted on March 13, 2014, showed a blood clot in the basal ganglia of Lydell Begay’s head and neck area.” Motion ¶ 4, at 2 (setting forth this fact). See Response at 3 (not disputing this fact).

“Lydell Begay was transferred to University of New Mexico Hospital (UNMH) on March 13, 2014.” Motion ¶ 5,. at 2-3 (setting forth this fact). See Response at 3 (not disputing this fact). “Following his admission to UNMH, Lydell Begay was diagnosed with left posterior cerebral artery, left posterior inferior cerebral artery, and left acute focal cerebral arteriopathy infraction, and there was an abnormal signal within the intradural left vertebral artery.” Motion ¶ 5, at 2-3 (setting forth this fact). See Response at 3 (not disputing this fact). “The presumptive diagnosis was made at UNMH of left cervical vertebral artery dissection, leading to his complete quadriparesis, the need for intubation and respiratory, support, and the loss of speech, also known as ‘locked in’ syndrome.'” Motion ¶ 5, at 3 (setting forth this fact). See Response at 3 (not disputing this fact).

“Dr. Annicol Marrocco was not an employee of the Department of Health and Human Services or the Northern Navajo Medical Center on March 6, 2014.” Motion ¶ 9, at 4 (setting forth this fact)(citing Declaration of Sue Ann Nichols, MMA, RN ¶ 5, at 1 (executed August 31, 2015), filed October 16, 2015 (Doc. 24-3)(“Niehols Decl”). See Response at 4 (not disputing this fact). “Dr. Annicol Marrocco worked as a contractor at Northern New Mexico Medical Center from January 1, 2014 to December 31, 2014, pursuant to a contract between NNMC and Medicus Healthcare Solutions, LLC.” Motion ¶ 10, at 4 (setting forth this fact). See Nichols Decl. ¶ 3, at 1; Solicitation/Contract/Order for Commercial Items at 6, filed October 16, 2015 (Doc. 24-3)(“Contract”). “Medicus Healthcare Solutions, LLC provided the services of Dr. Marrocco pursuant to the contract.” Motion ¶ 11, at 4 (setting forth this fact). See Response at 4 (not disputing this fact). “The conteact was a ‘non-personal service contract.’ ” Motion ¶ 12, at 4 (setting forth this fact); Response at 4 (not disputing this fact). “Dr. Annicol Marrocco was not designated as an employee of the Federal Government for purpose of the Federal Tort Claims Act.” Motion ¶ 13, at 4 (setting forth this fact). See Response at 4 (not disputing this fact). “The contract provided for the provision of Emergency Room Physician service for the ER Department at Northern Navajo Medical Center on an ‘as needed’ basis.” Motion ¶ 14, at 4 (setting forth this fact). See Response at 4 (not disputing this fact). “The contract specifically stated that the Government did not guarantee that the contractor would work the number of hours ordered and was clear it would pay the contractor only the actual hours the contractor worked.” Motion ¶ 15, at 4 (setting forth this fact). See Response at 4 (not disputing this fact). “The contractor submitted invoices to NNMC for payment for services and was paid for those services.” Motion ¶ 16, at 5 (setting forth this fact). See Response at 4 (not disputing this fact). “The contractor was responsible for paying for necessary travel, per diem, housing, and applicable taxes.” Motion ¶ 17, at 5 (setting forth this fact). See Response at 4 (not disputing this fact). “The Government declined to provide health benefits, paid leave, thrift savings plan, educational benefits, housing, meals, or transportation to and from the job site.” Motion ¶ 18, at 5 (setting forth this fact). See Response at 4 (not disputing this fact). “The Government reserved the right to cancel the contract when it was in the Government’s best interest.” Motion ¶ 19, at 5 (setting forth this fact). See Response at 4 (not disputing this fact). Under the contract, “[t]he Government may evaluate the quality of professional and administrative services provided, but retains no control over professional aspects of the services rendered, including by example, the Contractors professional medical judgment, diagnosis, or specific medical treatments.” Contract at 6.

“The contractor agreed to be ‘solely liable for and expressly agrees to indemnify the Government with respect to any liability producing acts or omissions by it or its employees or agents,’ including Dr. Mar-rocco.” Motion ¶ 21, at 5 (setting forth this fact). See Contract at 6; Response at 5 (not disputing this fact). “The Contract specified the parties’ express agreement that ‘the professional services rendered by the Contractor are rendered in its capacity as an independent contractor.’ ” Motion ¶ 22, at 5 (setting forth this fact). See Contract at 6 (“It is expressly agreed and understood that this is a nonpersonal services contract ... under which the professional services rendered by the Contractor are rendered in its capacity as an independent contractor.”); Response at 5 (not disputing this fact). “Medicus Healthcare Solutions, LLC purchased medical malpractice insurance covering Dr, Marrocco, which was in effect at all relevant times.” Motion ¶23, at 5 (setting forth this fact). See Response at 5 (not disputing this fact).

“On May .19, 2014, Marty Begay, Father, Parent, and next of Friend of Lydell Marvin Begay, an Incapacitated Person, filed an administrative tort claim for injuries to Lydell Marvin Begay allegedly caused by the medical negligence of Dr. Annicol Mar-rocco and the Northern Navajo Medical Center (NNMC).” Motion ¶ 6, at 3 (setting forth this fact). See Response at 3-4 (not disputing this fact). The claim under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671, 2680 (“FTCA”), states that “[t]he failure to diagnos[e] Lydell Be-gay properly rendered the doctors and supporting personnel of [Indian Health Services (“IHS”) ] totally incapable of treating him properly.” Response at 6 (setting forth this fact).

On June 9, 2014, the [United States Department of Health and Human Services (“DHHS”) ] formally acknowledged receipt of Plaintiffs FTCA claim, assigned it a claim number of 2014-0426, and requested, by letter to Plaintiffs counsel, medical records, medical bills, and “[a]ny other evidence or information which may have a bearing on either the responsibility of the United States for the personal injury or the damages claimed.”

Response at 6 (setting forth this fact),

In letter dated June, 17, 2014 ([Letter (dated June 17, 2014), filed November 16, 2016 (Doc. 39-l)(“June 17th Letter”]), Plaintiffs counsel informed the DHHS that Plaintiff would provide the requested documentation over the next several months, and on October 24, 2014, Plaintiff amended his original FTCA claim by submitting supplemental correspondence and documents to the pending tort claim number 2014-0426, advising the DHHS that, among other things, the medical boards of Florida, New York, and Pennsylvania had disciplined Dr. Marrocco for serious misconduct.

Response at 6 (setting forth this fact). “On October 29, 2014, Plaintiff again amended his FTCA claim by submitting supplemental materials for the pending tort claim, number 2014-0426, advising the DHHS of additional detail regarding Dr. Marroeco’s past misconduct and purported violation of IHS policy.” Response at 6 (setting forth this fact).

In particular, the October 29, 2014 letter stated that by “employing] or contracting] Annicol Marrocco, M.D.,” the IHS had “violated IHS Policy 3-1.4(C)(5)”, insofar as that policy provides, inter alia, that “[i]n general, providers with any restrictions on any State li cense ... will not be granted medical staff membership or clinical privileges.”

Response at 6-7 (emphasis in Response).

The claim was denied on January 22, 2015 on the grounds that there was no negligence on the part of the NNMC and on the grounds that the evidence failed to establish that the alleged injuries were caused by the negligent, wrongful act or omission of a federal employee acting within the scope of employment.

Motion ¶7, at 3 (setting forth this fact). See Response at 3-4 (not disputing this fact); id. at 7 (“On January 22, 2015, the DHHS denied Plaintiffs FTCA claim No. 2014-0426.”). “The United States has sent no further correspondence regarding Plaintiffs FTCA claim or the amendments thereto.” Response at 7 (setting forth this fact). “Beginning in February 2015, Plaintiffs’ counsel requested information from the IHS under the Freedom of Information Act (‘FOIA’) seeking, among other things, Dr. Marrocco’s personnel records, credentialing files, and employment con-traeos).” Response at 7 (setting forth this fact).

Even though the IHS acknowledged receipt of the FOIA requests and initially indicated that the requested records would be produced, the IHS later took the position that Dr. Marrocco’s credentialing files were privileged and has not, as of the date of [November 16, 2015], produced any of the requested records, even those that the IHS never claimed were governed by any privilege or regulation.

Response at 7 (setting forth this fact).

“Plaintiff has already filed suit in this court against Medicus, alleging negligence, breach of contract and violations of the New Mexico Unfair Practices Act in Begay v. Medians Healthcare Solutions, LLC, 15-CV-500 JH/SYC.” Motion ¶24, at 6 (setting forth this fact). See Response at 5 (not disputing this fact). “In his suit, he alleges that Medicus Healthcare Solutions, LLC is ⅛. registered government contractor providing ‘locum tenens’ [] (temporary, fill-in) physicians and transition staffing for, among other federal facilities, the Indian Health Services, which, oversees and manages NNMC.’ ” Motion ¶ 24, at 6 (setting forth this fact). See Response at 5 (not disputing this fact). “Plaintiff has filed suit in State court against Dr. Annicol Marrocco in Begay et. al, v. Annicol Marrocco, M.D., D-116-CV-2015-00850 (11th Jud. Dist.)(July 16, 2015).” Motion ¶ 25, at 6 (setting forth this fact). See Response at 5 (not disputing this fact).

“On March 9, 2015, Plaintiffs Marty (Marvin) Begay and Lorene Begay submitted FTCA claims to the IHS.” Response at 7 (setting forth this fact).

In their FTCA notices, Plaintiffs Marty (“Marvin”) Begay and Lorene Begay noticed the United States that they intend “to bring an action against the Indian Health Services for loss of parental services, society and consortium as a result of the Indian Health Services’ negligence including, but not limited to, medical negligence, negligent authorization, negligent supervision, negligent hiring, and retention, and negligent credentialing /authorization of staff privileges ...,” and that their son, Lydell Begay, “was not adequately examined by physicians and staff at NNMC but instead was told to go home and rest, take aspirin, use eye drops, and report back if he was not feeling better.”

Response at 7-8 (setting forth this fact)(emphasis in Response). “In a letter dated March 26, 2015, the DHHS formally acknowledged receipt of the FTCA notices submitted by- Plaintiffs Marty and Lorene Begay, and assigned them tort claim number 2015-0264 and 2014-0265, respectively.” Response at 8 (setting forth this fact).

“On April 30, 2015, in response to the DHHS’s March 26, 2015 request for information supporting their claims, Plaintiffs Martin (‘Marty’) Begay and Lorene Begay submitted additional materials to the DHHS, including medical records and documents reflecting Dr. Marrocco’s prior misconduct.” Response at 8 (setting forth this fact). “It has been more than six months since Plaintiffs Marty and Lorene Begay submitted their' respective FTCA notices; thus, under 28 U.S.C. § 2675(a), they are deemed, denied.” Response at 8 (setting forth this fact). “On October 27, 2015, Plaintiff Lydell Begay re-noticed his FTCA claim and stated that he is .‘intending to bring an action against the Indian Health Services as a result of the Indian Health Services’ negligent credentialing, hiring, training, staffing, supervision, and retention of physicians, nurses, health care providers including, but not limited to, Annicol Marrocco, M.D., who provided Lydell medical care and treatment on March 6 and 13, 2014 at NNMC.’ ” Response at 8 (setting forth this fact)(emphasis in Response).

The October 27, 2015 FTCA claim notice also stated that “[t]h'e physicians and staff at NNMC did not provide required medical treatment to Lydell with respect to the blood clot or conduct additional testing or diagnostic procedures,” and that “Dr. Marrocco had a history of serious misconduct as a physician and had been sanctioned by licensing/regulatory authorities before she was credentialed by NNMC to treat Lydell Begay.”

Response at 8-9 (setting forth this fact). “The DHHS has until April 27, 2016 to act o[n] Plaintiff Lydell Begay’s October 27, 2015 FTCA claim notice.” Response at 9 (setting forth this fact)(citing 28 U.S.C. § 2675(a)).

PROCEDURAL BACKGROUND

This case is a medical malpractice action that L. Begay and his parents, Mr. Begay and Mrs. Begay have brought pursuant to the FTCA. The Begays are suing the United States for injuries that they allegedly received as a result of medical care that the Northern Navajo Medical Center provided in March, 2014. On April 28, 2015, L. Begay filed his first Complaint. See Complaint for Damages, filed April 28, 2015 (Doc. l)(“Original Complaint”). The Be-gays filed their Amended Complaint on October 30, 2015. First Amended Complaint for Damages, filed October 30, 2015 (Doe. 32)(“Complaint”). In their Amended Complaint, the Begays contend that

[NNMCj’s poor care ultimately caused Lydell Begay severe and permanent disabilities: paralysis of the arms and legs, the loss of the ability to speak, and brain damage—an overall condition known as “locked-in syndrome,” meaning Lydell Begay is, for the most part, permanently imprisoned in his own body, unable to interact with the world around him.

Complaint at 1. The Begays assert four causes of action against the United States, which they contend through its DHHS, has direct oversight of IHS, a federal agency that provides health care services to members of the Navajo Nation: (i) medical negligence, see Complaint ¶¶ 28-39, at 7-10; (ii) negligent supervision, see Complaint ¶¶ 40-50, at 10-12; (iii) negligent hiring/credentialing, see Complaint ¶¶ 51-62, at 12-14; and (iv) loss of consortium/society, see Complaint ¶¶ 63-69, at 14.

1. The Motion.

The United States moves to dismiss the Amended Complaint pursuant to rule 12(b)(1) and 12(b)(6) for lack of subject-matter jurisdiction and/or failure to state a claim. See Motion at 1-2. In the alternative, the United States moves for summary judgment under rule 56. See' Motion at 6. The United States indicates that the Court lacks subject-matter jurisdiction over the Begays’ Complaint to the extent that it seeks relief for any of Dr. Marrocco’s purported acts of negligence on the grounds that Dr, Marrocco was not a United States employee and is not deemed an employee for the FTCA’s purposes. See Motion at 1. The United States contends that there is no waiver of sovereign immunity by the United States for an alleged act of independent contractors and that the United States has not waived immunity from suit for any claims arising from Dr. Marrocco’s negligent acts. See Motion at 1. In addition, the United States argues that the Begays have not exhausted their claims of alleged negligent supervision or hiring/credentialing. See Complaint at 1. The United States maintains that “[tjhose portions of the complaint and those causes of action based on alleged acts or omissions of Dr. Marrocco, or the negligent supervision or hiring/credentialing of any NNMC providers should be dismissed for lack of subject matter jurisdiction.” Complaint at 1-2.

On point one, the United States asserts that the FTCA provides a limited waiver of sovereign immunity, but that it does not apply to actions arising out of independent contractors’■ tortious conduct. See Motion at 7. According to the United States, the FTCA provides that the United States can be sued for personal injury resulting from any employee of the United States’ negligent or wrongful act or omission, excluding any contractor with the United States. See Complaint at 7-8. The United States asserts that the Court must consider seven factors in determining whether an individual is an employee under the FTCA:

(1) the intent of the parties; (2) whether the United States controls only the end result or may also control the manner and method of reaching the result; (3) whether the person uses her own equipment or that of the United States; (4) who provides liability insurance; (5) who pays social security tax; (6) whether federal regulations prohibit federal employees from performing such contracts; and (7) whether the individual has authority to subcontract to others.

Motion at 8 (quoting Woodruff v. Covington, 389 F.3d 1117, 1126 (10th Cir.2004)). The United States also argues that, with respect to physicians, the United States Court of Appeals for the Tenth Circuit recognizes that “a physician must exercise his own professional judgment, no one controls the detailed physical performance of his duties.” Motion at 8 (quoting Woodruff v. Covington, 389 F.3d at 1127). The United States contends that, “[w]here there is a contract between the government and the physician, clear language regarding government control or ‘federal employee’ status can often prevail over facts that might otherwise support a finding of ‘day-to-day control.’” Motion at 8-9 (quoting Woodruff v. Covington, 389 F.3d at 1127).

The United States then argues that examining the seven factors in this case leads to the conclusion that Dr. Marrocco was not an employee of Northern Navajo Medical Center:

Dr. Marrocco was working pursuant to a non-personal services contract between NNMC and Medicus Healthcare Solutions, LLC.... “Non personal service contracts” are contracts under which the personnel rendering the services are not subject, either by contract terms or through performance, to the supervision and control usually prevailing in relationships between the government and its employees. 48 CFR 37.101. They are contracts under which the Contractor is designated an independent pontractor. Horn v. United States, 98 Ct.Cl.[Fed. Cl.] 500, 502, n. 3 (Ct.Cl.[Fed.Cl.]2011). The contract between NNMC and Medi-cus Healthcare Solutions, LLC demonstrates the express intent of the parties that “the professional services rendered by the Contractor are rendered in its capacity as an independent contractor.” ... The contract also demonstrated Medicus’ intent to be “solely liable for and expressly agrees to indemnify the Government with respect to any liability producing acts or omissions by it or its employees or agents,” including Dr. Marrocco....

Other terms of the contract further support its characterization as a non-personal services contract. The contract provided for the “provision of Emergency Room Physician for the ER Department at Northern Navajo Medical Center” on an “as needed” basis.... Further, the Government specifically stated that it did not guarantee that the contractor would work the number of hours ordered and was clear it would pay the contractor only the actual hours the contractor worked.... The contractor submitted invoices to NNMC for payment for services and was paid for those services.... Medicus was responsible for paying for necessary travel, per diem, housing, and applicable taxes.... The Government declined to provide health benefits, paid leave, thrift savings plan, educational funds, housing, meals, or transportation to and from the job site.... The Government also reserved the right to cancel the contract when it was in the Government’s best interest.... Medicus carried its own professional liability insurance that covered Dr. Marrocco....

Further, Dr. Marrocco was not supervised or controlled by any employee of NNMC.... And, holding a physician subject to hospital quality control regulations, recordkeeping regulations and requirements, a dress code, and office hours, is also insufficient to overcome clear language regarding government control of medical providers. See Duplan v. Harper, 188 F.3d 1195, 1200 (10th Cir.1999). As this Court stated in Wa-conda, merely “being subject to [a] hospital’s rules as a condition of staff privileges does not remotely make a private physician an employee of that hospital.” Waconda v. United States, 06cv101 (JB/ACT) [2007 WL 2219472] (Memorandum Opinion and Order, filed May 23, 2007, p. 21)(Citing Lilly v. Fieldstone, 876 F.2d [857,] 860 [(10th Cir.1989) Kemphasis in original). This is because physicians are in a unique position in that they “must have discretion to care for a patient and may not surrender control over certain medical details.” Tsosie v. United States, 452 F.3d [1161,] 1163 [(10th Cir.2006)]; see also Lilly, 876 F.2d at 859 (the “control test” is subject to a doctor’s medical and ethical obligations.). Therefore, the second fact also weighs in favor of finding Dr. Marrocco was an independent contractor.

Motion at 9-11.

The United States argues that, to the extent that the third factor—use of Northern Navajo Medical Center’s equipment— weighs in favor of an employee relationship, the Court should dismiss it as unimportant in the modern medical context. See Motion at 11. The United States maintains that physicians no longer own black bags of instruments, and that the use and interpretation of any medical equipment remains in the physician’s control. See Motion at 11. With respect to the fourth, fifth, sixth, and seventh factors, the United States contends that, by the contract’s terms, Medicus Healthcare was responsible for providing medical liability insurance and provided that insurance. See Motion at 11. The United States , concludes that the contract between Northern Navajo Medical Center and Medicus Healthcare shows the parties’ intent to establish an independent contractor relationship for which the. United States has not waived immunity under the FTCA. See Motion at 11. The United States next asserts that Dr. Marrocco was not deemed an employee under 25 U.S.C. § 1680c(e). See Motion at 12. The United States argues that, under 25 U.S.C. § 1680c(e), the FTCA may be extended to “non-Service health care practitioners,” but not under the circumstances present here. Motion at 12. The United States maintains that Dr. Marrocco could be deemed an employee for FTCA purposes under 25 U.S.C. § 1680c(e) only “if expressly set forth in her contract or in the privileges extended her by NNMC, neither of which occurred here.” Motion at 12. The United States therefore insists that the FTCA does not extend to include Dr. Marrocco as a deemed “non-Service health care' practitioner.” Motion at 12. Accordingly, the United States asks the Court to dismiss Count I for lack of subject-matter jurisdiction. See Motion at 13.

The United States’ second argument is that the Begays have not exhausted their administrative remedies for negligent supervision (Count II) or negligent hiring/credentialing (Count III). See Motion at 13. The United States contends that a plaintiff who sues under the FTCA must comply with the statute’s notice requirements, which are jurisdictional, cannot be waived, and must be strictly construed. See Motion at 13 (citing Trentadue v. United States, 397 F.3d 840, 852 (10th Cir. 2005)). The United States argues that “no allegation is included in Plaintiffs tort claim notice indicating that Dr. Marrocco, or any NNMC provider, was negligently supervised, hired, or credentialed.” Motion at 13. According to the United States, L. Begay’s administrative claim revolves completely around the details of the purported negligent diagnosis and treatment of L. Begay while he was a patient at Northern Navajo Medical Center. See Motion at 13. The negligent supervision or credentialing claim, the United States insists, “would necessarily focus on NNMC’s alleged negligence in allowing providers to maintain privileges at the hospital and its alleged failure to adequately investigate and monitor providers’ competency and ability.” Motion at 13-14 (citing Bethel v. U.S., ex re. Veterans Admin. Med. Ctr. of Denver, Colorado, 495 F.Supp.2d 1121, 1125 (D.Colo.2007)(Figa, J.)). The United States further explains:

A plaintiff cannot simply allege that they have suffered an injury in an Administrative Claim and then later fashion new theories as to how that injury occurred or who is responsible for that injury. Case law is clear that the presentation requirements are jurisdictional and cannot be waived, and a claim for negligent supervision or hiring/credentialing cannot simply be read into an administrative claim addressing medical negligence. In Bethel, the Court rejected the plaintiffs argument that the negligence in credentialing and monitoring constituted “ongoing negligence, which culminated in [plaintiffs] catastrophic injury,” holding instead that the cause of action for negligent credentialing was not exhausted since it was “obviously distinct and different” from the treatment-based causes of action for which a proper administrative claim was submitted. Id. See also Kikumura v. Osagie, 461 F.3d 1269, 1302 (10th Cir.2006) (finding failure to exhaust with respect to FTCA claim for “negligent failure to provide adequate training and supervision to staff’ because administrative claim alleged facts relating only to negligent care while ill); Staggs v. United States, 425 F.3d 881, 884-85 (10th Cir.2005)(finding failure to exhaust FTCA claim for lack of informed consent because- administrative claim alleged only a substantial departure from the standard of care and no facts specific to negligent management of plaintiffs pregnancy and labor). Neither can Plaintiff in this case pursue a claim for negligent supervision or hiring/credentialing of any of NNMC’s employees or independent contractors, without having made mention of such claims in his SF-95.

Plaintiffs claims for negligent supervision or hiring/credentialing were not administratively exhausted, and the Court should dismiss Counts II and III in their entirety for lack of jurisdiction.

Motion at 14-15.

2. The Begays’ Response.

The Begays responded to the Motion on November 16, 2015. See Response at 1. The Begays first argue that the Court has jurisdiction over Count I,, because, federal employees are alleged to have committed malpractice. See Response at 9. First, they assert that, even assuming that Dr. Mar-rocco was an independent contractor, .“the Complaint plainly alleges malpractice on behalf of the ‘medical staff of NNMC’s emergency room,’ not just Dr. Marrocco.” Response at 9 (emphasis in Response). According to the Begays, medical records indicate that other Northern Navajo Medical Center staff members were involved in L. Begay’s medical treatment and that the Court should therefore deny the Motion. See Response at 9. They insist that the Complaint specifically alleges medical malpractice by “the medical staff’ at Northern Navajo Medical Center and that this allegation appears throughout the Complaint where medical negligence is addressed. Response at 9-10. The Begays contend that Count I is not limited to Dr. Marroc-co’s actions, and that the United States overlooks or ignores these allegations. See Response at 9-10. They assert that the medical records indicate that at least two other medical staff members, other .than Dr. Marrocco, examined L. Begay on March 6, 2014: (i) Allen Jones, R.N., saw L. Begay in triage at approximately 5:30 p.m.;. and (ii) a registered, nurse, whose signature, is illegible, examined L. Begay at 9:45 p.m., before Dr. Marrocco’s examination. See Response at 10-11. They further assert that L. Begay’s claim for medical negligence on March 6, 2014 is not limited to the nursing staff. See Response at 11. The Begays explain:

Plaintiffs have yet been able to discover facts about the chain-of-command and supervision over the Emergency Department on March 6, 2014. Nor have Plaintiffs been able to determine whether other providers, not reflected in the records, were involved in Mr. Begay’s care on that day. Finally, Count I encompasses negligent conduct on March 13, 2014, a day on which Dr. Marrocco was not working at NNMC. See, e.g., Complaint, ¶¶ 6 (asserting claim for negligent failure to transmit key diagnostic information); Defendant’s Fact No. 3.

On the basis of these allegations and facts, Defendant’s. motion must be denied as to Count I. Plaintiffs have adequately alleged in the Complaint that multiple medical staff members at NNMC committed malpractice. Further, even with little to no discovery, Plaintiffs have set forth factual support for those allegations.

Response at 11.

With respect to Dr. Marrocco, the Be-gays contend that they should be entitled to adequate discovery to assess Dr. Mar-rocco’s employment status. See Response at 11-12. They assert that the determination of whether a physician is an independent contractor under the FTCA is a fact-intensive one. See Response at 12. The Begays agree that, under Tenth Circuit law, the Court must consider seven factors in evaluating an individual’s employment status under the FTCA. See Response at 12. According to the Begays, they sought facts bearing- on these issues long before filing suit, making several FOIA requests to the IHS. See Response at 12-13. They explain that, although the IHS acknowledged receipt of the FOIA requests, it later took the position that Dr. Marrocco’s eredentialing files were privileged. See Response at 12-13. The Begays attack the United States for preventing them from conducting any analysis of this issue pursuant to FOIA, but then—“with the benefit of unilateral access to key facts—... argu[ing] that the seven-factor analysis favors a determination that Dr. Marrocco was an independent contractor.” Response at 13. The Begays provide an analysis of some of the factors, and then assert that, “[u]nder these circumstances, Plaintiff should be entitled to conduct discovery on Dr. Marrocco’s employment status.” Response at 14. In support of their argument, they cite to McGhee v. United States, 2014 WL 896748, at *1 (W.D.Va. Mar. 6, 2014)(Wilson, J.), where, they contend, the United States District Court for the Western District of Virginia declined to rule on the question whether locum tenens physicians accused of medical malpractice at a federal hospital .were independent contractors until the plaintiff in that case was able to conduct discovery into the matter. See Response at 14-15.

The Begays next argue that L. Begay exhausted his administrative claims for negligent supervision and negligent hiring/credentialing. See Response at 15. They attack the United States’ assertion that L. Begay “gave insufficient notice and has therefore failed to satisfy the FTCA’s administrative exhaustion requirement with respect to Count II (negligent supervision) and Count III (negligent hiring/credentialing).” Response at 15. They assert that the United States overstates the law and overlooks the facts. See Response at 15. First, they contend that the FTCA requires only notice of injury and a sum certain of damages, and that the test for the adequacy of notice is “eminently pragmatic” and “should not be interpreted inflexibly.” Response at 16 (quoting Trentadue v. United States, 397 F.3d at 852-53). Second, they assert that the United States overlooks their amendments to L. Begay’s .original FTCA notice and that, “as a chronological review of Plaintiffs notice makes clear, those amendments nullify the arguments made by Defendant.” Response at 17. They contend that, in October 2014, L. Begay amended his FTCA notice—on October 24, 2014, and October 29, 2014—and that these amendments clearly presented the issue of the DDHS’ negligence as to the supervision, hiring and/or credentialing of Dr. Marrocco. See Response at 18-21.

Third, the Begays assert that Counts II and III remain in the case as Mr. and Mrs. Begay assert them. See Response at 22. They contend that Mr. and Mrs. Begay each submitted individual notices of administrative claims under the FTCA to the DHHS on March 9, 2015. See Response at 22. According to the Begays, “[t]hose notices made claims based on the IHS’s ‘negligence including, but not limited to, medical negligence, negligent authorization, negligent supervision,, negligent hiring and retention, and negligent credentialing/authorization of staff privileges which severely disabled [their] son, Lydell Marvin Be-gay.’ ” Response at 22 (quoting Claim for Damage, Injury, or Death at 19 (dated March 9, 2015), filed November 16, 2015 (Doc. 39-l)(“Mr. Begay Claim”); Claim for Damage, Injury, or Death at 24 (dated March 9, 2015), filed November 16, 2015 (Doc. 39-l)(“Mrs. Begay Claim”)). They maintain that the DHHS acknowledged receipt of those claims; that, because six months has elapsed since their submission, they may be deemed denied, and that Mr. and Mrs. Begay may pursue their claims in court. See Response at 22. The Begays further assert:

In the FAC filed October 30, 2015, Plaintiffs Marty and Lorene Begay allege claims for loss of society claims that are derivative of claims for negligent supervision, hiring, and credentialing, which have been properly exhausted.

Accordingly, even if this Court were to consider Plaintiff Lydell Begay’s administrative claims to have been inadequate for purposes of exhausting claims for negligent supervision, hiring, and credentialing, Defendant’s attempt to dismiss Counts II and III fails because these claims were properly exhausted by Plaintiffs Marty Begay and Lorene Be-gay-

Response at 22-23.

Finally, the Begays argue that, L. Be-gay re-noticed his claims for negligent supervision, hiring, and credentialing on October 27, 2015. See Response at 23. According to the Begays, in that notice, L. Begay asserted a claim for “negligent credentialing, hiring, training, staffing supervision, and retention of physicians, nurses, and other health care providers including, but not limited to, Annicol Marrocco, M.D., who provided Lydell medical care and treatment on March 6 and 13, 2014 at NNMC.” Response at 23. They assert that L. Begay also stated that “Dr. Marrocco had a history of serious misconduct as a physician and had been sanctioned by licensing/regulatory authorities before she was credentialed by NNMC to treat Lydell Begay.” Response at 23. The Begays maintain that, even if the Court concludes that L. Be-gay’s original notice and amendments was not adequate for exhaustion purposes, “the October 27, 2015 notice leaves no question that these claims have been properly presented to DHHS.” Response at 23. They further contend that, assuming that the DHHS does not act sooner to deny these claims, L. Begay would be permitted to proceed with. a lawsuit for these claims on April 27, 2016, at the , latest. See Response at 23. The Begays ask that, “if the Court is inclined to grant Defendant’s motion as to Counts II and III as to Lydell Begay, the Court simply stay any pursuit of those Counts by him until the DHHS denies his October 27, 2015 claim, or until April 27, 2016, whichever occurs sooner.” Response at 23-24. They contend that, in the meantime, the Court should permit Mr. and Mrs. Begay to continue litigating those counts against the United States. See Response at 24.

3. The United States’ Reply.

The United States replied on December 11, 2015. See United States of America’s Reply to its Motion to Dismiss for Lack of Subject Matter Jurisdiction or in the Alternative for Summary Judgment, filed December 11, 2015 (Doc. 43)(“Reply”). The United States first argues that the clear intent of Northern Navajo Medical Center and Medicus Healthcare was to create an independent contractor relationship. See Reply at 2. The United States again notes that the Tenth Circuit has identified seven factors in making the determination whether a physician is an independent contractor. See Reply at 2. According to the United States, however, “clear language regarding government control or ‘federal employee’ status can often prevail over facts that might otherwise support a finding of ‘day-to-day control.’” Reply at 2 (quoting Woodruff v. Covington, 389 F.3d at 1126). The United States argues that Dr. Marrocco was an independent contractor and not a federal government employee based on the non-personal service contract’s express language, which identifies Dr. Marrocco as an independent contractor, and based on a lack of evidence manifesting any intent to create an employee relationship. See Reply at 3. The United States also rejects the Begays’ argument that additional discovery is warranted and takes issue with their reliance on McGhee v. United States. See Reply at 7. The United States asserts:

Aside from a passing reference in the procedural background of the .case, McGhee offers no meaningful support to Plaintiffs position. Neither the parties’ briefing nor the court’s order for limited discovery offers any explanation of what or why additional facts were necessary to that court’s determination of subject matter jurisdiction. And, “at the end of the day, under the contracts and in practice, the doctors had all of the hallmarks of independent contractors, and [plaintiff] marshaled nothing substantial to overcome that conclusion.” McGhee v. United States, 2014 WL 896748, at *3 (W.D.Va. Mar. 6, 2014). Similarly, in this case, none of the discovery sought would be material to the Court’s consideration of the Government’s Motion.

Reply at 7. The United States contends that, while a party can seek limited discovery relating to a motion for summary judgment pursuant to rule 56(d) of the Federal Rules of Civil Procedure, here, none of the material sought is material to the Court’s consideration of the Motion. See Reply at 7-8. The United States maintains that the information that the Begays seek—hospital or IHS practice, and Dr. Marrocco’s compliance or non-compliance—is not important and has no bearing on the Motion. See Reply at 7-11. The United States further asserts: “In sum, even if Plaintiff discovers that Dr. Marrocco was subject to the same rules, schedule, reviews, standards, training and dress code as other physician employees, it would not change the outcome of this Motion. Such requirements do not defeat independent contractor status.” Reply at 11.

Th'e United States next argues that the Court-should dismiss the Begays’ claims for negligent hiring and supervision of Dr. Marroceo. See Reply at 11. The United States contends that negligent credentialing, supervision, and hiring are considered “separate and apart from the alleged medical negligence” that may occur during the procedure. Reply at 12 (quoting Bethel v. U.S. ex. rel Veterans Admin. Med. Ctr. of Denver, Colorado, 495 F.Supp.2d 1121). The United States asserts that L. Begay “refers. therefore to his SF-95 submitted after the filing of Defendant’s motion.” Reply at 12 (emphasis in original). According to the United States, L. Begay’s Complaint on this claim is therefore premature, and the SF-95 is not sufficiently detailed to adequately describe claims related to providers other than Dr. Marroceo. See Reply at 12. The United States insists that the Court should dismiss Count II for failure to exhaust to the extent that it is directed to any provider other than Dr. Marroceo. See Reply at 12. The United States asserts: “Not only does Plaintiff fail to specify any other provider in the SF-95, but, Plaintiff does not set forth any facts in his Complaint which could be sued to support a claim for negligent supervision or hiring of any other provider.” Reply at 12 (citing Twombly, 550 U.S. at 544, 127 S.Ct. 1955). The United States further ai'gues that, even if L. Begay has properly exhausted his claim for negligent hiring/supervision of Dr. Marroceo, the Court also lacks subject-matter jurisdiction over the claim, because Dr. Marroceo is an independent contractor. See Reply at 12. The United States explains:

The FTCA does not permit the expansion of waiver of immunity except as expressly permitted and Plaintiff cannot use a claim for negligent supervision/hiring to circumvent the limitations imposed by Congress. Second, the FTCA does not apply to claims “based upon the exercise or performance or failure to perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved was abused.” 28 U.S.C. § 2680(a); Blankenship v. United States, [111 F.Supp.3d 745, 749-50] 2015 WL 2452900, at *3 (W.D.Va. May 22, 2015). The use of a staffing agency to contract for physician services is among the types of decisions the exception is designed to shield from liability because it involves the exercise of judgment based on considerations of policy. Therefore Plaintiffs claims for negligent hiring retention and supervision are barred. Id.

Reply at 12-13.

4. The Hearing on the Motion.

■ The Court held a hearing on the Motion on December 15, 2015. See Transcript of Hearing (taken December 15; 2015)(“Tr.”). The Court first gave its initial impressions of the Motion, indicating that it was inclined to grant the Motion in part and deny it in part. See Tr. at 2:19-3:22 (Court). The Court explained:

Well, I’ll certainly hear what anybody wants to say on this motion this afternoon. I’ll give you just some impressions. It seems to me, and I didn’t have time to sort of dig out my most recent case on this, but I thought that I ... recently had a contractor case, and I’m inclined to think that the United States is right on the contractor issue. And that this Dr. M[ar]r[o]cco cannot be sued as a Government employee. He might be able to be sued some other way but not [ ]as a Government employee. But I also have been fairly liberal. Sometimes I wonder if I’ve maybe gone a little too far, but at least fairly liberal on this exhaustion requirement with the Government, and I was inclined to think that there had been enough in the notices to the Government to put ... the United States on notice of negligent hiring, and supervision and those types of claims. So I guess I was inclined to grant the motion in part and deny it in part. But those were my thoughts coming in. Why don’t we take these in sections. Why don’t we at least .... break it at least into two parts. First the issue about whether the—whether.there is jurisdiction to bring the claim against the United States for the conduct of Dr. M[ar]r[o]ceo, and then we can take up the negligent supervision, the exhaustion issues in a moment. But Ms. Langenwal-ter, if you want to argue that first half of the motion,

Tr. at 2:19-8:22 (Court).

The United States then argued in support of its Motion on the independent contractor issue. See Tr. at 3:23-4:2 (Langen-walter). The United States stuck to its briefing, citing to Waconda v. United States and the Tenth Circuit’s decision in Tsosie v. United States. See Tr. at 4:8-19 (Langenwalter). The United States maintained that the Begays had not distinguished either of those cases. See Tr. at 4:8-19 (Langenwalter). It also asserted that the Complaint is devoid of any claims of negligence against any person other than Dr. Marrocco and that the Begays have “not identified a single act other than the failure to submit ... the CT scan to UNM when they transferred Mr. Begay to UNM.” Tr'. at 5:7-18 (Langenwalter). The United States maintained that a motion to dismiss is therefore appropriate as to any other providers with respect to Count I. See Tr. at 5:14-6:5 (Langenwalter). The Court then asked the Begays for - their thoughts on the medical negligence issue. See Tr. at 6:12-17 (Cohen, Court). The Begays argued that Count I survives, even if it only survives with respect to the alleged negligence of registered nurses who participated in or caused L. Begay’s misdiagnoses. See Tr. at 10:7-11 (Cohen). The Begays stuck to their arguments from the briefing,: contending that L. Begay’s tort claims notice and the Complaint assert viable claims against health care providers other than Dr. Marrocco. See Tr, at 6:19-10:11 (Cohen). The Begays then turned to the question whether the Court should dismiss Count I with respect to Dr. Mar-rocco’s conduct. See Tr. at 10:12-12-18 (Cohen). The Begays argued that the contract’s language does not resolve whether the United States closely supervised Dr. Marrocco and that the focus of the analysis should be whether the employer has day-to-day control over the physician. See Tr. at 12:6-13:3 (Cohen). They maintained that the United States has not put forth sufficient evidence to establish that the United States did not have day-to-day control. See Tr. at 13:4-6 (Cohen). They further asserted:

I guess the point of our response is that we should be entitled under these unique circumstances with the doctor with a track record of very severe misconduct to know whether, absent what isn’t indicated in the documentation there was some kind of supervision or control or oversight put into place to monitor Dr. M[a]rroeco. That’s not clear on the face of the documents, and that would bear directly on the analysis of her employment status.

Tr. at 6:19-10:11 (Cohen). The Begays contended that they should be able to conduct discovery to determine whether Dr. Mar-rocco was closely supervised. See Tr. at 13:15-14:7 (Cohen). They conceded that, on the present record before the Court, it would be. difficult for them to argue that the United States had control and supervision over Dr. Marrocco. See Tr. at 16:21-19:11 (Cohen, Court). They asserted, however, that the United States hqd only recently provided them with 1500 pages of documents that they still needed to analyze and review. See Tr. at 16:21-19:11 (Cohen, Court).

The United States then responded to the Begays’ arguments. See Tr. at 19:12-19 (Court, Langenwalter). Addressing the discovery issue, the United States reasserted its argument from its Reply, that even if the Begays were to receive all of the discovery that they are hoping to get, that would still not create an employment relationship where there is none. See Tr. at 20:6-24 (Langenwalter). The United Stated contended that, even if it was discovered that Dr. Marrocco was subject to the same rules, regulation, reviews, standards, and policies, it is not a factor that the Tenth Circuit or any other court has found to be relevant to whether a contractor can be considered an employee. See Tr. at 21:3-12 (Langenwalter). The United States maintained that, in Duplan v. Harper, the Tenth Circuit explained that, even where the United States exercises extensive supervision over a contractor—such as requiring the contractor to abide by a dress code, and to follow established rules and policies, and restricting their decision-making whether to treat a patient—the physician is still an independent contractor. See Tr. at 21:12-25 (Langenwalter). In sum, the United States insisted that the issue how Dr. Marrocco was supervised or not supervised is “frankly just not relevant to whether or not she was an independent contractor, which is limited to the relationship created by the contract.” Tr. at 21:12-22:7 (Langenwalter). Thé United States also confirmed that Dr. Marrocco was' not subject to any special training or supervision. See Tr. at 22:19-24:19 (Court, Lan-genwalter). With respect to the Begays’ assertion that they identified purported negligent acts that other nurses, staff, and physicians committed, the United States argued that the Complaint’s allegations failed to satisfy Iqbal and Twombly, but conceded there would likely be room for the Begays to amend their complaint. See Tr. at 24:19-28:19 (Court, Langenwalter). The Court explained how it was inclined to rule on the first issue:

Well, I’m inclined to grant your motion ... that the Court lacks subject matter jurisdiction over the complaint to the extent that it seeks relief for any acts of negligence of Dr. Marrocco and then I would be inclined to also grant the motion on a Twombly Iqbal basis ... because there is no waiver of sovereign immunity.... I think the plaintiffs ... ha[ve] got to identify the who is and identify the whens and tie those up as to what the doctors did but if there is no jurisdictional bar to allowing the plaintiffs to amend, I would be inclined to allow them to be able to file that pleading.

Tr. at 33:12-25 (Court).

The Court and the parties then moved to the negligent hiring, credentialing, and supervision claims. See Tr. at 34:1-6 (Court, Langenwalter). The United States conceded that, ■ for the purposes of the Motion, it can assume that negligent supervision and negligent hiring are causes of action that the Begays can bring in this case against these individuals. See Tr. at 36:15-37:1 (Court, Langenwalter). The United States also conceded that the negligent hiring and supervision of Dr. Marroc-co survives the Motion, but maintained that the negligent supervision, training, or credentialing ■ claim over everybody else does not survive the Motion. See Tr. at 38:12-15 (Court, Langenwalter). The parties confirmed that the United States had withdrawn its argument regarding the insufficiency of the exhaustion on Counts II and III with respect to Dr. Marrocco:

THE COURT: Well, they’re saying that for the negligent supervision and hiring of Dr. Marrocco.

MR. COHEN: Correct.

THE COURT: But not for anybody else.

MR. COHEN: Correct. So claims two and 8 stand with respect to Dr. M[ar-]rocco by virtue of the United States, which apparently has now withdrawn their argument regarding the insufficiency of the exhaustion.

THE COURT: I hadn’t tied it to the counts, but do you agree with that?

MS. LANGENWALTER: Yes, Your Honor.

Tr. at 44:18-45:4 (Cohen, Court, Langen-walter). The parties otherwise largely stuck to their briefing, and the Court then expressed how it was inclined to rule on the Motion:

Well, I’m inclined, I’ve said what I’m going to do with Dr. Morocco. I guess I’m toying with this. I’m not requiring it. I need to think about it a little bit under 12(b) one not requiring as much as I require with a 12(b)(6) so just leaving that and not requiring an amendment here and just leaving the complaint in place. I guess I’m inclined to also think that the plaintiffs have exhausted the administrative process as to other doctors and nurses. It doesn’t seem like I have to deal with any supervision, negligent supervision or hiring claims as to anybody else because Dr. M[ar]rocco is out of the case. And so it’s a grant in part and deny in part along those lines. Is there anything else I’ll try to get you an opinion out as soon as possible but that’s what I’m inclined to do after reading everything and listening to your arrangements.

Tr. at 66:10-67:6 (Court).

LAW REGARDING RULE 12(b)(1)

“Federal courts are courts of limited jurisdiction; they are empowered to hear only those cases authorized and defined in the Constitution which have been entrusted to them under a jurisdictional grant by Congress.” Henry v. Office of Thrift Supervision, 43 F.3d 507, 511 (10th Cir.1994)(Barrett, J.)(citations omitted). A plaintiff generally bears the burden of demonstrating the court’s jurisdiction to hear his or her claims. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 104, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)(Scalia, J.)(“[T]he-party invoking federal jurisdiction bears the burden of establishing its existence.”). Rule 12(b)(1) allows a party to raise the defense of the court’s “lack of jurisdiction over the subject matter” by motion. Fed. R. Civ. P. 12(b)(1). The Tenth Circuit has held that motions to dismiss for lack of subject-matter jurisdiction “generally take one of two forms: (1) a facial attack on the sufficiency of the complaint’s allegations as to subject-matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir.2002)(VanBebber, J.).

,[3,4] On a facial attack, a plaintiff is afforded safeguards similar to those provided in opposing a rule 12(b)(6) motion: the court must consider the complaint’s allegations to be true. See Ruiz v. McDonnell, 299 F.3d at 1180; Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981). But when the attack is factual, a district court may not' presume the truthfulness of the complaint’s factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court’s reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.

Alto Eldorado Partners v. City of Santa Fe, 2009 WL 1312856, at *8-9 (D.N.M. Mar. 11, 2009)(Browning, J.)(citations omitted)). The United States Court of Appeals for the Fifth Circuit has stated: '

[T]he trial court may proceed as it never could under 12(b)(6) or Fed. R.- Civ. P. 56. Because at issue in a factual 12(b)(1) motion is the trial court’s jurisdiction— its very power to hear the case—there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiffs allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims,

Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir.1981)(Randall, J.)(quoting Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir.1977)).

When making a rule 12(b)(1) motion, a party may go beyond the allegations in the complaint to challenge the facts upon which jurisdiction depends, and may do so by relying on affidavits or other evidence properly before the court. See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir.1995)(Brorby, J.); Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.1995)(Baldock, J.). In those instances where the parties go beyond the pleadings, a court’s reference to evidence outside the pleadings does not necessarily convert the motion to a rule 56 motion for summary judgment; See Holt v. United States, 46 F.3d at 1003 (citing Wheeler v. Hurdman, 825 F.2d 257, 259 n. 5 (10th Cir. 1987)(Anderson, J.)). Where, however, the court determines that jurisdictional issues raised in a rule 12(b)(1) motion are intertwined with the case’s merits, the court should resolve the motion either under rule 12(b)(6) or rule 56. See Franklin Sav. Corp. v. United States, 180 F.3d 1124, 1129 (10th Cir.1999)(Murphy, J.); Tippett v. United States, 108 F.3d 1194, 1196 (10th Cir.1997)(Briscoe, J.). “When deciding whether jurisdiction is intertwined with the merits of a particular dispute, ‘the underlying issue is whether resolution of the jurisdictional question requires resolution of an aspect of the substantive claim.’” Davis ex rel. Davis v. United States, 343 F.3d 1282, 1296 (10th Cir.2003)(Hartz, J.)(quoting Sizova v. Nat’l Inst. of Standards & Tech., 282 F.3d 1320, 1324 (10th Cir.2002)(Seymour, J.)).

LAW REGARDING RULE 12(B)(6)

Rule 12(b)(6) authorizes a court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994). The sufficiency of a complaint is a question of law, and, when considering a rule 12(b)(6) motion, a court must accept as true all well-pled factual allegations in the complaint, view those allegations in the light most