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Click here for the full text of this decision FACTS:Emilio Partida, a 20-year-old Navy enlisted man, borrowed a Navy car entrusted to Gene Martin. Martin gave Partida permission, thinking Partida was going to visit his parents in Merton over the New Year’s weekend in 2000. Instead of going straight to Merton, Partida bought three cases of beer and picked up five civilian passengers to go to a wedding. On the way to the wedding, Partida lost control of the car and crashed it. Two of the passengers were killed. Rita and Ronnie Whitt, the parents of one of the deceased passengers, filed a Federal Tort Claims Act against the Navy, contending Partida caused their daughter’s death in the line of duty as a Navy enlisted man. Holding that the FTCA did not apply because Partida was not acting within the scope of his Navy duties, the district court dismissed the Whitts’ action under F.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. On appeal, the Whitts argue that the district court erroneously applied a Rule 12(b)(1) standard to resolve the jurisdictional issue on the basis of facts dispositive of the merits as well as jurisdiction, and that instead the court should have applied a 12(b)(6) or summary judgment standard. HOLDING:Reversed and remanded. Where issues of fact are central both to subject matter jurisdiction and the claim on the merits, the court has held that the trial court must assume jurisdiction and proceed to the merits. The court thus follows its general rule and holds that a jurisdictional attack intertwined with the merits of an FTCA claim should be treated like any other intertwined attack, thereby making resolution of the jurisdictional issue on a 12(b)(1) motion improper. The court notes an exception has been recognized under similar circumstances brought under the Foreign Sovereign Immunities Act, but the court concludes that this exception is limited in scope. OPINION:Benavides, J.; Benavides, Stewart and Clement, JJ.

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