The following excerpt is from Mack v. Cal. Dept. of Corr., Case No.: 1:15-cv-01600 JLT (E.D. Cal. 2016):
The Rule 12(b)(1) motion attacks the existence of subject matter jurisdiction in fact as to certain claims. When a Rule 12(b)(1) motion attacks the existence of subject matter jurisdiction in fact, no presumption of truthfulness attaches to the plaintiff's allegations. Id. "[T]he district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir.1988). When a Rule 12(b)(1) motion attacks the existence of subject matter jurisdiction in fact, plaintiff will have the burden of proof that jurisdiction does in fact exist. Thornhill, 594 F.2d at 733.
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