LYLE E. STROM, Senior District Judge.
This matter is before the Court on defendants' Motion to Dismiss (Filing No. 23) and Motion to Strike (Filing No. 27). For the reasons set forth below, the Court will grant the Motion to Dismiss and deny the Motion to Strike as moot.
On August 28, 2012, plaintiff filed a complaint alleging that he and Internal Revenue Service ("IRS") Appeals Agent Arthur Welp settled a tax dispute in approximately 2002, but the IRS and the United States Treasury have refused to honor the settlement. ( See generally Filing No. 1.) Plaintiff also alleges that the IRS has concealed documents related to the settlement. ( See id. at CM/ECF pp. 1-2.) Plaintiff seeks an order requiring defendants, and any other agents who might be aware of the settlement, to produce all records of the settlement. ( Id. at CM/ECF pp. 3-4.) He also seeks an order directing the IRS "to appoint a successor to Appeals Agent Arthur Welp, " who has retired from the IRS. ( Id. at CM/ECF p. 4.) Plaintiff's cause of action is based on the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. ( Id. at CM/ECF p. 1.) On November 29, 2012, defendants moved to dismiss the action "because Plaintiff has not exhausted his administrative remedies by filing a FOIA claim with the agency." (Filing No. 25 at CM/ECF p. 1.) In support of the Motion to Dismiss, defendants submitted a declaration signed by Franklin Weber, who has served as "a Program Analyst in the Disclosure Office Headquarters of the Internal Revenue Service" since August 2003 (Filing No. 24-1). Weber states that, as a Program Analyst, he has "access to the IRS's Automated Freedom of Information Act System (AFOIA), which is the inventory control and case management system that the IRS uses to track and process requests for agency records under the FOIA" and other statutes. ( Id. ) On September 11, 2012, Weber used the AFOIA system to determine whether plaintiff had submitted a FOIA request to the IRS Disclosure Office. He found "no record that James Widtfeldt has ever submitted a FOIA request to the IRS." ( Id. )
On February 7, 2013, plaintiff filed a Brief in Opposition to Defendants' Motion to Dismiss (Filing No. 26). On February 19, 2013, defendants moved for an order striking plaintiff's Brief because it was untimely under Nebraska Civil Rule 7.1(b)(1)(B) (Filing No. 27).
I. Defendants' Motion to Strike
Defendants correctly argue that plaintiff's response to defendants' Motion to Dismiss was untimely. However, the Court has carefully reviewed plaintiff's Brief and finds that it need not be stricken. As explained below, none of the arguments set forth in the Brief are sufficient to overcome the complaint's deficiencies. Therefore, defendants' Motion to Strike (Filing No. 27) will be denied as moot.
II. Defendants' Motion to Dismiss
Defendants argue that the complaint must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1) because this Court lacks subject matter jurisdiction over the action (Filing No. 23). In the alternative, they submit that the complaint must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) because it fails to state a claim upon which relief may be granted. ( Id. )
A. Standard of Review
1. Rule 12(b)(1)
A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) may challenge either the factual truthfulness or the facial sufficiency of a plaintiff's jurisdictional allegations. Stalley v. Catholic Health Initiatives , 509 F.3d 517, 520-21 (8th Cir. 2007) (citing Osborn v. United States , 918 F.2d 724, 729 n.6 (8th Cir. 1990)). In a facial attack, the standard of review is the same standard that applies to motions brought pursuant to Federal Rule of Civil Procedure 12(b)(6). That is, a court must "accept as true all factual allegations in the complaint, giving no effect to conclusory allegations of law, " and must determine whether the plaintiff has asserted "facts that affirmatively and plausibly suggest that the pleader has the right he claims (here, the right to jurisdiction), rather than facts that are merely consistent with such a right." Stalley , 509 F.3d at 521. In contrast, "[w]hen a district court engages in a factual review, it inquires into and resolves factual disputes." Faibisch v. Univ. of Minnesota , 304 F.3d 797, 801 (8th Cir. 2002). Under these circumstances, the plaintiff is not entitled to the benefit of the assumption that his factual allegations are true, and "the court may receive competent evidence such as affidavits, deposition testimony, and the like in order to determine the factual dispute." Titus v. Sullivan , 4 F.3d 590, 593 & n.1 (8th Cir. 1993).
In this case, defendants submitted evidence outside the pleadings for the Court's consideration ( see generally Filing No. 24), but this evidence does not challenge the truthfulness of plaintiff's factual allegations. Instead, the evidence has been offered to establish that plaintiff never submitted a FOIA request to the IRS. Insofar as defendants' Motion ...