the attack is facial, the court determines whether the allegations contained in the complaint are sufficient on their face to invoke federal jurisdiction, accepting all material allegations in the complaint as true and construing them in favor of the party asserting jurisdiction. See Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Where the attack is factual, however, “the court need not presume the truthfulness of the plaintiffs allegations.” Safe Air for Everyone, 373 F.3d at 1039. In resolving a factual dispute as to the existence of subject matter jurisdiction, a court may review extrinsic evidence beyond the complaint without converting a motion to dismiss into one for summary judgment. See id.; McCarthy v. United States, 850 F.2d 558, 560 (9th Cir.1988) (<HOLDING>). Once a party has moved to dismiss for lack of
holding that in ruling on a rule 12b1 motion the court may consider exhibits outside the pleadings to resolve factual disputes regarding jurisdiction recognizing that generally disputes between purchasers of a debtors assets and third parties are not within the bankruptcy courts jurisdiction but recognizing that disputes concerning the sale order itself may be sufficient for subject matter jurisdiction holding that a court may review any evidence such as affidavits and testimony to resolve factual disputes concerning the existence of jurisdiction holding that in a motion to dismiss for lack of subject matter jurisdiction a court may resolve disputed factual issues by reference to evidence outside the pleadings including affidavits holding that under the advisory guidelines a district court should resolve factual disputes at sentencing by applying the preponderance of the evidence standard