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World Fuel Services Inc. v. Nambe Pueblo Development Corp.

United States District Court, D. New Mexico

January 23, 2019

WORLD FUEL SERVICES, INC., Plaintiff,
v.
NAMBE PUEBLO DEVELOPMENT CORPORATION, Defendant.

          Larry D. Maldegen Comeau, Maldegen, Templeman & Indall, L.L.P. Santa Fe, New Mexico and Andrew D. Zaron Ellen Ross Belfer Jeremy L. Kahn León Cosgrove LLP Coral Gables, Florida Attorneys for the Plaintiff.

          Ronald J. Van Amberg C. Bryant Rogers VanAmberg, Rogers, Yepa, Abeita & Gomez, LLP Santa Fe, New Mexico Attorneys for the Defendant.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on Defendant Nambe Pueblo Development Corporation's[1] Motion to Dismiss, filed October 1, 2018 (Doc. 14)(“Motion”). The Court held a hearing on December 21, 2018. The primary issues are: (i) whether the Court has subject matter jurisdiction over the case, wherein Plaintiff World Fuel Services, Inc. -- a non-Indian party --asserts claims against Defendant Nambe Pueblo Development Corporation (“Nambe Corp.”), an Indian party; (ii) whether the Court should consider the Motion as a rule 12(b)(1) or a rule 12(b)(6) of the Federal Rules of Civil Procedure motion and, based on the appropriate rule, whether the Court may consider an affidavit and other documents affixed to the Motion; (iii) whether Nambe Corp. and Nambe Pueblo are entitled to, or have waived, Tribal sovereign immunity; and (iv) whether World Fuel, who entered a Motor Fuel Supply Agreement (dated May 17, 2017), filed September 11, 2018 (Doc. 9-1)(“Agreement”), with an Indian party, Nambe Corp., regarding fuel sales on Nambe Pueblo lands, must exhaust Tribal remedies before seeking relief in federal district court on its demand for arbitration of a dispute arising from the Agreement, when its claim arises under the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (“FAA”), but there is no intra-Tribal dispute and there is no attempt to circumvent a pending parallel proceeding in Nambe Pueblo Tribal Court. The Court concludes that: (i) the Court has subject matter jurisdiction based on diversity; (ii) the Court considers the Motion under rule 12(b)(6) and, accordingly, does not rely on the documents affixed to the Motion, but does consider the documents attached to and referenced by the Complaint; (iii) both Nambe Corp. and Nambe Pueblo are entitled to Tribal sovereign immunity and Nambe Corp., but not Nambe Pueblo, waived Tribal sovereign immunity for the purposes of arbitration; and (iv) World Fuel must exhaust Tribal remedies before seeking relief in federal district court on its demand for arbitration, although there is no intra-Tribal dispute and there is no attempt to circumvent a pending parallel proceeding in Tribal Court, because no exceptions to the Tribal exhaustion doctrine's application apply and the Nambe Pueblo Tribal Court has colorable jurisdiction over the case. Accordingly, the Court stays the case pending World Fuel's exhaustion of Tribal Court remedies.

         FACTUAL BACKGROUND

         The Court draws its facts from World Fuel's Petition to Compel Arbitration Pursuant to Section 4 of the Federal Arbitration Act, filed August 31, 2018 (Doc. 1)(“Complaint”). World Fuel then filed a Notice of Errata, in which World Fuel “respectfully notifies the Court and all parties that the Petition to Compel Arbitration Pursuant to Section 4 of the Federal Arbitration Act, filed electronically on August 31, 2018 and served on September 6, 2018, was inadvertently filed and served without Exhibits 1, 2 and 3.” Notice of Errata at 1, filed September 11, 2018 (Doc. 9). Exhibit 1 is the Agreement, see Agreement at 1; Exhibit 2 is the Federal Corporate Charter Issued By the United States of America Department of the Interior Bureau of Indian Affairs to the Pueblo of Nambe for Nambe Pueblo Development Corporation at 6 (dated May 29, 1996), filed September 11, 2018 (Doc. 9-2)(“Federal Charter”), and Exhibit 3 is a letter from World Fuel to Nambe Corp., addressed to Carlos Vigil (“C. Vigil”), [2] in which World Fuel notifies Nambe Corp. of a dispute based on unpaid taxes Nambe Corp. allegedly owes to Alta Fuels[3] under the Agreement, notifies Nambe Corp. of a demand letter Alta Fuels sent to Nambe Corp. demanding payment, and notifies Nambe Corp. of World Fuel's demand that the parties use binding arbitration to resolve the dispute. See Letter from Tim Bohall, Vice President, Credit & Risk, World Fuel Services, Inc., to Carlos Vigil, Nambe Pueblo Development Corporation (dated Aug. 8, 2018), filed September 11, 2018 (Doc. 9-3)(“Aug. 8, 2018 Letter”).

         The Court accepts World Fuel's factual allegations in the Complaint, the Agreement, the Federal Charter, and the Aug. 8, 2018 Letter, as true for the limited purpose of deciding the Motion.[4] See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(“Iqbal”)(clarifying the “tenet that a court must accept as true all of the [factual] allegations contained in a complaint”)(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008)(concluding that, in the motion to dismiss posture, a court must “accept as true all well-pleaded facts, as distinguished from conclusory allegations”). Generally, a complaint's sufficiency must rest on its contents alone. See Casanova v. Ulibarri, 595 F.3d 1120, 1125 (10th Cir. 2010); Gossett v. Barnhart, 139 Fed.Appx. 24');">139 Fed.Appx. 24, 25 (10th Cir. 2005)(unpublished)(“In ruling on a motion to dismiss, the district court is limited to the facts pled in the complaint.”).[5] Emphasizing this point, the United States Court of Appeals for the Tenth Circuit, in Carter v. Daniels, 91 Fed.Appx. 83');">91 Fed.Appx. 83 (10th Cir. 2004)(unpublished), states: “When ruling on a Rule 12(b)(6) motion, the district court must examine only the plaintiff's complaint. The district court must determine if the complaint alone is sufficient to state a claim; the district court cannot review matters outside of the complaint.” 91 Fed.Appx. at 85. There are three limited exceptions to this general principle: (i) documents that the complaint incorporates by reference, see Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); (ii) “documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity, ” Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002); and (iii) “matters of which a court may take judicial notice, ” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. at 322. See Brokers' Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d at 1103 (holding that the district court did not err by reviewing a seminar recording and a television episode on a rule 12(b)(6) motion, which were “attached to or referenced in the amended complaint, ” central to the plaintiff's claim, and “undisputed as to their accuracy and authenticity”). The Tenth Circuit has held that written documents attached to a complaint as exhibits are “considered part of the complaint and may be considered in a Rule 12(b)(6) dismissal, ” unless the documents are affidavits. Hall v. Bellmon, 935 F.2d 1106, 1112 (10th Cir. 1991)(citations omitted). The Agreement, the Federal Charter, and the Aug. 8, 2018 Letter are all attached to the Complaint as exhibits and none are affidavits. See Notice of Errata at 1. World Fuel does not dispute the authenticity of the Agreement, Federal Charter, [6] or Aug. 8, 2018 Letter, and the Complaint refers to all three. See Complaint ¶¶ 7, 10, 13, at 2-3. Following Hall v. Bellmon, the Agreement, the Federal Charter, and the Aug. 8, 2018 Letter are considered part of the Complaint and the Court may consider them in deciding the Motion.

         With that understanding, World Fuel is a corporation organized and existing under the laws of the State of Texas, qualified to do business in the State of New Mexico, and with its principal place of business in the County of Miami-Dade, State of Florida. See Complaint ¶ 1, at 1. Nambe Corp. is a “federally chartered corporation organized under the laws of the United States, pursuant to 25 U.S.C. § 477, with its principal place of business located in Santa Fe, New Mexico.” Complaint ¶ 3, at 1. Nambe Pueblo wholly owns Nambe Corp. See Federal Charter at 2 (“The Pueblo of Nambe is the sole shareholder and no physical shares [of Nambe Corp.] are issued.”). The amount in controversy exceeds $75, 000.00. See Aug. 8, 2018 Letter at 1 (stating that Nambe Corp. owes World Fuel unpaid taxes of $1, 929, 486.18). The Court has jurisdiction over the Complaint based on diversity, pursuant to 28 U.S.C. § 1332(a)(1), “because (a) the matter in controversy exceeds the sum or value of $75, 000.00, exclusive of interest and costs, and (b) World Fuel is a citizen of the States of Texas and Florida, and [Nambe Corp.] is a citizen of the State of New Mexico.” Complaint ¶ 5, at 2. Venue is proper pursuant to 28 U.S.C. § 1391(b)(1), because Nambe Corp. resides in New Mexico and the events giving rise to the Complaint occurred in New Mexico. See Complaint ¶ 6, at 2.

         World Fuel is engaged in, among other things, supplying petroleum fuel to distributors. See Complaint ¶ 2, at 1. Nambe Corp. is engaged in the tourism and gasoline business, and operates the Nambe Falls Travel Center, where Nambe Corp. operates a gasoline station. See Complaint ¶ 4, at 2. World Fuel and Nambe Corp. entered into a ten-year contractual relationship with a term from May 17, 2017, through May 16, 2027, providing that Nambe Corp. would purchase World Fuel branded and unbranded fuels, including alternative or biofuels (collectively, “Motor Fuel”) from World Fuel, for its Nambe Falls Travel Center gasoline station, located on Tribal lands. Complaint ¶ 7, at 2; Agreement ¶ A, at 1.[7] The parties memorialized the contractual agreement in the Agreement, which contains an arbitration provision, Agreement ¶ 18(a), at 7, and a sovereign immunity waiver, Agreement ¶ 18(b), at 8. See Complaint ¶¶ 8-9, at 2-3.

         The arbitration provision states in relevant part:

If any dispute arises between the parties over or in connection with this Agreement and the parties, after good faith efforts, are unable to resolve the dispute between themselves, either party may serve notice in writing to the other of such dispute and demand that it be resolved through binding arbitration, giving the other party the name of an arbitrator of the noticing party's choice.

         Agreement ¶ 18(a), at 7. See Complaint ¶ 8, at 2. The sovereign immunity waiver provision states, in relevant part:

Nothing in this Agreement is or shall be deemed to be a waiver of the Pueblo's sovereign immunity from suit, provided however, that Customer [Nambe Corp.] agrees to waive its immunity protection for the limited and sole purposes of compelling arbitration or enforcing any binding arbitration decision rendered pursuant to the terms and conditions of this Agreement by any court having jurisdiction over the parties and the subject matter and for purposes of any such arbitration proceedings.

         Agreement ¶ 18(b), at 8. See Complaint ¶ 9, at 2-3. The Federal Charter contains a “sue and be sued” clause, providing that Nambe Corp. is expressly authorized and empowered “[t]o sue and be sued in its Corporate name in courts of competent jurisdiction within the United States.” Complaint ¶ 10, at 3 (quoting Federal Charter § 3.01(b), at 2).

         On or about May, 2018, “a dispute arose between World Fuel and [Nambe Corp.] regarding unpaid taxes owed by [Nambe Corp.] to World Fuel pursuant to the Agreement.” Complaint ¶ 11, Agreement ¶ A, at 1. at 3. On July 27, 2018, World Fuel issued an invoice for the unpaid taxes, and Nambe Corp. refused to pay. See Complaint ¶ 12, at 3. On August 8, 2018, World Fuel provided Nambe Corp. formal notice of the dispute and a demand that, pursuant to the Agreement, the dispute be resolved through binding arbitration. See Aug. 8, 2018 Letter at 1. The Aug. 8, 2018 Letter states, in relevant part:

In accordance with section 18(a) of the Agreement, Alta gives [Nambe Corp.] formal notice of the above-mentioned dispute and demands that the dispute be resolved through binding arbitration. As one of the three arbitrators to hear and decide the dispute, Alta selects the Honorable Bruce D. Black, the former United States District Judge for the District of New Mexico.[8] Under the terms of the Agreement, [Nambe Corp.] must select a second arbitrator within ten days of the receipt of this notice, and then Judge Black and [Nambe Corp.]'s selected arbitrator will jointly appoint a third person to serve on the arbitration panel. The panel shall convene as soon as practicable, and hear and decide the dispute within 60 days of this notice to arbitrate.

Aug. 8, 2018 Letter at 1. See Complaint ¶ 13, at 3 (internal quotation marks omitted)(quoting Aug. 8, 2018 Letter at 1, and stating that, to date, Nambe Corp. has not responded to the Aug. 8, 2018 Letter).

         PROCEDURAL BACKGROUND

         World Fuel's Complaint raises a single claim for relief against Nambe Corp. See Complaint ¶ 14, at 3. World Fuel alleges that the Agreement is valid and enforceable, and that Nambe Corp. agreed to its terms -- including the arbitration provision. See Complaint ¶¶ 15-16, at 3. World Fuel alleges that the parties' dispute is “over or in connection with [the] Agreement, ” and falls within the arbitration provision's scope. Complaint ¶ 17, at 3 (quoting Agreement ¶ 18(a), at 7). World Fuel alleges that “[a]ll conditions precedent to the maintenance of this [Complaint] have been performed, have been waived, or have occurred.” Complaint ¶ 18, at 4. World Fuel alleges that, pursuant to § 4 of the FAA, the Court has the authority to compel Nambe Corp. to arbitrate the parties' dispute, and World Fuel requests that the Court issue an Order compelling arbitration pursuant to the Agreement's terms. See Complaint ¶ 19, at 4.

         1. The Motion.

         Nambe Corp. moves the Court to dismiss the case, alleging that World Fuel “is required to exhaust its tribal remedies in the Nambe Tribal Courts, including its designated appellate court, the Southwest InterTribal Court of Appeals.” Motion at 1. Nambe Corp. alleges that, when required to answer in the “appropriate court, ” it will deny many of World Fuel's allegations, will otherwise show that its actions were justified, and will raise other dispositive defenses, including “Nambe Corp.'s unwaived sovereign immunity.” Motion at 2. Nambe Corp. contends that, under the Tribal exhaustion doctrine, “the proper forum for addressing Plaintiff's demand for arbitration and Nambe Corp.'s legal defenses (and the merits of Plaintiff's claims) in the first instance is the Nambe Tribal Courts.” Motion at 2.

         2. The R. Vigil Aff.[9]

         To the Motion, Nambe Corp. affixes the R. Vigil Aff. See Affidavit of Randy Vigil, ¶ 1, at 1 (dated Sept. 27, 2018), filed October 1, 2018 (Doc. 14-1)(“R. Vigil Aff.”). R. Vigil states that he is an enrolled member of Nambe Pueblo and is currently the Operations Manager of the Los Alamos National Laboratory's Utilities Department, a position that he has held since August, 2008. R. Vigil Aff. ¶ 1, at 1. R. Vigil states that he has been a member of Nambe Corp.'s[10] Board of Directors since 2002 and served as the Board's Secretary for many years. See R. Vigil Aff. ¶ 2, at 1. R. Vigil states that, since 2002, he has served as the Board's acting Secretary, and currently serves as a Board member and as the Board's Treasurer. See R. Vigil Aff. ¶ 2, at 1. R. Vigil states that, as Board Secretary, he is the custodian of the Board's records, prepares and maintains the agendas and minutes of the Board's meetings, and maintains copies of Nambe Corp.'s corporate charter and of Board-adopted resolutions. See R. Vigil Aff. ¶ 3, at 1. R. Vigil asserts that the version of Nambe Corp.'s federal charter, which the Secretary of the Interior approved and the Nambe Pueblo Tribal Council ratified, and which World Fuel attaches to the Complaint, is the 1994 charter and that R. Vigil attaches the charter currently in force, the 2007 charter, to his affidavit. See R. Vigil Aff. ¶ 5, at 2.

         R. Vigil states that fuel sales transactions between Alta Fuels/World Fuel and Nambe Corp. related to the Nambe Travel Center have continued from 2009 until the present. See R. Vigil Aff. ¶ 11, at 3. R. Vigil states that, on November 10, 2008, the Board approved a contract with Alta Fuels for fuel sales at the Nambe Travel Center. See R. Vigil Aff. ¶ 6, at 2. On April 8, 2009, Alta Fuels entered into that valid and binding contract with Nambe Corp., which Herbert Yates, Nambe Corp.'s Chief Executive Officer, executed. See R. Vigil Aff. ¶ 6, at 2. R. Vigil attests that the Board understood §§ 301(e) and 701 of the Federal Charter to require its approval of the contract.[11] See R. Vigil Aff. ¶ 6, at 2. R. Vigil states that, on March 12, 2012, upon the 2009 contract's expiration, Alta Fuels entered into another contract for fuel sales with Nambe Corp., which Yates signed, but which the Board did not approve. See R. Vigil Aff. ¶ 7, at 2. R. Vigil asserts that the Board “has never recognized” the 2012 contract as binding on Nambe Corp. R. Vigil Aff. ¶ 7, at 2. When the 2012 contract expired in 2017, World Fuel -- having acquired Alta Fuels -- entered into another contract, dated May 17, 2017, for fuel sales with Nambe Corp., this time which Nambe Board President C. Vigil signed. See R. Vigil Aff. ¶ 8, at 3. R. Vigil attests that this 2017 contract, on which World Fuel bases its arbitration demand, “was also done without the knowledge or approval of the [Nambe Corp.] Board.” R. Vigil Aff. ¶ 8, at 3. R. Vigil states that the Board delegated no authority to C. Vigil to execute the Agreement, and that C. Vigil signed without Board approval. See R. Vigil Aff. ¶ 9, at 3. R. Vigil asserts that, based on his own knowledge and review of Board records and documents, C. Vigil never presented the Agreement to the Board for consideration or approval, and, when the Board first reviewed the Agreement in 2018, after the excise tax dispute with World Fuel arose, [12] the Board expressly repudiated it. See R. Vigil Aff. ¶ 10, at 3.

         R. Vigil attests that World Fuel sent Nambe Corp. an arbitration demand in the Aug. 8, 2018 Letter attached to the Complaint. See R. Vigil Aff. ¶ 16, at 4. R. Vigil states that, although the Complaint's ¶ 13 states otherwise, Nambe Corp. authorized a response to the Complaint and sent it by letter on August 9, 2018. See R. Vigil Aff. ¶ 17, at 4.

         3. The Memo.[13]

         In the Memorandum in Support of the Motion to Dismiss, filed October 1, 2018 (Doc. 15)(“Memo.”), Nambe Corp. states the facts which the R. Vigil Aff. describes. See Memo. at 1-5. Nambe Corp. asserts that two triggers for Montana v. United States, 450 U.S. 544 (1981)(“Montana”) jurisdiction exist: first, that each fuel transaction “between Alta Fuels/World Fuel and NPDC which has occurred at the Travel Center on Nambe Indian Reservation” is “a voluntary commercial consensual relationship . . . even in the absence of any separate written contracts between the parties, ” and second, that “disputes arising after the expiration of a written voluntary consensual relationship involving commercial use of (and activity on) tribal land will independently anchor tribal jurisdiction.” Memo. at 5. Nambe Corp. cites to Water Wheel Camp Recreational Area, Inc. v. LaRance, 642 F.3d 802, 805, 817-19 (9th Cir. 2011), in which the United States Court of Appeals for the Ninth Circuit held that a Tribal Court had Montana jurisdiction “to adjudicate tort claims against non-Indian corporate lessor and its owner/manager seeking money damages, ” based on their “consensual relationship evidenced by [an] expired land lease and subsequent disputes . . . .” Memo. at 5 (alteration in original)(internal quotation marks omitted)(quoting Water Wheel Camp Rec. Area, Inc. v. LaRance, 642 F.3d at 805, 817-19).

         Nambe Corp. asserts that, under the Williams v. Lee, 358 U.S. 217 (1959), test, because World Fuel, the non-Indian party, is the Plaintiff and not the Defendant, the Nambe Pueblo Tribal Court and the Southwest InterTribal Court of Appeals are the appropriate forums for adjudication of disputes between World Fuel and Nambe Corp. based on fuel sales at the Nambe Travel Center. See Memo. at 5. Nambe Corp. asserts that the Tenth Circuit has adopted the Williams v. Lee rule that “absent Congressional authorization Tribal Courts rather than state courts have jurisdiction to adjudicate suits filed by non-Indians against Indian parties regarding disputes arising from the Indian party's conduct within their Indian Country.” Memo. at 5 (citing Navajo Nation v. Dalley, 896 F.3d 1196, 1204-05 (10th Cir. 2018)). Nambe Corp. asserts that the Williams v. Lee test is independent of the Montana test, as the Honorable Curtis LeRoy Hansen, Senior United States District Judge for the District of New Mexico explained in Fine Consulting, v. Rivera, 915 F.Supp.2d 1212, 1224 (D.N.M. 2013)(Hansen, J.). According to Nambe Corp., Montana applies only when the non-Indian party is or would be a Tribal Court defendant. See Memo. at 6. Nambe Corp. contends that, “if Montana were otherwise applicable, . . . the exercise of tribal jurisdiction over this dispute would also be appropriate under that test.” Memo. at 6.

         Nambe Corp. argues that the Court must dismiss or stay World Fuel's suit because of World Fuel's failure to exhaust Tribal remedies. See Memo. at 6. Nambe Corp. contends that National Farmers Union v. Crow Tribe of Indians, 471 U.S. 845 (1985)(“National Farmers”), and Iowa Mutual Insurance v. LaPlante, 480 U.S. 9 (1987)(“Iowa Mutual”), hold, subject to certain exceptions which Nambe Corp. describes in a footnote but contends are irrelevant, that

where a party seeks to secure a federal court ruling on a civil cause of action arising on lands constituting a federally recognized Tribe's Indian Country based on voluntary transactions or other commercial relationships between one of the parties to the dispute and a tribal member, tribe or tribal entity of that tribe (or Pueblo), the federal court must dismiss (or stay) the federal suit until plaintiff has exhausted its tribal remedies -- so long as there exist colorable Tribal Court jurisdiction over the claims pled under Montana . . . and/or Williams v. Lee . . . In this case, the tribal entity sued is [Nambe Corp.].

         Memo. at 6-7. Nambe Corp. argues that the Supreme Court of the United States has repeatedly reaffirmed the requirement that, where there is at least a colorable claim that the federal requirements for exercising Tribal jurisdiction over a non-Indian party are met, the parties must exhaust Tribal remedies as National Farmers and Iowa Mutual require. See Memo. at 7 (citing Atkinson Trading Co. v. Shirley, 532 U.S. 645 (2001); Strate v. A-1 Contractors, 520 U.S. 438 (1997)). Nambe Corp. contends that the Tenth Circuit has reaffirmed the same Tribal exhaustion doctrine. See Memo. at 7-8 (citing Norton v. Ute Indian Tribe of the Uintah & Ouray Reservation, 862 F.3d 1236 (10th Cir. 2017); Valenzuela v. Silversmith, 699 F.3d 1199 (10th Cir. 2012); Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1149 (10th Cir. 2011); Hartman v. Kickapoo Tribe Gaming Comm'n, 319 F.3d 1230, 1233 (10th Cir. 2003); Smith v. Moffett, 947 F.3d 442, 446 (10th Cir. 1991)). Nambe Corp. contends that the Ninth Circuit, and the United States Courts of Appeals for the First and Fifth Circuits have also reaffirmed the Tribal exhaustion requirement. See Memo. at 8 (citing Stock W. Corp. v. Taylor, 964 F.2d 912, 920 (9th Cir. 1992) TTEA Corp. v. Ysleta Del Sur Pueblo, 181 F.3d 676 (5th Cir. 1999); Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Hous. Auth., 207 F.3d 21, 31 (1st Cir. 2000)(“Ninigret”)).

         Nambe Corp. contends that, even when a plaintiff seeks to compel arbitration under the FAA or based on a binding arbitration clause in an allegedly binding contract, the plaintiff must still exhaust Tribal remedies. See Memo. at 9. Nambe Corp. cites to several cases from other federal district courts and Courts of Appeals, and in particular references Bank One N.A. v. Shumake, 281 F.3d 507 (5th Cir. 2002)(“Bank One”). Nambe Corp. contends that, in Bank One, the Fifth Circuit concluded that the district court's duty to bar the plaintiff from proceeding in district court based on diversity jurisdiction until the plaintiff exhausted its Tribal remedies superseded the court's duty to compel arbitration under the FAA. See Memo. at 10. In Bank One, the Fifth Circuit also concluded that, in accordance with Tribal law, a Tribal court had to decide whether the parties involved had actually approved and agreed to be bound by a contract amendment which allegedly added a binding arbitration clause. See Memo. at 10 (citing Bank One, 281 F.3d at 509).

         Nambe Corp. asserts that, to satisfy its duty to exhaust Tribal remedies, World Fuel must seek adjudication of all legal questions bearing on its dispute with Nambe Corp. in the Nambe Pueblo Tribal Court, including appellate review by the Southwest InterTribal Court of Appeals. See Memo. at 10. Nambe Corp. contends that questions for the Nambe Pueblo Tribal Court include “whether the 2017 contract document upon which World Fuel bases its demand for arbitration was lawfully executed and became a binding contract under Nambe law and the terms of [Nambe Corp.]'s corporate charter, ” and “whether the limited waiver of immunity set out at § 301(b) of that charter is applicable to the 2017 contract document [-- the Agreement --] here at issue.” Memo. at 11. Nambe Corp. alleges that § 301(b) does not apply to the Agreement, even if the Agreement is valid, binding, and Board-approved, because the Agreement contains no language involving “property or income of the Corporation . . . specifically mortgaged, pledged or assigned as collateral for particular corporate debts or liabilities, ” Memo. at 11 (quoting Federal Charter § 301(b)), and § 301(b) “only applies to such contacts, ” Memo. at 11.

         Nambe Corp. contends that the Nambe Pueblo Tribal Court must also address whether “the unauthorized execution of contracts containing immunity waivers by officials or employees of a tribe or a § 477 corporation[14] are not effective to create an enforceable waiver of the tribe's or § 477 corporation's sovereign immunity.” Memo. at 12. Nambe Corp. alleges that, if the 2017 contract “was lawfully executed and became binding on [Nambe Corp.], ” then its arbitration and sovereign immunity waiver provisions are also legally binding. Memo. at 13. Nambe Corp. contends that, if, however, §§ 301(e) and 701 of the Federal Charter require the Board to authorize and approve the contract, and if the Board did not properly do so, then the 2017 contract and its provisions are not binding on Nambe Corp., and have never been effective. See Memo. at 13. Nambe Corp. contends that the Nambe Pueblo Tribal Court must address this issue first, before the Court. See Memo. at 13.

         Nambe Corp. next argues that the “Plaintiff's duty to exhaust tribal remedies did not go away just because” World Fuel brought its suit in federal court before Nambe Corp. had an opportunity to raise a claim in the Nambe Pueblo Tribal Court. Memo. at 14. Nambe Corp. contends that a plaintiff's duty to exhaust Tribal remedies exists even when no Tribal lawsuit is pending “at the time a federal action is commenced.” Memo. at 14. Nambe Corp. avers that this duty to exhaust exists especially where, as here, “the party seeking to evade tribal jurisdiction is a non-Indian Plaintiff seeking judicial relief against a tribal entity for causes of action arising within that Tribe's Indian Country, as to which it has long been settled that Tribal Courts are the appropriate forums for resolving such disputes.” Memo. at 14.

         Nambe Corp. next avers that the Nambe Pueblo Tribal Court and the Southwest InterTribal Court of Appeals have colorable jurisdiction to adjudicate all of World Fuel's claims. See Memo. at 14. Nambe Corp. states, in support of this assertion, that its headquarters and travel center are located on Nambe Pueblo lands, that all actions of which World Fuel complains occurred on Nambe Pueblo lands, and that the Nambe Tribal Code confers jurisdiction on Nambe Pueblo Tribal Courts to hear and decide civil disputes arising from Nambe Corp.'s actions or inactions occurring on Nambe Pueblo lands. See Memo. at 15. Nambe Corp. contends:

Under Williams v. Lee, where a cause of action arises on lands constituting a tribe's Indian country and involves a non-member plaintiff suing a tribal defendant, based on alleged civil wrongs committed by the Indian defendant on the reservation in derogation of the rights of the non-Indian plaintiff, the propriety of Tribal Court jurisdiction to adjudicate such claim under federal law is well-settled.

         Memo. at 16. Nambe Corp. contends that in Nevada v. Hicks, 533 U.S. 353, 357 n.2 (2001)(“Hicks”), the Supreme Court noted that “the typical case in which the court has addressed and upheld the exercise of tribal jurisdiction” has involved claims against Tribal defendants. Memo. at 17. Nambe Corp. contends that, while Hicks ruled that Tribal Court “could not adjudicate” tort or 42 U.S.C. § 1983 claims against state officers in cases “filed by tribal members against those officers based on their on-reservation conduct carried out while on duty, ” Hicks did not otherwise undermine “the existence of Tribal Court jurisdiction to adjudicate civil claims filed by non-members against tribal defendants” under the Williams v. Lee test. Memo. at 17.

         Nambe Corp. argues that, after Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316 (2008), see Memo. at 18, the “Montana analysis is controlling in tribal jurisdiction cases, with party alignment in the Tribal Court action as the most important factor to be weighed in determining the application of Montana's rule and exceptions to the case at hand, ” Memo. at 20. Nambe Corp. contends that, where the non-Indian party is the plaintiff, Williams v. Lee controls in lieu of Montana. See Memo. at 20. Nambe Corp. argues that, under the Williams v. Lee test, Nambe Pueblo Tribal Courts have colorable jurisdiction over all of World Fuel's claims. Moreover, according to Nambe Corp., even if Nambe Corp. were the plaintiff, under the Montana test, the Nambe Pueblo Tribal Court has colorable jurisdiction over all of World Fuel's claims. Memo. at 20-21. Nambe Corp. also argues that National Farmers and Iowa Mutual require World Fuel to pursue their claims in the Nambe Pueblo Tribal Court, “thereby exhausting their tribal remedies and this Court is required to dismiss or stay Plaintiffs' action in this Court.” Memo. at 20-21.

         4. The Response.

         World Fuel responds. See Petitioner's Opposition to Respondents Motion to Dismiss, filed October 29, 2018 (Doc. 22)(“Response”). World Fuel begins by asserting that, in enacting the FAA, Congress sought to “control the procedures employed by a federal court, and thus ensure that petitions to compel arbitration would be expeditious summary proceedings.” Response at 1. World Fuel argues that, by insisting on Tribal exhaustion, Nambe Corp., contrary to Congress' intent in enacting the FAA, “seeks to drag out the litigation regarding the preliminary question of whether to enforce the parties' arbitration agreement in at least two tiers of Tribal Courts before World Fuel may seek enforcement in this Court.” Response at 1-2. World Fuel contends that Congress has empowered only federal courts to hear petitions under the FAA's § 4, and that the 2017 contract's arbitration clause contemplates resolving disputes in a non-Tribal forum. See Response at 2. World Fuel contends that arbitration agreements with Tribes and Tribal entities would be meaningless if it were the law “that every time a party and a tribal corporation contractually agree to arbitration, the tribal corporation has a virtual veto power over the contractually-agreed-to forum through invocation of the tribal exhaustion doctrine.” Response at 2.

         World Fuel avers that the Court should deny the Motion for several reasons. See Response at 2. First, World Fuel argues that two threshold issues bar the Court from considering the exhaustion argument: (i) arbitrators, not a court, should determine whether World Fuel has satisfied conditions precedent to arbitration, including Tribal exhaustion, and whether the parties' agreement is valid; and (ii) the Motion “improperly relies on matters extrinsic to World Fuel's petition and allegations contrary to World Fuel's factual allegations.” Response at 2. World Fuel asserts that, even if the Court reaches the merits of Nambe Corp.'s Tribal exhaustion argument, it must deny the Motion, because: (i) “especially” where a petition's filing is not “an attempt to circumvent the tribal entity's invocation of a parallel proceeding in Tribal Court and the underlying controversy is not an intra-tribal dispute, ” the Tribal exhaustion doctrine is inapplicable to petitions to compel arbitration under the FAA's § 4; (ii) the parties' arbitration clause waives any otherwise applicable Tribal exhaustion rule; and (iii) there is no pending proceeding in the Nambe Tribal Courts, rendering the Tribal exhaustion doctrine inapplicable. Response at 3.

         World Fuel describes the arbitration clause, which states:

If any dispute arises between the parties over or in accordance with this Agreement and the parties, after good faith efforts, are unable to resolve the dispute between themselves, either party may serve notice in writing to the other of such dispute and demand that it be resolved through binding arbitration.

         Response at 2 (quoting Agreement ¶ 18(a), at 7). World Fuel states that the arbitration clause “provides that the arbitration panel ‘shall convene as soon as practicable' and that the panel ‘shall hear and decide the dispute within sixty (60) days of the notice to arbitrate'” “based on the laws of the State of New Mexico.” Response at 3-4 (quoting Agreement ¶ 18(a), at 7).

         World Fuel contends that the arbitration provision expressly waives Nambe Corp.'s immunity from suit “for the limited and sole purposes of compelling arbitration or enforcing any binding arbitration decision . . . by any court having jurisdiction over the parties and the subject matter and for purposes of any such arbitration provisions.” Response at 3 (emphasis in Response)(quoting Agreement ¶ 18(b), at 7). World Fuel also notes that the Federal Charter contains a “sue and be sued” clause, stating that Nambe Corp. “is expressly authorized and empowered . . . [t]o sue and be sued in its Corporate name in courts of competent jurisdiction within the United States.” Response at 4 (quoting Federal Charter § 3.01(b), at 2). World Fuel contends that the Federal Charter waives Nambe Corp.'s immunity “independently of the contractual waiver of sovereign immunity in the Agreement.” Response at 4 n.1 (“The narrower waiver in the Agreement does not negate the general waiver of immunity in the sue and be sued clause of Nambe's corporate charter -- each waiver operates independently.”).

         World Fuel asserts that it provided Nambe Corp. formal notice of the dispute regarding unpaid taxes that Nambe Corp. owes to World Fuel, after Nambe Corp. refused to pay an invoice for amounts owed and demanded arbitration pursuant to the Agreement. See Response at 4. World Fuel asserts that Nambe Corp. “has not selected a second arbitrator within ten days of its receipt of the notice as required by the Agreement, and has refused to proceed to arbitration.” Response at 4-5. World Fuel avers that, on August 31, 2018, it “filed a petition in this Court to compel arbitration pursuant to Section 4 of the FAA.” Response at 5. World Fuel contends that, according to Nambe Corp.,

before World Fuel may avail itself of the summary procedures afforded under Section 4 of the FAA, which apply only to federal courts, it must bring its FAA claim in the Nambe Tribal Courts and engage in the exact type of protracted litigation about venue that the FAA was enacted to curb.

         Response at 5. World Fuel argues that arbitrators, and not a court, must decide the exhaustion argument, because it is a procedural question regarding grievance procedure. See Response at 5. World Fuel asserts that arbitrators, and not a court, must determine the Agreement's validity, because the Supreme Court has held that, “unless the challenge is to the arbitration clause itself, the issue of the contract's validity is considered by the arbitrator in the first instance.” Response at 5-6 (quoting Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445-46 (2006)). World Fuel avers that, because Nambe Corp. challenges the 2017 contract's validity as a whole, arbitrators must decide the issue. See Response at 6.

         Next, World Fuel argues that, even if Nambe Corp.'s issues were for the Court to decide, “a district court generally may not consider matters outside the four corners of the complaint on a motion to dismiss, and certainly may not consider matters directly contrary to the allegations in the complaint.” Response at 6. World Fuel argues that the Court must disregard the R. Vigil Aff. See Response at 6-7. World Fuel contends that motions to dismiss for lack of jurisdiction may be based on extrinsic evidence, but that Nambe Corp.'s Motion is not based on a lack of jurisdiction, because the Supreme Court “has made clear that, when applicable, the tribal exhaustion doctrine ‘is required as a matter comity, not as a jurisdictional prerequisite.'” Response at 7 (emphasis in Response)(quoting Iowa Mutual, 480 U.S. at 16 n.8).

         Next, World Fuel avers that it “undoubtedly states a claim under Section 4 of the FAA” where World Fuel alleges that it and Nambe Corp. entered into a written contract containing an arbitration clause, and Nambe Corp. failed to arbitrate a dispute within the scope of the clause, despite the occurrence, waiver, or performance of all conditions precedent. Response at 7. World Fuel argues, accordingly, that “[a]ny counterfactual arguments that NPDC seeks to present, ” including regarding the Agreement's validity and the Tribal exhaustion requirement, “must be made at trial, not on a motion to dismiss[, ]” because the FAA requires that where factual issues exist, courts shall proceed summarily to trial. Response at 7 (quoting 9 U.S.C. § 4). World Fuel argues that a “court reversibly errs by summarily denying a petition to compel arbitration in the face of a factual dispute instead of proceeding to trial as required by the FAA's express terms.” Response at 7.

         World Fuel argues that the FAA supersedes the Tribal exhaustion doctrine, which is “merely a judicially-created, non-jurisdictional rule.” Response at 8. World Fuel argues that the Tribal exhaustion doctrine's purpose is to serve the congressional policy of promoting Tribal self-governance, and that it does not apply where Congress has expressed an “unmistakable preference for a federal forum” or applying the doctrine would “frustrate a ‘congressional policy of immediate access to federal forums.'” Response at 8 (quoting El Paso Nat. Gas Co. v. Neztsosie, 526 U.S. 473, 484-86 (1999)(“El Paso”)). World Fuel argues that, in Hicks, the Supreme Court also held that “the tribal exhaustion doctrine does not apply in cases where it is clear that the Tribal Court lacks jurisdiction and that the exhaustion requirement would serve ‘no purpose other than delay.'” Response at 8 (quoting Hicks, 533 U.S. at 369). World Fuel contends that the FAA expresses Congress' requirement -- not just preference -- that district courts hear FAA § 4 petitions. See Response at 8. World Fuel contends that the FAA's provisions applying the Federal Rules of Civil Procedure confirm Congress' requirement that district courts -- a federal forum -- hear FAA petitions. See Response at 9. World Fuel notes that FAA § 4's title reads: “[f]ailure to arbitrate under agreement; petition to United States court having jurisdiction for order to compel arbitration; notice and service thereof, hearing and determination.” Response at 9 n.2 (quoting 9 U.S.C. § 4)).

         World Fuel argues that the Supreme Court has “strongly doubted that Section 4 applies to courts other than federal courts.” Response at 9-10. World Fuel argues that § 4's language is mandatory and that, under the FAA, a district court “must exercise its jurisdiction when confronted with a petition to compel arbitration.” Response at 10 (emphasis in Response). World Fuel argues that “[a]pplying an exhaustion doctrine would mean that a party could never take advantage of the quick resolution offered by Section 4 of the FAA, as satisfying the exhaustion requirement would always add delay.” Response at 12 (emphasis in Response).

         World Fuel analogizes its dispute to those in El Paso and Preston v. Ferrer, 552 U.S. 346 (2008), and argues that El Paso “makes clear that the rationales for federal displacement of state-court proceedings are equally applicable to displacement of tribal proceedings, ” Response at 15 (citing El Paso, 526 U.S. at 484-86), and Preston v. Ferrer “rejected a proposed distinction between judicial and administrative proceedings, and opted for an expansive view of the FAA . . ., ” Response at 15 (citing Preston v. Ferrer, 552 U.S. at 359). World Fuel argues that “there is no reason to single out tribal exhaustion as an unwritten exception to Congress's policy of speedy resolution of Section 4 petitions.” Response at 15.

         Next, World Fuel argues that the cases which Nambe Corp. cites are distinguishable or do not address World Fuel's arguments, and that, because the Tenth Circuit has never ruled on “the issue of tribal exhaustion in the context of a petition under Section 4 of the FAA, ” the Court need not follow blindly cases from other circuits with distinguishable circumstances and considering different arguments than those raised here. Response at 16. World Fuel argues that “each case Nambe relies on for the proposition that tribal exhaustion is required when a plaintiff seeks to compel arbitration was animated by the fact that the plaintiff filed a suit to compel arbitration only in response to the tribe or tribal member already filing suit in Tribal Court.” Response at 18. World Fuel concedes that the Tenth Circuit has held that a parallel Tribal proceeding is not required for Tribal exhaustion to apply but contends that the Tenth Circuit “has not held that the absence of such a parallel proceeding is irrelevant to the analysis.” Response at 19. World Fuel argues that several factors demonstrate that comity concerns are at their lowest here: (i) there is no pending Tribal proceeding; (ii) the parties' contract requires its interpretation in accordance with New Mexico state law; (iii) the FAA requires applying federal substantive law regarding arbitration; (iv) the parties' dispute is not intra-Tribal; (v) the Agreement provides for “any court having jurisdiction” to hear a petition to compel arbitration; (vi) the arbitration clause selects a non-Tribal forum for adjudication; and (vii) the Agreement prioritizes rapid adjudication by providing that the arbitration should conclude within sixty days of the formal arbitration demand. Response at 19-20. World Fuel contends that the cases that Nambe Corp. cites do not address FAA § 4's plain text or Preston v. Ferrer's holding that delays caused by exhaustion requirements are inconsistent with Congress' policy, in enacting the FAA, of encouraging speedy resolution of disputes. See Response at 20.

         World Fuel argues that Nambe Corp. waived the Tribal exhaustion requirement by allowing any court of competent jurisdiction to preside over an action to compel arbitration. See Response at 21. World Fuel contends that that Nambe Corp. did not expressly refer to exhaustion of Tribal proceedings “does not mean that Nambe did not waive an exhaustion defense” and that the Court must consider the real-world consequences of the Agreement's language. Response at 22. World Fuel contends that, in stating that any court could preside over an action to compel arbitration, Nambe Corp. could not have intended that only the Nambe Pueblo Tribal Court preside. See Response at 22.

         Finally, World Fuel contends that the Tribal exhaustion requirement does not apply where there are no pending parallel proceedings in Tribal Court and that, even though the Tenth Circuit has not spoken on the issue, there is “a pending petition for a writ of certiorari for which the Supreme Court has entered an order calling for the views of the Solicitor General (CVSG)” on the issue. Response at 23 n.8 (citing Petition for Writ of Certiorari, Harvey v. Ute Indian Tribe of Uintah ab Ouray Reservation, Case No. 17-1301 (dated March 7, 2018)).[15] World Fuel avers that this case is not about jurisdiction; rather, it is about the right to arbitrate a contractual dispute between parties. See Response at 23-24. World Fuel argues that, for the foregoing reasons, the Court should deny Nambe Corp.'s Motion. See Response at 24.

         5. The Reply.

         Nambe Corp. begins by arguing that whether a contract ever came into existence is a matter for a court and not an arbitrator to decide. See Defendant's Reply in Support of Motion to Dismiss at 1-2, filed December 10, 2018 (Doc. 27)(“Reply”). Nambe Corp. concedes that, where execution of a contract is undisputed and there is no separate challenge to an arbitration clause's validity - - distinct from a challenge to the overall contract's validity, arbitrators and not courts must determine the contract's validity. See Reply at 2. Nambe Corp. contends, however, that the Supreme Court “expressly excluded from this rule situations in which the party resisting arbitration claims it never entered into the contract containing the arbitration clause.” Reply at 2. Nambe Corp. contends that “it is well settled that no party can be compelled to engage in arbitration unless they have agreed to do so, ” Reply at 4, and that World Fuel, as the party seeking to compel arbitration, bears the burden to prove in court that an agreement to arbitrate was formed, see Reply at 4.

         Nambe Corp. asserts that the Motion's core issue is its “contention that because of Plaintiff's duty to exhaust tribal remedies, the proper court to rule on the contract formation question (and all related arbitration and contract questions . . ., most of which require interpretation of NPDC's Charter[] is the Nambe Tribal Court, not this Court.” Reply at 4-5. Nambe Corp. next turns to World Fuel's contention that wording in the arbitration clause allowing any court with competent jurisdiction to enforce any binding arbitration decision and referring to a limited sovereign immunity waiver associated with the arbitration clause, “implicitly waived World Fuels' [sic] duty to exhaust its tribal remedies.” Reply at 5.

         Nambe Corp. argues that World Fuel cannot rely on words in a contract instrument to which Nambe Corp. is not a party to excuse itself from the Tribal exhaustion requirement. See Reply at 5. Nambe Corp. avers that “it is well-settled in this Circuit that the duty to exhaust tribal remedies applies even if the party seeking to compel arbitration claims the Tribal party has waived its immunity.” Reply at 6. Nambe Corp. contends that waiver of sovereign immunity and Tribal remedy exhaustion are two separate issues. See Reply at 6. Nambe Corp. argues that pursuant to federal policy, in the Tenth Circuit, a party may not waive the Tribal exhaustion requirement through contract, even with explicit waiver language. See Reply at 6.

         Next, Nambe Corp. asserts that, in the Tenth Circuit, “the duty to exhaust tribal remedies exists and must be enforced even if no parallel Tribal Court proceedings are ongoing.” Reply at 7. Nambe Corp. argues that, “no matter whether the tribal or federal case is filed first” the risk of creating competition between Tribal and federal court proceedings exists and, “if the absence of a Tribal Court case excused exhaustion, parallel Tribal Court proceedings would be routinely filed in every case following a federal court filing, thus giving rise to the very inter-court conflict the exhaustion doctrine is intended to avoid.” Reply at 7.

         Nambe Corp. argues that World Fuel's assumption that Tribal resolution of its contract and arbitration dispute will take longer than dispute resolution in federal court is erroneous, and that “any delay World Fuels [sic] suffers from initially filing in the wrong court is a self-inflicted wound.” Reply at 8. Nambe Corp. contends that, after Tribal remedies are exhausted, the only post-Tribal Court proceedings permitted would be to challenge the Nambe Pueblo Tribal Courts' jurisdiction, because res judicata would bar relitigation of the Nambe Pueblo Tribal Court's rulings. See Reply at 8. Nambe Corp. avers that “even persons detained by tribal governments who seek to invoke the speedy statutory habeas corpus remedy to obtain their release under 25 U.S.C. § 1303 must first exhaust their tribal remedies before seeking federal court relief . . . .” Reply at 8. Nambe Corp. contends that “[s]ecuring a speedy arbitration remedy is certainly of no greater import than seeking a speedy release from unlawful tribal custody.” Reply at 8. Nambe Corp. contends that World Fuel improperly relies upon Preston v. Ferrer to evade exhaustion of Tribal remedies, because, according to Nambe Corp., Preston v. Ferrer considers a situation where the formation of a binding arbitration agreement is undisputed. See Reply at 9.

         Nambe Corp. contends that, contrary to World Fuel's assertion that federal courts are the only courts which may hear FAA claims, state courts “routinely rule on motions to compel arbitration in contract or tort cases that come before them.” Reply at 10. Nambe Corp. contends that federal courts have also “required non-Indian parties to first present their arbitration demands in Tribal Courts where the dispute giving rise to the arbitration demand arose from on-reservation transactions . . . .” Reply at 10. Nambe Corp. avers that the FAA's § 4

merely provides that the party seeking to compel arbitration “may” choose to seek that relief in a U.S. District Court -- and provides the further restriction that a party can seek that relief only in circumstances where the federal court would otherwise have jurisdiction to adjudicate the underlying dispute between the parties.

Reply at 10 (quoting 9 U.S.C. § 4). Nambe Corp. argues that the FAA is unlike exclusive federal forum statutes and that federal courts are not the exclusive forums for adjudication of FAA disputes. See Reply at 10-11.

         Nambe Corp. avers that, in El Paso, the Supreme Court held that cases involving ordinary questions of federal law are subject to the Tribal exhaustion requirement unless the Tribe lacks jurisdiction under Montana or one of the exceptions to exhaustion under National Farmers is invoked. See Reply at 11. Nambe Corp. avers that, in El Paso, the Supreme Court also distinguished cases filed in Tribal Court but involving claims which fall within exclusively federal court jurisdiction based either on a completely preemptive statute or on a statute evidencing unmistakable congressional preference for a federal forum, as in the Price Anderson Act, 42 U.S.C. § 2210 (“PAA”). Reply at 12. Nambe Corp. asserts that, “[u]nlike the PAA, the FAA does not confer exclusive or even concurrent jurisdiction upon the federal courts . . . .” Reply at 13. Nambe Corp. argues that, “the FAA neither expects nor requires uniformity in the answer to the question whether a valid arbitration agreement exists, instead leaving this to be determined by the non-federal contract law of the jurisdiction in which the dispute arose . . . .” Reply at 13 (citing 9 U.S.C. § 2). Nambe Corp. avers that only once a valid arbitration provision to which both parties agree is found to exist do federal law standards governing what issues are arbitrable come into play. See Reply at 14. Nambe Corp. argues that World Fuel “overlooks a critical aspect of the tribal exhaustion doctrine -- the (non-jurisdictional) duty to exhaust tribal remedies only exists in a federal court where there otherwise exists a federal court duty to exercise its jurisdiction to decide the claim presented.” Reply at 14 (emphasis in Reply).

         Next, Nambe Corp. argues that it did not improperly rely on materials outside the Complaint, but that, under D.N.M. LR-Civ. 7.3(b), the factual allegations which Nambe Corp. needs to ground its Motion for a failure to exhaust Tribal remedies require the support of an affidavit or of other admissible evidence. See Reply at 16. Nambe Corp. states that it filed and referenced the R. Vigil Aff. in its Motion. See Reply at 17. Nambe Corp. asserts that World Fuel “has not controverted any of the factual allegations supported by the R. Vigil Aff. or the other exhibits attached to” the Motion. Reply at 17. Finally, Nambe Corp. asserts that

the rule that would normally require this Court when handling a Section 4 petition (Resp., p. 6) to “proceed summarily to the trial” of contract formation issues in the face of factual disputes bearing on that issue, or to otherwise rule on that issue without a trial if no disputed facts are involved, is not applicable.

Reply at 17 (quoting Response at 6).

         6. The Hearing.

         The Court held a hearing. See Draft Transcript of Motion Hearing at 1:10-11 (December 21, 2018)(Court)(“Tr.”).[16] The Court began by asking whether Nambe Corp. knows of any caselaw suggesting the Court should dismiss the case rather than stay it, as is normally done in cases in which a party files a motion to arbitrate. See Tr. at 3:8-18 (Court). Nambe Corp. responded that no Tenth Circuit case directly addresses the interplay of a motion to dismiss for failure to exhaust Tribal remedies and a motion to compel arbitration. See Tr. at 3:19-23 (Rogers). Nambe Corp. averred that, in other Courts of Appeals, the party required to exhaust Tribal remedies files another action, if they want to return to federal court and challenge the Tribal Court's jurisdiction after exhausting Tribal Court remedies. See Tr. at 3:24-4:2 (Rogers). The Court replied that other Courts of Appeals are also more liberal than the Tenth Circuit “about dismissing cases in which there is a motion to arbitrate as well.” Tr. at 4:3-6 (Court). The Court stated that the Tenth Circuit says that a court should stay rather than dismiss. See Tr. at 4:7-8 (Court). Nambe Corp. replied that there is no practical impact on Nambe Corp. either way, because, Nambe Corp. avers, if the Court stays for World Fuel to exhaust Tribal remedies, Nambe Corp. averred that the Nambe Pueblo Tribal Court will decide whether there is a binding contract and binding arbitration clause. See Tr. at 4:9-14 (Rogers). Nambe Corp. stated that if the Nambe Pueblo Tribal Court determines that there is a binding contract, World Fuel will likely argue for the Nambe Pueblo Tribal Court to compel arbitration, and if the Nambe Pueblo Tribal Court determines that there is no binding contract, then Nambe Corp. will not agree to arbitration, because it will argue that its sovereign immunity is not waived. See Tr. at 4:14-19 (Rogers). Nambe Corp. averred that either way, there might be an appeal in the Tribal Court context, “but again, the plaintiffs have the right to come back and challenge the underlying Tribal Court jurisdiction after that process is completed.” Tr. at 4:19-23 (Rogers).

         Nambe Corp. stated that National Farmers and Iowa Mutual provide the basis for Nambe Corp.'s motion for dismissal or for a stay. See Tr. at 4:24-5:1 (Rogers). Nambe Corp. stated that the Tenth Circuit interprets these cases to establish an inflexible bar “that prohibits this Court from reaching the merits” of World Fuel's petition. Tr. at 5:1-4 (Rogers). Nambe Corp. stated that the Tenth Circuit repeats the inflexible bar holding in so many cases that “there is really no discretion here in regard to [World Fuel's] duty to exhaust Tribal remedies before asking this Court to look at anything.” Tr. at 5:4-11 (Rogers). Nambe Corp. asserts that there is a colorable basis for Tribal jurisdiction, first, because the case's impact is “potentially adverse to the resources of the tribe, ” given that Nambe Pueblo wholly owns Nambe Corp., so if World Fuel prevails on their payment dispute, Nambe Pueblo's financial resources will be impacted and, second, because the Nambe Pueblo Tribal Court may exercise jurisdiction over disputes arising from consensual relationships on Nambe Pueblo's land. Tr. at 5:15-25 (Rogers).

         Nambe Corp. averred that the fuel sales, the basis of the parties' dispute, “are continuing today, notwithstanding that [Nambe Corp. has] told World Fuel that [their] contract was never approved by the Board.” Tr. at 6:3-6 (Rogers). Nambe Corp. argued that whether Board approval was required or what the effect of a lack of Board approval is “needs to go to the Tribal Court.” Tr. at 6:6-8 (Roger). Nambe Corp. submitted that Tribal Court jurisdiction clearly exists under federal law, because World Fuel will be the plaintiff in any Nambe Pueblo Tribal Court suit to compel arbitration, and, when a non-Indian plaintiff sues a Tribal entity in Tribal Court, Williams v. Lee clearly establishes jurisdiction, because the dispute arises from the parties' dealings and the Indian party's actions on their reservation. See Tr. at 6:10-20 (Roger). Nambe Corp. asserted that the Tenth Circuit recently reaffirmed Williams v. Lee's rule in Navajo Nation v. Dalley. See Tr. at 6:21-23 (Rogers).

         Nambe Corp. contended that Montana's jurisdictional test does not apply, because it applies only where the non-Indian party is the defendant in a suit that a Tribal plaintiff files in Tribal Court, typically arising from something that happened on the reservation. See Tr. at 6:25-7:6 (Rogers). Nambe Corp. averred that, if the Court concludes Montana's test applies, this case also fits Montana's test. See Tr. at 7:6-8 (Rogers). Nambe Corp. contended that, to establish Tribal Court jurisdiction, Nambe Corp. must show that “there is a non-Indian party involved with a Tribal party [in] some kind of dealings on the reservation, [and] the dispute arises from those dealings, and the relief sought has a nexus to the dispute and the activity of the non[-]Indian party on the reservation.” Tr. at 7:15-21 (Rogers). Nambe Corp. averred that Atkinson Trading Co., Inc. v. Shirley, 532 U.S. 645 (2001), added the nexus requirement, which is clearly satisfied, because the dispute arises from the parties' alleged Agreement and World Fuel's activity on Nambe Pueblo Lands, and World Fuel's sought relief, payment of allegedly owed excise taxes, has a nexus to the dispute. See Tr. at 7:21-8:1 (Rogers).

         The Court next asked whether both National Farmers and Iowa Mutual involve cases with parallel proceedings in Tribal Court. See Tr. at 8:8-10 (Court). Nambe Corp. responded that parallel Tribal Court proceedings existed for both National Farmers and Iowa Mutual, but that the Tenth Circuit has said there is no requirement of a parallel or prior Tribal Court proceeding to trigger the Tribal remedy exhaustion duty, as United States v. Tsosie, 92 F.3d 1037, 1041 (10th Cir. 1996), states. See Tr. at 8:11-15 (Rogers). In United States v. Tsosie, the Tenth Circuit enforced the exhaustion duty against the United States, concluding that no pending Tribal Court action is required. See Tr. at 8:15-9:3 (Rogers). Nambe Corp. stated that Smith v. Moffett, 947 F.3d at 446, came to the same conclusion. See Tr. at 9:3-5 (Rogers). Nambe Corp. stated that, if a Tribal Court proceeding is filed after a federal action, parallel proceedings and conflicting rulings could result, so, to avoid motivating a race to the courthouse in every dispute, the Tenth Circuit adopted a rule that the existence of parallel proceedings is immaterial. See Tr. at 9:11-19 (Rogers).

         Nambe Corp. next contended that World Fuel cannot rely on a contract that no Court has ruled is binding to contend that Nambe Corp. waived the Tribal exhaustion requirement, and furthermore, that nothing in the contract waives or purports to waive Tribal remedies. See Tr. at 9:23-10:7 (Rogers). Nambe Corp. avers that, in the Tenth Circuit, a Tribal party cannot waive the Tribal exhaustion duty. See Tr. at 10:7-9 (Rogers). Nambe Corp. cited to Navajo Nation v. Intermountain Steel Bldgs, Inc., 42 F.Supp.2d 1222 (D.N.M. 1999)(Parker, J.), in which the Honorable James A. Parker, now-Senior United States District Judge for the District of New Mexico, concluded, based on Smith v. Moffett, that the Tribal exhaustion rule cannot be waived. See Tr. at 10:13-24 (Rogers).

         Nambe Corp. next argued that the FAA is unlike the PAA, because the FAA does not make the federal court the exclusive forum to hear arbitration demands. See Tr. at 11:10-14 (Rogers). Nambe Corp. argues that the FAA's § 4 says a party seeking to compel arbitration may file that petition in federal court, but that state and Tribal Courts also hear FAA cases, and that, unlike the PAA, the FAA confers on the court no independent basis for federal jurisdiction. See Tr. at 12:1-11 (Rogers). Nambe Corp. argued that El Paso, on which World Fuel relies, reiterates the normal rule of exhaustion, and carves out a narrow exception for the PAA, which converts state claims to federal ones and allows for removal to federal court, expressing a clear congressional preference for a federal forum. See Tr. at 13:3-19 (Rogers). Nambe Corp. argued that none of the cases on which World Fuel relies exclude from the scope of the Tribal exhaustion rule situations where there is an underlying dispute whether the contract containing the arbitration clause ever bound the party resisting arbitration and that the Nambe Tribal Court must determine the contract's binding nature. See Tr. at 14:13-19 (Rogers). Nambe Corp. argued, furthermore, that, in the cases on which World Fuel relies, the arbitration clauses at issue committed the gateway issues of the contract's validity to the arbitrator, whereas the clause at issue here does not do that. See Tr. at 14:20-15:2 (Rogers).

         Nambe Corp. contended that the Nambe Pueblo Tribal Court should decide all the factual and legal issues here, because their resolution requires Federal Charter interpretation. See Tr. at 15:13-18 (Rogers). Nambe Corp. stated that federal courts have a duty to act when confronted with federal causes of action, but the Tribal exhaustion doctrine creates a non-jurisdictional exception to that duty. See 16: 3-9 (Rogers). Nambe Corp. also argued that there is no reason to believe that requiring Tribal exhaustion will unduly deprive World Fuel of a speedy remedy and that World Fuel elected to file in federal court before exhausting Tribal remedies in the first instance. See 16:17-17:3 (Rogers). Nambe Corp. contended that, if the Nambe Pueblo Tribal Court correctly determines that it has jurisdiction, res judicata will bar relitigation of issues it resolves. See Tr. at 17:3-9 (Rogers). Nambe Corp. also contends that attacks on the Nambe Pueblo Tribal Court's competence do not excuse World Fuel from the Tribal exhaustion requirement. See Tr. at 17:9-13 (Rogers).

         The Court asked Nambe Corp. to tell it about the Nambe Pueblo Tribal Court and to what the Court will be deferring, if it dismisses or stays the proceedings. See Tr. at 17:19-21 (Court). Nambe Corp. responded that the Nambe Pueblo Tribal Court's judge was a barred attorney in New Mexico before her license lapsed, that she is law-trained, and that she has many years of experience. See Tr. at 17:22-25 (Rogers). Nambe Corp. stated that the Nambe Pueblo Tribal Court has rules of procedure, and that it borrows from state law where Tribal law does not apply, and that the Southwest InterTribal Court of Appeals hears appeals from the Nambe Pueblo Tribal Court, and that the Nambe Pueblo Tribal Court contracts with many small Tribes to handle appellate matters. See Tr. at 18:1-8 (Rogers). Nambe Corp. informed the Court that the Nambe Pueblo Tribal Court issues written opinions and has its own body of law. See Tr. at 18:8-10 (Rogers).

         The Court next asked about the pending petition for certiorari in Harvey v. Ute Indian Tribe of the Uintah & Ouray Reservation, which was fully briefed and distributed for the January 4, 2019, conference and presents two questions: (i) whether the Tribal exhaustion doctrine which requires federal courts to stay cases challenging Tribal jurisdiction until the parties have exhausted parallel Tribal Court proceedings applies to state courts as well, and (ii) whether the Tribal exhaustion doctrine requires that non-Tribal courts yield to Tribal Courts when the parties have not invoked the Tribal Courts' jurisdiction. See Tr. at 18:14-19:4 (Court). The Court stated that “it appears that federal courts are split regarding whether the Tribal exhaustion doctrine applies in the absence of parallel Tribal Court proceedings.” Tr. at 19:5-8 (Court). The Court asked whether United States v. Tsosie suggests that a non-Tribal court may still consider the absence of a parallel Tribal proceeding as a factor in determining whether the Tribal exhaustion doctrine should apply. See Tr. at 19:13-16 (Court). Nambe Corp. responded that non-Tribal courts may not consider as a factor the absence of a parallel Tribal proceeding. See Tr. at 19:19-20:2 (Rogers).

         The Court asked whether, if the Tribal exhaustion doctrine is analogous to an abstention doctrine, the Court should abstain from considering a case only when there is a parallel proceeding to which the Court may abstain. See Tr. at 20:9-20 (Court). Nambe Corp. responded that, although Tribal exhaustion is a form of abstention, it is a special form that the Supreme Court and the Tenth Circuit created, in the Tribal exhaustion context, and does not require a parallel proceeding. See Tr. at 20:23-21:2 (Rogers). The Court next asked whether the Motion is a 12(b)(1) or a 12(b)(6) motion. See Tr. at 22:7-9 (Court). Nambe Corp. responded that “a lot of people are struggling with that question” and that it is “sort of neither.” Tr. at 22:10-13 (Rogers). Nambe Corp. contended that the Motion is akin to a 12(b)(1), but that it is not a jurisdictional motion, and that it is akin to a 12(b)(6), but it is not an attack on the Complaint's merits. See 22:15-18 (Rogers). Nambe Corp. averred that, in the District of New Mexico, parties “file affidavits like we did to show the predicate facts that are necessary to invoke the doctrine . . . .” Tr. at 22:19-21 (Rogers). Nambe Corp. stated that the Tribal exhaustion requirement is not jurisdictional, but is a unique, non-waivable, Supreme-Court-established duty which does not require a parallel Tribal Court proceeding to apply. See Tr. at 23:6-14 (Rogers). Nambe Corp. states that the Tribal exhaustion doctrine falls under neither rule 12(b)(1) nor rule 12(b)(6), and that it “just says notwithstanding” the validity of the pleading in any other context “there is a duty to exhaust Tribal remedies.” Tr. at 23:21-24:1 (Rogers).

         World Fuel began by averring that the Tribal exhaustion doctrine is the sole basis for Nambe Corp.'s Motion, and that World Fuel's Complaint is validly pled. See Tr. at 25:1-4 (Zaron). World Fuel alleged that the Agreement is valid, Nambe Corp. breached the arbitration provision's terms, and the conditions precedent for arbitration have been satisfied. See Tr. at 25:6-9 (Zaron). World Fuel argued that the Court may not consider the R. Vigil Aff. unless Nambe Corp.'s Motion is jurisdictional, and that, because it is not jurisdictional, the affidavit improperly alleges facts outside of the Complaint which the Court may not consider. See Tr. at 25:9-16 (Zaron). World Fuel alleges that, because Nambe Corp. improperly relied on the R. Vigil Aff. in filing its Motion, the Court should deny the Motion and require Nambe Corp. to file an Answer, or the Court should summarily move the matter to trial. See Tr. at 25:14-22 (Zaron). The Court asks whether, if Nambe Corp.'s Motion is based on comity, and not on either 12(b)(1) or 12(b)(6), there is any reason the Court cannot rule on the Motion without an Answer. See Tr. at 26:1-5 (Court), id. at 26:8-15 (Court). World Fuel argued that, because there are factual issues here -- including where the cause of action accrued -- there should be an Answer, but the Court asked whether, if the bar is as low as identifying a colorable claim for jurisdiction, the Nambe Pueblo Tribal Courts should take the first look. See Tr. at 26:16-27:1 (Zaron, Court).

         World Fuel alleged that, on page 12, the Federal Charter states that the president signs and approves of all contracts and instruments on behalf of Nambe Corp., except for those expressly delegated to the chief executive officer after the Board's authorization. See Tr. at 27:14-22 (Zaron). World Fuel contended, accordingly, that there is no colorable claim for jurisdiction, because, if the Nambe Corp. president had authority to sign the contract, the contract is valid, and this Court “would have jurisdiction to decide whether or not this matter should go to arbitration.” Tr. at 27:22-28:5 (Zaron). World Fuel argued that there is no dispute as to the contract's validity and “that's really the basis for which [Nambe Corp. is] seeking exhaustion . . . .” Tr. at 28:23-25 (Zaron). The Court examined the Federal Charter and stated that it did not appear complete, noting its inconsistent pagination, and stated that “[i]t seems to raise more questions than it does answers.”[17] Tr. at 29:16-24 (Court, Zaron).

         World Fuel contended that the Tribal Courts do not have jurisdiction to consider an action under the FAA's § 4, because “there is exclusive jurisdiction in this Court to consider actions under section 4.” Tr. at 30:4-8 (Zaron). World Fuel argued that, while state courts consider FAA §§ 2 and 3 arbitration claims, exclusively federal courts consider § 4 claims. See Tr. At 30-20-22 (Zaron). World Fuel argued that § 4 sets forth “specific procedures that are governed by the Federal Rules of Civil Procedure that specifically provide for a speedy and efficient resolution.” Tr. at 31:8-11 (Zaron). World Fuel argued that, although they could seek to compel arbitration under a different FAA section, World Fuel brought their petition pursuant to § 4 “which does have special provisions providing for the application of the Federal Rules of Civil [Procedure] and certain limitations on notice . . . .” Tr. at 32:1-6 (Zaron).

         World Fuel next argued that, if the Court dismisses this case, World Fuel would be the plaintiff in the Nambe Pueblo Tribal Court and would have to file a motion to dismiss World Fuel's own Complaint, because “we think that there is no colorable basis for jurisdiction under this section of the FAA in Tribal Court . . . .” Tr. at 33:7-16 (Zaron). World Fuel argued that, in the administrative context, Supreme Court caselaw suggests that arbitration's goals trump the practice of administrative remedy exhaustion, despite the states' strong interest in protecting regulations and ordinances. See Tr. at 34:24-35:10 (Zaron). World Fuel argued that, in El Paso, the Supreme Court determined that the PAA's speed and efficiency goals were more important than Tribal exhaustion, and that the FAA has “similar language in terms of the need for speed and efficiency . . . .” Tr. at 35:14-36:8 (Zaron). World Fuel then stated that the Court has diversity jurisdiction over the case. See Tr. at 37:2-15 (Zaron).

         World Fuel then argued that, based on Becker v. Ute Indian Tribe of the Uintah & Ouray Reservation, 868 F.3d 1199 (10th Cir. 2017), Nambe Corp. can waive the Tribal exhaustion doctrine. See Tr. at 38:3-14 (Zaron). In Becker v. Ute Indian Tribe of the Uintah and Ouray Reservation, the Tenth Circuit analyzed whether the Tribe had waived Tribal exhaustion, suggesting that a waiver is possible. See Tr. at 38:3-14 (Zaron). World Fuel contended that the Court needs “to determine whether or not there has been a waiver of Tribal exhaustion.” Tr. at 38:18-20 (Zaron).

         World Fuel argued that, where there is a factual dispute, “the proper mechanism is to go to trial on the factual issues in a summary fashion.” Tr. at 39:14-16 (Zaron). World Fuel alleged that the dispute involves about two million dollars in allegedly unpaid excise taxes which World Fuel contends that Nambe Corp. owes World Fuel. See Tr. at 40:10-13 (Zaron). World Fuel averred that, in Comanche Indian Tribe of Okla. v. 49 L.L.C., 391 F.3d 1129 (10th Cir. 2004), the Tenth Circuit affirmed the federal district court's determination of the issue of contract formation, and that, in that case, there was no Tribal exhaustion or deference to a Tribal Court, because there was no Comanche Tribal Court. See Tr. at 40:19-41:6 (Zaron). World Fuel contended that the issues here do not require prior Tribal expertise, but likely involve examining New Mexico law to interpret the contract, something that this Court could do. See Tr. at 41:12-19 (Zaron).

         World Fuel next turned to the issue of parallel proceedings, and argued that the lack of a Tribal proceeding “is a factor in making a decision whether or not you should dismiss this and say that exhaustion applies here.” Tr. at 42:3-6 (Zaron). World Fuel argued that, because a § 4 arbitration claim may not be filed in Tribal Court, there can be no parallel proceeding, and that the appropriate course of action “would be to deny the motion to dismiss and require the Nambe corporation to file an answer, and then proceed to a summary trial of the issue . . . .” Tr. at 42:12-42:22 (Zaron).

         Regarding the R. Vigil Aff.'s improper consideration of facts outside the Complaint, Nambe Corp. stated that, while some of Nambe Corp.'s responses regarding the inapplicability of Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 67 (2010), and Buckeye Check Cashing, Inc. v. Cardegna “do depend on the [R.] Vigil affidavit[']s statement that” the Board never approved the contract, the Court may disregard those arguments, “because the issue here is whether or not they need to file their motion to compel arbitration in the Tribal Court.” Tr. at 43:1-8 (Rogers). Nambe Corp. contended that the arbitration clause at issue here does not reserve gateway issues such as contract validity to arbitration. See Tr. at 43:8-15 (Rogers). Nambe Corp. argued that, disregarding the portions of the R. Vigil Aff. that address the Board's lack of approval of the contract, the Federal Charter's §§ 301(e) and 701 indicate that the Board must approve of the contract. See Tr. at 43:22-44:4 (Rogers). Nambe Corp. argued that the Federal Charter's interpretation “needs to be handled in the Tribal Court.” Tr. at 44:17-21 (Rogers). Nambe Corp. contends that, in Comanche Indian Tribe of Okla. v. 49 L.L.C., the Tribe did not argue for exhaustion, because no Comanche Tribal Court existed. See Tr. at 45:5-8 (Rogers). Nambe Corp. argues that, although World Fuel, if it files in Nambe Pueblo Tribal Court, will not bring its action under the FAA's § 4, the exhaustion doctrine requires only that the Tribal Court resolve the parties' dispute and the Nambe Pueblo Tribal Court may resolve the dispute without invoking § 4. See Tr. at 45:22-46:5 (Rogers).

         The Court stated that it would not rule definitively at the hearing, but that the Court's impression “is this is a very strong exhaustion requirement . . . .” Tr. at 54:15-55:1 (Court). The Court stated that it is concerned about trying to avoid the Tribal exhaustion doctrine without firmer footing. See Tr. at 55:8-10 (Court). The Court indicated that it would attempt to get an opinion to the parties after the first of the year. See Tr. at 56:1-3 (Court).

         LAW REGARDING RULE 12(b)(1) MOTIONS TO DISMISS.

         “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)(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 (1998)(“[T]he party invoking federal jurisdiction bears the burden of establishing its existence.”). “[Because] federal courts are courts of limited jurisdiction, we presume no jurisdiction exists absent an adequate showing by the party invoking federal jurisdiction.” United States ex rel. Hafter v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1160 (10th Cir. 1999). Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a party to raise, by motion, the defense of the court's “lack of jurisdiction over the subject matter.” 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).

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 aimed at the jurisdictional facts themselves, a district court may not presume the truthfulness of those 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 [summary-judgment] motion.

Alto Eldorado Partners v. City of Santa Fe, No. CIV 08-0175 JB/ACT, 2009 WL 1312856, at *8-9 (D.N.M. March 11, 2009)(Browning, J.)(citations omitted), aff'd on other grounds by 634 F.3d 1170 (10th Cir. 2011). 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 plaintiff's 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)(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 complaint's allegations 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); Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). In those instances, 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)). 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 under either rule 12(b)(6) or rule 56. See Franklin Sav. Corp. v. United States, 180 F.3d 1124, 1129 (10th Cir. 1999); Tippett v. United States, 108 F.3d 1194, 1196 (10th Cir. 1997). “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)(quoting Sizova v. Nat'l Inst. of Standards & Tech., 282 F.3d 1320, 1324 (10th Cir. 2002)).

         LAW REGARDING MOTIONS TO DISMISS UNDER 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). A court may also consider documents to which the complaint refers, if their adequacy is central to the plaintiffs' claims and their authenticity is unquestioned. See Armstrong v. N.M. Disability Det. Servs., 278 F.Supp.3d 1193, 1201 n.3 (D.N.M. 2017)(Browning, J.)(concluding that the court properly considered notices attached to the motion and not to the complaint, because the complaint referenced them, their adequacy was central to the plaintiffs' claims, and their authenticity was unquestioned). See also GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997)(Kelly, J.)(“[I]f a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiff's claim, a defendant may submit an indisputably authentic copy to the court to be considered . . . .”).

         A complaint's sufficiency 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 favorable to the non-moving party, and draw all reasonable inferences in the plaintiff's favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. at 322 (“[O]nly if a reasonable person could not draw . . . an inference [of plausibility] from the alleged facts would the defendant prevail on a motion to dismiss.”); Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)(“[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pleaded factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.” (quoting Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006))). At the motion-to-dismiss stage, the court does not weigh the evidence, and “is interested only in whether it has jurisdiction and whether the [p]laintiffs plead a claim to relief that is plausible on its face.” Begay v. Pub. Serv. Co. of N.M., 710 F.Supp.2d 1161, 1199 (D.N.M. 2010)(Browning, J.).

         A complaint need not set forth detailed factual allegations, yet a “pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action” is insufficient. Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp v. Twombly, 550 U.S. at 555 (citation omitted). See Duncan v. Citibank (S.D.), N.A., No. CIV 06-0246 JB/KBM, 2006 WL 4063021, at *3 (D.N.M. June 30, 2006)(Browning, J.)(dismissing a civil Racketeer Influenced and Corrupt Organizations Act (“RICO”) cause of action from a complaint where the complaint alleged a single physical act, and not a pattern of racketeering activity, and a pattern of activity is one of the elements required to state a RICO claim).

         To survive a motion to dismiss, a plaintiff's complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. at 570; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556). “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complainant must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)(emphasis omitted). A court will not construe a plaintiff's pleadings “so liberally that it becomes his advocate.” Bragg v. Chavez, No. CIV 07-0343 JB/WDS, 2007 WL 5232464, at *25 (D.N.M. Aug. 2, 2007)(Browning, J.). The Tenth Circuit has stated:

“[P]lausibility” in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.” The allegations must be enough that, if assumed to ...

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