MEMORANDUM AND ORDER

G. T. VanBEBBER, United States District Judge.

Plaintiff Potaluck Corporation of Kansas brings this action against Defendant Prairie Band of Potawatomi Indians, alleging that Defendant breached a contract with Plaintiff concerning the construction and management of a casino facility on Defendant's reservation. The case is before the court on Defendant's Motion for Judgment on the Pleadings and to Dismiss (Doc. 22) and on Defendant's Motion to Dismiss or Strike Potaluck's First Amended Complaint and for Sanctions (Doc. 24). For the reasons set forth below, Defendant's Motion for Judgment on the Pleadings and to Dismiss is granted and Defendant's Motion to Dismiss or Strike Potaluck's First Amended Complaint and for Sanctions is denied.

I. Motion for Judgment on the Pleadings and to Dismiss A. Standards

A motion for judgment on the pleadings under Fed.R.Civ.P. 12(c) is treated as a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). See Bishop v. Federal Intermediate Credit Bank of Wichita, 908 F.2d 658, 663 (10th Cir. 1990). If on a motion to dismiss brought pursuant to Rule 12(b)(6) or Rule 12(c), "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in [Fed.R.Civ.P.] 56." Fed.R.Civ.P. 12(b); see also Lowe v. Town of Fairland, Okla., 143 F.3d 1378, 1381 (10th Cir. 1998). In this case, both parties have submitted materials outside the pleadings that have not been excluded by the court and, therefore, the court treats the motion as one for summary judgment brought pursuant to Rule 56.

Summary judgment is appropriate if the evidence presented by the parties demonstrates "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A "genuine" issue of fact exists if the evidence is such that a reasonable jury could resolve the issue either way. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of fact is "material" if it is essential to the proper disposition of the claim. See id. (citing Anderson, 477 U.S. at 248). The court must consider the record, and all reasonable inferences therefrom, in the light most favorable to the party opposing the motion. See id.

The party moving for summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. See id. at 670-71 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). If the moving party will not bear the burden of persuasion at trial, that party "may make its prima facie demonstration simply by pointing out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim." Id. at 671 (citing Celotex, 477 U.S. at 325). Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to go beyond the pleadings and set forth specific facts from which a reasonable jury could find in favor of the nonmoving party. See id.

B. Factual Background

The following facts are either uncontroverted or are based on the evidence submitted with memoranda in support of or in opposition to Defendant's Motion for Judgment on the Pleadings and to Dismiss and viewed in a light most favorable to Plaintiff. Immaterial facts and facts not properly supported by the record are omitted.

Plaintiff entered into a written agreement with Defendant in June 1992, pursuant to which Plaintiff would construct and manage a casino facility on Defendant's reservation. In August 1992, Defendant's Tribal Council ratified the agreement, and the Tribal Chairman affirmed it in writing. At that time, Defendant's Tribal Council also passed a resolution amending the agreement to comport with "[r]equirements of the Indian Gaming Regulatory Act."

The agreement provided as follows:

41.4 Limited Waiver of Sovereign Immunity and Rights to Tribal Remedies. [Defendant] hereby waives its sovereign immunity, its right to require exhaustion of tribal remedies, and its right to seek tribal remedies with respect to any dispute over specific written rights and duties of [Plaintiff] pursuant to this Contract, the Loan Agreement, the notes or the Security Agreement.

Pursuant to the agreement, Plaintiff paid Defendant $325,601.79. Plaintiff alleges that, in February 1997, it "obtained information that defendant may not intend to honor the agreement; this intent not to honor the agreement was confirmed by telephone conversation between legal counsel for plaintiff and defendant." Plaintiff then demanded repayment of the $325,601.79, but Defendant has refused to pay.

C. Analysis

Plaintiff's complaint alleges fraud, breach of implied covenant of good faith and fair dealing, unjust enrichment, and detrimental reliance. Defendant argues, among other things, that this court should dismiss the case because Plaintiff failed to exhaust its remedies in tribal court before bringing this action. Contending that the Potawatomi court system possesses jurisdiction over these claims, Defendant argues that the court should dismiss this action because Plaintiff has not exhausted all of its remedies in that system. Plaintiff responds that Defendant "by written agreement expressly waived . . . exhaustion of tribal remedies."

"Congress is committed to a policy of supporting tribal self-government and self-determination." Navajo Nation v. Intermountain Steel Bldgs., 42 F. Supp.2d 1222, 1225 (D.N.M. 1999) (quoting National Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 856 (1985)). "`Tribal authority over the activities of non-Indians on reservation lands is an important part of tribal sovereignty,' and `civil jurisdiction over such activities presumptively lies in the tribal courts unless affirmatively limited by a specific treaty provision or federal statute.'" Id. (quoting Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 18 (1987)). Based on these policies, the United States Supreme Court developed the "tribal exhaustion rule." See National Farmers, 471 U.S. at 856-57. The rule provides that, "as a matter of comity, a federal court should not exercise jurisdiction over cases arising under its federal question or diversity jurisdiction, if those cases are also subject to tribal jurisdiction, until the parties have exhausted their tribal remedies." Tillett v. Lujan, 931 F.2d 636, 640 (10th Cir. 1993). "Exhaustion is required as a matter of comity, not as a jurisdictional prerequisite. In this respect, the rule is analogous to principles of federal abstention [where,] as here, strong federal policy concerns favor resolution in the non federal forum." Iowa Mutual, 480 U.S. at 16 n. 8. The Tenth Circuit "has taken a `strict view of the tribal exhaustion rule,'" Calumet Gaming Group-Kan., Inc. v. Kickapoo Tribe of Kan., 987 F. Supp. 1321, 1327 (D.Kan. 1997) (quoting Kerr-McGee Corp. v. Farley, 115 F.3d 1498, 1507 (10th Cir. 1997)), and has construed the rule as more than "a mere defense to be raised or waived by the parties,"Smith v. Moffett, 947 F.2d 442, 445 (10th Cir. 1991). See also Navajo Nation, 42 F. Supp.2d at 1227 (concluding that in the Tenth Circuit, the rule cannot be waived and applies even when no action has been brought in the tribal court). In fact, when none of the recognized exceptions to the rule apply, and the dispute concerns a "reservation affair" or "arises on the reservation,"Texaco, Inc. v. Zah, 5 F.3d 1374, 1378 (10th Cir. 1998), "there is no discretion not to defer" to the tribal courts and federal courts may abstain without first analyzing the comity and tribal sovereignty issues discussed in National Farmers, Kerr-McGee, 115 F.3d at 1507 (quoting Zah, 5 F.3d at 1378) (further citation omitted).

Defendant argues that the tribal court possesses jurisdiction over Plaintiff's claims because the case involves "contract and/or tort claims between a non-Indian and an Indian tribe and an activity that arises on an Indian reservation." Although Plaintiff responds that Defendant "waived . . . exhaustion of tribal remedies" and is precluded from making that argument here, the Tenth Circuit "do[es] not view the requirement of exhaustion of tribal remedies as a mere defense to be raised or waived by the parties." Moffett, 947 F.2d at 445. However, three exceptions to the tribal exhaustion rule exist. If "an assertion of tribal jurisdiction is motivated by a desire to harass or is conducted in bad faith, or where the action is patently violative of express jurisdictional provisions, or where exhaustion would be futile because of the lack of an adequate opportunity to challenge the court's jurisdiction," exhaustion might not be required. National Farmers, 471 U.S. at 857 n. 21. No such exceptions have been alleged, and none apply, here. This court has previously determined that a case such as this, which "concerns performance of contracts relating to a gaming operation located on the Tribe's reservation," is a "reservation affair" for which comity requires exhaustion of tribal remedies before suit in federal court. Calumet, 987 F. Supp. at 1329. The court concludes that the Tenth Circuit's interpretation of the tribal exhaustion doctrine requires that Plaintiff exhaust its remedies in the Potawatomi court system concerning all of its claims before it may raise those issues in this court.

In applying the tribal exhaustion rule, district courts have discretion to decide whether to stay or to dismiss the federal action. See National Farmers, 471 U.S. at 857; Iowa Mutual, 480 U.S. at 20 n. 14. The court determines that this case should be dismissed without prejudice because no claims have been brought to which the tribal exhaustion rule should not be applied, the case is still in the early stages of litigation, and dismissal without prejudice will allow Plaintiff to return to federal court once it has exhausted its tribal court remedies. Moreover, neither party has requested that the court stay the action. For the foregoing reasons, the court dismisses the case without prejudice. II. Motion to Dismiss or Strike First Amended Complaint and for Sanctions

In this motion, Defendant first argues that Plaintiff's First Amended Complaint should be dismissed. The court's disposition of Defendant's Motion for Judgment on the Pleadings and to Dismiss, however, renders this question moot. Defendant also asks the court to levy sanctions against Plaintiff for filing an incorrectly dated Certificate of Service. Plaintiff responds that the Certificate was misdated through inadvertence, was not intended to mislead the court, and did not prejudice Defendant. The court determines that Defendant was in no way prejudiced, and declines to sanction Plaintiff. Defendant's motion is denied.

IT IS, THEREFORE, BY THE COURT ORDERED that Defendant's Motion for Judgment on the Pleadings and to Dismiss (Doc. 22) is granted, Defendant's Motion to Dismiss or Strike Potaluck's First Amended Complaint and for Sanctions (Doc. 24) is denied, and the case is dismissed without prejudice.

The case is closed.

Copies of this order shall be mailed to counsel of record.

IT IS SO ORDERED.