of the question that must be answered in this case is whether the tribe or the individual defendants or the real parties in interest on the fraud and rico claims alleged in the game is complaint we submit that the tribe is the real party in interest and are the test articulated in lewis v clarke and therefore the that the claims against the individual defendants are barred by the tribe sovereign immunity will ask this court to reverse the district court's order on the motion to dismiss and dismiss the individual defendants from this action and i want to get right to the heart of the matter this case and that is in applying the real party in interest test whether courts should simply look at which party will be bound by an adverse judgment as the district court did here and as gaming contends is correct or whether courts must examine other aspects of the suit including the other allegations and claims in the complaint and the capacity in which the defendants were alleged have been acting in order to determine which party is the real party in interest fortunately or honors the supreme court has given us clear guidance on this issue in ex parte errors ex parte new york which is cited by b clarke and ford motor company the supreme court held that courts applying the real party in interest test must determine the essential nature and effect of the proceeding based on the record as a whole well listen this is a specific claim against individuals for monetary damages it is a fraud and the rico claims are legit against the individual defendants only and it's done it they do that the pla that's correct it's alleged that these individuals have committed fraud and racketeering however if you look at the overall nature of the complaint the basis of the suit is a breach of by its maturity date and gaming sued for breach of contract when why why doesn't lewis and clark control this case employee acting within the scope of his employment the time of the tour is was a car accident case plants alleged they suffered personal injuries due to the personal conduct courses conduct of a tribal employee here as i've already said this case arises out of a business relationship and in addition to suing the tribe for breach of contract there was a waiver given by the tribe in the note for that suit the plaintiff has sued entire and the entire tribal council for fraud even even council members who were not on the council at the time that the note was negotiated and all of these alleged fraudulent acts occurred that is it is evidence that the sovereign is the real party in interest you sue the office the tribal council  those cases too are poor actions toward actions alone there is no underlying breach of contract no underlying contractual relationship but that would mean for the what difference does that make is there any way that the tribe could be liable for the monetary judgment if one were rendered against the individual defendants in this case and if the tribe could be held liable no we concede that the judgment if there is an adverse judgment on the fraud claims against the individual defendants that that judgment runs against the individual defendants however well with that concession then how can the individual defendants invoke the sovereign immunity because that's not the whole test court so clearly stated that courts applying the real party in interest test have to look at the record as a whole for example the plaintiff requests equitable release in their complaint they request the appointment of a receiver overall business and affairs of the tribe under this court's holding in maxwell where the court said in suits against travel officials the courts have to be sensitive to whether the judgment this whole thing can you not collect what the damages are on a direct suit against dr no they can plaintiff can collect i'm assuming that they prove that though it was a valid waiver and prove liability under the contract and prove that they can recover against the tribe in accordance with the note yes they can be made whole on the contract claim but yours claim an additional damage is based on the  in rico or whatever else is that they did yes we are there is no basis for those claims in fact it is this is not the time you know to argue the facts however if you look at the allegations in the complaint which is all that the court has before it the allegations of fraud are extraordinarily speculative the plaintiff's entire theory of fraud rests on an allegation that of it then makes the conclusion that that money sometimes it says three hundred and twenty four thousand sometimes it says the whole amount that plaintiff invested was directed the personal uses unspecified personal uses of of the town of those assertions or claims relate to the contract and seize or all fraud claims well they are fraud claims however as lewis says the critical inquiry in striped suits against travel officials is whether those official capacity there's no immunity if the individuals are responsible for the monetary damages well p store holds that officials acting in an official  capacity there that they claim a right that tortious conduct made during the time that they are serving in an official capacity could potentially lead to individual liability however if the the allegations in the complaint show that the officials were acting in a representative capacity then they may serve a search sovereign immunity and that is precisely what this complain complaint overall shows conduct the conduct that they allege underlies the fraud and the and the racketeering is conduct that describes tribal officials governing the tribe at every step of the way in their fraud allegations if they allege that the officials negotiated a contract with j w gaming that they created through passing tribal resolutions the the pineau of all business board that they open bank accounts that they appointed a  party as their contact for casino development purposes that is is the precise things that precise activities that any members of government do when they are operating the government and so if the plaintiff were allowed to get into the council room simply by alleging there was fraud in relation to less than five percent of the total investment by  by by a rd party then the government would grind to a halt whether it's a tribal government or the state or a federal government it is a dangerous rule that would be adopted if this court were to affirm the district court's ruling on tribal sovereign immunity here the officials in this case were acting within the scope of their authority at all times relevant to the negotiation of the contract and the disbursement of the loan proceeds it's a claim by the plaintiffs there is a oral statements by your clients or to prove fraud as i said earlier they allege that there was that the trouble officials directed funds to unspecified personal uses they don't say they don't directly say how much  funds were were directed when they were directed to personal uses whether they were directed to personal bank accounts what what use that money was was put to their extraordinarily speculative and in fact don't please possibility test in our view i want to get back to this court's statement in maxwell that court in suits against travel officials courts must be sensitive to whether the judgment would interfere with public administration of the government the sovereign or restrain the sovereign from acting in the petition for mandamus that we filed in this case which has been combined  petition in the response but to the petition in the response to the petition for mandamus the plaintiff has stated that it is going to seek the remedy of reformation of contract against the tribe it wants to reform the contract in order to make the loan a general respect recourse lab obligation of the tribe that remedy will run without question against the  tribe would be bound by a reformed contract and so when you're applying the test the real party in interest test and the question is against which party the remedy would be applied it is clear because you're seeking reformation of the contract that the tribe is a party to that the remedy would be imposed against the tribe i see i have too many of you wanted to save a little time thank you to redress acts of fraud and money laundering the fraud and rico claims in this case as counsel i believe has conceded now seek only money damages only from the individual appellant's and that judgment and the resulting adverse judgment would run only to those individual appellants as a result only the individual appellants are the real parties and interests of that claim not the tribe yes i believe the tribe could end and that precise issue was raised in louis and was raised in maxwell i believe and the tribes there offered that as a as a reason to construe the tribe  the real party in interest and the supreme court squarely rejected it as as a purely intramural agreement and it's voluntary act to provide that indemnification can't extend sovereign immunity where it otherwise doesn't extend and so as we've elucidated through this argument so far this the the result in this case is compelled by lewis and this court's consistent decisions in  store and maxwell and those cases are resoundingly clear the real party in interest test turns on the entity that will be bound by the judgment not the entity that's going to voluntarily pay for the judgment or voluntarily fund defense or any other consideration and and so in this case where only money damages are sought against the individual talents the answer simple the individual appellants or the real party in interest now the appellant's will point to a number of different considerations as as as justification that you know in fact the tribe is the real party  interest of this case none of them are relevant to the analysis st they would point to the complaints request for the appointment of a receiver or if you examine the complaint the receiver is requested against the tribal organizational defendants along with money damages and a declaration that the contract is for record not the tribe itself well yes the tribe is defined as a tribe organizational defendant but the point i'm making here is that each of those defendants as the district court noted waived their immunity under the contract they are the real parties in interest to the contract claim that we seek money damages against them under the contract claim and as judge ork noted in his in his in his order that's that's on appeal here the merits of whether receiver is justified is dealt with much later in the litigation it's irrelevant to to the real party in interest test at issue now you have a separate claim a breach of contract against the tribe that is correct and counsel ludes to this notion that there are some remedy based on the contract and that somehow makes this case about a contract claim however the the money the five dollars and a half one million dollars was fraudulent lea induced years before the subject contract was negotiated champers initial sham promissory note was presented the money was put in it was spent a sham accounting was provided to my client and then a notice of default came from the tribes saying that my client was putting the project in jeopardy by not providing sufficient funding and in that context over the ensuing year or so is when the subject no was negotiated now i also want to point out that in the partial answer in the district court the individual appellants have raised fourteen affirmative defenses to the contract and i believe they noted in their briefing before this before this court that hey we're still holding the plaintiff to their burden of proving that there's a valid waiver under that contract and so it's the remedy under the contract is speculative still it's irrelevant to the real party in interest analysis but it certainly shouldn't  persuade the court or have any impact on its analysis here because that remedy is speculative and one of the core issues that we're going to be litigating over the contract is there's a couple of competing provisions in it and one of those provisions provides that our only recourse is against well a money judgment for breach of the note is can only be collected against revenues of a casino where there is no casino and we've outlined in our complaint all of the all of the ways that our money wasn't spent on a casino the other five and a half one million dollars that was purportedly invested we now know was in invested and we know that and we allege and the complaint that all of this debt was marketed to potential financier's as as senior debt on the project and we have an e mail in the in the in the complaint quoting hey none of these people want to get involved because of all this debt on the project all that to say the  contract this isn't a cut these claims are not contract claims they are distinct they seek different damages against different entities and at the end of the day we'll see how it shakes out and as we've cited in our briefs we'll be bound by the rule against double recovery it assuming we do collect on the contract claim and the and the  the next point i want to address is counsel's discussion about the capacity in which these actions were to were taken the most important point here today is restored addresses that issue head on  says those where the capacity in which the individuals were acting is her quote wholly irrelevant to the sovereign immunity analysis and it goes a step further and it says indeed many individual capacity claims are going to be brought against officials acting under color of law and so it has no absolutely no bearing on the the question before this court of who the real party in interest is to the to the fraud and the rico claims and i also want to point that counsel makes the argument that well that you know individual capacity claims are somehow going to hamper individual officials from exercising their government functions well that argument too was raised and rejected by the supreme court in hafer versus mello the the supreme court says to be sure the specter of money damages against individual tribal or government officials may hamper their exercise of their public duties but we have a context in which we in which we can address that and that is the personal immunity context and  so the representative capacity arguments here and that and the nature of the acts they that is the context that this panel can consider those and consider the circumstances and decide whether whether i'm some sort of personal immunity should apply such as you know qualified or legislative or the like but like like in louis the issue of personal immunity was not before the supreme court there and it's not before this panel and it's on that point it's also worth noting the implausibility that the acts here were within the scope of authority of any office there's in maxwell  individual capacity by definition on that ground one more point here is councils seems to be highlighting this this language from from maxwell and pistorius says you know the courts need to be sensitive to the impacts of these nature of the act in the office and all of these other things those are done properly interpersonal immunity analysis but we also have additional guidance from the th circuit and then pissed or it quotes that language and it says yeah maxwell says that and let's look at cases where we were sensitive to that and it and it cites and discusses this circuit's decision and cook and then cook it was a some sort of dram shop action by curious liability and the plaintiff there was suing the individual employee but sought recovery against the tribe and it said yeah that was a case where the individual was named but the relief sought was in fact against the sovereign and then and then the store start decision the bulk of the discussion is on the tribes civil jurisdiction over nonmembers under the supreme court's decision in montana so and it holds the area that yes the tribe did have authority jurisdiction to exclude this particular individual from reservation lands and then it goes and turns to the status of the individual council members and in a paragraph i think four or five sentences it says jurisdiction to do this and so the council members were acting within their official capacity and you can't bring their they're immune from suit but i but that and that hardin case relied on us for organ and i think those cases if we as we've discussed in our brief have have been marginalized marginalized and do not bear on the very clear real party and interest test that has been laid down recently by the supreme court and the circuit council also had a discussion about you know the fraud being five percent of the total amount invested and you know attacking the it's seem like the  in discussing personal uses and you know we've discussed that money were diverted to unspecified personal uses i'd like to remind the panel that those in the those arguments in the st instance go to plausibility and rule nine and so the look at that yeah and so those issues aren't aren't properly before the court and finally on the petition the request for reformation doesn't doesn't bear on the analysis that is a basis one basis on which we are seeking discovery in the district court is that we would like to reform the contract but again it's the test is not that simple the district court held that if since the individual defendants would be bound by an adverse judgment on the broad claims they are the real parties and interests the supreme court has said in several other cases which we've said in the briefs and i've mentioned here today that that's simply not the entire analysis you look to the essence of who are the essential nature of the case based on the claims for relief and the whole record be in the entire record not simply one individual claim excised from the rest of the case if courts were only required to look at who would be bound by nevers judgement and the real party interest test would be rendered hollow and it would allow plaintiffs such as the plaintiff here to dictate the nature of the suit simply by naming a defendant individually in claiming in title meant to damages and that could not have been the intent of the supreme court in lewis and the facts of lewis are so different from the facts here that it's our suggestion that lewis was an attempt to balance the rights of  victim with the with protecting tribal sovereign immunity because that was a car accident case where the plaintiffs would have been left without a remedy they allowed that claim to proceed despite the assertion of sovereign immunity by the employee here please have a remedy the remedy on their breach of contract claim and as plaintiffs counsel just conceded if they're successful on the beach contract claim and the tort claim they would be barred expansion of the doctrine of sovereign immunity in order to allow the plaintiffs claims to proceed here where they do have that remedy and they can see that they would be limited by the rule against double recovery i see i'm almost out of