NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT R. COMENOUT, Sr.,

Plaintiff,

and

MARY LINDA PEARSON,

Plaintiff

- Appellant,

v.

ROBERT W. WHITENER, Jr., DBA

Whitener Group, an individual,

Defendant

- Appellee. No. 15

- 35261

D.C. No. 3:15

- cv

- 05054

- BHS

MEMORANDUM *

ROBERT R. COMENOUT, Sr.,

Plaintiff

- Appellant,

v.

ROBERT W. WHITENER, Jr., DBA

Whitener Group, an individual,

Defendant

- Appellee. No. 15

- 35268

D.C. No. 3:15

- cv

- 05054

- BHS

Appeal from the United States District Court

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

JUN 15 2017

MOLLY C. DWYER, CLER K

U.S. COURT OF APPEAL S2 for the Western District of Washington

Benjamin H. Settle, District Judge, Presiding

Submitted June 9, 2017 **

Seattle, Washington

Before: McKEOWN, CALLAHAN, and IKUTA, Circuit Judges.

Robert R. Comenout

, Sr. 1 appeals the district court’s dismissal of his action

against Robert W. Whitener

, Jr. under Federal Rule s of Civil Procedure 12(b)(7)

and 19 for failure to join a necessary and indispensable party, the Quinau lt Indian

Nation (the “Nation”) , and denial of Comenout’s motion for reconsideration

. We

review such decisions for abuse of discretion, Dawavendewa v. Salt River Project

Agr ic. Improvement & Power Dist. , 276 F.3d 1150, 1154 (9th Cir. 2002) ; Shalit v.

Copp e , 182 F.3d 1124, 1127 (9th Cir. 1999) , but we review de novo questions of

tribal sovereign immunity, Linneen v. Gila River Indian Cmty. , 276 F.3d 489, 492

(9th Cir. 2002). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Though Comenout’s com plaint names only Whitener as a defendant, a ll of

Comenout’s claims implicate the Nation’s interest in the business lease on the

property at the time of Comenout’s suit , and the district court could not afford

** The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

1 Appeal No. 15

- 35261, filed by Mary Linda Pearson as personal

representative of the Estate of Edward A. Comenout

, Jr., is dismissed b ecause the

Estate was not a party to the c ase before the district court. See Keith v. Volpe , 118

F.3d 1386, 1391 (9th Cir. 1997).3

Comenout the complete relief he seeks without the Nation’s involvement. See Alto

v. Black , 738 F.3d 1111, 1126 (9th Cir. 2013). Thus, the Nation is a necessary

party under Rule 19(a). The Nation could not feasibly be joined in the action

because the Nation has not waived its sovereign immunity to be sued by Comenout

in federal court nor has Congress abrogated the Nation’s immuni ty. See Okla. Tax

Comm’n v. Citizen Band Potawatomi Indian Tribe of Okla. , 498 U.S. 505, 509

(1991). This analysis of the Nation’ s immunity is distinct from, and unaffected by,

the question whether Whitener is personally immune from suit, an issue we nee d

not address.

Under Rule 19(b), the district court did not abuse its discretion in concluding

that the Nation is an indispensable party. The district court identified the correct

legal standard and determined that the Nation would be prejudiced if the s uit

proceeded in its absence and that relief could not be shaped to minimize prejudice.

Although Comenout has an interest in litigating his claims, the Nation has an

interest in its sovereign immunity. See Quileute Indian Tribe v. Babbitt , 18 F.3d

1456, 1460 (9th Cir. 1994).

Nor did the district court abuse its discretion in denying Comenout’s motion

for reconsideration and for leave to file an amended complaint. Even assuming

that the tribal officials named in the amended complaint are not entitled to

sovereign immunity against Comenout’s claims for prospective relief, see4

Dawavendewa , 276 F.3d at 1159

– 60, Comenout’s motion and proposed

amendment do not cure the failure to join the Nat ion as an indispensable party.

AFFIRMED as to 15

- 35268

. D ISMISSED as to 15

- 35261.