NOT FOR PUBLICATION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, CLERK

U.S. COURT OF APPEALS
2 

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

against Robert W. Whitener, Jr. under Federal Rules of Civil Procedure 12(b)(7) 

and 19 for failure to join a necessary and indispensable party, the Quinault 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 

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

Coppe, 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 complaint names only Whitener as a defendant, all 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 because the 

Estate was not a party to the case 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 immunity. 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 need 

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 suit 

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, see 
4 

Dawavendewa, 276 F.3d at 1159–60, Comenout’s motion and proposed 

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

AFFIRMED as to 15-35268. DISMISSED as to 15-35261.