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Comenout v. Whitener

United States District Court, Western District of Washington, Tacoma

March 3, 2015

ROBERT R. COMENOUT, SR., Plaintiff,
v.
ROBERT W. WHITENER, JR., an individual, dba as WHITENER GROUP, Defendant.

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS AND DENYING AS MOOT PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION

BENJAMIN H. SETTLE United States District Judge

This matter comes before the Court on Plaintiff Robert Comenout, Sr.’s (“Comenout”) motion for a preliminary injunction (Dkt. 2) and Defendant Robert Whitener’s (“Whitener”) motion to dismiss (Dkt. 19). The Court has considered the pleadings filed in support of and in opposition to the motions, oral arguments, and the remainder of the file and hereby grants Whitener’s motion and denies Comenout’s motion as moot.

I. PROCEDURAL HISTORY

On January 22, 2015, Comenout filed suit against Whitener. Dkt. 1 (“Comp.”). Comenout alleges the following claims: (1) RICO violations; (2) malicious harassment, outrage, and intended trespass; (3) civil conspiracy; and (4) civil trespass. Id. ¶¶ 25–42. Comenout seeks injunctive relief preventing Whitener from removing Comenout’s business property and from taking over Comenout’s business. Id. Comenout also seeks monetary damages related to Whitener’s interference with his business. Id.

That same day, Comenout moved for a temporary restraining order and a preliminary injunction. Dkt. 2. On January 23, 2015, the Honorable Ronald B. Leighton, United States District Judge, denied the motion for a temporary restraining order and scheduled a preliminary injunction hearing. Dkt. 7. On January 30, 2015, the case was reassigned to this Court. Dkt. 16. Comenout’s preliminary injunction motion remained pending. Id.

On February 5, 2015, Whitener moved to dismiss. Dkt. 19. On February 11, 2015, Comenout responded. Dkt. 21. On February 25, 2015, Whitener replied. Dkt. 24.

On February 12, 2015, the Court held a hearing. Dkt. 22.

II. FACTUAL BACKGROUND

Comenout resides on a parcel of land located in Puyallup, Washington. Comp. ¶ 17. The United States holds the land in trust for the thirteen owners of the allotment, one of whom is Comenout. Id.; Dkt. 12, Declaration of Rob Roy Smith (“Smith Dec.”), Ex. A at 20, 47.[1] Comenout has operated a convenience store on the property for many years. Comp. ¶ 2.

On November 1, 2014, some of the landowners entered into a business lease for the property with the Quinault Indian Nation (“Nation”). Smith Dec., Ex. A at 20. Pursuant to the lease, the owners are the lessors and the Nation is the lessee. Id. Comenout did not consent to the lease. Id. at 43.

Under the terms of the lease, the Nation “shall use the Premises for the following specific purposes: retail sales of cigarettes and retail sales of other convenience store products, but specifically excluding the sale of marijuana and the sale of fireworks.” Id. at 21. The lease also includes an arbitration provision, which provides in relevant part as follows: “[The Nation] grants to Lessor a limited waiver of its sovereign immunity to be sued under this Contract . . . The claim [must be] resolved by following the arbitration provisions set forth in Section 28.” Id. at 35.

On November 20, 2014, the Bureau of Indian Affairs (“BIA”) approved the lease, thereby making it legally effective. Id. at 46; 25 C.F.R. § 162.442(a). On December 23, 2014, Comenout appealed the lease to the Regional Director of the BIA. Comp. ¶ 16.

On January 9, 2015, Whitener posted a sign on the property. Id. ¶ 15. The sign directs Comenout to remove his personal and commercial property from the allotment:

This property is leased to the Quinault Indian Nation-as of January 31 all personal or other property must be removed from this parcel. Only limited personal property may remain for Robert Comenout and his immediate family. This notice includes personal goods, commercial goods, cars, and trailers. Any property remaining on this site will be impounded ...

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