United States v. Robert L. Lytle

Filing

PER CURIAM OPINION FILED - THE COURT: Roger L. Wollman, Morris S. Arnold and Diana E. Murphy (UNPUBLISHED); Denying [4391903-2] motion to quash a grand jury subpoena and for return of property filed by Mr. Robert Larry Lytle. [4444920] [15-3786]

United States Court of Appeals
For the Eighth Circuit
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No. 15-3786
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
2035, Inc., a corporation
lllllllllllllllllllll Defendant
Robert Larry Lytle, an individual, doing business as 2035 PMA, doing business as
QLasers PMA
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Rapid City
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Submitted: August 31, 2016
Filed: September 6, 2016
[Unpublished]
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Before WOLLMAN, ARNOLD, and MURPHY, Circuit Judges.
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PER CURIAM.

Appellate Case: 15-3786

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Date Filed: 09/06/2016 Entry ID: 4444920

In Lytle v. U.S. Dep’t of Health & Human Servs., 612 F. App’x 861 (8th Cir.
2015), we affirmed the district court’s dismissal of Lytle’s declaratory judgment
action, but remanded for further consideration the district court’s1 preliminary
injunction in the government’s separate civil enforcement action against Lytle under
the Federal Food, Drug, and Cosmetic Act (FDCA). 21 U.S.C. § 301 et seq.
After considering during its post-remand hearing the eight objections that
Lytle’s counsel raised with respect to the court’s proposed permanent injunction, the
district court entered the injunction, from which Lytle now appeals.
Having reviewed the record and the parties’ arguments on appeal, we conclude
that the only issues before us are whether subject matter jurisdiction exists and
whether Lytle’s preserved objections to the permanent injunction have merit. See
Dorse v. Armstrong World Indus., Inc., 798 F.2d 1372, 1375 (11th Cir. 1986) (where
parties agreed to entry of order or judgment without reservation of issues sought to
be appealed, one party may not later seek to upset judgment unless lack of consent
or failure of subject matter jurisdiction is alleged; merits may be considered where
party preserved issue).
We find that the district court had federal question jurisdiction over this action
and that we have jurisdiction over this appeal, see 28 U.S.C. §§ 1331 (district courts
shall have original jurisdiction over civil actions arising under laws of United States),
1292(a)(1) (courts of appeals have jurisdiction of appeals from interlocutory order
granting or refusing to modify injunction); ABF Freight Sys., Inc. v. Int’l Bhd. of
Teamsters, 645 F.3d 954, 958 (8th Cir. 2011) (appellate court reviews existence of
subject matter jurisdiction de novo); Warner Bros. Entm’t, Inc. v. X One X Prod., 644
F.3d 584, 590 (8th Cir. 2011) (appellate court has jurisdiction over appeal of entry of

1

The Honorable Jeffrey L. Viken, Chief Judge, United States District Court for
the District of South Dakota.
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Date Filed: 09/06/2016 Entry ID: 4444920

permanent injunction). We also find that the permanent injunction was narrowly
tailored to correct Lytle’s violations of the FDCA, see Fed. R. Civ. P. 65(d); cf. Doe
v. South Iron R-1 Sch. Dist., 498 F.3d 878, 884 (8th Cir. 2007) (holding appellate
court must carefully review injunction to determine that it is not overly broad; finding
not overly broad the succinct, clearly written, conduct-limited preliminary
injunction).
The district court’s grant of a permanent injunction is affirmed. We deny
Lytle’s pending motion to quash a grand jury subpoena and for the return of his
property.
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Date Filed: 09/06/2016 Entry ID: 4444920