Lytle v. United States Department of Health and Human Services et al

Filing 15

ORDER denying 12 Motion for Reconsideration; granting 14 Oral Motion to continue hearing on Plaintiff's motion for a temporary restraining order. Signed by Chief Judge Jeffrey L. Viken on 1/7/14. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
DR. LARRY LYTLE,

)
)
Plaintiff,
)
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vs.
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)
UNITED STATES DEPARTMENT OF
)
HEALTH AND HUMAN SERVICES,
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FOOD AND DRUG ADMINISTRATION, )
CHIEF TYRA WISECUP,
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COMPLIANCE DEPARTMENT,
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INSPECTOR JESSICA L. JOHNSON, )
CONSUMER SAFETY OFFICER
)
COURTNEY R.A. TIEGS, and John
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and Jane Does 1-100,
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)
Defendants.
)

CIV. 13-5083-JLV

ORDER

Pending before the court is plaintiff’s verified petition for a temporary
restraining order (“TRO”). (Docket 2).
[Plaintiff seeks a TRO from the court] ordering the FDA to cease and
desist from conducting any planned searches or seizures of any
inventory, research or business records (paper or electronic), office or
research equipment, Petitioner’s personal or any of the above
referenced PMAs’ bank accounts until such time as this Court rules
on the Petition for Declaratory Judgment . . . and declares that 2035
PMA, QLaser Solutions PMA, QLasers PMA, Laser Wellness PMA, and
Energy for Life PMA are not controlled by the FDA or the United
States as lawful private membership associations created by people
pursuant to private contracts; and, that pursuant to those contracts,
the PMAs are not subject to the Public Law creating the FDA, and
that the FDA has no authority to attempt to submit the above
mentioned PMAs to the regulations implementing or explaining the
statutes that the FDA is authorized to enforce; or to the FDA’s
internal rules; unless the FDA brings to this Court, or to any other
court of competent jurisdiction and proper venue, conclusive
documentary evidence or competent sworn testimony conclusively

proving that one or more of the above-referenced PMAs has created
a “substantive evil” that this Court or another court must address;
that the Court sanctions the FDA agents, employees, officers, or
officials who signed the affidavits supporting the applications for the
warrants and those who served and executed the warrants; and, that
the Court orders the FDA to forthwith return to Petitioner all
brochures, books, invoices, serial numbers of products, the personal
notes of all investigators involved in the searches complained of
herein, any and all other information relevant to the searches and
any and all copies thereof relevant to 2035 PMA, QLaser Solutions
PMA, QLasers PMA, Laser Wellness PMA, Energy for Life PMA, and
any other PMA the FDA received documents concerning or
information on and removed same from Petitioner’s offices; and, for
any and all further relief that the Court finds appropriate or just.
(Docket 2 at pp. 10-11) (emphasis in original). Dr. Lytle also “takes exception
to Court’s exercise of jurisdiction over 2035 PMA, QLaser Solutions PMA,
QLasers PMA, Energy for Life PMA, and any other PMA created by Petitioner
. . . .” (Docket 2 at p. 2).
On December 12, 2013, the court filed an order setting a hearing for
Monday, January 6, 2014. (Docket 5). On December 23, 2013, the court filed
a notice to plaintiff. (Docket 7). The notice provided:
NOTICE IS HEREBY GIVEN that “[w]hile Mr. Lytle is entitled to
represent himself, he is not permitted to represent others. [These]
private associations may only make an appearance in federal district
court through a licensed attorney admitted to practice in this court.”
Lytle v. Berg, District of South Dakota, Western Division,
05:11-cv-5089-JLV, Docket 20 at p. 5 (citing Knoefler v. United Bank
of Bismarck, 20 F.3d 347, 348 (8th Cir. 1994) (“A nonlawyer, such as
these purported ‘trustee(s) pro se’ has no right to represent another
entity, i.e., a trust, in a court of the United States.”); Joshua Building
Trust v. Clementi, 78 F.3d 588 (8th Cir. 1996) (Table) (“A non-lawyer
trustee may not represent a trust pro se in federal court.”).

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Id. at pp. 1-2. On December 30, 2013, plaintiff filed a verified petition for
reconsideration of the court’s notice to plaintiff. (Docket 10). The court denied
the motion for reconsideration. (Docket 11).
The United States filed a motion to dismiss plaintiff’s verified petition for
a declaratory judgment and opposition to plaintiff’s verified petition for a
temporary restraining order and a supporting brief. (Dockets 8 & 9). By the
local rules, plaintiff has until Monday, January 20, 2014, to file his response to
defendants’ motion to dismiss. D.S.D. Civ. LR 7.1(B). On January 6, 2014,
plaintiff filed a second verified petition for reconsideration of the court’s notice
to plaintiff. (Docket 12).
On January 6, 2014, the court held a hearing on plaintiff’s motion for a
TRO. Plaintiff Dr. Larry Lytle, pro se, appeared in person. Camela C. Theeler,
Assistant United States Attorney, and Sonya Nath, counsel for the Food and
Drug Administration, appeared by conference call. At the onset of the hearing
the court advised the parties the court would only consider plaintiff’s motion
for a TRO and would not address defendants’ motion to dismiss until plaintiff
filed his response as required by the local rules.
Prior to considering plaintiff’s motion for a TRO, Dr. Lytle sought a ruling
on the second verified petition for reconsideration of the court’s notice to
plaintiff. (Docket 12). The court orally denied the motion for the same
reasons cited in Lytle v. Berg, District of South Dakota, Western Division,
05:11-cv-5089-JLV, and the absence of case law to the contrary. “It has been
the law for the better part of two centuries . . . that a corporation may appear
in the federal courts only through licensed counsel.” Rowland v. Cal. Men’s
Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 201-02 (1993). “[S]ave

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in a few aberrant cases, the lower courts have uniformly held that 28 U.S.C.
§ 1654 . . . does not allow corporations, partnerships, or associations to appear
in federal court otherwise than through a licensed attorney.” Id. at 202. The
United States Court of Appeals for the Eighth Circuit is not one which has
embraced a “few aberrant case[s].” A non-lawyer may not represent a
corporation in federal court. Steele v. City of Bemidji, 257 F.3d 902, 905 (8th
Cir. 2001).
The court made it clear to Dr. Lytle that he could proceed with his
motion for a TRO pro se as an individual, but the court would not allow Dr.
Lytle, as a non-lawyer, to represent the private membership associations
identified in the pleadings. In response to the court’s ruling, Dr. Lytle orally
moved for a continuance of the hearing on the motion for a TRO to allow
plaintiff to file an interlocutory appeal to the United States Court of Appeals for
the Eighth Circuit on Dr. Lytle’s claim he can represent private membership
associations pro se. The government had no objection to Dr. Lytle’s motion to
continue the hearing. Based upon plaintiff’s oral motion, it is hereby
ORDERED that plaintiff’s motion (Docket 14) to continue the hearing on
plaintiff’s motion for a TRO is granted.
IT IS FURTHER ORDERED that plaintiff’s second verified petition for
reconsideration (Docket 12) is denied.
IT IS FURTHER ORDERED that the court denies plaintiff’s implied
request to certify the case for interlocutory appeal on the issue of pro se
representation of private membership associations because the court’s order
does not “involve[] a controlling question of law as to which there is substantial
ground for difference of opinion [or] that an immediate appeal from the order

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may materially advance the ultimate termination of the litigation” as required
by 28 U.S.C. § 1292(b).
IT IS FURTHER ORDERED that plaintiff’s interlocutory appeal, if one is
taken, does not stay, suspend, or delay plaintiff’s obligation to respond on or
before Monday, January 20, 2014, to the defendants’ motion to dismiss.
(Docket 8).
Dated January 7, 2014.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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