United States of America v. 2035 Inc. et al

Filing 210

ORDER denying 194 Motion to Amend/Correct; denying 197 Motion ; denying 200 Motion ; denying 201 Motion ; denying 206 Motion. Signed by U.S. District Judge Karen E. Schreier on 11/30/2017. (JLS)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA,

5:14-CV-05075-KES

Plaintiff,
vs.
2035 INC., a corporation, and
ROBERT L. LYTLE, an individual
d/b/a 2035 PMA and QLASERS PMA,

ORDER DENYING MOTION
TO ALTER OR AMEND JUDGMENT
AND DENYING OTHER MOTIONS

Defendants.
Defendant Robert L. Lytle moves the court to alter or amend its judgment
entered on May 4, 2017. Dockets 194 and 194-1. 1 Lytle has also filed several
other motions that primarily seek to challenge the court’s personal and
subject-matter jurisdiction. Dockets 197, 200, 201, 205, and 206. Plaintiff, the
United States, opposes Lytle’s motions. For the reasons that follow, the court
denies each of Lytle’s pending motions.
BACKGROUND
The procedural history of this case is set forth more fully in the court’s
May 4, 2017 order. See Docket 193 at 1-6. The following facts are relevant to
the pending motions:

Dockets 194 and 194-1 were originally filed separately by Lytle. Because it is
clear from a review of the documents that Dockets 194 and 194-1 were
intended to be filed as a single document, the court will consider these
documents together. As such, the court’s citations to these documents will all
be listed as “Docket 194.” Pin cites, where necessary, will point to the page
numbers provided by Lytle in Dockets 194 and 194-1.
1

On October 21, 2014, the United States filed a complaint seeking a
permanent injunction against the defendants under 21 U.S.C. § 332(a) for
alleged violations of the Federal Food, Drug and Cosmetic Act (FDCA) and a
motion for a preliminary injunction seeking to enjoin defendants from violating
the FDCA during the pendency of the proceedings. Dockets 1 and 4. Lytle
responded to the complaint and request for a preliminary injunction by
challenging the court’s personal and subject-matter jurisdiction. Dockets 37
and 40. On January 14, 2015, Chief Judge Jeffrey L. Viken entered an order
denying Lytle’s jurisdictional challenges and entering a preliminary injunction
against defendants. Dockets 47 and 48. On January 26, 2015, Lytle filed an
interlocutory appeal to the Eighth Circuit Court of Appeals challenging the
court’s jurisdiction and the preliminary injunction. Docket 54.
While Lytle’s interlocutory appeal was pending, litigation on the United
States’s request for a permanent injunction continued. A bench trial on the
permanent injunction was held on March 3-4, 2015. Docket 81. On April 1516, 2015, a show cause hearing was held to determine whether to hold Lytle in
contempt of court for alleged violations of the preliminary injunction. Docket
103. This hearing, however, was continued until October 6, 2015, so Lytle
could retain counsel to deal with potential Fifth Amendment consequences
resulting from the United States’s decision to call Lytle adversely. Id.
On August 21, 2015, the Eighth Circuit issued an opinion on Lytle’s
interlocutory appeal. Lytle v. U.S. Dep’t of Health & Human Servs., 612 F. App’x
861 (8th Cir. 2015) (per curiam). In its opinion, the Eighth Circuit affirmed
2

Chief Judge Viken’s finding that the court had jurisdiction over Lytle and his
actions. Id. at 861-62. But the Eighth Circuit remanded the preliminary
injunction for the court to determine “whether a more narrowly-tailored
injunction might be sufficient . . . .” Id. at 863. The Eighth Circuit also
observed that reconsideration of the preliminary injunction on remand “may
become moot” by the entry of a permanent injunction. Id.
Following the Eighth Circuit’s decision, Lytle filed a motion in the district
court seeking reconsideration of the preliminary injunction. Docket 128. The
motion raised eight objections that challenged the scope of the preliminary
injunction. Id.
On October 6, 2015, the show cause hearing resumed. Docket 136. At
the hearing, after a discussion between the court and the parties, it was agreed
that Chief Judge Viken would rule on each of Lytle’s eight objections to the
preliminary injunction and enter an order regarding a permanent injunction
incorporating his rulings on Lytle’s objections. 2 Docket 154 at 24-34. This in
turn negated the need for Chief Judge Viken to determine whether to hold Lytle
in contempt of court for allegedly violating the terms of the preliminary
injunction because, as the Eighth Circuit had noted, entry of a permanent
injunction would moot any issues remaining regarding the preliminary
injunction. Id. Chief Judge Viken entered a permanent injunction in favor of

Lytle, although represented by counsel at the hearing, was present for this
discussion and did not object to his attorney’s statement that Lytle would
consent to entry of a permanent injunction if Chief Judge Viken addressed his
eight objections to the preliminary injunction. Docket 154 at 23-24, 28-34.
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the United States at the conclusion of this hearing. Docket 138. The permanent
injunction was amended on October 13, 2015, to make grammatical and nonsubstantive revisions. Docket 139 (Amended Permanent Injunction).
Following the entry of the Amended Permanent Injunction, Lytle’s
attorney withdrew from his representation of Lytle with Lytle’s consent.
Docket 143. On December 3, 2015, Lytle filed a notice of appeal of the
Amended Permanent Injunction. Docket 147. On September 6, 2016, the
Eighth Circuit affirmed Chief Judge Viken’s entry of the Amended Permanent
Injunction. United States v. 2035, Inc., 668 F. App’x 679 (8th Cir. 2016) (per
curiam). In the opinion, the Eighth Circuit found that the court had jurisdiction
to enter a permanent injunction. Id. at 679 (citations omitted). The Eighth
Circuit also concluded that Chief Judge Viken’s Amended Permanent
Injunction order was sufficiently tailored to address Lytle’s violations of the
FDCA. Id. (citations omitted).
Following the Eighth Circuit’s affirmance of the Amended Permanent
Injunction, Lytle filed nine additional motions challenging the validity of the
Amended Permanent Injunction and the court’s jurisdiction over him. 3
Dockets 164, 165, 170, 180, 181, 185, 187, 189, 191. On May 4, 2017, this
court entered an order denying each of Lytle’s attempts to avoid enforcement of
the Amended Permanent Injunction and concluding that jurisdiction over Lytle
and his case was appropriate. See Docket 193.

3

This case was reassigned to this court on October 25, 2016. Docket 167.
4

LEGAL STANDARD
The law of the case doctrine is “a means to prevent the relitigation of a
settled issue in a case.” Gander Mountain Co. v. Cabela’s, Inc., 540 F.3d 827,
830 (8th Cir. 2008) (citing United States v. Bartsh, 69 F.3d 864, 866 (8th Cir.
1995)). “The doctrine ‘requires courts to adhere to decisions made in earlier
proceedings in order to ensure uniformity of decisions, protect the expectations
of the parties, and promote judicial economy.’ ” Id. (quoting Bartsh, 69 F.3d at
866). “ ‘[T]he doctrine posits that when a court decides upon a rule of law, that
decision should continue to govern the same issues in subsequent stages in
the same case.’ ” Thompson v. Comm’r, 821 F.3d 1008, 1011 (8th Cir. 2016)
(quoting Gander Mountain Co., 540 F.3d at 830). “Although a court should not
reopen issues already decided, if a prior decision ‘is clearly erroneous and
would work a manifest injustice,’ reopening may be appropriate.” Id. (quoting
Wong v. Wells Fargo Bank, N.A., 789 F.3d 889, 898 (8th Cir. 2015) cert. denied
136 S. Ct. 507 (2015)).
“Federal Rule of Civil Procedure 59(e) was adopted to clarify a district
court's power to correct its own mistakes in the time period immediately
following entry of judgment.” Chapman v. Hiland Partners GP Holdings, LLC,
862 F.3d 1103, 1110-11 (8th Cir. 2017) (quoting Innovative Home Health Care,
Inc. v. P.T.–O.T. Assocs. of the Black Hills, 141 F.3d 1284, 1286 (8th Cir. 1998)).
“Rule 59(e) motions serve the limited function of correcting ‘manifest errors of
law or fact or to present newly discovered evidence.’ ” United States v. Metro. St.
Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006) (quoting Hagerman v.
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Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir. 1988)). “ ‘Such motions
cannot be used to introduce new evidence, tender new legal theories, or raise
arguments which could have been offered or raised prior to entry of judgment.’
” Id. (quoting Hagerman, 839 F.2d at 414). District courts have broad discretion
when considering whether to grant a motion to amend or alter a judgment
under Rule 59(e). Id.
DISCUSSION
I.

Lytle’s Motion to Amend or Alter Judgement
Under Federal Rule of Civil Procedure 59(e), parties have 28 days after a

judgment is entered to move to alter or amend the judgment. Fed. R. Civ. P.
59(e). Here, Lytle timely filed his Rule 59(e) motion by filing it on May 17, 2017.
See Docket 194. Lytle’s Rule 59(e) motion, which seeks to alter or amend the
court’s May 4, 2017 order, raises eight grounds that Lytle believes entitle him
to relief. 4 See id. at 2. The United States opposes Lytle’s motion to alter or
amend the court’s judgment, arguing that Lytle’s motion is barred under the
law of the case doctrine because the motion raises arguments similar to
arguments Lytle raised in previous motions before this court and in his briefs
before the Eighth Circuit. Docket 196 at 1-2.
In order for the law of the case doctrine to apply here, the arguments
raised by Lytle in his Rule 59(e) motion must actually have been decided by
The eight grounds, as described by Lytle, are: (1) Lack of in personam or
personal jurisdiction; (2) Improper venue; (3) Lack of subject-matter
jurisdiction; (4) Improper plaintiff; (5) Denial of constitutionally secured rights;
(6) Void judgment (injunction); (7) Inappropriate use of commercial law and
corporate decisions; and (8) Statute of limitations. Docket 194 at 2.

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this court or by the Eighth Circuit. 18B Charles Alan Wright & Arthur R.
Miller, Federal Practice & Procedure § 4478 (2d ed. 2002) (“Actual decision of an
issue is required to establish the law of the case. Law of the case does not
reach a matter that was not decided.”). In determining whether an issue was
actually decided, however, the prior decision need not be express. See id.
(observing that while implicit decisions can suffice for the application of the law
of the case doctrine, “a terse decision is even more clearly the law of the case
because it does not require a determination whether actual decision can be
inferred”). This is because the purpose of the law of the case doctrine is “ ‘to
ensure uniformity of decisions, protect the expectations of the parties, and
promote judicial economy.’ ” Gander Mountain Co., 540 F.3d at 830 (quoting
Bartsh, 69 F.3d at 866); see also 18B Charles Alan Wright & Arthur R. Miller,
Federal Practice & Procedure § 4478 (2d ed. 2002) (observing that the principles
of the law of the case doctrine rest “on good sense and the desire to protect
both court and parties against the burdens of repeated reargument by
indefatigable diehards”).
Having reviewed Lytle’s Rule 59(e) motion, the court agrees with the
United States that Lytle’s motion restates arguments that have been rejected by
the Eighth Circuit and by this court. See Lytle v. U.S. Dep’t of Health & Human
Servs., 612 F. App’x 861 (8th Cir. 2015) (per curiam); United States v. 2035,
Inc., 668 F. App’x 679 (8th Cir. 2016) (per curiam); Dockets 47, 52, 99, 139,
193. In fact, the arguments raised by Lytle here are nearly identical to the
arguments he raised in his most recent appeal before the Eighth Circuit.
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See Docket 196 at 2 (listing citations to identical arguments Lytle raised in his
briefs before the Eighth Circuit). In rejecting Lytle’s various arguments seeking
to avoid enforcement of the Amended Permanent Injunction, the Eighth Circuit
observed:
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).
2035, Inc., 668 F. App’x at 679-80. Thus, because the Eighth Circuit
considered and rejected the arguments that Lytle raises again here, this court
is bound to follow the Eighth Circuit’s decision and reject Lytle’s arguments
under the law of the case doctrine. 5
Further, even if Lytle’s Rule 59(e) motion raises arguments that were not
previously rejected by the Eighth Circuit or this court, he still is not entitled to
relief from the May 4, 2017 order. As indicated previously, Rule 59(e) motions
cannot be used to introduce new evidence, offer new legal theories, or raise
arguments that could have been raised prior to entry of judgment. Metro. St.
Louis, 440 F.3d at 933. And motions to alter or amend a judgment can also be
denied where amendment of the judgment would serve no useful purpose.
In order for this court to reconsider these issues, Lytle would also need to
show that the Eighth Circuit’s decision was clearly erroneous and that he
would suffer a manifest injustice if the issues were not reexamined.
See Thompson, 821 F.3d at 1011. Lytle has not made this showing.
5

8

11 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure
§ 2810.1 (3d ed. 2012). Thus, because Lytle’s Rule 59(e) motion fails to raise an
issue warranting relief, and because there were no manifest errors of law or
fact in the court’s May 4, 2017 order, alteration or amendment of the judgment
would serve no useful purpose and Lytle’s request for relief under Rule 59(e) is
denied. 6
II.

Lytle’s Remaining Motions
Remaining are several motions filed by Lytle that challenge the court’s

personal and subject-matter jurisdiction or seek to challenge the indictment
filed in the criminal case 5:17-cr-50020-KES. Dockets 197, 200, 201, 205, and
206. The United States opposes these motions and argues that Lytle’s motions
either fail under the law of the case doctrine or are not related to the present
civil action. See Dockets 203, 204, 207.
The United States is correct that Lytle’s continued attempts to challenge
the court’s jurisdiction over him and this case must fail under the law of the
case doctrine. Lytle’s motions to dismiss here are similar to other motions he
has filed challenging the court’s jurisdiction over him and this case.
See Dockets 37, 40, 79, 144, 145, 165, 170. Not only has this court denied
Lytle’s motions to dismiss his case on jurisdictional grounds, Dockets 47, 96,
153, 193, but the Eighth Circuit has twice denied Lytle’s appeals in which he
argued there was a lack of jurisdiction. See Lytle, 612 F. App’x at 862 (“That a
The result here would be the same if Lytle moved for relief under Federal Rule
of Civil Procedure 60(b)(2). See Metro. St. Louis, 440 F.3d at 933 n.3 (stating
that motions under Rule 59(e) and Rule 60(b)(2) are analyzed identically).
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product is sold through a PMA does not exempt it from the application of this
provision.”); 2035, Inc., 668 F. App’x at 679 (“We find that the district court had
federal question jurisdiction over this action . . . .”). Thus, because the law of
the case doctrine requires this court to adhere to settled issues in a case,
Lytle’s motions challenging the court’s jurisdiction over him are denied. 7
The United States is also correct to argue that it would be inappropriate
for Lytle to continue filing motions with this court in lieu of using the appellate
process to challenge the Eighth Circuit’s findings regarding jurisdiction over
Lytle and his case. Cf. In re SDDS, Inc., 225 F.3d 970, 972 (8th Cir. 2000)
(“Just as a Rule 60(b) motion cannot be used to relitigate the merits of a
district court's prior judgment in lieu of a timely appeal, nor can it be used to
collaterally attack a final court of appeals' ruling in lieu of a proper petition for
review in the United States Supreme Court.” (citation omitted)). If Lytle
continues to believe that this court’s and the Eighth Circuit’s jurisdictional
findings were incorrect, his remedy is to appeal the issue to the United States
Supreme Court by filing a writ of certiorari.
In an attempt to challenge the court’s personal and subject-matter
jurisdiction, Lytle filed several motions that he believes show that he is a
national non-citizen as designated by the United States Department of State.
Dockets 197, 205, 206. According to Lytle, because he is a national noncitizen, the Foreign Services Immunity Act of 1976 (FSIA), 28 U.S.C. §§ 1603,
1604 (2012), prevents him from being subject to personal or subject-matter
jurisdiction for disputes arising in the United States. See Docket 197 at 3;
Docket 206 at 3. Unfortunately for Lytle, excluded from the FSIA’s definition of
“agency or instrumentality of a foreign state[,]” is “a citizen of a State of the
United States[.]” 28 U.S.C. § 1603. And Lytle affirms that he is a citizen of the
United States. See Docket 197 at 3 (“As an American Citizen, a Citizen of South
Dakota, [Lytle] claims immunity pursuant to the FSIA . . . .”) (emphasis
removed). Thus, the FSIA does not prevent this court from having personal and
subject-matter jurisdiction over Lytle and his case.
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The other motions filed by Lytle (Dockets 200 and 201) are a petition to
the clerk of court and a corrected petition to the clerk of court. Both of these
petitions reference the Federal Rules of Criminal Procedure and seek from the
clerk of court evidence “showing that the document purported to be the
indictment creating a related criminal case arising from this instant civil
action, case number 5:17-cr-50020-KES, was returned in open court as
required by procedure and law . . . .” Docket 201 at 1; see also Docket 200 at
1. Because Lytle’s motions relate to his criminal case, and not this civil case,
the United States contends that a response is not necessary to Lytle’s motion.
Docket 204.
In criminal case 5:17-cr-50020-KES, Lytle filed a motion to dismiss the
indictment. See 5:17-cr-50020-KES, Docket 98. The court denied Lytle’s
motion to dismiss because Lytle’s criminal indictment was returned to a United
States magistrate judge in open court by the grand jury foreperson as required
by Rule 6(f) of the Federal Rules of Criminal Procedure. See 5:17-cr-50020KES, Docket 102. Thus, because the court already denied Lytle’s motion to
dismiss his indictment in his criminal case, Lytle’s current motions to the clerk
of court requesting evidence that his criminal indictment was returned to a
magistrate judge in open court by the grand jury foreperson are moot.
CONCLUSION
Lytle’s various motions challenging the court’s subject-matter
jurisdiction over this action and the court’s personal jurisdiction over him are
barred by the law of the case doctrine and are denied. And Lytle’s motion
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seeking to alter or amend the court’s May 4, 2017 under Rule 59(e) of the
Federal Rules of Civil Procedure—to the extent that the motion is not barred by
the law of the case doctrine—is denied because Lytle has failed to show that
alteration or amendment of the judgment would serve a useful purpose. Lytle’s
motions seeking to challenge the indictment filed in his criminal case are
denied as moot because they do not relate to the instant civil case and because
the court previously denied a similar request in his criminal case. See 5:17-cr50020-KES, Docket 102.
Thus, it is ORDERED:
1.

Lytle’s motion rebutting presumptions, correcting errors, and
notice of fraud and deceit (Dockets 194 and 194-1) is denied.

2.

Lytle’s emergency petition for recognition of status (Docket 197) is
denied.

3.

Lytle’s petition to the clerk of court and corrected petition to the
clerk of court (Dockets 200 and 201) are denied as moot.

4.

Lytle’s declaration of nationality (Docket 205) is denied.

5.

Lytle’s emergency petition for proof of jurisdiction or demand to
dismiss for lack of jurisdiction (Docket 206) is denied.

DATED November 30, 2017.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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