United States of America v. 2035 Inc. et al
Filing
47
ORDER denying 31 Motion; denying 32 Motion for Hearing; denying 34 Motion for Reconsideration; denying 37 Motion to Dismiss; denying 38 Motion to Strike; denying 40 Motion to Dismiss; granting 4 Motion for Preliminary Injunction. Signed by Chief Judge Jeffrey L. Viken on 1/14/15. (SB)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CIV. 14-5075-JLV
UNITED STATES OF AMERICA,
Plaintiff,
ORDER GRANTING
PRELIMINARY INJUNCTION
vs.
2035 INC., a corporation, and
ROBERT L. LYTLE, an individual,
d/b/a 2035 PMA and QLASERS PMA,
Defendants.
INTRODUCTION
On October 21, 2014, plaintiff United States of America filed a complaint
seeking a permanent injunction against the defendants 2035 Inc., a corporation,
and Robert L. Lytle, an individual, d/b/a 2035 PMA and QLASERS PMA, for
alleged violations of the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 332 et
seq. (“FDCA”). (Docket 1). Plaintiff filed a motion for a preliminary injunction
to enjoin defendants from violation of the FDCA during the pendency of these
proceedings. (Docket 4). On October 23, 2014, the court entered an order
setting a hearing on plaintiff’s motion for a preliminary injunction and requiring
plaintiff to serve a copy of the order and all documents filed in this case on
defendants. (Docket 15). On October 29, 2014, the court entered an order
requiring the defendants to file a response to plaintiff’s motion for preliminary
injunction by November 6, 2014. (Docket 23). The order set a hearing on
plaintiff’s motion for preliminary injunction on November 17, 2014. Id. at p. 3.
Defendant Robert L. Lytle filed his response in resistance to plaintiff’s motion.1
(Docket 28). Mr. Lytle also filed motions for a more definite statement as to
plaintiff’s claims and for an administrative hearing. (Dockets 31 & 32).
Defendant 2035 Inc., did not file a response to the plaintiff’s motion for a
preliminary injunction.2
At the November 17, 2014, preliminary injunction hearing, the plaintiff
appeared through its attorney, Ross S. Goldstein. Mr. Lytle appeared pro se.3
The court considered the filings and arguments of the parties. Based on the
analysis and findings set out in this order, the court grants the government’s
motion for a preliminary injunction.
1The
court previously notified the defendants that Mr. Lytle could
represent himself but not 2035 Inc. (Docket 24).
2Records
of the South Dakota Secretary of State identify Fredretta L.
Eason of 2216 Cedar Drive, Rapid City, South Dakota, as the registered agent of
2035 Inc. Those same public records identify Mr. Lytle as the president,
secretary and treasurer of the corporation. Mr. Lytle was personally served with
the pleadings on October 23, 2014. (Docket 25 at p. 1). The Clerk of Court
e-mailed copies of the court’s order setting the hearing to Mr. Lytle on October
30.
3Mr. Lytle asks the court to point out any error or omission he may make in
his pleadings and then give him an opportunity to correct his mistakes. (Docket
34 at p. 2). The court has no duty to advise Mr. Lytle about his response to the
plaintiff=s motion or to advise him of the procedure for doing so. The court
cannot act as Mr. Lytle’s lawyer. See Bennett v. Dr Pepper/Seven Up, Inc., 295
F.3d 805, 808 (8th Cir. 2002) (finding the district court did not have an
affirmative duty to advise a pro se litigant of the date by which he was to respond
to a motion); Beck v. Skon, 253 F.3d 330, 333 (8th Cir. 2001) (finding the district
court was not required to instruct a pro se litigant on how to properly respond to
a motion). Simply put, “the court is not permitted to act as counsel for either
party.” Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir. 1984).
2
ANALYSIS
Jurisdiction
“The district courts of the United States . . . shall have jurisdiction, for
cause shown to restrain violations of section 331 of this title . . . .” 21 U.S.C.
§ 332(a). Where Congress provided for statutory injunctions to protect the
public interest, an equity court has powers broader and more flexible than in a
case between private litigants. Mitchell v. Robert D. Mario Jewelry, Inc., 361
U.S. 288, 291 (1960). “Where the plaintiff is a sovereign and where the activity
may endanger the public health, ‘injunctive relief is proper, without resort to
balancing.’ ”
Illinois v. Milwaukee, 599 F.2d 151, 166 (7th Cir. 1979), rev’d on
other grounds, 451 U.S. 304 (1981). In public health legislation, such as the
Food, Drug and Cosmetic Act, 21 U.S.C. § 332 et seq. (“FDCA”), the emphasis
shifts from irreparable injury to concern for the general public interest. “The
United States . . . is not bound to conform with the requirements of private
litigation when it seeks the aid of the courts to give effect to the policy of Congress
as manifested in a statute. It is a familiar doctrine that an injunction is an
appropriate means for the enforcement of an act of Congress when it is in the
public interest.” Shafer v. United States, 229 F.2d 124, 128 (4th Cir. 1956).
Thus the criteria of Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109
(8th Cir. 1981) (en banc), are not considered.
Rather, when a federal statute, 21 U.S.C. § 332(a), authorizes the district
court to enjoin violations of § 331, the government need only show: (1) the statute
3
applies to defendants; and (2) there exists some cognizable danger of recurrent
violations. See United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953)
(district courts are statutorily vested with the jurisdiction to restrain violations of
the legislative acts of Congress).
Mr. Lytle moves for dismissal with prejudice pursuant to Fed. R. Civ. P.
12(b)(2) “for want of personal jurisdiction over” him and Rule 12(b)(6) “for
Plaintiff=s failure to state a claim upon which relief can be granted.”
at p. 2).
(Docket 28
Mr. Lytle also bases his motion for dismissal on “the Court=s Oath of
Office; requirement of good Behavior; and Good Faith . . . .”
Id. (bold omitted).
Mr. Lytle argues “[t]he FDCA regulates the commercial distribution of a device
that is intended for human use.”
Id. at p. 4 (bold omitted).
He claims private
membership associations and he, individually, are beyond the jurisdiction of the
FDCA, the Food and Drug Administration (“FDA”), and the court because “[t]he
low-power laser devices manufactured and marketed by Defendants are
primarily for peoples= (1) private education, (2) private experimentation and
research, (3) for veterinary use on their pets, domestic animals and beasts (see
[Docket 28-1]); and (4) for whatever other private use a man or woman who elects
to obtain one decides to apply it . . . .”
Id. (bold omitted).
Mr. Lytle argues
“[t]here are no facts or section(s) of the FDCA cited in Plaintiffs pleadings proving
that this Court can exert any lawful personal jurisdiction over the private
noncommercial distribution activity of Defendants LYTLE, 2035 PMA and
QLasers PMA.”
Id. at p. 5 (bold omitted).
4
The First Amendment provides protection to Mr. Lytle for embracing and
advocating alternative medical treatment.
“The First Amendment protects
expression, be it of the popular variety or not. . . . And the fact that an idea may
be embraced and advocated by increasing numbers of people is all the more
reason to protect the First Amendment rights of those who wish to voice a
different view.”
Boy Scouts of America v. Dale, 530 U.S. 640, 660 (2000).
By
placing devices and their operational manuals into the stream of commerce, Mr.
Lytle goes beyond protection ensured by the First Amendment.
Hiding behind a
curtain of private membership associations, 2035 PMA and QLaser PMA, does
not shield Mr. Lytle from the authority of the FDCA or the jurisdiction of the
court.
The court has jurisdiction over the subject matter of this action and has
personal jurisdiction over the parties pursuant to 28 U.S.C. §§ 1331 and 1345
and 21 U.S.C. § 332. Mr. Lytle’s motion to dismiss for lack of personal
jurisdiction is denied.
Conduct of the Defendants
The record discloses Mr. Lytle,4 both individually and through his private
membership associations 2035 PMA and QLasers PMA, and 2035 Inc., have a
long history of interaction with the FDA.
4Mr.
Lytle is also known as “Dr. Robert Lytle” or “Dr. Larry Lytle.” Mr.
Lytle was a dentist in Rapid City, South Dakota, until his license to practice
dentistry was permanently revoked by the South Dakota Board of Dentistry on
February 24, 1998. The court takes judicial notice of the findings of fact,
conclusions of law and order, and decision of the South Dakota Board of
Dentistry pursuant to Fed. R. Evid. 201(b) (2) and 803(8)(A) & (B).
5
Mr. Philips is a FDA Compliance Officer stationed in Minneapolis,
Minnesota. (Docket 6 ¶ 1). Mr. Philips provided the following information,
under oath, regarding the matters before the court. Id. at p. 11.
Mr. Lytle has been manufacturing and distributing QLaser devices since
approximately 1997, and has operated under more than ten different company
names. (Docket 6 ¶ 6). He markets the QLaser devices as low level laser
therapy devices intended for home use. Id. The QLaser System includes the
following devices: the Ql0, QI000, Ql000NG, Ql000NG+, 660 FlashProbe, 660
Enhancer Probe, 660NG Enhancer Probe, 660NG+ Enhancer Probe, 808
FlashProbe, 808 Enhancer Probe, 808NG Enhancer Probe, and 808NG+
Enhancer Probe. Id. ¶ 7. Distributed with QLaser devices is a document
captioned “Low Level Laser Application Guide,” which Mr. Lytle authored.5 Id.
¶ 6.
QLasers PMA distributes QLaser devices nationwide. Id. ¶ 8. In
addition, QLasers PMA holds QLaser seminars nationwide, solicits individuals to
join defendants’ “private membership associations,” and distributes labeling and
other materials associated with QLaser devices. Id.
5The
“Low Level Laser Application Guide” is over 200 pages in length.
(Dockets 7-1, 7-2, 7-3, 8-1, 8-2, 9-1, 9-2 & 10-1). “This manual is designed to
use a Western Medicine index of symptoms, illness or disease. Look up your
symptom, disorder or disease in the index and GO TO THAT PAGE for directions
on how to use your QLaser System both directly and with acupoint therapy.”
(Docket 7-1 at p. 16) (capitalization in original).
6
On August 29, 2002, the FDA sent Mr. Lytle a letter informing him that his
products were medical devices and, as such, he was required to obtain
marketing clearance before offering them for sale. (Docket 6-2). By an October
28, 2002, letter, Mr. Lytle’s attorney advised the FDA that Mr. Lytle’s devices
were veterinary devices and promised, among other things, to “eliminate” certain
statements contained in his product labeling. (Docket 6 ¶ 12).
In May 2007, an FDA investigator called Mr. Lytle to request information
about his current activities involving the QLaser System. Id. ¶ 13. In a
voicemail left on the FDA investigator’s cell phone, Mr. Lytle, apparently believing
that the call had terminated, declared to an unknown person that if the FDA
investigator questions Mr. Lytle about his businesses or his laser devices, he will
tell the FDA investigator that he makes “low level lasers for a veterinary type of
thing.” Id.
During a May 2010 inspection, the FDA learned 2035 Inc., was
responsible for manufacturing QLaser devices and had contracted production of
these devices to Tri-Tech Manufacturing, Inc., (“Tri-Tech”) of Rapid City, South
Dakota. (Docket 6 ¶ 5). The FDA also learned that once Mr. Lytle created the
private membership associations 2035 PMA and QLasers PMA in 2010, 2035
Inc.’s, activities were limited to owning a premarket clearance for the QLaser
QI000 and QLaser 660 FlashProbe, holding patents to QLaser devices, and
licensing those patents to 2035 PMA. Id. The 2035 PMA is responsible for
developing the specifications for the devices in the QLaser System. Id. ¶ 7. Mr.
7
Lytle is the president of 2035 Inc., and the director of 2035 PMA and QLasers
PMA. Id. ¶ 6.
During the 2010 inspection, an FDA investigator collected a number of
documentary samples, including defendants’ labeling materials captioned
“QLaser Use Instructions & Product Warranty” and “QLaser Low Level Laser
Therapy: Tomorrow’s Health Care Today.” Id. ¶ 14. This labeling indicated
QLaser devices treat “tendonitis, arthritis, burns . . . and any pain or
inflammation . . . speed[s] bone repair . . . help(s) repair damaged DNA . . .
repolarize[s] damaged cell walls . . . and [is] a multiorgan cell-reenergizer . . . [and
is] proven effective and beneficial for healing, and to benefit inflammation or
disorders of all internal, and the treatment of any unknown condition.” Id.
On March 3, 2011, the FDA issued a warning letter to Mr. Lytle and 2035
Inc. (Docket 6-3). Based on the FDA investigation, including the on-site
inspection and examination of defendants’ websites, the warning letter advised
Mr. Lytle that the QLaser devices were devices within the meaning of the FDCA,
21 U.S.C. § 32l(h), because they were “intended for use in the diagnosis of
disease or other conditions or in the cure, mitigation, treatment, or prevention of
disease or are intended to affect the structure or any function of the body.” Id.
at p. 1. The warning letter also advised Mr. Lytle “the Q10 Laser and the 808
Enhancer Probe are adulterated under section 501(f)(1)(B) of the [FDCA] because
you do not have an approved application for premarket approval (PMA) in effect
pursuant to section 515(a) of the Act, . . . or an approved application for
investigational device exemption (IDE) under section 520(g) of the Act . . . .” Id.
8
The Q10 Laser and the 808 Enhancer Probe “are also misbranded under section
502(o) . . . because you did not notify the [FDA] of your intent to introduce the
devices into commercial distribution as required by section 510(k) . . . .” Id. at
pp. 1-2.
Concerning the Q1000 Laser and the 660 Enhancer Probe, the warning
letter noted the FDA had “cleared a premarket notification (510(k)) for [these
devices] with an intended use ‘for providing temporary relief of pain associated
with osteoarthritis of the hand, which had been diagnosed by a physician or
other licensed medical professional.’ ” Id. at p. 2. Despite this limited 510(k)
clearance, Mr. Lytle’s websites were promoting these devices:
to re-energize muscle, ligament, and tendon cells for healing wounds
and injuries or for reducing pain and inflammation . . . [also]
benefits tendonitis, arthritis, burns, sprains, cuts, bruises, muscle
pulls, sore throat, and any pain or inflammation;
to re-energize the brain and heart cells and to normalize brain
neuropeptides and heart cell energy;
as a multi-organ cell re-energizer that cycles through 29 different
frequencies proven effective and beneficial for healing, and to benefit
inflammation or disorders of all internal, and for the treatment of
any unknown condition;
for acute or chronic pain and inflammatory conditions; and
[to] help[] Balance the Autonomic Nervous System.
Id. at pp. 2-3. Mr. Lytle’s promotional materials also claimed the QLaser System
would benefit macular degeneration of the eyes.
To sum it up, if electrical micro current or biocurrent [sic] is
effective, low level lasers should be equally or more effective for Age
Related Macular Degeneration, especially if the laser is used
early-on as a preventive procedure.
Id. at p. 3.
9
The FDA requested Mr. Lytle and his corporation “immediately cease
marketing the Q1000 and 660 Enhancer Probe for unapproved uses . . . .” Id.
Mr. Lytle was directed to submit a plan for discontinuation of the promotional
materials contrary to the 510(k) clearance authorization. Id. In response, Mr.
Lytle submitted “a series of letters challenging [the FDA’s] jurisdiction over
his distribution of the QLaser system through his ‘private membership
associations.’ ” (Docket 6 ¶ 16). Mr. Lytle’s June 15, 2010, letter indicated “all
manufacturing and sale of our products to the public is hereby terminated.”
(Docket 6-3 at p. 4). As of January 12, 2011, the FDA confirmed Mr. Lytle’s
websites “were still operating and contain claims other than those cleared in the
510(k) premarket notification.” Id.
The FDA investigators attempted a follow-up inspection of Mr. Lytle’s
businesses between December 4 and December 6, 2012. (Docket 6 ¶ 18). At
that time, Mr. Lytle refused to disclose any information concerning the activities
being conducted as “he could not comment on the activities of his private
membership association because the investigators were not members and . . . the
activities of his private membership associations are outside the jurisdiction of
the FDA.” Id.
The FDA obtained warrants for administrative inspection from a United
States Magistrate Judge in September 2013. Id. ¶ 19. During this inspection
the FDA found QLaser PMA was still distributing QLaser devices nationwide and
Mr. Lytle was still operating the QLasers’ website. Id.; see also (Docket 10-2).
10
During this inspection the FDA recovered Mr. Lytle’s manual “Low Level Laser
Application Guide.” (Docket 6 ¶ 20). This manual claims to “treat ‘over 200
different diseases and disorders,’ including cancer, cardiac arrest, HIV/AIDS,
diseases and disorders of the eye and ear, venereal disease, and diabetes, and
provides instructions on how to use the devices to treat specific diseases.” Id.;
see also Docket 7-1.
The FDA inspection of Mr. Lytle’s websites in August and September 2014
discovered Mr. Lytle was still claiming “the QLaser devices cure, mitigate, treat,
or prevent numerous diseases, including cancer, heart disease, diseases and
disorders of the eye and ear, Parkinson’s, and diabetes.” (Docket 6 ¶ 21).
Information packets received from QLasers PMA during the same time period
make similar claims. Id. ¶ 22. Over the course of the past few years, the FDA
received numerous complaints from physicians and “patients” of Mr. Lytle. Id.
¶¶ 23-25.
Mr. Lytle asserts “[m]embership in QLasers PMA includes things that are
not available to the public ─ FOB [free on board] 235 PMA’s office ─ such as . . .
education in the use of the PMA’s proprietary products . . . healthcare equipment
and products which present alternatives to conventional medical procedures . . .
including . . . [a] human body with light . . . low-power lasers . . . .” (Docket 28
at pp. 12-13) (bold omitted).
11
FDA Conclusions
Ilko Ilev, Ph.D., holds degrees in quantum and laser physics and a doctoral
degree in laser physics. (Docket 12 ¶ 1). As a member of the FDA’s Senior
Biomedical Research Service, Dr. Ilev concludes “the 808, 660, and Q1000 lines
of QLaser devices expose users to potentially hazardous levels of laser radiation
and raise serious safety concerns.” Id. ¶ 9. Efficacy concerns also are
identified by Dr. Ilev. “To my knowledge there are no published clinical studies
demonstrating the efficacy of the QLaser devices for any of the more than 200
indications listed in, among other places, the Low Level Laser Application Guide.”
Id. ¶ 15. “Although clinical studies using low-level lasers other than the QLaser
devices for specific indications have been conducted and published, such studies
do not support the efficacy of the QLaser devices, because the efficacy of low-level
laser therapy depends upon numerous, multivariable critical parameters,
including laser radiation dose, laser wavelength, and laser beam
characteristics.” Id. ¶ 17. In Dr. Ilev’s opinion “the 808 and Q1000 lines of
QLaser devices could be dangerous to health when used in the dosage or
manner, or with the frequency or duration prescribed, recommended, or
suggested in their labeling.” Id. ¶ 20. Dr. Ilev is concerned because “[a]pplying
any of these devices directly over the open eye [as Mr. Lytle’s manual instructs]
could lead to temporary or permanent damage to the eye.” Id.
The FDA has determined “the Q10, Ql000NG, Q1000NG+, 660 Enhancer
Probe, 660NG Enhancer Probe, 660NG+ Enhancer Probe, 808 FlashProbe, 808
12
Enhancer Probe, 808NG Enhancer Probe, and 808NG+ Enhancer Probe . . . are
class III devices for which there are no cleared 510(k) notifications or approved
applications for premarket approval in effect.” (Docket 11 ¶ 5). The FDA also
has determined that the Q1000 and 660 FlashProbe are “class III devices
because Dr. Lytle has made a major change or modification in the devices’
cleared intended use [2009 510(k) approvals], but, to date, FDA has not received
a 510(k) notification or application for premarket approval for such change.” Id.
Because of these conclusions, “all of the QLaser devices are uncleared and
unapproved devices.” Id.
Mr. Lytle acknowledges, under oath, that “[f]or over 17 years, under
several different business names and types of organizational structures, [he] has
publically sold low-power laser devices for education, research, veterinary and
private use in The United States of America and other countries.”
& 23) (bold omitted).
(Docket 28
Mr. Lytle admits the private membership association
“2035 PMA only manufacturers’ [sic] low-power laser devices for education,
research, veterinary and private use and on a wholesale basis provides them only
to its members ─ not to the public ─ [free on board (FOB)] 2035 PMA=s office.”
Id. & 29.
He likewise admits:
Membership in QLasers PMA includes things that are not available
to the public ─ FOB 2035 PMA’s office ─ such as educational
materials, presentations and training in everything from ancient but
effective treatments, products and procedures through the most
modern advanced devices, methods, technologies and products;
education in the use of the PMA’s proprietary products and how they
complement most alternative, conventional, holistic or natural and
13
comprehensive healthcare services and modalities; healthcare
equipment and products which present alternatives to conventional
medical procedures and pharmaceuticals including, but not limited
to, devises stimulating an animal or human body with cold, color,
electricity, light (low-power lasers), heat, magnetic energy, radiation,
sound and inaudible (radio) frequencies; air and water purifiers and
treatment equipment, ozone generators, vitamins, minerals, herbs,
enzymes, phytonutrients and raw foods etc. All FOB QLasers PMA’s
office.
Id. & 30 (bold omitted).
Distribution of Mr. Lytle’s “devices,” “products,” and
“healthcare equipment” to the members of the private membership associations
occurs through the United States Postal Service and United Parcel Service.
& 31.
Id.
Mr. Lytle declares that “[m]embers of 2035 PMA and QLasers PMA are
people who no longer consent to accept or receive any protection offered by the
FDA or any other federal or state administrative agency or court.”
omitted).
Id. & 32 (bold
In Mr. Lytle=s view, “[m]embers have joined the PMAs preciously [sic]
so that the FDA does not either attempt to or actually impair, impede, obstruct,
defeat, censor, regulate or interfere with, in any manner whatsoever, their
obtaining all available data and information on low-power laser devices and
obtaining such devices for their own education, research or private use should
they so choose to use one on their pets, domestic animals or beasts.”
Id. (bold
removed).
Justification for issuance of a Preliminary Injunction
Based on a careful review of the extensive and well developed record, the
court finds defendants Lytle, 2035 PMA, QLaser PMA, and 2035 Inc., are
violating 21 U.S.C. ' 331(a).
Defendants have shown no intent to discontinue
their activities and voluntarily comply with the FDCA.
14
The court concludes as a matter of law that a preliminary injunction
should issue as there is a substantial likelihood the government will succeed on
the merits of its claims that the defendants, jointly and severally, violate
21 U.S.C. § 331(a) by:
1. Introducing or delivering for introduction into interstate
commerce, and causing the introduction or delivery for
introduction into interstate commerce of, articles of device, as
defined by 21 U.S.C. § 321(h), that are adulterated within the
meaning of 21 U.S.C. § 351(f)(l)(B);
2. Introducing or delivering for introduction into interstate
commerce, and causing the introduction or delivery for
introduction into interstate commerce of, articles of device, as
defined by 21 U.S.C. § 321(h), that are misbranded within the
meaning of 21 U.S.C. § 352(o);
3. Introducing or delivering for introduction into interstate
commerce, and causing the introduction or delivery for
introduction into interstate commerce of, articles of device, as
defined by 21 U.S.C. § 321(h), that are misbranded within the
meaning of 21 U.S.C.§ 352(a).
4. Introducing or delivering for introduction into interstate
commerce, and causing the introduction or delivery for
introduction into interstate commerce of, articles of device, as
defined by 21 U.S.C. § 321(h), that are misbranded within the
meaning of 21 U.S.C. § 352(j).
5. Causing articles of device to become adulterated within the
meaning of 21 U.S.C. § 351(f)(l)(B) and misbranded within the
meaning of 21 U.S.C. §§ 352(a), (j), and (o), while such devices are
held for sale after shipment in interstate commerce.
Accordingly, for good cause shown, it is hereby
ORDERED that plaintiff’s motion for a preliminary injunction (Docket 4) is
granted. A preliminary injunction will be entered as a separate order.
15
IT IS FURTHER ORDERED that Mr. Lytle’s motion for a more definite
statement (Docket 31) is denied.
IT IS FURTHER ORDERED that Mr. Lytle’s motion for administrative
hearing (Docket 32) is denied.
IT IS FURTHER ORDERED that Mr. Lytle’s motion for reconsideration and
correction of errors (Docket 34) is denied.
IT IS FURTHER ORDERED that Mr. Lytle’s motion to dismiss for lack of
subject matter jurisdiction (Docket 37) is denied.
IT IS FURTHER ORDERED that Mr. Lytle’s motion to strike all of plaintiff’s
pleadings (Docket 38) is denied.
IT IS FURTHER ORDERED that Mr. Lytle’s motion to dismiss (Docket 40)
is denied.
Dated January 14, 2015.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE
16
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