United States District Court, D. South Dakota, Western Division
MEMORANDUM OPINION AND ORDER
E. SCHREIER UNITED STATES DISTRICT JUDGE.
matter is before the court following the recusal of Chief
Judge Jeffrey L. Viken from any further participation in this
matter. Docket 167. Currently pending are nine motions filed
by pro se defendant Robert L. Lytle, and one motion
filed by plaintiff, the United States. Dockets 164, 165, 168,
170, 180, 181, 185, 187, 189, 191. For the reasons that
follow, the court denies each of the pending motions.
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). Docket 1. The United States
also filed a motion seeking a preliminary injunction to
enjoin defendants from violating the FDCA during the pendency
of the proceedings. Docket 4. After responding to the motion
for the preliminary injunction, Docket 28, Lytle filed
various motions to dismiss challenging the court's
personal and subject-matter jurisdiction. Dockets 37, 40.
January 14, 2015, Chief Judge Viken denied Lytle's
motions to dismiss finding that “[t]he 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.”
Docket 47 at 5. Chief Judge Viken also granted the United
States's motion for a preliminary injunction.
Id. at 15; Docket 48. Following this decision, Lytle
filed an interlocutory appeal to the Eighth Circuit Court of
Appeals challenging the court's jurisdiction and the
preliminary injunction. See Docket 54.
Lytle's interlocutory appeal was pending, litigation on
the United States's request for a permanent injunction
continued. Docket 71 (order by Chief Judge Viken denying
Lytle's motion to stay proceedings during interlocutory
appeals process); see also Docket 94 (order by the
Eighth Circuit Court of Appeals denying Lytle's motion to
stay proceedings during the interlocutory appeals process). A
bench trial on the United States's request for a
permanent injunction was held by Chief Judge Viken on March
3-4, 2015.Docket 81. On April 15-16, 2015, Chief
Judge Viken held a show cause hearing to determine whether to
hold Lytle in contempt of court for alleged violations of the
preliminary injunction. Docket 103. On April 16, 2015, this
hearing was continued until October 6, 2015,  so Lytle could
retain counsel. Docket 106.
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 the opinion, the Eighth
Circuit affirmed Chief Judge Viken's finding that the
court had jurisdiction over Lytle's alleged violations of
the FDCA. See Id. at 862 (“That a product is
sold through a PMA [(Private Membership Association)] does
not exempt it from the application of this provision.”
(citing 21 U.S.C. § 321(e) (person subject to FDCA
includes association))). While concluding that the United
States was entitled to preliminary injunctive relief, the
Eighth Circuit remanded the case for a determination of
“whether a more narrowly-tailored injunction might be
sufficient . . . .” Id. at 863. The Eighth
Circuit panel also observed that reconsideration of the
preliminary injunction on remand “may become
moot” by the entry of a permanent injunction.
the Eighth Circuit's decision on Lytle's
interlocutory appeal, Lytle filed a motion in the district
court seeking reconsideration of the preliminary injunction.
Docket 128. This motion raised eight objections that
challenged the scope of the preliminary injunction.
Id. The United States opposed Lytle's motion and
requested that Chief Judge Viken enter a permanent injunction
on the same terms as the preliminary injunction. Docket 132
October 6, 2015, the show cause hearing resumed with Chief
Judge Viken recounting what happened on April 15-16, 2015,
and describing the events that led to the hearing being
continued. Docket 154 at 3-8 (transcript of show cause
hearing on October 6, 2015). Next, Chief Judge Viken and the
parties discussed whether the United States still intended to
call Lytle as an adverse witness and the potential Fifth
Amendment implications associated with calling Lytle as an
adverse witness. Id. at 8-22. At the conclusion of
this discussion, Shultz, as Lytle's attorney, articulated
what he believed the impact of the Eighth Circuit's
decision was on Lytle's interlocutory appeal and noted
the Eighth Circuit's observation that the entry of a
permanent injunction may moot any issues related to the
preliminary injunction. Id. at 23. Shultz then
remarked that “I am here to say on behalf of Mr. Lytle
that we have no objection to the entry of permanent
injunction . . . with the proviso that the Court rules upon
the matters presented by defendant Lytle's motion for
reconsideration following remand.” Id. at
23-24. After a discussion regarding how to move
forward in addressing Lytle's objections, it was agreed
that Chief Judge Viken would rule on each of Lytle's
eight objections and then enter an order regarding a
permanent injunction taking into consideration his rulings on
Lytle's objections. Id. at 24-34.
to entering the permanent injunction, Chief Judge Viken
granted the United States time to re-draft the permanent
injunction in light of his rulings on Lytle's objections.
Id. at 73-76. It was then agreed by the parties that
Chief Judge Viken would go through the draft of the permanent
injunction to address any final objections by the parties.
Id. at 74-76. After ruling on the various objections
to the final draft of the permanent injunction, see
Id. at 77-146 (transcript of objections and discussion
of permanent injunction draft), Chief Judge Viken entered an
order granting the permanent injunction. Docket 138. The
permanent injunction was amended on October 13, 2015, to make
grammatical and non-substantive revisions. Docket 139
(Amended Permanent Injunction).
November 25, 2015, Shultz, with Lytle's consent, filed a
motion to withdraw as counsel for Lytle. Docket 143; see
also Docket 150 (order granting Shultz's motion to
withdraw). On December 3, 2015, Lytle filed a notice of
appeal from the Amended Permanent Injunction with the Eighth
Circuit Court of Appeals. 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 over Lytle's case to enter a
permanent injunction. Id. at 679 (citations omitted)
(“We find that the district court had federal question
jurisdiction over this action . . . .”). The Eighth
Circuit also concluded that Chief Judge Viken's Amended
Permanent Injunction order “was narrowly tailored to
correct Lytle's violations of the FDCA . . . .”
Id. (citing Fed.R.Civ.P. 65(d) and Doe v. S.
Iron R-1 Sch. Dist., 498 F.3d 878, 884 (8th Cir. 2007)).
Lytle's Motions to Dismiss.
Lytle has four motions pending that seek to dismiss his case
on various grounds. See Dockets 165, 170, 185, 187.
Lytle's first two motions to dismiss seek to challenge
the court's jurisdiction over Lytle personally and over
his case. See Docket 165 at 3; Docket 170 at 14.
Lytle's last two motions to dismiss seek dismissal on
non-jurisdictional grounds. Docket 185 at 1; Docket 187 at 5.
The United States argues that Lytle's jurisdictional
arguments are the same arguments that the Eighth Circuit has
twice rejected and should be denied under the law of the case
doctrine. Docket 176 at 2-3 (citing Arizona v.
California, 460 U.S. 605, 619 (1983)). The United States
further argues that Lytle's most recent motions to
dismiss should fail because the motions were procedurally
improper at the time they were filed. See Docket 188 at
The Law of the Case Doctrine Bars Lytle's Jurisdictional
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). Thus, where an appellate court renders a
decision in a case and remands the case for further
proceedings, “every question decided by the appellate
court, whether expressly or by necessary implication, is
finally settled and determined, and the court on remand is
bound by the decree and must carry it into execution
according to the mandate.” Thompson v.
Comm'r, 821 F.3d 1008, 1011 (8th Cir. 2016) (citing
Klein v. Arkoma Prod. Co., 73 F.3d 779, 784-85 (8th
Cir. 1996)). Under the law of the case doctrine, a
reexamination of a prior decision is only appropriate
“if a prior decision ‘is clearly erroneous and
would work a manifest injustice . . . .' ”
Id. (quoting Wong v. Wells Fargo Bank,
N.A., 789 F.3d 889, 898 (8th Cir. 2015)).
Lytle continues to argue that the court lacks jurisdiction
over him and his case. Docket 165 at 3; Docket 170 at 14;
see also Dockets 37, 40, 79, 144, 145 (previous
motions to dismiss filed by Lytle arguing there was a lack of
subject-matter or personal jurisdiction). Not only has Chief
Judge Viken denied Lytle's motions to dismiss his case on
jurisdictional grounds, Dockets 47, 96, 153, but the Eighth
Circuit has twice denied Lytle's appeals in which he
argued there was a lack of jurisdiction. First, in
Lytle, 612 F. App'x at 861-62, the Eighth
Circuit rejected Lytle's argument that “the FDA
lacks regulatory jurisdiction over [Lytle's] marketing of
laser devices because [Lytle] distributes them in
non-commercial transactions through private membership
associations (PMAs).” This is because the fact
“[t]hat a product is sold through a PMA does not exempt
it from the application of this provision.”
Id. at 862 (citing 21 U.S.C. § 321(e)) (person
subject to FDCA includes association). Similarly in 2035,
Inc., 668 F. App'x at 679, the Eighth Circuit again
concluded that this court had federal question jurisdiction
over Lytle's case that was sufficient to allow the court
to enter a permanent injunction against Lytle. Id.
(citations omitted) (“We find that the district court
had federal question jurisdiction over this action . . .
the law of the case doctrine, this court is bound to follow
the Eighth Circuit's decisions in this case unless such
decisions are clearly erroneous and would work a manifest
injustice on Lytle. See Thompson, 821 F.3d at 1011
(citation omitted). Lytle has made no showing that the Eighth
Circuit's decisions-like Chief Judge Viken's
decisions regarding Lytle's jurisdictional challenges-are
erroneous, let alone clearly erroneous. Thus, Lytle's