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LASR Clinics of Henderson, LLC v. United States Department of Justice

United States District Court, D. Nevada

October 19, 2017

LASR CLINICS OF HENDERSON, LLC, Petitioner,
v.
UNITED STATES DEPARTMENT OF JUSTICE, et al., Respondents.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE.

         I. SUMMARY

         Before the Court is Respondent United States Department of Justice's (“Government”) Motion to Dismiss (“Respondent's Motion”) (ECF No. 3) and Petitioner LASR Clinics of Henderson, LLC's Motion to Set Aside Civil Investigative Demands (“Petitioner's Motion”) (ECF No. 1). The Court has reviewed Petitioner's response and amended response (ECF Nos. 5 & 8) and Respondent's reply (ECF No. 13) regarding Respondent's Motion.

         For the reasons below, Respondent's Motion is granted with leave for Petitioner to file a new petition regarding the newly reissued CIDs, and Petitioner's Motion is denied as moot.

         II. BACKGROUND

         A. Statutory Framework

         Under 31 U.S.C. § 3733, the United States Department of Justice may issue civil investigative demands (“CID”) when initiating a civil proceeding under the False Claims Act (“FCA”), 31 U.S.C. § 3729 et seq. The statute provides that the Attorney General or a designee may issue a CID whenever there is “reason to believe that any person may be in possession, custody, or control of any documentary material or information relevant to a false claims law investigation[.]” 31 U.S.C. § 3733(a)(1). CIDs must identify the nature of the conduct constituting the alleged violation of the FCA as well as the applicable provision of law alleged to be violated. Id. at § 3733(a)(2)(A). CIDs must also provide a written demand that is definite and certain so as to permit the identification of documentary materials that are requested. See id. at § 3733(a)(2)(b)(i). Any person who has received a CID may file a petition in federal district court seeking an order to modify or set aside the CID. Id. at § 3733(j)(2). A federal district court has jurisdiction over any petition filed in that court provided it is consistent with the federal rules of civil procedure. Id. at §§ 3733(j)(5) & (6).

         B. Relevant Facts

         On August 7, 2017, Petitioner filed its Motion under seal, requesting that three CIDs received on or about July 13, 2017, be set aside or modified based on their failure to comply with statutory requirements. (ECF No. 1 at 2.) Specifically, Petitioner contends that these CIDs failed to comply with the “definiteness and certainty” requirement, that the Government failed to attach required forms to the CIDs, and/or that the Government cannot demonstrate valid service for at least one of the CIDs. (See id. at 2-3, 6-7.) On July 26, 2017, Petitioner contacted Respondent seeking clarification regarding the actual demand in the CIDs. (Id. at 3.) On July 31, 2017, the Government attempted to clarify the content of the CIDs. (Id.)

         Respondent moved to dismiss this action with prejudice on August 11, 2017, in light of the fact that the Government withdrew the three original CIDs, in turn making the matter moot. (ECF No. 3 at 2.) In response, Petitioner contends that the matter is not moot because the CIDs have been reissued.[1] (ECF No. 8 at 2.)

         III. DISCUSSION

         Respondent moves to dismiss the action with prejudice on the basis that this action is now moot. (ECF No. 3 at 1.) The Court agrees that the original petition requesting that this Court set aside or modify the initial CIDS is moot in light of the fact that the Government has withdrawn these CIDs. However, this Court grants Petitioner leave to file an amended petition regarding any purported issues with the reissued CIDs.

         Rule 12(b)(1) of the Federal Rules of Civil Procedure allows defendants to seek dismissal of a claim or action for a lack of subject matter jurisdiction. “Because standing and mootness both pertain to a federal court's subject-matter jurisdiction under Article III, they are properly raised in a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1)[.]” White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). A case is moot when no actual controversy exists. Cook Inlet Treaty Tribes v. Shalala, 166 F.3d 986, 989 (9th Cir. 1999). “If there is no longer a possibility that [a party] can obtain relief for his claim, that claim is moot and must be dismissed for lack of jurisdiction.” Ruvalcaba v. City of Los Angeles, 167 F.3d 514, 521 (9th Cir. 1999).

         Respondent relies on Bryant v. Shaeffer, No. 1:11-cv-00444-AWI-SKO (PC), 2015 WL 545934 (E.D. Cal. Feb. 10, 2015), to argue that this action is now moot because CIDs are administrative subpoenas and Respondent has withdrawn the CIDs for which Petitioner initiated this action. (ECF No. 3 at 3.) In Bryant, a state prisoner proceeding pro se filed a motion to quash related to the defendants' purported subpoenas of the prisoner's medical records. Bryant, 2015 WL 545934, at *2-*3. There, the subpoenas were either never issued in the first place or were withdrawn without any evidence of subsequent reissuance. Id. at *3. Thus, the Court found that because there was “nothing left to quash” the motion had been rendered moot. Id. By contrast, here there are existing CIDs that appear to request the exact same material as that asked for in the original CIDs[2] (compare ECF Nos. 1-1, 1-2, & 1-3 with ECF No. 10). Moreover, it is unclear to the Court whether Petitioner has a basis to challenge the reissued and amended CIDs[3] (see ECF No. 8 at 2). See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (“A case might become moot if subsequent events make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur, ” and “[t]he heavy burden of ...


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