United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
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
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.
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).
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
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. (ECF No. 8 at 2.)
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.
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).
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 (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
(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 ...