United States District Court, D. North Dakota
Charles S. Miller, Jr., Magistrate Judge
the court are a number of motions filed by various Defendants
seeking to quash civil investigative demands served by
Plaintiff Angela Hansen (“Hansen”). (Doc. Nos.
30, 36, 39, 40). Another motion asks to stay any further
discovery pending a scheduling conference. (Doc. No. 44).
initiated this action following state court rulings granting
her ex-husband custody of their daughter. See Dieterle v.
Dieterle, 2016 ND 36, 875 N.W.2d 479; Dieterle v.
Dieterle, 2013 ND 71, 830 N.W.2d 571. The Defendants in
this matter include individuals working in the North Dakota
state courts, ranging from justices on the North Dakota
Supreme Court to state district court judges to North Dakota
attorneys and to North Dakota state court administrative
staff, amongst others. Generally, Hansen's complaint
alleges the Defendants, both individually and in concert,
violated her various constitutional rights in the state court
custody proceedings. (Doc. No. 11).
the Defendants have not yet filed their responsive pleadings,
with the court granting the Defendants until October 18,
2017, to do so. (Doc. Nos. 21, 27). While those pleadings
remain outstanding, Hansen served at lease some of the
Defendants with what she styled as a “Civil
Investigative Demand Pursuant to 18 USC 1968 and 31 USC
3733." (Doc. No. 31-1) (hereinafter “the
Demands”). The Demands direct the Defendants to produce
materials pursuant to the authority granted “to Angela
Hansen as a private attorney general under the provision of
18 USC of the Federal RICO Act, 18 USC Chapter 96 . . .
.” Through various iterations, the Defendants argue the
Demands are an improper attempt to conduct discovery in
contravention of Fed.R.Civ.P. 26(d) and Hansen lacks standing
under 18 U.S.C. § 1968 and 31 U.S.C. § 3733 to
serve such demands.
18 U.S.C. § 1968(a), the “Attorney General”
may, “prior to the institution of a civil or criminal
proceeding thereon, issue . . . a civil investigative demand
. . . .” The term “Attorney General”
includes “the Attorney General of the United States,
the Deputy Attorney General of the United States, the
Associate Attorney General of the United States, any
Assistant Attorney General of the United States, or
any” person so designated by the Attorney General. 18
U.S.C. § 1961. Similarly, 31 U.S.C. § 3733(a)(1)
allows “the Attorney General” or a proper
designee to serve civil investigative demands “before
commencing a civil proceeding . . . .” Other than
deeming herself a “private attorney general, ”
Hansen has not provided any authority under which she may
employ the civil investigative demands allowed for under
these two statutes. Each allows the Attorney General to
designate another person as an “Attorney General”
for purposes of the statute, but Hansen has not provided any
authority that she should be considered a designee under
either. Without this, the civil investigative demands allowed
for under 18 U.S.C. § 1968(a) and 31 U.S.C. §
3733(a)(1) are not available to her.
Demands also fail for improper timing. Under 18 U.S.C. §
1968(a), investigative demands are available “prior to
the institution of a civil or criminal proceeding . . .
.” Similarly under 31 U.S.C. § 3733(a)(1),
investigative demands are available “before commencing
a civil proceeding under” the chapter. By the plain
terms of both statutes, investigative demands are not
available following commencement of a civil or criminal
proceeding. Here, Hansen initiated this action on March 21,
2017. (Doc. No. 1). Hansen dated the Demands at issue on
August 30, 2017. (Doc. No. 31-1). The Demands at issue here
are clearly not allowed for under either statute.```````````
simply cannot use the civil investigative demands at issue
here as an end-around of Fed.R.Civ.P. 26(d)(1). Under this
rule, a “party may not seek discovery from any source
before the parties have conferred as required by Rule 26(f),
except in a proceeding exempted from initial disclosure under
Rule 26(a)(1)(B), or when authorized by these rules, by
stipulation, or by court order.” This court, in dealing
with other pro se litigants, has said:
With respect to discovery in cases such as this, the court
employs the following protocol. Once the defendants have made
an appearance and filed a responsive pleading, the court will
direct the parties to submit proposed scheduling and
discovery plans. Upon receipt and review of these proposed
plans, the court shall issue a scheduling and discovery
order. See Fed.R.Civ.P. 16(b)(1). In the interim,
discovery is not generally permitted. Cf.
Ferrell v. Williams Cty. Sherrifs Office, Case No.
4:14-cv-131, 2014 WL 7404578 at *1 (D.N.D. December 30,
2014). Only a showing of good cause as to the necessity of
early discovery will warrant departure from this protocol.
Simmons v. RPC, Inc., Case No. 4:14-cv-082, 2014 WL
12605497 at *2 (D.N.D. August 12, 2014). Hansen has not
sought leave from the court to seek early discovery, and the
court doubts any valid basis exists that would allow for
on the foregoing, the court GRANTS the
Defendants' various motions to quash. (Doc. Nos. 30, 36,
39, 40). All civil investigative demands served by Hansen on
any of the Defendants are quashed and void. The court also
GRANTS the motion to stay discovery. (Doc.
No. 44). Discovery shall be stayed until: (1) the court and
the parties conduct the planning meeting and scheduling
conference pursuant to Fed.R.Civ.P. 16(b), 26(f); or (2)
otherwise ordered by the court.