United States v. Wilson, 1:22-mc-20 JCH

CourtUnited States District Courts. 10th Circuit. District of New Mexico
PartiesUNITED STATES OF AMERICA, Petitioner, v. RICK Q. WILSON, Respondent.
Docket Number1:22-mc-20 JCH
Decision Date21 November 2022


RICK Q. WILSON, Respondent.

No. 1:22-mc-20 JCH

United States District Court, D. New Mexico

November 21, 2022


This matter comes before the Court on the United States' Petition for Order Compelling Compliance with an Administrative Subpoena (ECF No. 1), the United States' Motion for Default Judgment (ECF No. 7), and Respondent Rick Q. Wilson's Motion to Dismiss Petition for Order Compelling Compliance with an Administrative Subpoena (ECF No. 10). The Court will deny the United States' motion for default judgment and grant Respondent's motion to dismiss the petition under HIPAA and the Fourth Amendment because of the subpoena's overbreadth. Consequently, the Court will also dismiss the United States' Petition.


The Drug Enforcement Administration (“DEA”) is investigating Respondent Rick Q. Wilson (“Dr. Wilson”) for possible civil violations of the Controlled Substances Act, 21 U.S.C. § 801, et seq. (“CSA”). Section 876 of the CSA provides: “In any investigation relating to his functions under this subchapter with respect to controlled substances, ... the Attorney General may .. require the production of any records (including books, papers, documents, and other tangible things which constitute or contain evidence) which the Attorney General finds relevant or material to the investigation.” 21 U.S.C. § 876(a). Through delegations and re-delegations, Diversion Program Managers of the Drug Enforcement Administration (“DEA”) have the authority to issue


administrative subpoenas. See 28 C.F.R. § 0.100(b) (delegating Attorney General functions under Comprehensive Drug Abuse Prevention and Control Act of 1970, and subsequent amendments thereto, to Administrator of DEA); 28 C.F.R. Pt. 0, Subpart R, App. § 4 (redelegating to DEA Diversion Program Managers authority to sign and issue subpoenas with respect to controlled substances).

The CSA provides an enforcement mechanism for the Attorney General when the subject of a subpoena refuses to comply through “any court of the United States within the jurisdiction of which the investigation is carried on or of which the subpenaed person is an inhabitant, or in which he carries on business or may be found, to compel compliance with the subpena.” 21 U.S.C. § 876(c). The court may issue an order requiring the subpoenaed person to appear before the Attorney General to produce records, and any failure to follow the court's order may be punished as contempt. Id. Process in a compliance case “may be served in any judicial district in which such person may be found.” Id.


A. The Administrative Subpoena

On April 27, 2021, Diversion Program Manager Heather McMurry issued DEA Administrative Subpoena MM-17-0128 (hereinafter “the Subpoena”) to Rick Q. Wilson, PhD, seeking

a list of all patients in the last five years and all controlled substance prescriptions written for each patient In addition, please provide all documents relating to or referring to the following patients to include, but not limited to, patient files, billing statements, controlled substance prescriptions, communications, and any other documents which refer to or relate to the listed patients

(Subpoena, ECF No. 1-1 at 1, 3 of 4.) The subpoena then listed the last name, first name, and date of birth of 41 patients. (Id. at ECF No. 1-1 at 3 of 4.) The Certificate of Subpoena, dated May 3,


2021, shows service by Diversion Investigator Evangelina Alvarez by handing a copy to the person to whom it was directed. (Id. at ECF No. 1-1 at 4 of 4.) The United States filed a petition in this Court on June 3, 2022, to enforce Dr. Wilson's compliance with the Subpoena (hereinafter “the Petition”). (Petition, ECF No. 1.)

B. The Petition[1]

Dr. Wilson lives and works in California, but until recently, he saw patients in Albuquerque, New Mexico, twice a month through his corporation, Neuromental Health Services, Inc. (Petition 2, ECF No. 1.) The United States previously sought and obtained an order allowing it to obtain substance use disorder treatment records. (Id.) The United States' purpose in serving the Subpoena at issue here is to determine whether the prescriptions for Xanax and other controlled substances Dr. Wilson prescribed were medically appropriate or whether Dr. Wilson may have violated the CSA. (Id.)

In response, Dr. Wilson provided some documents, but of those, many of the documents were password protected. (Id. at 2-3.) He failed to produce a list of his patients in the last five years, controlled substance prescriptions written for each patient, and records for two of the requested patients. (Id. at 2.) While Dr. Wilson provided some records for 39 patients, he did not produce billing records, appointment notes for a handful of patients, or paperwork filled out by many of the patients. (Id. at 2-3.) After unsuccessfully attempting to obtain these documents and the password from Dr. Wilson's attorney, the United States filed this Petition, requesting an order directing Dr. Wilson to comply with the Subpoena. (Id. at 3-4.) According to the United States, the Subpoena is issued pursuant to lawful authority and purpose, is relevant to the DEA's


investigation of whether Dr. Wilson violated the CSA, is reasonable, and is limited in time and to the number of patients “who died within a reasonably short period of time of seeing Dr. Wilson.” (Id. at 4.)

C. Service of Petition and Entry of Default

The United States filed a Summons in a Civil Action indicating Proof of Service of the Petition by leaving the summons at Dr. Wilson's usual place of business with April Rodriguez, Office Manager, on July 6, 2022, and mailing a copy to his last known address. (Summons, ECF No. 2 at 2 of 4.) The address was listed as Western Health Community Clinic, 1647 W. Anaheim St., Harbor City, CA. (Id. at 1.) In a Declaration of Diligence, the process server averred that he made the following prior attempts with these listed results: (1) June 29, 2022 (not in per employee and he left the summons with April Rodriguez, Office Manager); (2) June 30, 2022 (business closed); (3) July 1, 2022 (business closed); and (4) July 5, 2022 (business closed). (Id. at 3-4.) On August 2, 2022, the United States requested a Clerk's entry of default based on Dr. Wilson's failure to plead or otherwise defend. (Request, ECF No. 3.) The affidavit supporting the request erroneously listed June 6, 2022, as the date of service of the summons by leaving it with April Rodriguez, rather than July 6. (See Aff. ¶ 1, ECF No. 3-1.)

Counsel Brian G. Grayson entered his appearance on behalf of Dr. Wilson on August 8, 2022. (Notice of Appearance, ECF No. 4.) The next day, on August 9, 2022, the Clerk of the Court filed a Clerk's Entry of Default. (See Clerk's Entry of Default, ECF No. 5.) That same day, the United States filed a motion for default judgment (ECF No. 7).

D. Respondent's Answer and Motion to Dismiss

Two days later, on August 11, 2022, Dr. Wilson, through Mr. Grayson, filed an Answer to Petition for Order Compelling Compliance with an Administrative Subpoena (ECF No. 8), in


which he asserted general denials to the facts and legal conclusions, noted he was filing a separate motion to dismiss the petition, and asserted numerous affirmative defenses. Subsequently, on August 16, 2022, Dr. Wilson filed his motion to dismiss petition (ECF No. 10) and a response to the Government's motion for default judgment (ECF No. 9). The parties have since completed briefing on the motions, which are now ready for decision.


The Federal Rules of Civil Procedure apply to proceedings to compel the production of documents through a subpoena issued by a United States agency under a federal statute. Fed.R.Civ.P. 81(a)(5). Under Federal Rule of Civil Procedure 55(a), the clerk may enter a default when a respondent or defendant has failed to plead or otherwise defend, and the plaintiff has shown that failure by affidavit or other evidence. Fed.R.Civ.P. 55(a). Once the clerk has entered default, the party must apply to the court for a default judgment. Fed.R.Civ.P. 55(b).

The court may set aside an entry of default for good cause. Fed.R.Civ.P. 55(c). The harsh sanction of default judgment is disfavored, as the preferred disposition of a case is resolution on its merits. Gomes v. Williams, 420 F.2d 1364, 1366 (10th Cir. 1970); In re Rains, 946 F.2d 731, 732 (10th Cir. 1991) (explaining that default judgment must normally be viewed as available only when the adversary process has been halted because of an essentially unresponsive party, so that the diligent party's rights may be protected). “[T]he entry of a default judgment is committed to the sound discretion of the district court.” Tripodi v. Welch, 810 F.3d 761, 764 (10th Cir. 2016).

“[I]t is well established that the good cause required by Fed.R.Civ.P. 55(c) for setting aside entry of default poses a lesser standard for the defaulting party than the excusable neglect which must be shown for relief from judgment under Fed.R.Civ.P. 60(b).” Dennis Garberg & Assocs., Inc. v. Pack-Tech Int'l Corp., 115 F.3d 767, 775 n.6 (10th Cir. 1997). In deciding whether


to set aside an entry of default, a court may consider “whether the default was willful, whether setting it aside would prejudice the adversary, and whether a meritorious defense is presented.” Pinson v. Equifax Credit Information, Inc., 316 Fed.Appx. 744, at *750 (10th Cir. Mar. 10, 2009) (quoting Dierschke v. O'Cheskey (In re Dierschke), 975 F.2d 181, 183 (5th Cir.1992) (quotation omitted)).

“Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.” Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987). The plaintiff bears the...

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