FILED NOT FOR PUBLICATION NOV 5 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL T. BROOKS, No. 19-35547
Plaintiff-Appellant, D.C. No. 6:15-cv-00983-MK
v. MEMORANDUM* AGATE RESOURCES, INC., DBA Agate Healthcare (Oregon ABN 695284-96), DBA Apropo Benefits Management, LLC, DBA Employers Health Alliance, LLC, DBA Health Policy Research Northwest, DBA Lane Home Medical, LLC, DBA Lane Individual Practice Association, Inc., DBA Trillium Advantage, DBA Trillium Community Health Plan, DBA Trillium Community Health Plan, Inc., DBA Trillium Community Health Plan, LLC, DBA Trillium Coordinate Care Organization, Inc., DBA Trillium Medicare, DBA Trillium Sprout,
Defendant-Appellee.
Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted November 3, 2020**
Before: TROTT, SILVERMAN, and NR SMITH, Circuit Judges
Plaintiff Michael Brooks appeals following the district court’s dismissal of
his amended complaint. We have jurisdiction pursuant to 28 U.S.C. § 1291 and
affirm.
The magistrate judges acted within their authority by ruling on non-
dispositive pretrial matters and issuing a Findings and Recommendation (F&R) on
the defendant’s motion to dismiss the amended complaint. 28 U.S.C. § 636(b)(1);
SEC v. CMKM Diamonds, Inc., 729 F.3d 1248, 1259-60 (9th Cir. 2013). The
district judge properly reviewed the F&R and plaintiff’s objections de novo. 28
U.S.C. § 636(b)(1). None of plaintiff’s statements, even if taken as true, plausibly
allege judicial misconduct. Clemens v. U.S. Dist. Ct., 428 F.3d 1175, 1178-80 (9th
Cir. 2005) (setting forth the standard).
The district court did not abuse its broad discretion by denying counsel’s
sixth extension of time for discovery after ordering that no further extensions of
time would be allowed absent good cause because the case had been pending
almost two years. Nor did the court abuse its discretion by later deferring
** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 additional discovery until after the court ruled on the motion to dismiss the
amended complaint. Plaintiff had ample time to conduct discovery while he was
represented by counsel. Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018,
1027 (9th Cir. 2006) (setting forth the clear abuse of discretion standard of
review); Nascimento v. Dummer, 508 F.3d 905, 909 (9th Cir. 2007) (holding that
the district court did not abuse its discretion by denying a motion to extend the
discovery deadline when the party had “nearly five months to conduct discovery”).
The district court did not abuse its discretion by requiring plaintiff to provide
a privilege log when he requested that defense counsel return documents produced
by plaintiff’s attorney during discovery. Burlington N. & Santa Fe Ry. Co. v. U.S.
Dist. Ct., 408 F.3d 1142, 1149 (9th Cir. 2005) (holding “that boilerplate objections
or blanket refusals inserted into a response to a Rule 34 request for production of
documents are insufficient to assert a privilege”); Dole v. Milonas, 889 F.2d 885,
890 (9th Cir. 1989) (recognizing that “the district court may adopt the ‘privilege
log’ approach”).
The district court did not abuse its discretion by denying plaintiff’s motion
to sanction counsel. Patelco Credit Union v. Sahni, 262 F.3d 897, 912-13 (9th Cir.
2001) (setting forth the standard of review). Neither the production of documents
by plaintiff’s counsel during discovery nor the fact that counsel conferred
3 regarding discovery constitutes wrongdoing or criminal conduct. There is no
evidence of a conspiracy or any conduct that would warrant sanctions. Moreover,
defense counsel offered to destroy or return to plaintiff any documents that
plaintiff identified as privileged. Nor did the district court err by denying
plaintiff’s motion for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
Couch v. Telescope, Inc., 611 F.3d 629, 633 (9th Cir. 2010) (setting for the §
1292(b) elements). This court similarly denied plaintiff permission to appeal when
he raised most of the same issues in 2018. Brooks v. U.S. Dist. Ct., No. 17-73242
(9th Cir. Mar. 1, 2018) (Order).
The district court acted well within its discretion when it reasonably granted
a 60-day extension of time for plaintiff to respond to the motion to dismiss and
indicated that no further extensions would be granted because the case had been
pending three years. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258 (9th
Cir. 2010) (setting forth the standard of review). Similarly, the magistrate judge
properly ordered that objections to the F&R be filed by the statutory deadline for
objections set forth in 28 U.S.C. § 636(b)(1).
The district court did not abuse its discretion by holding that plaintiff had
not established exceptional circumstances that would require appointment of
counsel. Plaintiff had previously litigated at least two federal lawsuits against the
4 defendant, had been represented throughout most of the lawsuit, was generally
familiar with the rules, had already responded to the motion to dismiss, and had
drafted the amended complaint with the assistance of pro bono counsel. Palmer v.
Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting forth the standard of review and
exceptional circumstances test).
The district court did not abuse its discretion when it sealed only the medical
records attached to plaintiff’s objections. Plaintiff gave no compelling reasons for
sealing the remainder of the objections. Ctr. for Auto Safety v. Chrysler Grp., LLC,
809 F.3d 1092, 1096-97 (9th Cir. 2016) (holding that we review for an abuse of
discretion and that a court may seal records only for “a compelling reason”).
Contrary to plaintiff’s claim, the defendant properly filed its corporate
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FILED NOT FOR PUBLICATION NOV 5 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL T. BROOKS, No. 19-35547
Plaintiff-Appellant, D.C. No. 6:15-cv-00983-MK
v. MEMORANDUM* AGATE RESOURCES, INC., DBA Agate Healthcare (Oregon ABN 695284-96), DBA Apropo Benefits Management, LLC, DBA Employers Health Alliance, LLC, DBA Health Policy Research Northwest, DBA Lane Home Medical, LLC, DBA Lane Individual Practice Association, Inc., DBA Trillium Advantage, DBA Trillium Community Health Plan, DBA Trillium Community Health Plan, Inc., DBA Trillium Community Health Plan, LLC, DBA Trillium Coordinate Care Organization, Inc., DBA Trillium Medicare, DBA Trillium Sprout,
Defendant-Appellee.
Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted November 3, 2020**
Before: TROTT, SILVERMAN, and NR SMITH, Circuit Judges
Plaintiff Michael Brooks appeals following the district court’s dismissal of
his amended complaint. We have jurisdiction pursuant to 28 U.S.C. § 1291 and
affirm.
The magistrate judges acted within their authority by ruling on non-
dispositive pretrial matters and issuing a Findings and Recommendation (F&R) on
the defendant’s motion to dismiss the amended complaint. 28 U.S.C. § 636(b)(1);
SEC v. CMKM Diamonds, Inc., 729 F.3d 1248, 1259-60 (9th Cir. 2013). The
district judge properly reviewed the F&R and plaintiff’s objections de novo. 28
U.S.C. § 636(b)(1). None of plaintiff’s statements, even if taken as true, plausibly
allege judicial misconduct. Clemens v. U.S. Dist. Ct., 428 F.3d 1175, 1178-80 (9th
Cir. 2005) (setting forth the standard).
The district court did not abuse its broad discretion by denying counsel’s
sixth extension of time for discovery after ordering that no further extensions of
time would be allowed absent good cause because the case had been pending
almost two years. Nor did the court abuse its discretion by later deferring
** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 additional discovery until after the court ruled on the motion to dismiss the
amended complaint. Plaintiff had ample time to conduct discovery while he was
represented by counsel. Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018,
1027 (9th Cir. 2006) (setting forth the clear abuse of discretion standard of
review); Nascimento v. Dummer, 508 F.3d 905, 909 (9th Cir. 2007) (holding that
the district court did not abuse its discretion by denying a motion to extend the
discovery deadline when the party had “nearly five months to conduct discovery”).
The district court did not abuse its discretion by requiring plaintiff to provide
a privilege log when he requested that defense counsel return documents produced
by plaintiff’s attorney during discovery. Burlington N. & Santa Fe Ry. Co. v. U.S.
Dist. Ct., 408 F.3d 1142, 1149 (9th Cir. 2005) (holding “that boilerplate objections
or blanket refusals inserted into a response to a Rule 34 request for production of
documents are insufficient to assert a privilege”); Dole v. Milonas, 889 F.2d 885,
890 (9th Cir. 1989) (recognizing that “the district court may adopt the ‘privilege
log’ approach”).
The district court did not abuse its discretion by denying plaintiff’s motion
to sanction counsel. Patelco Credit Union v. Sahni, 262 F.3d 897, 912-13 (9th Cir.
2001) (setting forth the standard of review). Neither the production of documents
by plaintiff’s counsel during discovery nor the fact that counsel conferred
3 regarding discovery constitutes wrongdoing or criminal conduct. There is no
evidence of a conspiracy or any conduct that would warrant sanctions. Moreover,
defense counsel offered to destroy or return to plaintiff any documents that
plaintiff identified as privileged. Nor did the district court err by denying
plaintiff’s motion for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
Couch v. Telescope, Inc., 611 F.3d 629, 633 (9th Cir. 2010) (setting for the §
1292(b) elements). This court similarly denied plaintiff permission to appeal when
he raised most of the same issues in 2018. Brooks v. U.S. Dist. Ct., No. 17-73242
(9th Cir. Mar. 1, 2018) (Order).
The district court acted well within its discretion when it reasonably granted
a 60-day extension of time for plaintiff to respond to the motion to dismiss and
indicated that no further extensions would be granted because the case had been
pending three years. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258 (9th
Cir. 2010) (setting forth the standard of review). Similarly, the magistrate judge
properly ordered that objections to the F&R be filed by the statutory deadline for
objections set forth in 28 U.S.C. § 636(b)(1).
The district court did not abuse its discretion by holding that plaintiff had
not established exceptional circumstances that would require appointment of
counsel. Plaintiff had previously litigated at least two federal lawsuits against the
4 defendant, had been represented throughout most of the lawsuit, was generally
familiar with the rules, had already responded to the motion to dismiss, and had
drafted the amended complaint with the assistance of pro bono counsel. Palmer v.
Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting forth the standard of review and
exceptional circumstances test).
The district court did not abuse its discretion when it sealed only the medical
records attached to plaintiff’s objections. Plaintiff gave no compelling reasons for
sealing the remainder of the objections. Ctr. for Auto Safety v. Chrysler Grp., LLC,
809 F.3d 1092, 1096-97 (9th Cir. 2016) (holding that we review for an abuse of
discretion and that a court may seal records only for “a compelling reason”).
Contrary to plaintiff’s claim, the defendant properly filed its corporate
disclosure statements.
Plaintiff waived specific challenges to the dismissal of his claims in his
opening brief. Frank v. Schultz, 808 F.3d 762, 763 n.3 (9th Cir. 2015) (per
curiam). In any event, the district court properly dismissed the amended complaint
for failure to state a claim. Plaintiff failed to state a Sarbanes-Oxley whistle
blower claim because he failed to allege that he worked for a publically traded
company or a subcontractor of a publically traded company. Lawson v. FMR LLC,
5 571 U.S. 429, 432-33 (2014) (holding that Sarbanes-Oxley protects employees of
publically traded companies and private contractors of those public companies).
The Privacy Act whistle blower claim was properly dismissed because he failed to
allege that his employer was a federal governmental agency. Unt v. Aerospace
Corp., 765 F.2d 1440, 1447 (9th Cir. 1985). The Dodd-Frank claim fails because
plaintiff did not allege that he filed a securities fraud complaint with the SEC
before his termination. Digital Realty Tr., Inc. v. Somers, 138 S. Ct. 767, 778
(2018). Plaintiff has not shown that he can cure these deficiencies by amendment.
The national origin and religious discrimination claims and Affordable Care
Act claims are unexhausted and/or untimely. Shah v. Mt. Zion Hosp. & Med. Ctr.,
642 F.2d 268, 271-72 (9th Cir. 1981) (holding that the district court properly
dismissed race, color, and religious discrimination claims where the plaintiff only
included sex and national origin claims in his administrative complaint); 29 U.S.C.
§ 218c(b)(1); 15 U.S.C. § 2087(b)(1); 29 C.F.R. § 1984.103(d) (requiring that the
complainant file an administrative complaint within 180 days of the violation).
The Oregon whistle blowing claims alleged under sections 659A.199 and
659A.230 of the Oregon Revised Statutes are barred by the statute of limitations.
Or. Rev. Stat. § 659A.875.
6 The defamation claims made in conjunction with plaintiff’s employment are
also barred by the statute of limitations. Or. Rev. Stat. § 12.120(2). Plaintiff’s
defamation claims for statements made in judicial and quasi-judicial proceedings
are barred by absolute privilege. Wallulis v. Dymowski, 918 P.2d 755, 761 (Or.
1996) (En Banc).
Plaintiff failed to allege facts to support a prima facie case for the remainder
of his claims. Bell Atl. Corp. v Twombly, 550 U.S. 544, 555 (2007) (holding that a
complaint must allege more than the conclusory elements of the claim). Plaintiff
has not established that these claims could be saved by amendment. The district
court acted well within its discretion by dismissing with prejudice. It had already
granted leave to amend almost three years into the lawsuit and after the discovery
deadline had been extended five times and had expired. World Wide Rush, LLC v.
City of Los Angeles, 606 F.3d 676, 690 (9th Cir. 2010) (noting that a “district
court’s discretion to deny leave to amend is particularly broad where a plaintiff
previously has amended the complaint”).
We decline to consider arguments and allegations raised for the first time on
appeal. Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam). We
do not consider documents not filed with the district court. Kirshner v. Uniden
Corp. of Am., 842 F.2d 1074, 1077 (9th Cir. 1988).
7 AFFIRMED.