NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

MICHAEL T. BROOKS,

Plaintiff-Appellant,

 v.

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.

No. 19-35547

D.C. No. 6:15-cv-00983-MK

MEMORANDUM*

Appeal from the United States District Court

for the District of Oregon

Ann L. Aiken, District Judge, Presiding

FILED

NOV 5 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

 * This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

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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 nondispositive 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

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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

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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

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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

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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.

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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

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AFFIRMED.

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Post Judgment Form - Rev. 12/2018 1

United States Court of Appeals for the Ninth Circuit

Office of the Clerk

95 Seventh Street

San Francisco, CA 94103

Information Regarding Judgment and Post-Judgment Proceedings

Judgment

• This Court has filed and entered the attached judgment in your case.

Fed. R. App. P. 36. Please note the filed date on the attached

decision because all of the dates described below run from that date,

not from the date you receive this notice.

Mandate (Fed. R. App. P. 41; 9th Cir. R. 41-1 & -2)

• The mandate will issue 7 days after the expiration of the time for

filing a petition for rehearing or 7 days from the denial of a petition

for rehearing, unless the Court directs otherwise. To file a motion to

stay the mandate, file it electronically via the appellate ECF system

or, if you are a pro se litigant or an attorney with an exemption from

using appellate ECF, file one original motion on paper.

Petition for Panel Rehearing (Fed. R. App. P. 40; 9th Cir. R. 40-1)

Petition for Rehearing En Banc (Fed. R. App. P. 35; 9th Cir. R. 35-1 to -3)

(1) A. Purpose (Panel Rehearing):

• A party should seek panel rehearing only if one or more of the following

grounds exist:

► A material point of fact or law was overlooked in the decision;

► A change in the law occurred after the case was submitted which

appears to have been overlooked by the panel; or

► An apparent conflict with another decision of the Court was not

addressed in the opinion.

• Do not file a petition for panel rehearing merely to reargue the case.

B. Purpose (Rehearing En Banc)

• A party should seek en banc rehearing only if one or more of the following

grounds exist:

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Post Judgment Form - Rev. 12/2018 2

► Consideration by the full Court is necessary to secure or maintain

uniformity of the Court’s decisions; or

► The proceeding involves a question of exceptional importance; or

► The opinion directly conflicts with an existing opinion by another

court of appeals or the Supreme Court and substantially affects a

rule of national application in which there is an overriding need for

national uniformity.

(2) Deadlines for Filing:

• A petition for rehearing may be filed within 14 days after entry of

judgment. Fed. R. App. P. 40(a)(1).

• If the United States or an agency or officer thereof is a party in a civil case,

the time for filing a petition for rehearing is 45 days after entry of judgment.

Fed. R. App. P. 40(a)(1).

• If the mandate has issued, the petition for rehearing should be

accompanied by a motion to recall the mandate.

• See Advisory Note to 9th Cir. R. 40-1 (petitions must be received on the

due date).

• An order to publish a previously unpublished memorandumdisposition

extends the time to file a petition for rehearing to 14 days after the date of

the order of publication or, in all civil cases in which the United States or an

agency or officer thereof is a party, 45 days after the date of the order of

publication. 9th Cir. R. 40-2.

(3) Statement of Counsel

• A petition should contain an introduction stating that, in counsel’s

judgment, one or more of the situations described in the “purpose” section

above exist. The points to be raised must be stated clearly.

(4) Form & Number of Copies (9th Cir. R. 40-1; Fed. R. App. P. 32(c)(2))

• The petition shall not exceed 15 pages unless it complies with the

alternative length limitations of 4,200 words or 390 lines of text.

• The petition must be accompanied by a copy of the panel’s decision being

challenged.

• An answer, when ordered by the Court, shall comply with the same length

limitations as the petition.

• If a pro se litigant elects to file a form brief pursuant to Circuit Rule 28-1, a

petition for panel rehearing or for rehearing en banc need not comply with

Fed. R. App. P. 32.

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Post Judgment Form - Rev. 12/2018 3

• The petition or answer must be accompanied by a Certificate of Compliance

found at Form 11, available on our website at www.ca9.uscourts.gov under

Forms.

• You may file a petition electronically via the appellate ECF system. No paper copies are

required unless the Court orders otherwise. If you are a pro se litigant or an attorney

exempted from using the appellate ECF system, file one original petition on paper. No

additional paper copies are required unless the Court orders otherwise.

Bill of Costs (Fed. R. App. P. 39, 9th Cir. R. 39-1)

• The Bill of Costs must be filed within 14 days after entry of judgment.

• See Form 10 for additional information, available on our website at

www.ca9.uscourts.gov under Forms.

Attorneys Fees

• Ninth Circuit Rule 39-1 describes the content and due dates for attorneys fees

applications.

• All relevant forms are available on our website at www.ca9.uscourts.gov under Forms

or by telephoning (415) 355-7806.

Petition for a Writ of Certiorari

• Please refer to the Rules of the United States Supreme Court at

www.supremecourt.gov

Counsel Listing in Published Opinions

• Please check counsel listing on the attached decision.

• If there are any errors in a published opinion, please send a letter in writing

within 10 days to:

► Thomson Reuters; 610 Opperman Drive; PO Box 64526; Eagan, MN 55123

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► and electronically file a copy of the letter via the appellate ECF system by using

“File Correspondence to Court,” or if you are an attorney exempted from using

the appellate ECF system, mail the Court one copy of the letter.

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UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT

Form 10. Bill of Costs

Instructions for this form: http://www.ca9.uscourts.gov/forms/form10instructions.pdf

9th Cir. Case Number(s)

Case Name

The Clerk is requested to award costs to (party name(s)): 

I swear under penalty of perjury that the copies for which costs are requested were 

actually and necessarily produced, and that the requested costs were actually 

expended.

Signature Date

(use “s/[typed name]” to sign electronically-filed documents)

COST TAXABLE REQUESTED 

(each column must be completed)

DOCUMENTS / FEE PAID No. of 

Copies

Pages per 

Copy Cost per Page TOTAL 

COST

Excerpts of Record* $ $

Principal Brief(s) (Opening Brief; Answering 

Brief; 1st, 2nd , and/or 3rd Brief on Cross-Appeal; 

Intervenor Brief)

$ $

Reply Brief / Cross-Appeal Reply Brief $ $

Supplemental Brief(s) $ $

Petition for Review Docket Fee / Petition for Writ of Mandamus Docket Fee $

TOTAL: $

*Example: Calculate 4 copies of 3 volumes of excerpts of record that total 500 pages [Vol. 1 (10 pgs.) + 

Vol. 2 (250 pgs.) + Vol. 3 (240 pgs.)] as: 

No. of Copies: 4; Pages per Copy: 500; Cost per Page: $.10 (or actual cost IF less than $.10); 

TOTAL: 4 x 500 x $.10 = $200.

Feedback or questions about this form? Email us at forms@ca9.uscourts.gov

Form 10 Rev. 12/01/2018

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