Page 1 – ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MICHAEL T. BROOKS, Case No. 6:15-cv-00983-JR

 

Plaintiff, ORDER

 

v.

AGATE RESOURCES, INC., dba 

Trillium Community Health Plan,

Defendant.

____________________________

RUSSO, Magistrate Judge:

Pro se plaintiff Michael Brooks brings this employment discrimination action against 

defendant Agate Resources, Inc. Plaintiff moves for appointment of pro bono counsel, judicial 

notice, and leave to file a sur-reply to defendant’s Fed. R. Civ. P. 12 motion, as well as to proffer 

evidence. For the reasons set forth below, plaintiff’s motion to file a sur-reply is granted and the 

remaining motions are denied. 
Page 2 – ORDER

DISCUSSION

The parties have been engaged in recurrent litigation following the termination of 

plaintiff’s employment with defendant in September 2013, the most recent iteration being this 

lawsuit, filed in June 2015.

1 Although plaintiff initiated this action pro se, he retained Michael 

Vergamini as counsel in September 2015. Marianne Dugan was substituted as counsel in March 

2017.

In September 2017, plaintiff moved to proceed pro se and for an extension of the 

discovery deadline, as neither he nor his former counsel had sought any discovery during the 

course of this lawsuit. The Court granted plaintiff’s requests and allowed plaintiff 30 days to 

locate substitute counsel.

Between September and November 2017, plaintiff filed nine motions pro se, seeking, 

amongst other relief, sanctions and criminal charges against his former attorney and defense 

counsel, the ability to work in no greater than two hour increments (with extended breaks), 

apologies from all parties, back pay, and punitive damages. In support of his various motions, 

plaintiff introduced hundreds of pages of documents – consisting largely of copies of prior case 

filings, communications with counsel, medical records, and newspaper articles. The Court denied 

 

1

In September 2014, plaintiff filed two related federal lawsuits in this District. See generally

Brooks v. State of Oregon, Case No. 6:14-cv-01412-TC; United States ex rel Brooks v. Agate 

Resources, Case No. 6:14-cv-01424-MC. The first involved virtually identical claims against 

defendant and was dismissed without prejudice (via plaintiff’s stipulation) in November 2014. 

The second, although brought as a qui tam action under the False Claims Act, involved the same 

set of operative facts but substantively was premised on defendant’s alleged Medicare/Medicaid 

fraud and violations of other federal laws. In June 2017, the Honorable Michael McShane 

entered judgment dismissing the False Claims Act case with prejudice and the Ninth Circuit 

subsequently dismissed the appeal relating to that judgment. Plaintiff has at least one other 

lawsuit in state court pertaining to defendant and has also filed several external complaints with 

other regulatory bodies. For instance, in April 2016, plaintiff lodged a complaint with the U.S. 

Department of Labor, alleging defendant unlawfully terminated his employment in violation of 

the whistleblower protection provisions of the Affordable Care Act and the Sarbanes-Oxley Act;

in March 2017, the Administrative Law Judge dismissed plaintiff’s complaint.
Page 3 – ORDER

plaintiff’s motions, except to the extent they sought extensions of time or to file documents under 

seal. See generally Order (Oct. 17, 2017) (doc. 88); Order (Nov. 20, 2017) (doc. 103). Plaintiff 

subsequently filed a Writ of Mandamus with the Ninth Circuit (which was summarily denied) 

and other motions for miscellaneous relief. In addition, defendant filed a motion for judgment on 

the pleadings. Order (Mar. 1, 2018) (doc. 120).

Accordingly, the Court held a status conference in February 2018. At that time, plaintiff 

indicated he had recently been diagnosed with another medical condition for which he was 

receiving treatment. The Court therefore stayed the case for 30 days and appointed pro bono 

counsel for the specific purpose of assisting plaintiff in responding to defendant’s motion or 

filing an amended complaint. A further status conference was held March 2018, wherein the stay 

was terminated. Nevertheless, the Court informed the parties that no discovery was permitted 

until defendant’s motion had been ruled on and an operative complaint docketed.

On May 12, 2018, plaintiff filed an amended complaint, thereby mooting defendant’s 

initial motion for judgment on the pleadings. The amended complaint is 30 pages long and 

asserts twelve claims (many with enumerated sub-counts) over the course of 151 paragraphs,

pursuant to a broad range of statutes (e.g., Title VII, the Age Discrimination in Employment Act, 

the Americans with Disabilities Act, the Family and Medical Leave Act, the Affordable Care 

Act, the Sarbanes-Oxley Act, the False Claims Act, the Computer Fraud and Abuse Act, the 

Dodd-Frank Act, the Freedom of Information Act, and Or. Rev. Stat. §§ 135.733, 659A.030, 

659A.040, 659A.118, 659A.136, 659A.183, 659A.199, and 659A.230).

Plaintiff’s claims are premised on the following allegations: (1) he was subject to racist, 

ageist, and anti-Christian comments by coworkers, which were “observed by and acquiesced in 

by defendant’s managerial staff”; (2) his requests for reasonable accommodations related to his 
Page 4 – ORDER

disability and medical leave were denied, resulting in “an exacerbation in his physical 

impairments”; (3) he was required to provide “weekly status reports” to his supervisor, as well as 

access to his medical records, after disclosing information regarding his medical conditions to 

co-workers; (4) he was retaliated against for opposing unlawful practices and reporting to 

various federal agencies “what he reasonably believed to be accounting fraud and violations of 

securities statutes” by defendant; (5) “defendant used a keystroke logger or private investigator 

to discover his login name and password,” which were then used to “read [plaintiff’s private] 

emails and documents”; and (6) “defendant executives . . . knowingly spread untrue rumors 

about plaintiff by stating ‘facts’ to fellow workers, prior to plaintiff’s termination, during their 

‘investigation’ while plaintiff was on administrative leave, and subsequent to plaintiff’s 

termination.” See generally Am. Compl. (doc. 135).

On May 29, 2018, defendant moved for judgment on the pleadings or, alternatively, to 

dismiss plaintiff’s amended complaint, arguing failure to exhaust administrative remedies and

state a plausible claim for relief, as well as untimeliness under the relevant statutes of limitations. 

See generally Def.’s Mot. Dismiss (doc. 137). In support of that motion, defendant sought 

judicial notice of judicial opinions and correspondences/orders relating to plaintiff’s prior 

lawsuits and agency complaints. See generally Def.’s Req. for Judicial Notice (doc. 138). 

Plaintiff thereafter filed several additional briefs and/or discovery motions, the latter of which the 

Court denied with leave to renew. On July 31, 2018, plaintiff lodged a 155-page opposition (plus 

159 pages of exhibits) to defendant’s motion to dismiss.

On August 29, 2018, plaintiff moved for pro bono counsel. On September 4, 2018, 

plaintiff sought leave to file a sur-reply and proffer evidence. On September 12, 2018, plaintiff 

filed a request for judicial notice. 
Page 5 – ORDER

As a preliminary matter, the documents plaintiff requests the court take judicial notice of 

do not appear to bear on any of the claims in this lawsuit. The facts therein – i.e., plaintiff’s filing

of a recent U.S. Department of Labor complaint and medically documented spinal problems –

arose years after the events alleged in the amended complaint transpired. See Pl.’s Req. for 

Judicial Notice Exs. 1-3 (doc. 173) (MRI dated August 2018 and U.S. Department of Labor letter 

dated September 2018). Furthermore, judicial notice is a court’s recognition of the existence of a 

fact without the necessity of formal proof. Castillo-Villagra v. Immigration & Nat. Serv., 972 

F.2d 1017, 1026 (9th Cir.1992); Fed. R. Evid. 201(b). As such, plaintiff’s request for judicial 

notice is both misplaced and unnecessary.

For similar reasons, plaintiff’s motion to proffer evidence is also unnecessary. Namely, 

the information set forth in that motion and plaintiff’s attendant affidavits largely relates to 

events that took place well after plaintiff’s employment was terminated in September 2013. See 

generally Pl.’s Mot. Proffer Evid. (docs. 163, 169); Brooks Affs. (docs. 164-68). Moreover, in 

evaluating defendant’s motion to dismiss, the Court’s review is limited to the complaint. See

Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998) (“[i]n determining the 

propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the complaint to a plaintiff’s 

moving papers”). 

In sum, the evidence that plaintiff seeks to introduce is immaterial to the issues presently 

before the Court. Evidence may become relevant, however, once defendant’s pending motion to 

dismiss is resolved. See Cervantes v. City of San Diego, 5 F.3 1273, 1274-75 (9th Cir. 1993) (a 

motion to dismiss dictates “whether a plaintiff . . . is entitled to offer evidence to support the

claims”) (citation and internal quotations and emphasis removed); see also Fed. R. Civ. P. 12(d)

(“[i]f, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to 
Page 6 – ORDER

and not excluded by the court, the motion must be treated as one for summary judgment under 

Rule 56”). Regardless, the Court has thoroughly reviewed every docket entry in this case and is 

absolutely cognizant of the facts set forth in plaintiff’s motions for judicial notice and to proffer 

evidence.

Concerning plaintiff’s request for pro bono counsel, the Court denotes there is generally 

no right to an attorney in civil cases. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009)

(citations omitted). The Court has nonetheless repeatedly attempted to secure pro bono counsel 

on plaintiff’s behalf, most recently culminating with a specific purpose appointment that resulted

in the amended complaint. Plaintiff also previously litigated at least two federal lawsuits and is 

therefore generally familiar with the rules and procedures of this Court. At this stage in the 

proceedings, there are no exceptional circumstances that require the appointment of pro bono 

counsel. Nevertheless, the Court is willing to revisit this issue following a decision on 

defendant’s Fed. R. Civ. P. 12 motion.

Regarding the remaining motion, plaintiff seeks leave to file a sur-reply “to answer some 

of defense counsel’s false statements and factual errors” allegedly asserted for the first time in 

the reply brief. Pl.’s Mot. File Sur-Resp. 16 (doc. 162). Although defendant objects on the 

grounds that plaintiff failed to demonstrate “good cause,” neither the case cited by defendant in 

support of this proposition – i.e., Fairbank v. Underwood, 986 F. Supp. 2d 1222 (D. Or. 2013) –

nor Local Rule 7 imposes such a requirement. Def.’s Combined Resp. 2 (doc. 171). Rather,

Local Rule 7(e) simply states that, “[u]nless directed by the Court, no further briefing is allowed” 

beyond the filing of the moving party’s reply brief. Here, plaintiff has articulated a viable reason 

and appropriately solicited permission from the Court.
Page 7 – ORDER

Thus, given plaintiff’s pro se status, combined with the fact that facets of defendant’s 

pending motion are potentially dispositive, the Court grants plaintiff leave to file a sur-reply. The 

Court nonetheless encourages plaintiff to utilize his sur-reply to focus on, and directly respond 

to, defendant’s specific arguments concerning dismissal. Indeed, plaintiff’s opposition fails to 

meaningfully address significant portions of defendant’s motion and instead raises a litany of 

facts and grievances outside of the pleadings.

2 Accordingly, plaintiff’s opposition, along with the 

exhibits attached thereto, presents information beyond the scope of the Court’s consideration in 

evaluating whether dismissal is appropriate. See Schneider, 151 F.3d at 197 (“‘new’ allegations 

contained in the [plaintiff’s] opposition . . . are irrelevant for Rule 12(b)(6) purposes”). 

CONCLUSION

For the foregoing reasons, plaintiff’s Motion for Appointment of Pro Bono Counsel (doc. 

159), Motion to Proffer Evidence (doc. 163), and Request for Judicial Notice (doc. 173) are 

DENIED with leave to renew following the Court’s resolution of defendant’s pending motion to 

dismiss. Additionally, in light of the May 2018 amended complaint, defendant’s January 2018 

Motion for Judgment on the Pleadings (doc. 114) is DENIED as moot.

Plaintiff’s Motion for Leave to File a Sur-Response (doc. 162) is GRANTED. Any surreply relating to defendant’s pending motion to dismiss and request for judicial notice is due 

within thirty days of the date of this Order. Finally, the Court orders that, absent prior approval,

 

2

For example, plaintiff’s opposition (as well as other recent filings) makes representations about 

his current health insurer, MODA Health. Specifically, plaintiff maintains that defendant (or one 

of its affiliates such as Centene Corporation or Trillium Community Health Plan) is responsible 

for MODA Health’s 2018 denials of coverage. See, e.g., Pl.’s Resp. to Mot. Dismiss 15-16, 20, 

86 (doc. 151). Yet the amended complaint is silent as to both MODA Health and events that 

significantly post-date plaintiff’s employment with defendant. See generally Am. Compl. (doc. 

135).
Page 8 – ORDER

plaintiff may not file additional or supplemental briefings/motions beyond those authorized by 

the federal or local rules until defendant’s motion to dismiss has been ruled upon.

IT IS SO ORDERED.

DATED this 17th day of September 2018. 

s/Jolie A. Russo

JOLIE A. RUSSO

United States Magistrate Judge