United States District Court, D. Oregon
MICHAEL T. BROOKS, Plaintiff,
AGATE RESOURCES, INC., dba Trillium Community Health Plan, Defendant.
A. Russo, United States Magistrate Judge
plaintiff Michael Brooks brings this employment
discrimination action against defendant Agate Resources Inc.
Plaintiff moves for reconsideration of the Court's
October 16, 2017, Order (“October Order”), an
interlocutory appeal, and other miscellaneous relief. For the
reasons set forth below, plaintiff's motions are granted
in part, and denied in part.
4, 2015, plaintiff, proceeding pro se, filed a complaint in
this Court alleging claims for age and disability
discrimination, and whistleblower retaliation. On September
29, 2015, plaintiff provided notice that he retained Michael
Vergamini as counsel. On March 17, 2017, plaintiff
substituted Marianne Dugan as counsel.
April 24, 2017, the parties' conferred regarding this
lawsuit; defense counsel agreed to join plaintiff's
forthcoming request to extend the then-current discovery
deadline by two months, from August 31, 2017, until October
31, 2017. Additionally, the parties discussed potentially
staying this lawsuit to allow for the resolution of a related
matter and to permit plaintiff the opportunity to amend his
May and June 2017, defendant's attorneys contacted Ms.
Dugan numerous times to ask whether she intended to file an
amended complaint or seek an extension of pretrial deadlines.
Because Ms. Dugan did not respond, defendant served its
Requests for Production on June 29, 2017. Ms. Dugan
thereafter did not furnish any responsive documents, so that
on August 15, 2017, defendant moved for sanctions and to
unspecified time thereafter, Ms. Dugan produced hundreds of
pages of documents to defendant. In opposing defendant's
Motion to Compel, Ms. Dugan acknowledged she inadvertently
failed to move to extend pretrial deadlines and therefore
requested a discovery extension until October 31, 2017, as
she had neither served any discovery requests nor taken any
depositions on plaintiff's behalf.
August 31, 2017, the Court denied defendant's Motion to
Compel as moot but imposed sanctions against Ms. Dugan as
required under Fed.R.Civ.P. 37. The Court also extended the
discovery deadline until September 15, 2017, for the limited
purpose of allowing defendant to depose plaintiff.
September 13, 2017, plaintiff moved for reasonable
accommodations during his forthcoming deposition (and
corresponding sanctions against Ms. Dugan and defense counsel
for failing to disclose his disability to the Court) and to
proceed pro se. He also sought reconsideration of the
Court's August 31, 2017, Order to the extent it failed to
generally extend the discovery deadline. At that time,
plaintiff informed the Court that he had filed a PLF
complaint against Ms. Dugan based upon her failure to
communicate, disclosure of privileged materials, and receipt
of $1000 for depositions which never occurred.
that same day, the Court granted plaintiff's request to
proceed pro se. The Court, in relevant part, stayed the
current discovery deadline, struck the deposition scheduled
for September 15, 2017, allowed plaintiff 30 days to locate
substitute counsel, and indicated that a new case schedule
would be set.
plaintiff filed five motions/declarations seeking sanctions
and criminal charges against Ms. Dugan and defense counsel,
as well as the ability to work in no greater than two hour
increments (with extended breaks), an investigation into
missing discovery documents and Ms. Dugan's disclosure of
allegedly privileged materials, an order requiring defendant
to return all discovery provided by Ms. Dugan, apologies from
all parties, back pay, punitive damages, and the return of
the full $1000 Ms. Dugan received for the express purpose of
conducting depositions. Plaintiff did not confer with defendant
in relation to any of his filings.
October Order, the Court denied plaintiff's motions for a
number of reasons. Notably, plaintiff failed to satisfy LR
7-1, make the requisite showing of privilege, or follow the
procedures set forth in Fed.R.Civ.P. 26(b)(5)(B) or
Fed.R.Civ.P. 11. Order 5-7 (Oct. 16, 2017) (doc.
88). The Court also found that defendant's service
of reasonable discovery requests, well in advance of the
Scheduling Order's deadline, represented an appropriate
response to being sued and therefore was neither indicative
of bad faith nor potential criminal conduct. Id.
Finally, the Court explained to plaintiff that it lacked
jurisdiction to preside over issues pertaining to Ms.
Dugan's alleged malpractice or plaintiff's management
of his disability outside of the courthouse, or to otherwise
engage in any independent investigations relating to
counsels' conduct or the content or location of discovery
documents. Id. at 6.
Court nonetheless ordered Ms. Dugan, in light of her
withdrawal as counsel, to return to plaintiff any remaining
documents in her possession that were furnished by plaintiff
to the extent she is not entitled to retain them.
Id. at 7-8. In addition, the Court ordered defendant
to provide plaintiff with a copy of all discovery documents
produced by Ms. Dugan, in the form they were produced.
Id. at 8. The Court further instructed plaintiff to
work with defendant to specifically identify the privileged
documents he believes were inadvertently produced and, within
30 days, file a Joint Status Report apprising the Court of
the status of his efforts to retain counsel and retrieve Ms.
Dugan's allegedly privileged disclosures. Id.
The Court indicated it would reset pretrial deadlines after
reviewing the parties' Joint Status Report and afford
plaintiff reasonable extensions of time where appropriately
late October and early November 2017, plaintiff filed four
additional motions. Specifically, plaintiff now moves for
reconsideration of the October Order or, alternatively, for
an interlocutory appeal. Plaintiff does not detail the
particular issues he seeks to challenge beyond recounting
what he deems to be the relevant facts and noting that the
Court “misunderst[ood]” Ms. Dugan's
“malicious [and] purposeful attempt to harm [him] and
wreck this case.” Pl.'s Mot. Appeal 2-16 (doc.
91). As relief, plaintiff requests: (1) defendant's
counsel and “any attorney or expert who received
privileged and stolen records and documents in other
cases” be disqualified; (2) sanctions against defense
counsel and Ms. Dugan, and an order requiring them to pay his
ongoing court costs; (3) “a new judge in this case,
preferably one [from] outside the Oregon District”; (4)
reasonable accommodations in the form of time extensions and
an order authorizing plaintiff to only ...