                                                                              FILED
                           NOT FOR PUBLICATION                                SEP 30 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-56584

              Plaintiff - Appellee,              D.C. No. 2:11-cv-04252-AG-JPR

  v.
                                                 MEMORANDUM*
JEROLD M. GORSKI,

              Defendant - Appellant,

  V.

EDUCATIONAL CREDIT
MANAGEMENT CORPORATION; et al.,

              Third-party-defendant -
Appellees.


                   Appeal from the United States District Court
                      for the Central District of California
                   Andrew J. Guilford, District Judge, Presiding

                       Argued and Submitted August 6, 2014
                               Pasadena, California

Before: REINHARDT, WARDLAW, and CALLAHAN, Circuit Judges.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Jerold M. Gorski, an attorney representing himself, appeals from the district

court’s orders dismissing his claims against the United States and two debt

collection agencies, and granting summary judgment to the Government on its

claim that Gorski failed to pay his student loans. Gorski asserts that the district

court improperly denied him discovery and that there are genuine issues of material

fact that preclude the grant of summary judgment. We affirm.1

      We review the district court’s dismissal and grant of summary judgment de

novo. In re Rigel Pharm., Inc. Sec. Litig., 697 F.3d 869, 875 (9th Cir. 2012);

Szajer v. City of L.A., 632 F.3d 607, 610 (9th Cir. 2011). The district court’s

discovery orders are reviewed for abuse of discretion. Citicorp Real Estate, Inc. v.

Smith, 155 F.3d 1097, 1102 (9th Cir. 1998).




      1
            Because the parties are familiar with the facts and procedural history,
we do not restate them here except as necessary to explain our decision.

                                           2
       1. Gorski has not shown that any of the discovery orders was an abuse of

discretion. He has further failed to show that additional discovery was likely to

produce evidence critical to the underlying causes of action.2

      2. Gorski’s claims against the third party defendants are based on

communications he had with them in 1998 and 1999. Gorski does not dispute that

none of the applicable statutes of limitations exceeds six years. Instead, he first

asserts that he had no remedy at that time. This assertion is not sound, as the case

he cites, Brannan v. United Students Aid Funds, 94 F.3d 1260 (9th Cir. 1996),

recognized both that the Higher Education Act did not preempt all state law

governing lenders and guarantors of student loans, and that a recipient of student

loans may have a cause of action against a private guaranty agency pursuant to the

Fair Debt Collection Practices Act. Gorski’s arguments that the statutes of

limitations should be tolled are also not persuasive. He knew of the alleged

misdeeds in 1999 and does not allege that the third party defendants took any



      2
             Gorski’s two motions “to augment record on appeal and/or treat
declarations as informal amici curiae briefs” are denied. The materials should
have been presented to the district court in the first instance. In addition, in its
deliberations on this appeal, the panel has considered all of Gorski’s other pending
motions, including his “motion to merits panel judges re: opposition parties, factual
misrepresentations at oral argument, pending motions to strike & to augment
record, mediation, & all appropriate relief,” and all of the motions are hereby
denied.

                                          3
subsequent adverse action on which he relied or was entitled to rely. With the

passage of over a decade, Gorski must establish some exception to the applicable

statutes of limitations. See 389 Orange Street Partners v. Arnold, 179 F.3d 656,

6662 (9th Cir. 1999). The district court properly determined that he failed to do so.

      3. The district court dismissed Gorski’s counterclaims against the United

States as barred by sovereign immunity or for failing to allege sufficient facts to

state a cause of action. Gorski has failed to show that the district court erred in

doing so. For example, the district court dismissed his claim against the United

States for an accounting, stating that Gorski would be entitled to an accounting

only if there was fraud and that his fraud claim failed. Gorski’s assertion that “a

request for accounting in an answer is tantamount to a cross complaint for

accounting” is not responsive and is unsupported by any authorities. Gorski also

asserts that he should have been granted leave to amend his spoliation claims to

assert an exception to the rule set forth in Cedars-Sinai Medical Center v. Superior

Court, 18 Cal. 4th 1, 17-18 (1998). However, the rule–that there is no remedy

where the victim knows of the alleged spoliation before trial–does not admit to an

applicable exception, and Gorski has not suggested any factual basis for an

exception.




                                           4
      4.     The district court properly granted summary judgment for the United

States. The government offered sufficient evidence of Gorski’s unpaid student

loans. The authenticated copies of his promissory notes were admissible, see Fed.

R. Evid. 1003, and neither the notes nor the Department of Education’s certificate

of indebtedness were hearsay. See Stuart v. UNUM Life Ins. Co. Of Am., 217 F.3d

1145, 1154 (9th Cir. 2000); Fed. R. Evid. 803(6). Gorski does not really deny that

he signed the underlying promissory notes or that they have not been repaid.

Instead, his primary contention appears to be that he should have been allowed to

depose or question the Government’s loan analyst. However, because Gorski

offered no evidence that he did not receive the underlying loans, or that any

payments were not properly credited, such an examination was unlikely to produce

relevant evidence. In sum, his amorphous claims that he might not have signed the

underlying notes and that some payments or charges might not be properly

documented, are insufficient to rebut the Government’s prima facie case.

      The district court’s rulings are AFFIRMED.




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