Opposition Brief — Plunkett v. Federal Deposit Insurance

Supreme Court brief1990

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No. 90-651 :

In The — ™ ” |

Supreme Court of the United ‘Sfdtes.-. |

October Term, 1990

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MICHAEL E. PLUNKETT,

Petitioner,

LANE, KNORR & PLUNKETT, Architects and

Planners; LANE, KNORR & PLUNKETT,

Investment Company, a/k/a LKP Investment Company,

Plaintiff,

FEDERAL DEPOSIT INSURANCE CORPORATION,

Receiver of First Interstate Bank of Alaska,

FIRST INTERSTATE BANK CORPORATION;

FIRST INTERSTATE BANK OF OREGON,

Respondents.

—

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

é.

BRIEF IN OPPOSITION OF RESPONDENTS

FIRST INTERSTATE BANK CORPORATION AND

FIRST INTERSTATE BANK OF OREGON

SAuL R. FRIEDMAN

HEDLAND, FLEISCHER, FRIEDMAN,

BRENNAN & COOKE

1227 West Ninth Ave., #300

Anchorage, AK 99501-3218

(907) 279-5528

Attorneys for Respondents

First Interstate Bank Corporation and

First Interstate Bank of Oregon

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 ~

OR CALL COLLECT (402) 242-2831

QUESTIONS PRESENTED

1. Was petitioner denied due process of law or

equal protection because he was not affirmatively

advised by the district court of the level of proof he

would be required to submit in order to successfully

oppose a motion for summary judgment?

2. Did the Circuit Court of Appeals err in affirming

a summary judgment dismissal of petitioner’s claims?

LIST OF PARTIES

1. Michael E. Plunkett. Petitioner Michael E. Plunkett is

an architect who formerly lived in Anchorage, Alaska, and

borrowed money from the Alaska Bank of Commerce.

2. Alaska Bank of Commerce/First Interstate Bank of

Alaska. Alaska Bank of Commerce is the bank which made

the loans which are the basis of petitioner’s claims. In

1983, over a year after the last of the two loans was made

to petitioner, Alaska Bank of Commerce entered into a

franchise agreement with First Interstate Bancorp which

permitted the Alaska Bank to use the name “First Inter-

state Bank of Alaska”, to participate in the automatic

teller system operated by First Interstate Bancorp, and to

have access to certain operational services provided by

the Bancorp. There was no parent/subsidiary relation-

ship between the entities, and First Interstate Bancorp did

not have an equity interest in First Interstate Bank of

Alaska. (R. 88, J4]1, 2). Subsequent to the events at issue

herein, First Interstate Bank of Alaska’s operations were

taken over in receivership by the Federal Deposit Insur-

ance Corporation.

3. First Interstate Bank of Oregon, formerly First National

Bank of Oregon, is a wholly-owned subsidiary of First Inter-

state Bancorp. Its subsidiaries are Equity Holding Company

Limited, First Interstate Development Corp. and First Inter-

state Insurance Agency of Oregon, N.A.

4. First Interstate Bancorp,’ respondent, is a bank

holding company and is the parent corporation of First

1 Erroneously denominated “First Interstate Bank Corpo-

ration” in petitioner’s complaint.

2 eel tte,

ee ee

iii

LIST OF PARTIES - continued

Interstate Bank of Oregon, formerly known as First

National Bank of Oregon. (R. 87 41). Other subsidiaries,

and second-tier subsidiaries, are as follows:

First Interstate Bank of Arizona, N.A.

First Interstate Insurance Company of Ari-

zona

First Interstate Equity Corporation

TNR&S Acquisition, Inc.

First Interstate Bank of California

First Interstate Bank International

United California Bank Realty Corporation

First Interstate Tower

UCB Leasing Corporation

First Interstate Overseas Investment, Inc.

First Interstate Asia, Ltd.

First Interstate Bank of Canada

First Interstate Administracao E Ser-

vicos, Ltd.

First Interstate & LCF Edmond De

Rothschild-Gestion, S.A.

First Interstate International Trust Co.

Ltd.

GFI Realty Co.

First Interstate Mortgage Company

First Interstate Southwest Corporation

Alex Brown Development

Meridian Mortgage Services

Pacific Equity Finance, Ltd.

Western Fruit S.A.

Western Agricola Limitada

Atlantic Produce Ltd.

Winter Fruit Distributors, Inc.

LIST OF PARTIES - continued

EZG Limited Partnershi

First Interstate Bank of Englewood

First Interstate Bank of Fort Collins, N.A.

First Colorado Agricultural Credit Corporation

First Interstate Bank of Idaho, N.A.

First Interstate Bank of Nevada, N.A.

Hughes Parkway Associates

| First Interstate Bank of Nevada Foundation

| First Interstate Bank of Alberqueque

First Interstate Bank of Lea County

First Interstate Bank of Roswell

First Interstate Bank of Santa Fe, N.A.

First Interstate Bank of Utah, N.A.

First Interstate Insurance Agency of Utah,

Inc.

First Interstate Bank of Washington, N.A.

TACSEA, Inc.

Evergreen Marine Leasing, Inc.

First Interstate Real Estate Services Com-

pany, Inc.

- First Interstate Investment Services of

Washington, Inc.

First Interstate Insurance Agency of Wash-

ington, Inc.

First Interstate Electronic Services Corporation

Lake Spokane Water Company

First Interstate Bank of Casper, N.A.

First Interstate Bank of Laramie, N.A.

First Interstate Bank of Riverton, N.A.

First Interstate Franchise Services, Inc.

First Interstate Bank of Oklahoma, N.A.

Consolidated Asset Management Company

First Interstate Foundation

First Investment Management Company

Bank Marketing Systems, Inc.

4% ,

LIST OF PARTIES - continued

First Interstate Central Bank

First Interstate Bancorp of Texas, Inc.

First Interstate Bank of Jacksonville

First Interstate Bank of Texas, N.A.

First Interstate Capital Corp of Texas

First Interstate Capital Company of

Texas

Idlewilde Company

Regency Utility Company

First Interstate Mortgage Company of

the Southwest

First Interstate Life Insurance Co. of Texas

First Interstate Agency, Inc.

First Interstate Foundation of Texas

First Interstate Texas Leadership Funds/

State

First Interstate Texas Leadership Funds/

Federal

First Initerstate Brokerage of Texas, Inc.

Lakewood La Vista Company

First Interstate Trust Co.

ISMA, Inc.

First Interstate Mortgage Company of Colo-

rado

1580 Logan Corporation

First Interstate Structures, Inc.

AJI Mortgage, Inc.

DJS Mortgage Inc.

First Interstate Commercial Corporation

Hotel Vernal Corporation

Cland 111 Corp.

1199 NASA Corp.

Terrander II Corp.

Postwood Plaza, Inc.

First Energy Properties of Texas, Inc.

Rivland Holding Corp.

LIST OF PARTIES - continued

First Interstate Asset Evaluation Services, Inc.

Cland I Corp

Cland II Com

naa Title Holdin y

rtners of Dallas, Inc.

FIMG Partners of Denver, Inc.

Galvecurt Corp.

KATY Corporation

Kencherry Corp.

Richmond I Corp.

Wyoming Mine Corp.

First Interstate Overseas N.V.

First Interstate Bancard Company, N.A.

First Interstate Bancard Company

First Interstate Venture Capital Corporation

First Interstate Capital, Inc.

First Interstate Equities Corporation

First Interstate Resource Finance Associates

First Interstate International Finance Limited

First Interstate Trading Company

First Interstate Mortgage Company of Illinois

Republic Realty Mortgage Corporation

First Interstate Results, Inc.

First Interstate Bank, Ltd.

First Interstate Trust Company of New York

First Interstate Investment Services, Inc.

First Interstate Portfolio Lending Services,

Inc.

FIL Holding Company

First Interstate Holding (UK) Limited

First Interstate Service Company

(U.K.) Limited

First Interstate Servicios Financieros,

S.A./6th Gen Sub/FICM Ltd/104

vii

LIST OF PARTIES - continued

First Interstate Capital Markets,

Ltd.

First Interstate Capital Markets

Euroasia Limited/6th Gen

First Interstate Capital Markets

Euroasia (H.K.) Limited/7th Gen

Sub/105

First Interstate Nominees (HK)

Limited

First Interstate Securities Limited

Highwalk Nominees Limited/

FICM Ltd./104/6th Gen. Sub

First Interstate Futures Corporation

First Interstate Public Finance Company

K.F.I. Developers, Inc.

Camarillo Commerce Center Joint Ven-

ture

First Interstate Financial Services, Inc. D/B/A

Nova Financial Services

Nova Finance Services, Inc. Honolulu,

Hawaii

First Interstate Bank of Alaska, N.A.

First Interstate Bancorp of Colorado

First Interstate Bank of Denver, N.A.

Denver Investment Advisors, Inc.

First Energy Properties, Inc.

Aspen Bancorp, Inc.

First Interstate Switch, Inc.

First Denver Asset Trust, Inc.

Farmers State Bank of Yuma

First Interstate Bank of Montana, N.A.

| ceseeeeerenereneenttl

viii

TABLE OF CONTENTS

Page

CUBSTIOINS PRESENTED on. ccccsccccccccccccseces i

SR Mee EN Step asdecndxvevdventecccosccseeves ii

RESPONDENTS’ BRIEF IN OPPOSITION .......... 1

CONSTITUTIONAL PROVISION................5-. 2

EAE MMTCE GOP BRUM GAB. os ccc cc ccccccccscceves 2

I. STATEMENT OF FACTS...........ccscccccees 2

II. STATEMENT OF PROCEEDINGS ............ 7

SUMMARY OF ARGUMENT..............-00000e5 10

REASONS WHY THE PETITION SHOULD BE

SE eA earths be rewrcodedvcstevccrserveseccece 11

I. A PRO SE CIVIL LITIGANT IS NOT ENTI-

TLED TO PRIOR ADVICE BY THE COURT AS

TO THE PS8CISE QUANTUM OF PROOF

REQUIRED TO AVOID A SUMMARY JUDG-

| RT TTT PTET TTT TTT Tee 11

A. The Standard for Granting Summary Judg-

ment has Not Changed in Any Manner

which would Affect the Outcome as to

FOC I isc pceducseuparcecscs: 12

B. A Pro Se Litigant is Not Entitled to Prior

Judicial Explanation of Standards for

Granting Summary Judgment............ 16

Il. SUMMARY JUDGMENT DISMISSAL OF PETI-

TIONER’S CLAIMS WAS APPROPRIATE..... 19

She dob siceasbudhedudaes¥sensbeecees 23

TABLE OF CONTENTS - Continued

Page

APPENDIX A_ 9th Circuit Memorandum Opinion of

Nil 6.654 5 9.0:04 CoN eade nas ances A-1

APPENDIX B_ Order (Summary Judgment Granted)

CE IN sb ncksecktcesccesesys B-1

APPENDIX C_ Final Judgment of 6/16/89.......... C-1

APPENDIX D Order (status conference) of

Fy 2 GR ey err eT er ee Tee ee ree D-1

APPENDIX E Order dated 7/18/90........ errr ye E-1

APPENDIX F Affidavit of William M. Davidson... .F-1

APPENDIX G Affidavit of David S. Belles......... G-1

APPENDIX H_ Affidavit of Kenneth K. Kaufmann... H-1

APPENDIX I Affidavit of Michael E. Plunkett dated

PN ec peivedes cowed Ua 4d084 i Oh Sees I-1

APPENDix J Affidavit of Charles Homan.......... J-1

APPENDIX K Affidavit of Edmund J. Bock........ K-1

APPENDIX L_ Affidavit of Kenneth K. Kaufmann.. L-1

APPENDIX M Affidavit of Lee C. Nusich......... M-1

APPENDIX N_ Statutes and Civil Rules............ N-1

TABLE OF AUTHORITIES

Page

CasEs

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct.

2505, 2511, 91 L.Ed.2d 202 (1986)........ 8, 9, 12, 14, 16

Arizona v. Cook Paint & Varnish Co., 541 F.2d 226,

227-28 (9th Cir. 1976) (per curiam), cert. denied,

430 U.S. 915, 97 S.Ct. 1327, 51 L.Ed.2d 593 (1977) .... 22

Aydin Corp. v. Loral Corp., 718 F.2d 897, 901-03 (9th

Gh Se kino 6 scene ekeenauel MeawR Ske eA ae a 15

Betaseed, Inc. v. U & I, Inc., 681 F.2d 1203, 1207 (9th

Se A kd on ind nee Cid ee dak acess namnkeees eos 15

Boag v. MacDougall, 454 U.S. 364, 365, 70.L.Ed.2d

551, 102 S.Ct. 700 (1982)........... 777 ie wace: Ks 16

California Architectural Products, Inc. v. Franciscan

Ceramics, Inc., 818 F.2d 1466 (9th Cir. 1987) ....... 12

California Shipping Co., Inc. v. Pacific Far East Line,

Inc., 453 F.2a S00, S61 Gth Cir. 1971) ...........--. 15

Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548,

2552-53, 91 L.Ed.2d 265 (1986)........ 8, 9, 12, 14, 16

Faretta v. California, 422 U.S. 806, 835, n. 46, 45

LEO Se, FS DG. Tae GRIPE oc ccescveccecees. 16

First National Bank of Arizona v. Cities Service Co.,

391 U.S. 253, 289, 20 L.Ed.2d 569, 88 S.Ct. 1575

ET eer PO FE Pre oe are 14, 15, 20, 21

Garaux v. Pulley, 739 F.2d 437 (9th Cir. 1984)........ 16

Haines v. Kerner, 404 U.S. 519, 520-21, 30 L.Ed.2d

SS ere err eT eee 16

———————

TABLE OF AUTHORITIES - Continued

Page

Hudson v. Hardy, 412 F.2d 1091 (D.C. Cir. 1968) ..... 16

Jacobsen v. Filler, 790 F.2d 1362, 1364-6 (9th Cir.

WE oe cane ebsarnvdckbigusendssacees es tiers 12, 17

Jaxon v. Circle K Corp., 773 F.2d 1138 (10th Cir.

POURS cv ann hood soo Coavedseenessecekeunees 16, 17, 18

Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982) ....... 16

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d

Fe SR a hoes ke scan venneeanicaeees 8, 9, 12, 14, 16

Mutual Fund Investors v. Putnam Management Co.,

S53 F.2d 620, 6264-5 (Sth Cir. 1977) .....-05escsees- 15

Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975)..... 16

United Mine Workers v. Gibbs, 383 U.S. 715, 726, 16

LRG Ae Bile TP Gk. BED CEOs vv ckcccccecccusss 22

United States v. International Harvester Co., 274 U.S.

693, 708-09, 47 S.Ct. 748, 71 L.Ed. 1302 (1927)..... 20

United States v. Pinkey, 548 F.2d 305, 311 (10th Cir.

SORT Okc be chbvnkestieus khcwresecdadeevegebheces cues 19

Wilcox v. First Interstate Bank of Oregon, N.A., 815

Ve eg. Ce 2. errr rrr Tr 4, 8, 9, 19, 20

Wilcox Development Co. v. First Interstate Bank of

Oregon, N.A., United States District Court for

the District of Oregon, Civil Case No. 82-754...... 4

Wilcox Development Co. v. First Interstate Bank of

Oregon, N.A., 605 FSupp. 592 (D.C. Or. 1985)...... 4

xii

TABLE OF AUTHORITIES - Continued

Page

STATUTES

18 USC. G1... BO RN Per Ce eT ee eee eC eee Eee 3, 19

os ah sais dau vee o's nvdwke bee 3

ee 6h whee os sawn whe cedenvee one enns 2

FEDERAL RULES OF CiviL PROCEDURE

8 EE ere Pes Frere ye 11, 13, 14, 15, 10

MIscELLANEOUS

Schwarzer: Summary Judgment Under the Federal

Rules: Defining Genuine Issues of Material Fact,

ee PO Oe BU check ci vceeenseveciveses 13, 14, 15

No. 90-651

In The

Supreme Court of the United States

October Term, 1990

MICHAEL E. PLUNKETT,

Petitioner,

LANE, KNORR & PLUNKETT, Architects and

Planners; LANE, KNORR & PLUNKETT,

Investment Company, a/k/a LKP Investment Company,

Plaintiff,

FEDERAL DEPOSIT INSURANCE CORPORATION,

Receiver of First Interstate Bank of Alaska,

FIRST INTERSTATE BANK CORPORATION;

FIRST INTERSTATE BANK OF OREGON,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

yX%

BRIEF IN OPPOSITION OF RESPONDENTS

FIRST INTERSTATE BANK CORPORATION AND

FIRST INTERSTATE BANK OF OREGON

—

RESPONDENTS’ BRIEF IN OPPOSITION

Respondents First Interstate Bancorp and First Inter-

state Bank of Oregon respectfully request that this Court

deny the petition for writ of certiorari, which seeks

review of Opinion No. 89-35500 of the United States

Court of Appeals for the Ninth Circuit, filed May 16,

1990, which upheld the Final Judgment dated june 16,

1989 of the United States District Court for the District of

Alaska.

Petitioner brought a petition for rehearing and sug-

gestion for rehearing en banc, which was denied and

rejected by the Court of Appeals by order dated July 18,

1990, from which petitioner brought his petition for writ

of certiorari to this Court based upon 28 U.S.C. §1254(1).

sa...

CONSTITUTIONAL PROVISION

Section 1 of the Fourteenth Amendment to the United

States Constitution states:

All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and of

the State wherein they reside. No State shall

make or enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty or property, without due

process of law, nor deny to any person within its

jurisdiction the equal protection of the laws.

STATEMENT OF THE CASE

I. STATEMENT OF FACTS

Petitioner’s claims arise from two loans made in

Alaska to petitioner and his partnership by the Alaska

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eV AL AD IL 2 tS Ad Ke A lee Be

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Bank of Commerce in 1981 and 1982. The first loan, in the

amount of $1.667 million, was evidenced by a stan-

dardized Alaska Bank of Commerce note stating that it

bore interest in an amount “not less than the prime rate

plus __ percent”, with the prime rate defined as”... the

prime rate being charged by the to its most

credit-worthy borrowers during the term of this note.”

(App. J-4-5.)! For this loan, the blanks were filled in to

provide for a 3.5% increase above the prime rate, and

“FIRST NATIONAL BANK OF OREGON, PORTLAND,

OREGON” was inserted as the bank whose prime rate

was referenced in the note. The second note, on a differ-

ent standardized form, was executed on February 11,

1982, with blanks filled in to provide for interest at the

rate of 3.5% “over Prime Floating of FIBO”. (App. J-5.)

Petitioner’s primary contentions below were that (1)

the prime rate of the First National Bank of Oregon, later

known as the First Interstate Bank of Oregon (“FIBO”),

was fixed in violation of the Sherman Act, 15 U.S.C. §1,

which resulted in interest overcharges to him, and that (2)

the announced prime rate of FIBO, which the Alaska

Bank used as an index to price the loans to appellant, was

in fact not its real “prime rate” because FIBO sometimes

made loans, to special borrowers, below the published

prime rate. Petitioner’s factual allegations supporting

these points also formed the basis for a number of sepa-

rate claims for relief on theories of state and federal

antitrust violations, fraud, RICO (18 U.S.C. §1961 et seq.)

and breach of contract. Additionally, petitioner alleged a

—

1 This designation is to page numbers in the Appendix

filed herewith. .

variety of claims arising under Alaska law, including

usury, defamation, bank code violations, consumer pro-

tection law violations, and general allegations of a con-

spiracy designed to deny him credit and ruin his

business.

Petitioner’s claims referenced and relied upon claims

brought in the United States District Court for the District

of Oregon in Wilcox Development Co. v. First Interstate Bank

of Oregon, N.A., Civil Case No. 82-754, wherein other

plaintiffs claimed that FIBO’s adherence to a near univer-

sal prime rate constituted illegal price fixing, and that

FIBO had misrepresented the “prime rate” in that it had

sometimes advanced loans at below prime, to special

borrowers. Subsequent to petitioner Plunkett’s initial

complaint herein, FIBO’s actions were held, by the Dis-

trict Court of Oregon, not to violate the antitrust statutes,

in Wilcox Development Co. v. First Interstate Bank of Oregon,

N.A., 605 F.Supp. 592 (D.C. Or. 1985), which holding was

sustained on appeal in Wilcox v. First Interstate Bank of

Oregon, N.A., 815 F.2d 522 (9th Cir. 1987).

Petitioner had relied heavily upon the Wilcox facts to

support his claims, and, in any case, was unable to offer

evidence below to demonstrate any connection whatever

between First Interstate Bancorp (“FIBC”) or FIBO and

the loans made by the Alaska Bank of Commerce to him

or his company. The evidence was undisputed (1) that at

the time the loans were made to petitioner there was no

franchise agreement between FIBC and Alaska Bank of

Commerce; (2) that neither FIBC nor FIBO had ever had

any equity interest in Alaska Bank of Commerce; (3) that

neither bank participated in nor had any knowledge of

the loans to petitioner, or any other dealings with him; (4)

that FIBC acquired no interest in the loans by virtue of its

subsequent franchise agreement with First Interstate

Bank of Alaska (formerly Alaska Bank of Commerce); (5)

that FIBO neither specifically authorized nor was aware

of the fact that the loans to appellant had been tied to the

prime rate of First National Bank of Oregon or FIBO,

except for general knowledge that such was a common

banking practice; and (6) that FIBO had never held out to

petitioner, or to the public generally, that the announced

“prime rate” was the lowest rate available to any bor-

rower under any circumstances, and that the term “prime

rate” does not carry with it such a cennotation. (See,

generally, App. F, G, H, K.)

The only evidence offered by petitioner to support

any nexus between FIBC or FIBO and the loans made by

the Alaska Bank of Commerce, or of any conspiracy

between such banks, was as follows:

A. The Alaska Bank of Commerce had referenced FIBO’s

prime rate in the loans to petitioner. However, it was undis-

puted that neither FIBC nor FIBO had participated in the

loans, or gained any interest in them at any stage. The

Alaska bank unilaterally referenced the Oregon bank’s

prime rate as an index for the loans it made to petitioner,

without direct or specific knowledge of the Oregon bank,

and was a common banking practice. (App. G-2-3; App.

J-3.) The Alaska bank normally referenced the Oregon

bank’s prime rate, in case the Oregon bank were to partic-

ipate in interim commercial financing loans, which it

frequently did, but did not do on this loan. (App. J-3;

App. G-2-3; App. H-3.)

B. FIBO had a correspondent bank arrangement with the

Alaska Bank of Commerce. This meant only that the Alaska

bank had a short-term line of credit with FIBO, which

permitted it to borrow on an overnight basis at the fed-

eral fund rate (no relationship to the “prime rate” on

long-term loans) to meet immediate liquidity problems.

This is a common relationship in the banking industry;

FIBO corresponds with 39 different non-affiliated banks.

(App. K-2-3.)

C. The Alaska Bank of Commerce entered into a fran-

chise agreement with FIBC, and changed its name to First

Interstate Bank of Alaska. This occurred in 1983, almost

three years after petitioner’s loan agreement with the

Alaska bank and over a year after the last of the two

loans was made. The franchise arrangement did not

result in FIBC obtaining either any equity interest in the

Alaska bank or any control of the lending activities of the

Alaska bank or its employees. (App. H-2-3.) Petitioner’s

only evidence of any control was his assertion that, at the

time the franchise agreement was executed in 1983, an

FIBC representative advised the Alaska bank on the lay-

out, signage, and other features FIBC desired at the bank.

(App. I-7.)

D. FIBC employed an individual named Kenneth K.

Kaufmann, and the First Interstate Bank of Alaska had

employed an individual named Frank Kaufmann. These gen-

tlemen are not related and not acquainted with one

another. (App. L-2.)

E. An individual named Robert McWhorter, who had

previously worked for the FIBO branch in Eugene, Oregon,

subsequently worked for the Alaska bank which had made the

5 oa LAW hee z

tc sistent eA MUS Ne «

loans to petitioner. However, the record shows that

McWhorter had been fired by FIBO and had engaged in

acrimonious litigation with that bank for several years,

before he went to work for the Alaska bank. (App.

M-2-16.)

F. Petitioner claims he made several telephone calls to

FIBO to verify the correctness of the rate of interest being

charged to him by the Alaska bank, and was advised by FIBO

of its current prime rate. The bank does not deny that it

regularly responds to such inquiries from the public.

G. At the time of pending foreclosure on the Alaska Bank

of Commerce loans, petitioner attempted to obtain credit from

other Alaskan banks, but was denied. Petitioner offered no

evidence of any communication between FIBC or FIBO

and such banks, and FIBC and FIBO both deny any

knowledge of petitioner or of his efforts to obtain credit,

prior to the time he filed his suit in 1984. (App. G-3-4;

App. H-4-5.)

Il. STATEMENT OF PROCEEDINGS

Petitioner filed this action pro se in 1984, and

amended his complaint in December, 1987. Defendants

FIBC and FIBO brought a motion for summary judgment

on March 31, 1988. Four months after opposition and

reply memoranda had been filed, the District Court held

a status conference, at which time petitioner was pro-

vided with additional time to pursue “such discovery as

he deems necessary for purposes of the defendants’ sum-

mary judgment motion”, and was granted leave to file a

supplemental opposition following such discovery. (App.

D-1-2.) Thereafter, petitioner pursued no further discov-

ery from either FIBC or FIBO; he did pursue discovery

from FDIC; and he filed no additional opposition mem-

oranda to respondents’ pending motion for summary

judgment.

After hearing, the District Court entered summary

judgment on May 15, 1989 (App. B-1) and final judgment

on June 16, 1989 (App. C.) On the price fixing claim, the

District Court held that Wilcox v. First Interstate Bank of

Oregon, N.A., 815 F.2d 522 (9th Cir. 1987), which

addressed the identical banking practices of FIBO which

were the subject of petitioner’s allegations, was disposi-

tive that the Bank’s method of establishing its prime rate

did not constitute illegal price fixing, unless petitioner

could supply the Court with any additional facts which

would evidence any suppression of competition or show

any sinister domination. (App. B-4.) The Court held that

petitioner had not sustained his burden of coming for-

ward with sufficient evidence to withstand a summary

judgment motion, under the standards set forth in Celotex

Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552-53, 91

L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); and

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). (App.

B-3-6.) Additionally, the District Court held that the evi-

dence proffered by plaintiff failed to meet his burden to

produce evidence that is capable of sustaining a rational

inference of conspiracy amd that tends to exclude the

possibility that FIBC and FIBO had acted independently

of the alleged co-conspirators, and thus lawfully. (App.

B-5.) The Court held that petitioner’s remaining claims

for relief all hinged on the allegation of conspiracy, and

that petitioner had failed to make any showing whatever

that FIBC or FIBO conspired with any other person or

entity in a way relating to plaintiff’s loans. (App. B-7.)

Petitioner appealed to the Ninth Circuit Court of

) Appeals, supplementing his previous arguments with the

contention that Celotex, Anderson, and Matsushita set forth

a new summary judgment standard and that he, as a pro

se civil litigant, was entitled to prior notice of this stan-

dard by the District Court, prior to the entry of summary

judgment dismissing his claims. Additionally, petitioner

argued that his pendent state claims should not have

: been dismissed with prejudice, but rather left open for

resolution by state courts.

The Court of Appeals affirmed the dismissal of all

claims by Memorandum Decision dated May 16, 1990,

citing its earlier holding, in Wilcox v. First Interstate Bank

of Oregon, 815 F.2d 522 (9th Cir. 1987), that a bank does

not violate the Sherman Act simply by pegging its inter-

est rate to the interest rates of other banks, and pointing

out that petitioner herein had failed to supply any evi-

dence to show that the Alaska bank’s practice of pegging

its rate to that of FIBO was anything but a legitimate

business practice. (App. A-4-5.) Moreover, it held that

petitioner had supplied no evidence from which a trier of

fact might reasonably conclude that FIBO or FIBC was

liable for misrepresentation to petitioner, with whom

these banks had no business relationship whatever. (App.

A-5.) Because the District Court, in its summary judg-

ment deliberation, had weighed both state and federal

claims relying upon the allegation of conspiracy, the

Court of Appeals held that it was a proper exercise of the

District Court’s discretion to render summary judgment

on all claims, including the state claims. (App. A-5.)

Iisa”

a eee re

Petitioner sought rehearing, which was denied by

Order dated July 18, 1990, from which his Petition for

Writ of Certiorari was brought.

&...

. 2

SUMMARY OF ARGUMENT

Petitioner failed to supply any plausible evidence

that FIBC or FIBO conspired to fix prices; that the Alaska

bank’s pegging of its rate to that of respondent banks was

anything but a legitimate, unilateral business practice; or

that, indeed, FIBC or FIBO had any knowledge of or

connection whatever with petitioner’s financial arrange-

ment with his Alaskan bank. Petitioner’s central conten-

tion, that as a pro se litigant, he was entitled to explicit

prior notice by the trial court as to his evidentiary burden

in opposing a summary judgment motion, is unsupported

by precedent in this Court or in any of the circuits. Even

if it is assumed that district courts have a duty to affirma-

tively apprise pro se civil litigants of the necessity for

filing affidavits in opposition to a properly supported

motion for summary judgment, the courts should not be

tasked with the duty of explaining in detail the standards

for adjudicating such motions, or with specifying the

quantity and quality of evidence necessary to sustain a

litigant’s burden. Such a requirement would inject the

trial court into the adversary process, erode the appear-

ance of impartiality, and unfairly discriminate against

parties represented by counsel. To hold a civil litigant

who chooses to represent himself to the rules of civil

procedure does not constitute a denial of due process or

equal protection, and the petition should be denied.

on ,%

REASONS WHY THE PETITION SHOULD BE DENIED

Petitioner has failed to demonstrate that the ruling of

the Ninth Circuit Court of Appeals is in conflict with the

decisions of other circuits regarding the rights of a pro se

civil litigant. He has also failed to demonstrate that the

Court of Appeals departed from the accepted and usual

course of judicial proceedings in sustaining a dismissal of

both federal and pendent state claims, where the peti-

tioner had failed to supply any probative evidence which

could reasonably support such claims.

I. A PRO SE CIVIL LITIGANT IS NOT ENTITLED TO

PRIOR ADVICE BY THE COURT AS TO THE PRE-

CISE QUANTUM OF PROOF REQUIRED TO

AVOID A SUMMARY JUDGMENT DISMISSAL.

Petitioner has argued that this Court’s recent pro-

nouncements regarding the burden of proof of a party

opposing summary judgment under FRCP 56 resulted in

a change in the Rule from that which existed when he

filed his complaint in 1984. Based upon this assertion, he

contends that when a motion for summary judgment has

been brought against a pro se civil litigant such as himself,

the trial court must affirmatively advise him not only of

the need to file an affidavit in opposition,? but also as to

2 Respondents do not herein contest the obligation to pro-

vide such notice, which, as discussed in the following section,

has been recognized by some of the circuit courts. Petitioner

Plunkett was fully aware of his obligation to file affidavits to

oppose a motion for summary judgment, and in fact did so. Cf.,

App. I, J. .

the precise standard for determining whether such evi-

dence is sufficient to prevent summary judgment. Peti-

tioner contends that the Ninth Circuit’s decision in

Jacobsen v. Filler, 790 F.2d 1362 (9th Cir. 1986) as to the

rights of pro se, non-prisoner litigants is at odds with

decisions in other circuits, and therefore requires this

Court’s attention. Assuming the Jacobsen decision is dif-

ferent from that of other circuits, such difference is not

presented by the issues in this petition. The type of notice

demanded by petitioner has not been required by any

federal court, nor should it be imposed.

A. The Standard for Granting Summary Judgment has

not Changed in Any Manner which would Affect the Outcome

as to Petitioner's Claims.

Petitioner’s brief focuses upon a case relied upon by

both the District and Circuit Court below, California Archi-

tectural Products, Inc. v. Franciscan Ceramics, Inc., 818 F.2d

1466, 1468 (9th Cir. 1987), which set forth the burden of a

party opposing summary judgment, based upon this

Court’s recent decisions in Celotex Corp. v. Catrett, 477

U.S. 317, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505,

2511, 91 L.Ed.2d 202 (1986); and Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356,

89 L.Ed.2d 538 (1986). These decisions make clear that,

when a conspiracy has been alleged, where defendant has

produced affidavits denying that it acted or intended to

act in furtherance of a conspiracy, and where defendant

has demonstrated that the specific acts identified by the

plaintiff were in fact lawful actions in pursuit of legiti-

mate business ends consistent with permissible competi-

tion, the burden is upon the non-moving party to

establish a genuine dispute of fact. To show a “genuine”

factual issue that may be resolved only by a finder of fact,

the plaintiff must show that such issues may reasonably

be resolved in favor of either party; if the factual context

makes the plaintiff’s claim implausible, the plaintiff must

come forward with more persuasive evidence to show

that there is a genuine issue for trial. Petitioner argues

that this standard, and this Court’s recent pronounce-

ments on the standards of Rule 56, constituted such a

change in the burden to be met by a party opposing

suminary judgment as to require explicit notice thereof to

a pro se litigant.

FRCP 56(e), however, has long provided that, when a

motion for summary judgment is made and supported

with affidavits, an adverse party may not rest upon the

mere allegations or denials of the adverse party’s plead-

ing, but must supply affidavits or other evidence show-

ing that there is a “genuine issue” for trial. The amount or

quality of evidence necessary to produce a “genuine”

issue has always been a complicated question of fact and

law, suffering from misuse by lawyers and courts alike.

See generally, Schwarzer, Summary Judgment Under the

Federal Rules: Defining Genuine Issues of Material Fact,

99 FRD 465, 467 (1984). As the foregoing article points

out, however, Rule 56(e), since its amendment in 1963,

has required the party opposing summary judgment to

“set forth specific facts” showing a genuine issue, with

the effect that

... the opposing party must rebut the moving

party’s showing with evidence which would

preclude a directed verdict or judgment n.o.v.

for the moving party.

Schwarzer, 99 FRD 465 at 482. Celotex, Anderson, and

Matsushita did not change this standard; these cases re-

stated and clarified the opponent’s burden, to resolve

confusion and insure uniformity in the federal courts.

The opponent's evidentiary burden has long been one to

produce sufficient evidence to resist a directed verdict

and to require submission to the trier of fact. In First

National Bank of Arizona v. Cities Service Co., 391 U.S. 253,

289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968), wherein the

petitioner had alleged conspiracy and violation of anti-

trust laws, the Court held that respondent oil company’s

refusal to deal with petitioner did not itself create a

genuine issue of fact, and that the burden was not on the

respondent to demonstrate the absence of a genuine

issue. The Court held that Rule 56(e) requires

. that sufficient evidence supporting the

claimed factual dispute be shown to require a

jury or judge to resolve the parties’ differing

versions of the truth at trial.

The Court went on to hold that the plaintiff could not

proceed to a jury trial without “ .. . any significant

probative evidence tending to support the complaint.” Id.

at 290, 20 L.Ed.2d 569, 88 S.Ct. 1575. Cities Service, which

was relied upon in Anderson, 477 U.S. 242 at 248-9, pre-

ceded petitioner’s 1984 complaint herein.

Prior to petitioner’s complaint, numerous decisions

in the Ninth Circuit also clearly stated the requirement

ihat the party opposing summary judgment must pro-

duce sufficient evidence as to permit reasonable persons

to disagree on the outcome of the issue. Relying heavily

upon Ninth Circuit precedent, Judge Schwarzer’s 1984

article stated that the usual issue

. is whether the proponent of an inference

comes forward with sufficient evidence to sus-

tain a judgment in his favor. The test of suffi-

ciency is whether, on the evidence, a jury verdict

would be sustained. If the evidence would com-

pel a directed verdict or judgment n.o.v. against

the opponent of the motion, there is no genuine

issue and the motion must be granted.

Schwarzer, 99 F.R.D. 465 at 481. In fact, several Ninth

Circuit decisions, prior to petitioner’s complaint, dis-

missed antitrust conspiracy claims because of the failure

of the plaintiff’s evidence to rise to the level necessary to

support a verdict. See, Aydin Corp. v. Loral Corp., 718 F.2d

897, 901-03 (9th Cir. 1983); Betaseed, Inc. v. U & I, Inc., 681

F.2d 1203, 1207 (9th Cir. 1982); Mutual Fund Investors v.

Putnam Management Co. 553 F.2d 620, 624-5 (9th Cir.

1977); and California Shipping Co., Inc. v. Pacific Far East

Line, Inc., 453 F.2d 380, 381 (9th Cir. 1971). a

As discussed in the following section, petitioner has

failed to come forward with any significant probative

evidence to support a theory of conspiracy or his other

theories. Assuming, arguendo, that his affidavits create

some relevant factual issue, he has created no “genuine”

issue by proffering facts sufficient to submit the issue to a

jury. Summary judgment would have been proper under

the standard applied in Cities Service and in the Ninth

Circuit precedent existing at the time he filed his com-

plaint. Dismissal of petitioner’s claims herein was not

dependent upon this Court's recent clarification and reit-

eration of a party’s burden to oppose summary judgment

under FRCP 56(e).

Pe Le eS ST ne Rea eee

Age = ee Om oy) i nen be pt tae

B. A Pro Se Litigant is Not Entitled to Prior Judicial

Explanation of Standards for Granting Summary Judgment.

Even if Celotex, Anderson, and Matsushita constituted

a new and different interpretation of a party’s burden in

opposing summary judgment, this does not entitle a pro

se litigant to some special notice not afforded to other

litigants. While this Court has held pro se litigants, partic-

ularly those who are prisoners, to less stringent require-

ments in complaint pleading than it would a party

represented by counsel (see Haines v. Kerner, 404 U.S. 519,

520-21, 30 L.Ed.2d 652, 92 S.Ct. 594 (1972); Boag v. Mac-

Dougall, 454 U.S. 364, 365, 70 L.Ed.2d 551, 102 S.ct. 700

(1982)), it has also warned pro se litigants that they will be

accorded neither special treatment nor leniency. Faretta v.

California, 422 U.S. 806, 835, n. 46, 45 L.Ed.2d 562, 95 S.Ct.

2525 (1975) (rejected notion that right of self-representa- -

tion was “a license not to comply with relevant rules of

procedural and substantive law.”)

Nevertheless, several circuit courts have recognized

that a pro se litigant is entitled to notice of the conse-

quences of failure to submit affidavits in response to a

motion for summary judgment. Jaxon v. Circle K Corp., 773

F.2d 1138 (10th Cir. 1985); Garaux v. Pulley, 739 F.2d 437

(9th Cir. 1984); Lewis v. Faulkner, 689 F.2d 100 (7th Cir.

1982); Hudson v. Hardy, 412 F.2d 1091 (D.C. Cir. 1968); and

Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). With the

exception of Jaxon, these were all civil cases brought by

pro se prisoners.

Unlike the Tenth Circuit in Jaxon, the Ninth Circuit

declined to extend to non-prisoner pro se litigants the

right to prior notice from the Court as to their need to file

affidavits in opposition to a motion for summary judg-

ment. Jacobsen v. Filler, 790 F.2d 1362, 1364-6 (9th Cir.

1986). Jacobsen and Jaxon, however, do not present a con-

flict in the circuits which is highlighted by the case at bar.

None of the circuits, nor any other courts, have ever held

that a pro se litigant, prisoner or non-prisoner, is entitled

to the level of assistance from the Court demanded by

petitioner herein. Courts recognizing the right of a pro se

litigant to notice of the bare procedural requirement that

an affidavit be filed have done so in the face of a very real

possibility of a miscarriage of justice. Such courts have

declined to dismiss what may be a valid claim simply

because of the pro se litigant’s ignorance of the rudimen-

tary Rule 56 requirement that he must, though at a stage

prior to trial, put his evidence into affidavit form.

In Jaxon, the pro se plaintiff in a civil rights action

opposed summary judgment with a substantial collection

of material? which, in the appellate court’s view, would

3 Jaxon’s opposition to summary judgment attached EEO-1

Employer Information Reports submitted by defendant which

raised an inference of discrimination against blacks; it contained

Jaxon’s unsworn reiteration of specific racial statements made to

him by defendant's area director; it attached a decision of a state

agency, after a hearing, that defendant employer had no intention

to comply with an EEOC settlement agreement pertaining to Jaxon;

and it attached unverified statements taken by the EEOC which

tended to undermine the credibility of defendant’s summary judg-

ment affidavits. Jaxon, 733 F.2d 1138 at 1139-40. By contrast, peti-

tioner herein has made no showing of what additional evidence he

could now muster to support his claims, now that he understands

the extent of his burden to produce such evidence. The record

shows that he had been given ample opportunity, prior to hearing,

to pursue discovery from FIBC and FIBO in order to support his

Opposition to summary judgment, but declined to do so.

have required denial of the motion if it were put into the

form of sworn evidence as required by the rules. 773 F.2d

1138 at 1139-40. However, neither Jaxon nor any other

case has suggested that a pro se litigant is entitled to be

given any judicial advice or notice beyond the mere pro-

cedural requirement of filing an affidavit.

Petitioner Plunkett needed no advice from the trial

courts as to the rudimentary requirements of opposing

summary judgment; indeed, his petition to this Court

demonstrates his capability of reading, understanding

and following Court procedural rules. Petitioner con-

tends, however that he should have been given additional

advice from the court as to the precise character or quan-

tum of evidence he needed to produce to avoid summary

judgment. This would, of necessity, require the court to

first review the moving party’s affidavits and the law

applicable to the case, for without this context, intelligent

advice or notice as to the opposing party’s evidentiary

burden may not be given. This would invite an open-

ended participation by the Court in the pro se litigant’s

presentation of his opposition to summary judgment. The

appearance of judge as advocate would be unfair to other

litigants and damaging to the appearance of impartiality

upon which acceptance of judicial decisions is based.

Moreover, prior judicial advice as to a party’s precise

burden in opposing summary judgment may well spawn

further litigation as to the correctness of such advice.

Unless a pro se litigant is advised of all the nuances of the

judicial gloss placed upon the summary judgment rule by

the latest appellate decisions, he may claim a denial of

due process, if due process is held to require the type of

notice sought herein by petitioner.

FRCP 56(e) afforded petitioner with notice of his

obligation to present sufficient facts to create a “genuine

issue”. If it was necessary for him to consult a profes-

sional to determine the precise meaning of this require-

ment, in the context of his claims and the facts presented

in opposition to his claims, his remedy was to seek assis-

tance from an attorney, not the trial court. As stated in

United States v. Pinkey, 548 F.2d 305, 311 (10th Cir. 1977),

The hazards which beset a layman when he

seeks to represent himself are obvious. He who

proceeds pro se with full knowledge and under-

standing of the risks does so with no greater

rights than a litigant represented by a lawyer,

and the trial court is under no obligation to

become an “advocate” for or to assist and guide

the pro se layman through the trial thicket.

Il. SUMMARY JUDGMENT DISMISSAL OF PETI-

TIONER’S CLAIMS WAS APPROPRIATE

The Court of Appeals acted correctly in sustaining a

dismissal of Plunkett’s claims when he was unable to

supply any probative evidence to distinguish his case

from Wilcox v. First Interstate Bank of Oregon, N.A., 815

F.2d 522 (9th Cir- 1987), or to otherwise demonstrate that

respondents FIBC and FIBO had conspired with the

Alaska bank or had any knowledge or connection what-

ever with the loans made to petitioner.

Wilcox properly held that FIBO’s practice of changing

its prime rate whenever any four of seven specific banks

changed theirs is not in itself violative of the Sherman

Act, 15 U.S.C. §1, in that a competitor’s practice of inde-

pendently, as a matter of business judgment, following

the prices of an industry teader “ . . . does not establish

any suppression of competition or show any sinister

domination.” Wilcox, 815 F.2d 522 at 526, quoting from

the opinion in United States v. International Harvester Co.,

274 U.S. 693, 708-09, 71 L.Ed. 1302, 47 S.Ct. 748 (1927).

After full analysis of FIBO’s unilateral actions in setting

its prime rates, the Wilcox court concluded that such

practices

... Are motivated by legal, non-collusive busi-

ness practices. Near uniformity in prime interest

rates reflects a competitive market for funds.

Prime rates will arguably be nearly identical

when each bank pursues its individual self-

interest because failure to follow national prime

rates could cause either losses or severe liq-

uidity problems.

Wilcox, 815 F.2d 522 at 528. It was therefore incumbent

upon petitioner herein to produce additional probative

evidence, distinguishing Wilcox and demonstrating

unlawful concerted activity or intention to suppress com-

petition or monopolize. Petitioner produced no such evi-

dence.

Moreover, petitioner failed to sustain his burden of

showing any nexus whatever between FIBC or FIBO and

the loans made to petitioner by the Alaska bank. The

circumstantial evidence presented by petitioner simply

fails to meet the burden established by this Court in

conspiracy cases, in that it does not create an inference of

conspiracy which is more probable than an inference of

independent action. First National Bank of Arizona v. Cities

Service Co., 391 U.S. 253 at 280.

The evidence at summary judgment showed that the

Alaska bank unilaterally referenced the Oregon bank’s

prime rate, for purposes of convenience; that neither

‘ FIBC nor FIBO had any ownership interest in the Alaska

bank or participated in the subject loans, nor had any

knowledge as to them; that the subsequent franchise

arrangement between FIBC and the Alaska bank had no

bearing upon the subject loans; that coincidences in last

names of bank employees, and the hiring by the Alaska

bank of a fired FIBO employee, were not in furtherance of

any conspiracy; and that neither FIBC nor FIBO played

any role in denial of credit to petitioner by other Alaska

banks. On the basis of such evidence, this Court should

continue the policy set forth in First National Bank v. Cities

Service Co., 391 U.S. 253 at 290:

While we recognize the importance of preserv-

ing litigants’ rights to a trial on their claims, we

are not prepared to extend those rights to the

point of requiring that anyone who files an anti-

trust complaint setting forth a valid cause of

action be entitled to a full-dressed trial notwith-

standing the absence of any significant proba-

tive evidence tending to support the complaint.

Because all of petitioner’s remaining federal and

state claims relied upon some showing of connection

between FIBC or FIBO and the loans made to petitioner,

the court of appeals properly sustained dismissal because

petitioner failed to produce any such evidence. Addi-

tionally, with regard to his RICO and fraud claims, peti-

tioner failed to produce any evidence that FIBO had

represented to any party, must less petitioner, that its

prime rate was the lowest rate charged to any customer

under any circumstance, and dismissal was warranted.

The District Court below properly exercised its dis-

cretion in dismissing with prejudice both the federal

claims and the pendent state claims. The Court was pre- ©

sented with the parties’ affidavits and arguments regard-

ing the viability of all claims, and the Court evaluated

both the federal and state claims in its review of the

summary judgment issues. Where the Court and the liti-

gants expend considerable time on pendent claims before

antitrust claims are dismissed, it is proper for the Court

to retain jurisdiction and decide the state claims. Arizona

v. Cook Paint & Varnish Co., 541 F.2d 226, 227-28 (9th Cir.

1976) (per curiam), cert. denied, 430 U.S. 915, 97 S.Ct. 1327,

51 L.Ed.2d 593 (1977). Where, as in the case at bar, evi-

dence and argument on the pendent claims are presented

simultaneously for decision by the court, and the court

concludes that the pendent claims have not been sup-

ported, they should be dismissed with prejudice, rather

than relitigated in state court; such procedure furthers the

interests of judicial economy, convenience, and fairness to

litigants, which are the recognized purposes of the discre-

tionary exercise of pendent jurisdiction. See, United Mine

Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16

L.Ed.2d 218 (1966).

CONCLUSION

A pro se civil litigant is not denied due process or

equal protection because he is not provided special judi-

cial notice of his precise burden of proof in opposing

summary judgment. A contrary rule would draw the trial

courts into the adversary process and would discriminate

against parties who are represented by counsel. Petitioner

failed to present any concrete evidence to support his

claim of conspiracy or his other claims, and dismissal was

proper.

Respectfully submitted,

SAUL R. FRIEDMAN

HEDLAND, FLEISCHER, FRIEDMAN,

BRENNAN & COOKE

1227 West Ninth Avenue, Suite 300

Anchorage, Alaska 99501-3218

(907) 279-5528

Attorneys for Respondents

First Interstate Bank Corporation and

First Interstate Bank of Oregon

- A-1

APPENDIX A

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL E. PLUNKETT,

Plaintiff-Appellant,

and

LANE, KNORR & PLUNKETT,

ARCHITECTS AND PLANNERS;

LANE, KNORR & PLUNKETT

INVESTMENT COMPANY, a/k/a

No. 89-35500

D.C. No.

CV-84-387-HRH

MEMORANDUM*

LKP Investment Company, "

a (Filed May 16,

Plaintiffs-Appellants, 1990)

VS.

FEDERAL DEPOSIT INSURANCE

CORPORATION, Receiver of

First Interstate Bank of Alaska;

FIRST INTERSTATE BANK

CORPORATION; FIRST

INTERSTATE BANK OF OREGON,

Defendants-Appellees.

eS ee ee ee a ee a a a oe oe ee ee ee

Appeal from the United States District Court

for the District of Alaska

H. Russel Holland, District Judge, Presiding

Submitted: May 11, 1990 **

Seattle, Washington

Before: FARRIS, PREGERSON, and FERGUSON, Circuit

Judges.

* This disposition is not appropriate for publication and may not

be cited to or by the courts of this circuit except as provided by 9th

Cir. R. 36-3. |

** The panel unanimously finds this case suitable for decision

without oral argument. Fed. R. App. P. 34(a); Circuit Rule 34-4.

A-2

Michael E. Plunkett, a pro se plaintiff and appellant,

appeals summary judgment against him. Plunkett’s suit

pertains to circumstances surrounding two commercial

loans he obtained from the Alaska Bank of Commerce

(ABC) in 1981 and 1982. Plunkett was given a rate of

interest by ABC pegged to the prime rate offered by the

First National Bank of Oregon (FNBO) to FNBO’s most

creditworthy borrowers. FNBO, subsequently renamed

First Interstate Bank of Oregon (FIBO), has been at all

relevant times a wholly-owned subsidiary of First Inter-

state Bank Corporation (FIBC). In 1983, ABC entered into

a franchise agreement with FIBC and was renamed First

Interstate Bank of Alaska (FIBA) (now in receivership and

represented as an appellee by the Federal Deposit Insur-

ance Corporation).

Plunkett argues that FIBA, FIBO, and FIBC conspired

with other, unnamed entities to fix the rate of interest

offered to commercial borrowers, causing Plunkett to pay

illegally inflated rates on his loans. He further contends

that FIBO’s definition of “prime rate” was intended to

induce the false belief among its borrowers that the prime

rate was the lowest rate FIBO offered, and that the FIBA

reference to that rate on his loan instruments manifested

a conspiracy between the two banks (and the Oregon

bank’s parent, FIBC) to deceive him. These contentions

formed the basis for Plunkett’s federal claims under sec-

tion one of the Sherman Act, 15 U.S.C. § 1, and the

Racketeer Influenced and Corrupt Organizations Act

(RICO), 18 U.S.C. §§ 1961, 1962, and his pendent Alaska

claims (statutory, breach of contract, fraud, civil conspir-

acy, interference with contract, interference with prospec-

tive economic advantage, intentional infliction of

A-3 -

emotional distress, and an assortment of so-called “prima

facie torts of various descriptions,” including “gross neg-

ligence, recklessness, . . . wrongful foreclosure, usury,

tortious breach of contract and others.”

The district court granted summary judgment for

FIBA, FIBO, and FIBC on the ground that Plunkett pre-

sented no credible evidence that the banks engaged in

any actionable conduct. As a matter of law, the court

held, no trier of fact could find for Plunkett.

STANDARD OF REVIEW

A grant of summary judgment is reviewed de novo.

Kruso v. International Telephone & Telegraph Corp., 872 F.2d

1416, 1421 (9th Cir. 1989); State Farm Fire and Casualty Co.

v. Martin, 872 F. 2d 319, 320 (9th Cir. 1989). The appellate

court’s review is governed by the same standard used by

the trial court under Fed. R. Civ. P. 56(c). Darring v.

Kincheloe, 783 F.2d 874, 876 (9th Cir. 1989). The appellate

court must determine, viewing the evidence in the light

most favorable to the nonmoving party, whether there are

any genuine issues of material fact and whether the dis-

trict Court correctly applied the relevant substantive law.

Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338,

1339-40 (9th Cir. 1989); Judie v. Hamilton, 872 F. 2d. 919,

920 (9th Cir. 1989).

‘

DISCUSSION

Plunkett insists that he established a prima facie case

and is entitled to try it. First, he points to another case,

Wilcox Dev. Co. v. First Interstate Bank of Oregon, 605

A-4

F.Supp 592 (D.Or.1985), where a jury returned a verdict

against FIBO on a Sherman Act claim. Second, he appears

to rely on another part of that case in its appellate incar-

nation, Wilcox v. First Interstate Bank of Oregon, 815 F.2d

522 (9th Cir. 1987), where summary judgment for defen-

dant on a RICO claim was reversed and remanded. It was

alleged in the Wilcox plaintiffs’ RICO claim that FIBO

made false representations about its prime rate being the

lowest rate given to creditworthy borrowers. Plunkett

apparently infers that the issue of whether FIBO misrep-

resented its interest rate is therefore triable here. Third,

Plunkett asserts that FIBO actually participated in loans

granted by FIBA during the period of Plunkett’s loans,

and argues that that participation constitutes evidence of

rate-fixing activity and collusion by the banks in the

fraud associated with FIBA’s use of FIBO’s prime rate as a

reference for its own loans. Finally, Plunkett argues that a

former loan officer at FIBO was subsequently employed

in the same capacity by FIBA, further linking the activ-

ities of the defendants with respect to rate-fixing and

FIBO’s misrepresentation_of its prime rate.

The district court correctly ruled that Plunkett’s facts

cannot withstand a summary judgment motion under

Fed. R. Civ. P. 56(c), as construed by Celotex Corp. v.

Catrett, 477 U.S. 317 (1986), California Architectural Build-

ing Products v. Franciscan Ceramics, 818 F.2d 1466 (9th Cir.

1987), cert. denied, 484 U.S. 1006 (1988), and Levin v.

Knight, 780 F.2d 786 (9th Cir. 1986). First, as to the anti-

trust claim, Wilcox, 815 F.2d 522, controls. We held there

that a bank does not violate the Sherman Act simply by

pegging its interest rate to the interest rates of other

banks. A mere showing by a plaintiff of rate parallelism is

A-5

not enough. Id. at 526. Plunkett has failed to demonstrate

that FIBA’s pegging of its rate to that of FIBO was any-

thing but a legitimate business practice. In fact, he does

not begin to approach the level of proof of unlawful

concerted activity required for his antitrust claim, as the

district court noted.

Second, as to the various claims deriving from

Plunkett’s fraudulent collusion theory, even assuming,

arguendo, that FIBO and FIBC are liable for misrepresenta-

tion to Oregon borrowers, there is nothing in the record

from which a trier of fact might reasonably conclude that

Plunkett has a cause of action against FIBA, FIBO, and

FIBC. He had no business relationship with either FIBO

or FIBC and cannot demonstrate that any relationship

either had with FIBA affected him. Neither the banks’

business connections nor the fact that FIBA and FIBO

may have employed the same loan officer at different

times offers credible evidence of collusive conduct

against Plunkett. The district court, it must be concluded,

correctly rejected Plunkett's allegation that the banks con-

spired to defraud him.

Plunkett alternatively seeks to have his pendent claims

dismissed without prejudice. Since all of his claims, both

state and federal, are based on an allegation of conspiracy,

the district court rendered summary judgment against all of

them. This was certainly within the court’s discretion, Schultz

v. Sundberg, 759 F.2d 714, 718, (9th Cir. 1985), and, especially

given the factual paucity of appellant’s case, a proper exer-

cise of discretion, Jones v. Community Redevelopment Agency,

733 F2d 646, 651 (9th Cir. 1984).

The district court is AFFIRMED.

B-1

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

MICHAEL E. PLUNKETT; LANE +)

KNORR + PLUNKETT, Architects ) No. A84-387 Civil

and Planners; LANE + KNORR + )

PLUNKETT, Investment Company; )

and all others similarly situated,

Plaintiffs,

vs.

)

FIRST INTERSTATE BANK OF ORDER

ALASKA, formerly Alaska Bank ) (Summary Judg-

of Commerce; FIRST INTERSTATE ) ment Granted)

BANCORP; FIRST INTERSTATE ) (Filed May 15

BANK OF OREGON, formerly _) ' io,

First National Bank of Oregon; )

and Unknown Defendants )

DOES 1 through 100, )

)

Defendants.

The court has now before it a motion by defendants

First Interstate Bank of Oregon (FIBO) and First Interstate

Bancorp (FIBC) seeking summary judgment, judgment on

the pleadings, and, alternatively, for more definite state-

ment. The motion is made pursuant to Rules 12(c) and 56,

Federal Rules of Civil Procedure, and is made on the

grounds that there are no genuine issues of material fact

in dispute and that the defendants are therefore entitled

to judgment as a matter of law, judgment on the plead-

ings, or, alternatively, a motion/order for a more definite

statement. The motion is opposed by plaintiff. The court

has heard oral argument.

B-2

In 1981, the plaintiff executed a note to secure a loan

from the Alaska Bank of Commerce in the amount of

$1.667 million at an interest rate equal to 3.5% above “the

prime rate”. The note defined “the prime rate” as being

“the prime rate being charged by the FIRST NATIONAL

BANK OF OREGON, PORTLAND, OREGON, to its most

credit worthy borrowers during the term of this note.”

On February 11, 1982, plaintiff borrowed $335,600.00

from the Alaska Bank of Commerce, upon which interest

was set at the “prime rate” of FIBO.

At the time the loans were made, the Alaska Bank of

Commerce had no connection with either FIBC or FIBO.

FIBO, formerly known as First National Bank of Oregon,

was at all pertinent times a wholly-owned subsidiary of

FIBC. Neither of FIBO or FBIC was involved in the loans

to the plaintiff, nor did they have knowledge of the loans.

Neither FIBO nor FIBC had (or have) any participation in

the loans.

In February 1983, the Alaska Bank of Commerce

entered into a franchise agreement with FIBC and

changed its name to First Interstate Bank of Alaska (Inter-

state of Alaska). The franchise agreement did not result in

either FIBC or FIBO obtaining any interest in First Inter-

state Bank of Alaska, nor did it result in either entity

becoming a participant in the loan to the plaintiff.

Rule 56(c), Federal Rules of Civil Procedure, provides

in relevant part:

The judgment sought shall be rendered forth-

with if the pleadings, depositions, answers to

interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no

genuine issue as to any material fact and that

B-3

the moving party is entitled to a judgment as a

matter of law.

The court views the evidence and the inferences there-

from in the light most favorable to the non-moving party.

Levin v. Knight, 780 F.2d 786, 787 (9th Cir. 1986).

Three U.S. Supreme Court cases have clarified what a

non-moving party must do to withstand a summary judg-

ment motion. As explained by the Ninth Circuit in Cali-

fornia Architectural Building Products, Inc. v. Franciscan

Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987):

First, the Court has made clear that if the non-

moving party will bear the burden of proof at

trial as to an element essential to its case, and

that party fails to make a showing sufficient to

establish a genuine dispute of fact with respect

to the existence of that element, then summary

judgment is appropriate. See Celotex Corp. v. Cat-

rett, [477 U.S. 317], 106 S. Ct. 2548, 2552-53, 91

L.Ed.2d 265 (1986). Second, to withstand a

motion for summary judgment, the non-moving

party must show that there are “genuine factual

issues that properly can be resolved only by a

finder of fact because they may reasonably be

resolved in favor of either party.” Anderson v. Lib-

erty Lobby, Inc., [477 U.S. 242] 106 S. Ct. 2505,

2511, 91 L.Ed.2d 202 (1986) (emphasis added).

Finally, if the factual context makes the non-

“moving party’s claim implausible, that party

must come forward with more persuasive evi-

dence than would otherwise be necessary to

show that there is a genuine issue for trial.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 106 S. Ct. 1348, 1356, 89 L.Ed.2d

538 (1986).

The plaintiff's revised second amended complaint

makes eleven claims for relief.

B-4

The plaintiff’s first claim for relief is that the defen-

dants committed a violation of the “Sherman Act, 15

U.S.C. § 1, et seq.” The plaintiff contends that the defen-

dants engaged in this unlawful conduct as follows: first,

FIBO engaged in unlawful conduct with persons not

named as defendants, by using the “count of four”

method of setting the prime rate of FIBC. Second, FIBO

and Interstate of Alaska conspired to fix prices and Inter-

state of Alaska subsequently contracted with the plaintiff.

The “count of four” method of setting a bank’s prime

rate involves a bank following the lead of four other

major banks. This method of setting the prime rate has

been expressly held as being non-violative of the Sher-

man Act. Wilcox v. First Interstate Bank of Oregon, N.A., 815

F.2d 522, 526 (9th Cir. 1987). The plaintiff claims that

Wilcox is inapplicable to the instant case because Wilcox

involved a bank exercising competitive independent busi-

ness judgment.

“{T]he fact that competitors may see proper, in

the exercise of their own judgment, to follow the

prices of another manufacturer, does not estab-

lish any suppression of competition or show any

sinister domination.”

ld. (citation omitted).

While the plaintiff's understanding of Wilcox is cor-

rect, he fails to provide the court with any facts which

evidence “any suppression of competition or show any

sinister domination.” Indeed, all of the plaintiff’s argu-

ment in this regard amounts to pure allegation and spec-

ulation. FIBO and Interstate of Alaska had no relationship

whatsoever at the time the subject loans were made.

Furthermore, “[rjeliance on other banks’ prime rate

B-5

charges is a convenient and accurate way for [a bank] to

maintain its prime rate at the level set by the national

market.” Id. The Ninth Circuit’s decision in Wilcox is also

highly instructive on the issue of a plaintiff’s burden of

proof in a Sherman Act case such as the case at bar.

Specifically, the court in Wilcox held:

Horizontal price setting is illegal per se. The

borrowers are not required to prove that defen-

dants entered into an express agreement to fix

prices. An agreement may be inferred from cir-

cumstantial evidence of “a common design and

understanding, or a meeting of minds in an

unlawful arrangement... .” Nevertheless, when

relying solely on circumstantial evidence, a

plaintiff must present evidence from which an

inference of conspiracy is more probable than an

inference of independent action. The plaintiff's

burden is to produce evidence “that is capable

of sustaining a rational inference of conspiracy

and that tends to exclude the possibility that the

defendant acted independently of the alleged

co-conspirators, and thus lawfully.” Thus, anti-

trust law limits the range of permissible infer-

ences from ambiguous evidence. “[C]onduct as

consistent with permissible competition as with

illegal conspiracy does not, standing alone, sup-

port an inference of antitrust conspiracy.”

Id. at 525 (citations omitted).

The plaintiff has failed to make a showing that there

are genuine factual issues that can be resolved only be a

finder of fact because they may reasonably be resolved in

favor of either party. At oral argument on this matter,

plaintiff argued that the mere denial of his allegations by

officers of the defendant entities is not sufficient evidence

B-6

to sustain their motion for summary judgment. The plain-

tiff fails to understand that, per California Architectural

Building Products, Inc., 818 F.2d at 1468, as the non-mov-

ing party bearing the burden of proof at trial, he must

make a showing sufficient to establish a genuine dispute

of fact with respect to the existence elements of his case.

The evidence submitted by the plaintiff simply fails to

make such a showing.

The plaintiff contends that the “placement of loan

officers”, including Robert McWhorther, a former FIBO

employee, at Interstate of Alaska, supports his contention

that there was a conspiracy to fix prices. This contention,

along with the rest of plaintiff's arguments, does not

meet the plaintiff's burden to produce evidence “that is

capable of sustaining a rational inference of conspiracy

and that tends to exclude the possibility that the defen-

dant acted independently of the alleged co-conspirators,

and thus lawfully.” In fact, McWhorther had been fired

by FIBO and had himself filed a lawsuit against FIBO

alleging breach of contract and outrageous conduct and

deceit. There is no genuine issue of material fact in dis-

pute as to whether or not McWhorther was a “plant” of

FIBO. The facts (as opposed to plaintiff’s speculation and

conjecture) are that he was not.

Furthermore, the “correspondence” relationship

between the banks that plaintiff contends is further evi-

dence of a conspiracy is completely unsupported by any

of the facts before the court. There must have been some

communication regarding Oregon’s prime rate; but

acquiring knowledge of what that rate was and merely

referencing it is not a conspiracy.

B-7

Thus, the defendants’ motion for summary judgment

will be granted as to the plaintiff’s first claim for relief.

The plaintiff’s remaining ten claims for relief all hinge

on the allegation that the FIBO and FIBC conspired between

themselves and/or with other entities. The plaintiff has

failed to establish any conspiracy between defendants FIBC

and FIBO and/or between either of those entities and the

other defendants. Nor has the plaintiff made any showing

whatsoever that FIBC or FIBO conspired with any other

person or entity to do anything which would support any of

the plaintiff's other ten claims for relief. In short, since the

facts before the court do not indicate that there is any reason

to believe that either FIBC or FIBO had any actionable

connection whatsoever with the plaintiff, it is inescapable

that summary judgment must be granted in favor of defen-

dants FIBC and FIBO.!

For the foregoing reasons, the defendants’ motion for

summary judgment is hereby granted. Plaintiff's com-

plaint against defendants First Interstate Bank of Oregon

and First Interstate Bancorp is hereby dismissed.

DATED at Anchorage, Alaska, this 12th day of May,

1989.

/s/ H. Russel Holland

United States District Judge

cc: M. Plunkett

J. Hedland (HEDLAND)

J. Gorski (HUGHES)

' In light of this conclusion, the court need not address the

defendants’ alternative motions.

C-1

APPENDIX C

James M. Gorski

Hughes, Thorsness, Gantz, Powell & Brundin

509 W. Third Ave.

Anchorage, AK 99501

907-274-7522

Attorneys for Federal Deposit Insurance Corporation

IN THE UNTIED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

MICHAEL E. PLUNKETT, et al.,

Plaintiff,

vs.

FIRST INTERSTATE BANK

OF ALASKA, et al.,

)

) No. A84-387

)

Defendants. )

)

FINAL JUDGMENT

(Filed June 10, 1989)

This court having granted motions for summary

judgment in favor of the defendants,

IT IS HEREBY ORDERED AND ADJUDGED that

plaintiffs’ complaint against defendants, First Interstate

Bank of Oregon, First Interstate Bancorp, and FDIC,

receiver of First Interstate Bank of Alaska, ishereby dis-

missed.

DATED at Anchorage, Alaska, this 16th day of June,

1989.

C-2

/s/ H. Russel Holland

United States District Judge

cc: O&J 3571

M. Plunkett

J. Hedland (HEDLAND)

J. Gorski (HUGHES)

D-1

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

MICHAEL E. PLUNKETT, )

et al., )

Plaintiffs, No. A84-387 Civil

vs. ) ORDER

FIRST INTERSTATE BANK _ ?

OF ALASKA ) (Status Conference)

: ) (Filed Sep. 22, 1988)

et al.,

Defendants. )

)

A status conference was held in this case on Septem-

ber 19, 1988.

This case is again at issue with the filing of amended

pleadings, including an answer of the Federal Deposit

Insurance Corporation as receiver for First Interstate

Bank of Alaska on June 23, 1988. The court’s stay on

account of the involvement of the FDIC in the case has

expired.

The court has pending a motion for summary judg-

ment brought on behalf of First Interstate Bancorp and

First Interstate Bank of Oregon. The parties are concerned

that there is additional discovery which ought to be done

as a predicate to the court’s consideration of that motion.

Counsel have agreed that plaintiff will undertake such

discovery as he deems necessary for purposes of the

defendants’ summary judgment motion. That discovery

shall be completed on or before November 22, 1988. On

D-2

or before December 7, 1988, plaintiff may file a supple-

mental opposition to defendants’ motion for summary

judgment. Defendants may file a supplemental reply on

or before December 19, 1988.

The court and parties discussed, and it has been

clearly understood, that plaintiff must accomplish any

discovery which he deems necessary or appropriate to

the summary judgment motion of defendants within the

time provided hereinabove. It is equally clear, however,

that should defendants’ motion for summary judgment

be denied, there may be additional discovery to be under-

taken, and the court will address that possibility at a

subsequent date.

Defendant FDIC has indicated that it will be filing a

motion for summary judgment also. That motion shall be

served and filed on or before October 20, 1988, in order

that it may be considered with the other defendants’ like

motion.

DATED at Anchorage, Alaska, this 21 day of Septem-

ber, 1988.

/s/ H. Russel Holland

United States District Judge

cc: M. Plunkett

J]. Hedland (HEDLAND)

J. Gorski (HUGHES)

E-1

APPENDIX E

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL E. PLUNKETT,

Plaintiff-Appellant,

and No. 89-35500

LANE, KNORR & PLUNKETT,

ARCHITECTS AND PLANNERS;

LANE, KNORR & PLUNKETT

INVESTMENT COMPANY, a/k/a

LKP Investment Company, ORDER

Plaintiffs-Appellants,

os (Filed

July 18, 1990)

FEDERAL DEPOSIT INSURANCE

CORPORATION, Receiver of First

Interstate Bank of Alaska; FIRST

INTERSTATE BANK

CORPORATION; FIRST

INTERSTATE BANK OF OREGON,

Defendants-Appellees.

ee a a ee a a a

Before: FARRIS, PREGERSON, and FERGUSON, Circuit

Judges.

A majority of the panel has voted to deny the petition

for rehearing and to reject the suggestion for rehearing en

banc.

The full court has been advised of the suggestion for

. en banc rehearing, and no judge of the court has

E-2

requested a vote on the suggestion for rehearing en banc.

Fed. R. App. P. 35(b).

The petition for rehearing is denied and the sugges-

tion for a rehearing en banc is rejected.

F-1

APPENDIX F

John S. Hedland, Esq.

HEDLAND, FLEISCHER, FRIEDMAN,

BRENNAN & COOKE

1227 West 9th Avenue, Suite 300

Anchorage, Alaska 99501-3218

907/279-5528

Attorneys for Defendant

FIRST INTERSTATE BANCORP

and FIRST INTERSTATE BANK OF OREGON

IN THE UNITED STATES, DISTRICT COURT

FOR THE DISTRICT OF ALASKA

MICHAEL E. PLUNKETT;

LANE + KNORR + PLUNKETT,

Architects and Planners; LANE +

KNORR + PLUNKETT, Investment

Company, and all others similarly Case No.

situated, A84-387 CIV

Plaintiffs,

vs. AFFIDAVIT OF

WILLIAM M.

FIRST INTERSTATE BANK DAVIDSON

OF ALASKA, formerly, Alaska Bank

of Commerce; FIRST INTERSTATE

BANCORP; FIRST INTERSTATE

BANK OF OREGON, formerly First

National Bank of Oregon; and

unknown defendants DOES 1

through 100,

Defendants.

ee ee ee ee ee ee ee ee ee

STATE OF OREGON )

County of Multnomah , &.

F-2

William M. Davidson, being first duly sworn,

deposes and says:

1. I ama Senior Vice President of and Senior Credit

Officer for First Interstate Bank of Oregon, N.A. fka First

National Bank of Oregon and have held that position

since March 1982.

2. In my position as Senior Credit Officer for this

Bank, I am the person who has knowledge of all partici-

pation loans in which this Bank has an interest. I under-

stand that this action arises out of two loans made by the

Alaska Bank of Commerce to Michael E. Plunkett, and/or

entities in which he has an interest as reflected by the

caption herein, the most recent loan having been made on

February 11, 1982. First Interstate Bank of Oregon, N.A. is

not now nor has it ever been a participant in any of the

said loans nor has it otherwise become involved in any

way in such loans. This Bank has not received any money

whatsoever from any source relating in any manner to the

said loans.

3. This Bank, to my knowledge, did not make any

representations, written or oral, to Mr. Plunkett or have

any conversations with him whatsoever in connection

with the loans in questions. Similarly, to my knowledge, |

this Bank had no communication with any of the entities

in which Mr. Plunkett has an interest.

FURTHER AFFIANT SAYETH NOT.

DATED:

/s/ William M. Davidson

William M. Davidson

F-3

Subscribed and sworn to before me this 28th day of

MARCH, 1988.

/s/

Notary Public for Oregon

My Commission Expires: 1/21/91

G-1

APPENDIX G

John S. Hedland, Esq.

HEDLAND, FLEISCHER, FRIEDMAN,

BRENNAN & COOKE

1227 West 9th Avenue, Suite 300

Anchorage, Alaska 99501-3218

907/279-5528

Attorneys for Defendant

FIRST INTERSTATE BANCORP

and FIRST INTERSTATE BANK OF OREGON

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

MICHAEL E. PLUNKETT;

LANE + KNORR + PLUNKETT,

Architects and Planners; LANE +

KNORR + PLUNKETT, Investment

Company, and all others

similarly situated,

Case No.

A84-387 CIV

Plaintiffs,

VS.

FIRST INTERSTATE BANK

OF ALASKA, formerly, Alaska Bank

of Commerce; FIRST INTERSTATE

BANCORP; FIRST INTERSTATE

BANK OF OREGON, formerly First

National Bank of Oregon; and

unknown defendants DOES 1

through 100,

AFFIDAVIT OF

DAVID S.

BELLES

Defendants.

Nee ee eee ee eee i ie Oa Oa ae aS em

STATE OF OREGON )

County of Multnomah

G-2

David S. Belles, first being duly sworn, deposes and

states:

1. I am an Executive Vice President of First Inter-

state Bank of Oregon, N.A. fka First National Bank of

Oregon and have held that position since September,

1978.

2. First Interstate Bank of Oregon, N.A., hereinafter

FIOR, is a subsidiary of First Interstate Bancorp, a bank

holding company. FIOR does not have any ownership

interest in First Interstate Bank of Alaska. FIOR does not

control, and never has controlled, activities of First Inter-

state Bank of Alaska, or its employees or officers.

3. I understand that this action arises out of two

loans made by the Alaska Bank of Commerce to Michael

E. Plunkett and/or entities in which he has an interest;

the most recent one having been made on February 11,

1982. It is my understanding that the Alaska Bank of

commerce loaned money to Mr. Plunkett at an interest

rate that was pegged to the prime rate of First National

Bank of Oregon. FIOR did not specifically authorize the

Aiaska Bank of Commerce to reference interest rates to

FIOR’s prime rate and I had no knowledge that it was

doing so. It is, however, generally understood in banking

circles that it was and is a common and accepted practice

for one bank to reference interest rates charged on spe-

cific loans to another Bank’s prime rate even though there

is no relationship between the Banks. Further, not all

banks announce a prime rate. It is not surprising that the

Alaska Bank of Commerce selected the prime rate of First

National Bank of Oregon as an interest index. This Bank

is, and for a long period of time has been, one of the two

G-3

largest Banks in Oregon and Oregon is probably the

Pacific Coast state most comparable to Alaska in terms of

its economy.

4. FIOR’s practice in announcing changes in its

prime rate was and is to issue a brief press release for

dissemination to interested local media. An exemplar of

the form of press release used to announce prime rate

changes during the period January 198u through Febru-

ary 1982 is attached hereto as Exhibit A. The press

releases do not state that the prime rate is the lowest rate

charged any customer under any circumstance. Further,

FIOR did not ever publicly announce or hold out that its

prime rate was the lowest rate charged any customer

under any circumstance.

5. I understand that plaintiff in this action alleges

that certain defamatory statements were made by an indi-

vidual named Frank Kaufmann, identified in the com-

plaint as an employee of First Interstate Bank of Alaska.

To the best of my knowledge, information and belief, and

based upon my review of the records of FIOR, FIOR and

its employees were totally uninvolved in such statements,

and did not authorize, adopt or ratify them if they were,

in fact, made. At no time did FIOR control or direct the

activities of Frank Kauffman in any respect whatsoever.

6. I also understand that plaintiff in this action

alleges that there was a conspiracy and collusion among

various parties to deny plaintiff credit at several Alaska

banks. To the best of my knowledge, information and

belief, and based upon my review of the records of FIOR,

if such a conspiracy or collusion existed, FIOR was not a

party to it and had no knowledge of it or involvement in

G-4

it whatsoever. To the best of my knowledge, information

and belief, FIOR never colluded, conspired or other [sic]

otherwise acted in any manner whatsoever with respect

to any attempts by plaintiff to obtain credit, and never

sought in any manner whatsoever to prevent him from

obtaining credit. If FIOR were, in fact, a party to such

collusion or conspiracy, I believe it would have come to

my attention. To the best of my knowledge, information

and belief, and based upon my review of the records of

FIOR, FIOR had never heard of, and had no dealings

whatsoever with Mr. Plunkett and his companies until

this lawsuit was filed. The only information that suggests

any contact whatsoever is Mr. Plunkett’s allegations in

his complaint is that he contacted FIOR to ascertain its

prime rate on several occasions.

FURTHER AFFIANT SAYETH NOT.

DATED:

/s/ David S. Belles

David S. Belles

Subscribed and sworn to before me this 25th day of

March, 1988.

/s/ Norma Nadine Thompson

Notary Public for Oregon

My Commission Expires:

JANUARY 29, 1992

G-5

EXHIBIT A

NEWS RELEASE

Date: May 2, 1980

FIRST NATIONAL BANK OF OREGON

Contact: Ken Martin Ref. No. 058001-P

First National Bank of Oregon Friday (May 2) low-

ered its prime rate to 18'/2 percent per annum. The rate

had been 19 percent since April 30.

Released 5/2 AP, UPI, Oregonian, Journal, DJC, Business

wire

H-1

APPENDIX H

John S. Hedland, Esq.

HEDLAND, FLEISCHER, FRIEDMAN,

BRENNAN & COOKE

1227 West 9th Avenue, Suite 300

Anchorage, Alaska 99501-3218

907/279-5528 :

Attorneys for Defendant

FIRST INTERSTATE BANCORP

and FIRST INTERSTATE BANK OF OREGON

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

MICHAEL E. PLUNKETT;

LANE + KNORR + PLUNKETT,

Architects and Planners; LANE +

KNORR + PLUNKETT, Investment

Company, and all others Case No.

similarly situated, A84-387 Civ

Plaintiffs,

vs. AFFIDAVIT OF

' KENNETH K.

FIRST INTERSTATE BANK KALIFMANN

OF ALASKA, formerly, Alaska Bank

of Commerce; FIRST INTERSTATE

BANCORP; FIRST INTERSTATE

BANK OF OREGON, formerly First

National Bank of Oregon; and

unknown defendants DOES 1

through 100,

Defendants.

ee ee ee ee ee ee ee, ee ee ee

STATE OF CALIFORNIA )

COUNTY OF LOS ANGELES

SS.

H-2

KENNETH K. KAUFMANN, being duly sworn,

deposes and states:

1. I am the Corporate Secretary of First Interstate

Bancorp, a bank holding company and have served in

that capacity since June, 1974.

2. On February 22, 1983, First Interstate Bancorp

and the Alaska Bank of Commerce entered into a fran-

chise agreement pursuant to which Alaska Bank of Com.

merce has the right to use the name First Interstate Bank

of Alaska. This agreement authorizes the Alaska bank to

participate in the automatic teller system operated by

First Interstate Bancorp and allows the Alaska Bank to

have access to certain other operational services provided

by the Bancorp. It does not create any parent/subsidiary

relationship between the signatories nor does it create

any equity interest in the Alaska bank on the part of First

Interstate Bancorp. First Interstate Bank of Oregon, N.A.

is not a party to the franchise agreement. Other than the

franchise agreement, which terminated on December 11,

1986, there was no relationship between the Alaska bank

and either First Interstate Bank of Oregon, N.A. or First

Interstate Bancorp. Prior to the execution of the franchise

agreement, there was no relationship whatsoever.

3. First Interstate Bancorp does not control the

activity of First Interstate Bank of Alaska or its

employees, and has never controlled the activities of First

Interstate Bank of Alaska or Alaska Bank of Commerce

and its employees. It has no involvement in loans made

by the Alaska Bank, and has never had such involvement.

H-3

Nor does it, or has it ever, controlled, dictated, or other-

wise influenced the interest rates charged by it or the

manner in which those interest rates are calculated.

4. I understand that this action arises out of two

loans made by the Alaska Bank of Commerce to Michael

E. Plunkett and/or entities in which he has an interest,

the most recent one having been made on February 11,

1982. As of that date, there was no relationship between

First Interstate Bancorp and the Alaska Bank of Com-

merce. First Interstate Bancorp was not a participant in

any of the said loans nor did it become a participant or

become otherwise involved in such loans in any manner

by virtue of the franchise agreement or otherwise. First

Interstate Bancorp has not received any money what-

soever from any source relating in any manner to the said

loans.

5. To my knowledge First Interstate Bancorp did not

make any representations, written or oral, to Mr. Plunkett

or have any conversations with him in connection with

the loans in question. Similarly, to my knowledge, First

Interstate Bancorp had no communication with any of the

entities in which Mr. Plunkett has an interest.

6. To my knowledge, at no time did First Interstate

Bancorp tell Mr. Plunkett or his companies that the prime

rate announced by First Interstate Bank of Oregon or First

National Bank of Oregon was the lowest rate at which it

‘loaned money to any borrowers; nor did the Bancorp ever

provide Mr. Plunkett with any other information regard-

ing the prime rate charged by First Interstate Bank of

Oregon. First Interstate Bancorp did not represent to Mr.

Plunkett or his companies, directly or indirectly, or to the

H-4

public generally, that the announced prime rate charged

by First Interstate Bank of Oregon, N.A. was the lowest

rate charged by it to any of its borrowers.

7. I understand that plaintiff in this action alleges

that certain defamatory statements were made by an indi-

vidual named Frank Kauffman, identified in the com-

plaint as an employee of First Interstate Bank of Alaska.

To the best of my knowledge, information and belief, and

based upon a review of the records of First Interstate

Bancorp, Frank Kauffman was never an employee of First

Interstate Bancorp. First Interstate Bancorp and its

employees were totally uninvolved in such statements,

and did not authorize, adopt or ratify them if they were,

in fact, made. At no time did First Interstate Bancorp

control or direct the activities of Frank Kauffman in any

respect whatsoever.

8. I also understand that plaintiff in this action

alleges that there was a conspiracy and collusion among

various parties to deny plaintiff credit at several Alaska

banks. To the best of my knowledge, information and

belief, and based upon my review of the records of First

Interstate Bancorp, if such a conspiracy or collusion exis-

ted, First Interstate Bancorp was not a party to it and had

no knowledge of it or involvement in it whatsoever. To

the best of my knowledge, information and belief, First

Interstate Bancorp never colluded, conspired or other-

wise acted in any manner whatsoever with respect to any

attempts by plaintiff or any other person or entity to

obtain credit, and never sought in any manner what-

soever to prevent him from obtaining credit. To the best

of my knowledge, information and belief, and based

upon a review of the records of First Interstate Bancorp,

H-5

First Interstate Bancorp had never heard of, and had no

dealings whatsoever with, Mr. Plunkett and his com-

panies until this lawsuit was filed.

FURTHER AFFIANT SAITH NOT.

DATED: March 24, 1988.

/s/ Kenneth K. Kaufmann

Kenneth K. Kaufmann

SUBSCRIBED AND SWORN TO before me this 24th

day of March, 1988.

[SEAL]

/s/ Olga Perez

Notary Public in and for

the State of California

My commission expires: 9-20-89

I-1

APPENDIX I

Michael E. Plunkett, Pro Se

600 Barrow, Suite 600

Anchorage, Alaska 99501

(907) 277-5481.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

Michael E. Plunkett: Lane +

Knorr + Plunkett, Architect

and Planners; Lane + Knorr +

Plunkett Investment Company;

Plaintiffs No. A84-387

v. Civil

First Interstate Bank of

Alaska formerly, Alaska Bank

of Commerce; First Interstate

Bancorp; First Interstate

Bank of Oregon, formerly First

National Bank of Oregon;

Defendants.

ee ee ee ee ee ee

AFFIDAVIT OF MICHAEL E. PLUNKETT

OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

BY DEFENDANTS

FIRST INTERSTATE BANK OF OREGON

AND FIRST INTERSTATE BANCORP

MOTION FOR CONTINUANCE

MOTION TO STRIKE AFFIDAVITS

STATE OF ALASKA )

) S.s.

THIRD JUDICIAL DISTRICT )

Michael E. Plunkett, being duly sworn, deposes and

states:

I-2

1. I am Michael Edward Plunkett, am a Plaintiff in

this action, am owner of Lane + Knorr + Plunkett Invest-

ment Company, and Lane + Knorr + Plunkett, Architects

and Planners, also Plaintiffs in this action.

2. I have personal knowledge of the following facts,

am competent to testify as to them, and if called upon to

testify at trial or hearing would testify as follows:

3. The first information I ever received tht [sic] “irst

national [sic] bank [sic] of Oregon was not a participant

in the loans which are the subject of this litigation was

when I read the Affidavits submitted with the Motion for

Summary Judgment on March 30, 1988. It was indicated

to me at the time we signed the loans that First National

Bank of Oregon, later First Interstate Bank of Oregon was

the basis of the prime rate determination because said

bank was to be or was the corresponding bank on the

loan. The pegging of the prime rate to the Firt [sic]

national [sic] bank [sic] of Oregon wa [sic] also a condi-

tion of the Committment [sic] Letter of May, 1980, a

certified true and correct copy which is included as

Exhibit 2, pages 35-42.

4. I hereby certify that Exhibit 1-5 attached to the

complaint are true and correct copies of the various corre-

spondence and loan documents executed by Plaintiffs in

this case. As late as October 16,1982 the second loan was

extended, with the interest rate pegged to the prime rate

of First Interstate Bank of Oregon.

5. I hereby certify that a continuance is needed due

to the stay granted to First Interstate Bank of Alaska as

succeeded by Federal Deposit Insurance Corporation.

Plaintiff cannot conduct discovery against First Interstate

1-3

Bank of Alaska until the Revised Second Amended Com-

plaint is answered by FIBA. I have found that to conduct

the depositions of former FIBA employees like Chuck

Homan or R.J. Miller without the documentation to

refresh their memories would be a waste of time, partic-

ularly since the interest pegging decision had to be made

prior to May 1980. I further certify that I am financially

unable to conduct discovery in Oregon or to even pay the

costs for copies of the transcripts from the Court cases

held in Oregon. Further, frrom [sic] the affidavits of FIBO

employees, it is clear that they do not recollect, at least

without documentary evidence or other depositions to

help them, any dealings at all with Alaska bank [sic] of

Commerce or FIBA. Thus, requests for admission, inter-

rogatories, and/or requests for production of these

unstayed defendants would be of little value. However, |

certify that a continuance is necessary to the extent the

motion for summary judgment cannot be de.iied outright

so that at least paper discovery of FIBO-and FIBC can be

made. Interrogatories wiil at least theoretically require

the parties to conduct some investigation of records.

Unfortunately, records may have vanished, and any deci-

sion regarding how the prime rate definition was gener-

ated may rest only in the minds of the one or two

individuals who made the decision.

6. I have reviewed the affidavits of Moving Party

and hereby certify that sufficient hostility exists between

FIBA employees, former, particularly Robert McWhorter,

Frank Kauffman, Albert Swallin, Charles Homan and

others that I could not obtain an affidavit voluntarily

from them, and even if I could their recollections would

be so vague without some refreshment by documentary

1-4

evidence that the affidavits would be insufficient to resist

the motion, that is to provide more genuine issues of

material fact.

7. In 1979 I was led to believe by a Alaska Bank of

Commerce Officer Johnson that financing had been

obtained for our building through Oregon Trails Savings

and Loan. Later this statement was repudiated by others

at ABC. Oregon Trails was to be a participant and the

prime rate was to be based on the Oregon Trails Prime

Rate. When later, after Plaintiffs literally handed the take-

out financing for the project to Homan from Alaska Small

Business Loan Program, the committment [sic] letter had

the First National Bank of Oregon listed as the basis for

the prime rate.

9. When in early 1983 I learned of the franchise with

FIBC, and had known of the buyout of First National

Bank of Oregon, I was not surprised when Bob McWhor-

ter became in charge of commercial loans, since I learned

he had been with FIBO in Oregon, Eugene I think |

learned. Kauffman had come aboard earlier, and after

McWhorter took over things deteriorated. It was my anal-

ysis that McWhorter was either reporting to or looking

out for the interests of the parent. FIBC or the participant,

FIBO. Things immediately soured with FIBA and Plain-

tiff, FIBA started obtaining certificates of deposit from the

Anchorage School District in large amounts like

$25,000,000 in a given month. At the same time credit was

denied Plaintiffs, with McWhorter stating we were on an

increasing spiral of debt or words to that effect. This was

immediately after Plaintiff was terminated from its ser-

vices on the Gruening Junior High School Project by ASD.

1-5

10. Plaintiffs incorporate all affidavits on file inthis

[sic] case as if fully set forth herein.

11. I certify further discovery is needed to deter-

mine the amount and style of interaction, if any between

First Interstate of Oregon and First Interstate Bancorp

and First Interstate of Alaska. This is especially true due

to the fact that to continue to obtain funds from ASD,

FIBA may have had to accede to the demands of ASD,

such as squeezing Plaintiffs. This would benefit not just

FIBA but the franchisor FIBC particularly if the franchise

was on a percentage basis, and FIBO if they were partici-

pating with FIBA on any loans, of any kind, or FIBA was

participating in some other way.

12. We were charged in excess of $55,000 in loan

fees on the first interim loan alone. No architects or

engineers were ever retained to visit the site or review

the design. This amount was never shown to us or broken

down in any way. The high amount is either as a result of

the risk incurred, or the fact that a portion of the loan fee

went to a participant.

12. I first learned of the antitrust litigation in may

[sic] 1984 when I red [sic] the article in the newspaper

about the outcome of the trial. I had remembered that our

loans were based on the prime rate of FIBO and called to

find out what was going on.

13. In 1984, to attempt to avoid foreclosure, Plain-

tiffs submitted loan packages to every bank in town. Each

one denied credit to Plaintiff for various reasons. The

banks were uniformly vague about the reasons except a

few, such as Mike Van at Alaska Continental Bank who

specifically stated that the lawsuit with ASD would have

1-6

to go away before any money would be lent. National

Bank of Alaska was the funniest. Jan Sieberts signalled

the loan officer in my preence [sic]. Thereafter I was put

off by Mr. Struts (Sp?) and finally denied credit. Alaska

Statebank [sic] strung us along for several months before

turning us down. Clearly all had communicated with

FIBA. FIBA had supposedly related to Rogers and Babler

or MAPCO Alaska Inc. employees as early as 1982 the

falsehood that Plaintiffs were nearly bankrupt. Alaska

State Bank is the only Alaska bank to which I have first

hand knowledge tht [sic] they discounted below thier

[sic] prime rate. I never found out how they defined their

prime rate however. They discounted one pont [sic]

below prime to the City of Unalaska on a School and

Swimming Pool interim loan for which plaintiffs were the

architects. I also learned from Moody’s Industrial File

that Don Mellish, former Chairman of the Board of

National Bank of Alaska was a Board Member of Mapco

Inc. parent of MAPCO Alaska Inc. during this period.

15. During the course of the troubles with FIBA,

they notarized a Uniform Commercial Code filing signa-

ture by myself by affixing a notary that had not even

been issued at the time the signature was affixed. This

was reported to the Alaska State Troopers who claimed it

was a Civil matter.

16. Each month we received a loan statement

through the mail with the interim finance interest rate for

that month printed on it. That rate, after telephoninf [sic]

FIBO was always 3.5 points above the prime rate given us

by FIBO for the particular month. Thus, as the prime rate

had been admittedly discounted, said prime rate cannot

1-7

be the prime rate charged FIBO’s most credit worthy

borrowers.

17. I learned from counsel for plaintiffs in Wilcox

case that FIBO had made some loans at a rate as low as

6%. This could have been 7 to 8 points below the prime

rate or more during the time that the loans were in place

since the prime rate was as big as 21% at one point.

18. While designing a branch bank for FIBA in early

1983, we met with a representative of FIBC who advised

FIBA on the layout FIBC wanted, signage, and other

features. FIBC clearly was involved with the design and

had decision making control over it to an unknown

amount.

FURTHER YOUR AFFIANT SAYETH NAUGHT

/s/ Michael E. Plunkett

Michael E. Plunkett

Subscribed to and sworn before me this 25 day of

April 1988.

/s/

Notary Public for Alaska

My Commission Expires

J-1

APPENDIX J

Michael E. Plunkett, Pro Se

600 Barrow, Suite 200

Anchorage, Alaska 99501

(907) 276-4939

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

Michael E. Plunkett, et al,

Plaintiffs.

First Interstate Bank of

Alaska, formerly, Alaska

Bank of Commerce, et al,

Defendants.

ee ee ee i i

CASE NO. A 84-387 Civil

AFFIDAVIT OF CHARLES HOMAN

STATE OF ALASKA )

) s.s.

THIRD JUDICIAL DISTRICT )

Charles Homan, being duly sworn, deposes and

states:

1. I am Charles Homan, have personal knowledge

of the following facts, am competent to testify as to the

following facts and if called upon to testify at a hearing

or at trial would testify as follows:

2. Iwas Vice President of Alaska Bank of Commerce

in Anchorage, Alaska, during the period in which Lane +

Knorr + Plunkett Investment Company, an Alaska Gen-

eral Partnership consisting of Michael Edward Plunkett,

J-2

and Donald R. Knorr applied for and obtained interim

financing for the construction of an Office -Condominium

complex known as the 600 Barrow Building located on

Block 110, Lot 1, of the Original Townsite of Anchorage,

Alaska.

3. During the time in which Lane + Knorr +

Plunkett Investment Company was applying for and

secured interim financing for the 600 Barrow Project |

was the Commercial Loan Officer at Alaska Bank of Com-

merce most familiar with the project and the loans.

4. I was employed as Vice President of Alaska Bank

of Commerce when it changed its name to First Interstate

Bank of Alaska in 1983.

5. I left employment of First Interstate Bank of

Alaska in February, 1984.

6. Lane + Knorr + Plunkett Investment Company

executed two interim finance agreements entitled “Deed

of Trust Note” with Alaska Bank of Commerce. The First

Deed of Trust Note was in the loan amount of $1,667,200,

and was originally due and payable on June 15, 1981. A

copy is attached hereto as Exhibit 1, The second Deed of

Trust Note was in the amount of $355,600.00 and was

executed on February 11, 1982. A copy of the Second

modification to Deed of Trust Note is attached hereto as

Exhibit 2.

7. Exhibits 1 and 2 hereto were standard Deed of

Trust Note forms used by Alaska Bank of Commerce. The

forms used in the preparation of Exhibit 1 and 2 hereto.

Exhibits 1 and 2 hereto were prepared for signature by

Lane + Knorr + Plunkett Investment Company under my

supervision.

J-3

9. I executed loan documents on behalf of Alaska

Bank of Commerce in conjunction with the loans secured

by the Deed of Trust Notes contained in Exhibits 1 and 2

hereto and was authorized to do so by the Board of

Directors of Alaska Bank of Commerce.

7. Both Exhibit 1 and Exhibit 2 based the rate of

interest to be charged on three and one half points above

the prime rate charged by the First National Bank of

Oregon, subsequently called the First Interstate Bank of

Oregon. The “prime rate” was defined in the Deed of

Trust Notes as “the rate being charged by the FIRST

NATIONAL BANK OF OREGON, PORTLAND, OREGON

to its most credit - worthy borrowers during the term of

this note. The Deed of Trust Notes were set up in this

fashion so that if First Interstate Bank of Oregon, for-

merly First National Bank of Oregon, were to participate

with Alaska Bank of Commerce in any of many commer-

cial interim finance loans being made during the

1980-1982 period, the interest rates would correspond

with the published prime rate of First National Bank of

Oregon, now First Interstate Bank of Oregon.

8. During the 1980 through 1984 period Alaska

Bank of Commerce (later called First Interstate Bank of

Alaska) participated with First Interstate Bank of Oregon,

formerly First National Bank of Oregon in interim finance

loans. I have no specific recollection whether Exhibits 1

and 2 hereto were loans in which First National Bank of

Oregon and/or First Interstate Bank of Oregon partici-

pated with Alaska Bank of Commerce, (later called First

Interstate Bank of Alaska).

]-4

7. While still employed by First Interstate Bank of

Alaska, | learned that a consumer group had brought a

class action suit against First Interstate Bank of Oregon

claiming that First Interstate Bank of Oregon had dis-

counted loans below their published prime interest rate.

FURTHER YOUR AFFIANT SAYETH NAUGHT

/s/ Charles Homan

Charles Homan

Subscribed and sworn to before me this 19th day of

September, 1988.

/s/ Sam M. Dua

Notary Public for Alaska

My Pemaiiseion Expires

5-14-92

Certificate of Service

I hereby certify that on 19

September, 1988 I caused to be

hand delivered a copy of the

above Affidavit with Exhibits to

the offices of John Hedlund and James

Gorski, counsel of record in this case.

/s/ Michael E. Plunkett

Michael E. Plunkett, Pro Se

EXHIBIT 1

DEED OF TRUST

NOTE

US $1,667,200.00 Anchorage, Alaska

FOR VALUE RECEIVED, the undersigned jointly and

severally promise(s) to pay to, or to order

J-5

ALASKA BANK OF COMMERCE

a corporation organized under the laws of the State of

Alaska, at its office in Anchorage, Alaska or at such other

place as the holder may designate in writing, the principal

sum of ONE MILLION SIX HUNDRED SIXTY-SEVEN

THOUSAND TWO HUNDRED AND NO/100 with interest

from date hereof until paid at the rate of TWELVE per cent

12.00% per annum, but not less than the prime rate plus

THREE & ONE-HALF per cent 3.50% (Computed on the

basis of a 365 day year and computed on balances remaining

from time to time unpaid). The prime rate is defined as the

prime rate being charged by the FIRST NATIONAL BANK

OF OREGON, PORTLAND, OREGON to its most credit-

worthy borrowers during the term of this note. The interest

rate shall be adjusted on the first day of the month following

a prime rate change by the bank. The prime rate as of the

date of this note is - . Interest hereon [sic] shall be paid

monthly on the last day of each calender month during the

term hereof. In the event interest is not paid on the last day

of a calendar month, said interest shall then be added to the

principal balance and become a part thereof, and thereafter

bear interest at the same rate as the principal. Payment of the

entire indebtedness evidenced by this note shall be due and

payable on the 15th day of JUNE, 1981. This note is secured

by a deed of trust on even date herewith on property

situated in the ANCHORAGE Recording District, THIRD

Judicial District, State of Alaska.

In the event of default in any of the foregoing pay-

ments or in any of the agreements contained in the deed

of trust securing this note, the principal sum then remain-

ing unpaid together with accrued interest thereon shall

J-6

forthwith become due and payable at the election of the

holder of this note. Failure to exercise such option shall

not waive the right to exercise it upon any continuing or

subsequent default. The under-signed jointly and sever-

ally agree to pay all costs and expenses, including attor-

ney’s fees, incurred by the holder of this note in any suit

or proceeding instituted upon this note. In the event of

default in any of the foregoing payments, the holder of

this note may at its option foreclose the deed of trust

securing this note, summarily or by suit.

The makers and each endorser of this note jointly and

severally waive diligence, presentment protest and

demand, and notice of protest, dishonor and non-pay-

ment of this note, expressly agree that this note or any

payment hereunder may be extended from time to time

by any holder hereof, and consent to the acceptance of

further security for this note, without affecting the lia-

bility of any maker or endorser, guarantor and surety of

this note jointly and severally waive the right to plead

any statute of limitation as a defense in collection of this

note for foreclosure of any instrument securing this note.

THIS NOTE is made with reference to and is to be

construed in accordance with the laws of the State of

Alaska. .

LANE + KNORR +

PLUNKETT INVESTMENT

COMPANY, dba LKP

INVESTMENT COMPANY a

partnership consisting of Mic-

hael E. Plunkett and Donald

R. Knorr.

J-7

/s/ Michael E. Plunkett by: /s/ Michael E. Plunkett

Michael E. Plunkett, Michael E. Plunkett,

individually Partner

/s/ Donald R. Knorr by: /s/ Donald R. Knorr

Donald R. Knorr, Donald R. Knorr,

individually Partner

EXHIBIT 2

MODIFICATION OF DEED & TRUST NOTE

FOR VALUABLE CONSIDERATION, it is hereby agreed

by and between Lane+Knorr+Plunkett Investment Com-

pany a/k/a LKP Investment Company a Partner hip,

consisting of Michael E. Plunkett and Donald R. Knorr

FIRST PARTY, and ALASKA BANK OF COMMERCE, an

Alaska Banking Corporation, Second Party, that that cer-

tain Promissory Note dated 2/11/82, in the amount of

$355,600.00 plus interest at Three & One Half percent

(3.50%), Over Prime Fully floating of FIBO Floor 15.0%

payable Interest Monthly and have a remaining balance

of $354,170.92 with interest paid to, secured by a

Deed of Trust dated 2/11/82, recorded 2/22/82, in book

701, Page 0049, in the records of the Anchorage Recording

District, Third Judicial District, State of Alaska, and cov-

ering the following described real property:

SEE ATTACHED LEGAL DESCRIPTION

EXHIBIT “A”, (CONSITING [sic] OF TWO

PAGES, PARCEL A THRU [sic] G).

is hereby amended in the following respect, to

wit:

ALL REMAINING PRINCIPAL AND INTEREST

OWED UNDER THIS NOTE OR ANY DOCU-

MENT SECURING IT PAYMENT SHALL BE

DUE AND PAYABLE IN FULL ON OR BEFORE

12/31/82.

It is further agreed that a copy of this agreement shall

be attached to said note. In all other respects the Note

and Deed of Trust securing the note are hereby ratified

and confirmed.

IN WITNESS WHEREOF the Parties hereto have

hereunder set their hands this __ day of October, 1982.

LANE + KNORR +

ALASKA BANK OF PLUNKETT INVESTMENT

COMMERCE COMPANY a/k/a LKP

INVESTMENT COMPANY, a

By Partnership consisting of Mic-

Charles E. Homan hael E. Plunkett and Donald

Vice President R. Knorr

By /s/ Michael E. Plunkett

Michael E. Plunkett,

Partner

By /s/ Donald R. Knorr

Donald R. Knorr,

Partner

By /s/ Michael E. Plunkett

Michael E. Plunkeit,

Individually

By /s/ Donald R. Knorr

ona . Knorr,

Individually

K-1

APPENDIX K

John S. Hedland, Esq.

HEDLAND, FLEISCHER, FRIEDMAN,

BRENNAN & COOKE

1227 West 9th Avenue, Suite 300

Anchorage, Alaska 99501-3218

907/ 279-5528

Attorneys for Defendant

FIRST INTERSTATE BANCORP

and FIRST INTERSTATE BANK OF OREGON

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

MICHAEL E. PLUNKETT;

LANE + KNORR + PLUNKETT,

Architects and Planners;

LANE + KNORR + PLUNKETT,

Investment Company, and all

others similarly situated,

Plaintiffs,

Case No.

A84-387 CIV

AFFIDAVIT OF

EDMUND J.

BOCK

vs.

FIRST INTERSTATE BANK OF

ALASKA, formerly, Alaska

Bank of Commerce; FIRST

INTERSTATE BANCORP; FIRST

INTERSTATE BANK OF OREGON,

formerly First National Bank

of Oregon; and unknown

defendants DOES 1 through 100,

Defendants.

STATE OF OREGON )

County of Multnomah )

K-2

Edmund J. Bock, first being duly sworn, deposes and

States:

1. I am an Assistant Vice President of First Inter-

state Bank of Oregon, N.A. fka First National Bank of

Oregon and since March, 1987, | have been the manager

of the Financial Institutions Group of this Bank’s Corpo-

rate Banking Group. In my position as manager of the

Financial Institutions Group I am the custodian of the

majority of the correspondent bank files of this Bank,

including the correspondent bank file relating to Alaska

Bank of Commerce, nka First Interstate Bank of Alaska. |

have reviewed this Bank’s entire correspondent banking

file relating to Alaska Bank of Commerce, nka First Inter:

state Bank of Alaska and if called as a witness at trial,

could competently testify to the following:

2. As a correspondent bank of this Bank, Alaska

Bank of Commerce obtained a federal funds borrowing,

line, also referred to as an overnight borrowing line, from

this Bank on March 17, 1981. This line continued in place

until March 31, 1985 when it was terminated. This facility

enabled Alaska Bank of Commerce to borrow funds from

Kirst Interstate Bank of Oregon on an overnight basis.

Banks use a facility like this for short term liquidity

purposes, for example, to enable the bank to borrow on

an overnight basis to meet Federal Reserve Bank reserve

requirements.

3. This Bank had no means and could have no

means of knowing for what purposes Alaska Bank of

Commerce was using the borrowed funds. Further, due to

the short term overnight nature of the borrowing this

Bank could never have tied repayment of these overnight

K-3

borrowings to repayment of any subsequent loans made

by Alaska Bank of Commerce to its Borrowers.

4. The interest rate charged by First Interstate Bank

of Oregon to Alaska Bank of Commerce on the short term

overnight borrowings is what is sometimes referred to as

the Federal Funds rate. This rate is not in any way

pegged to the Bank’s prime rate.

5. It is very common and is in fact necessary for the

efficient operation of the banking system in the United

States for totally unrelated banks to have correspondent

relationships with one another. For instance, First Inter-

state Bank of Oregon, N.A. at the present time has a

correspondent relationship with approximately 39 inde-

pendent non-affiliated banks nationwide.

FURTHER AFFIANT SAYETH NOT.

DATED: 4-28-88

/s/ Edmund J. Bock

Edmund j Bock

Subscribed and sworn to before me this 28 day of

April, 1988.

/s/ Rebecca J. Whitney

Notary Public for Oregon

REBECCA J. WHITNEY

My Commission Expires:

NOTARY PUBLIC OREGON

My Commission Expires 10-12-90

L-1

APPENDIX L

John S. Hedland, Esq.

HEDLAND, FLEISCHER, FRIEDMAN,

BRENNAN & COOKE

1227 West 9th Avenue, Suite 300

Anchorage, Alaska 99501-3218

907 / 279-5528

Attorneys for Defendants

FIRST INTERSTATE BANCORP

and FIRST INTERSTATE BANK OF OREGON

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

MICHAEL E. PLUNKETT;

LANE + KNORR + PLUNKETT,

Architects and Planners;

LANE + KNORR + PLUNKETT,

Investment Company, and Case No.

all others similarly situated, A84-387 Civ

Plaintiffs, AFFIDAVIT OF

KENNETH K.

ae KAUFMANN

FIRST INTERSTATE BANK OF

ALASKA, formerly, Alaska Bank ¢4

Commerce; FIRST INTERSTATE

BANCORP; FIRST INTERSTATE

BANK OF OREGON, formerly,

First National Bank of Oregon; and

unknown defendants DOES |

through 100,

)

Defendants.

)

STATE OF CALIFORNIA )

). &.

COUNTY OF LOS ANGELES )

—

L-2

KENNETH K. KAUFMANN, being duly sworn,

deposes and states:

1. I am the Corporate Secretary of First Interstate

Bancorp, a bank holding company and have previously

executed an Affidavit in this action.

2. I do not know nor am I related to the “Frank

Kauffman” identified in the Complaint as an Employee of

First Interstate Bank of Alaska or any other person named

“Frank Kauffman”.

FURTHER AFFIANT SAITH NOT.

DATED: May 2, 1988

/s/ Kenneth K. Kaufmann

Kenneth K. Kaufmann

SUBSCRIBED AND SWORN TO before me this 2nd

day of May 1988.

/s/ Olga Perez

Notary Public in and for

the State of California

My commission expires:

9-20-89

SEAL

The undersigned hereby swears that

on the 5th day of May, 1989 the

attached documents were mailed to

the attorneys of record.

/s/ Judith M. Perry

Subscribed and sworn to before the

date last written.

/s/ Debra A. Kurgynski

Notary Public

My Commission Expires 6/22/88

M-1

APPENDIX M

John S. Hedland, Esq.

HEDLAND, FLEISCHER, FRIEDMAN,

BRENNAN & COOKE

1227 West 9th Avenue, Suite 300

Anchorage, Alaska 99501-3218

907/279-5528

Attorneys for Defendants

FIRST INTERSTATE BANCORP

and FIRST INTERSTATE BANK OF OREGON

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

MICHAEL E. PLUNKETT;

LANE + KNORR + PLUNKETT,

Architects and Planners;

LANE + KNORR + PLUNKETT,

investment Company, and

all others similarly situated,

Plaintiffs,

Case No.

A84-387 Civ

AFFIDAVIT OF

LEE C. NUSICH

VS.

)

FIRST INTERSTATE BANK OF

ALASKA, formerly, Alaska Bank of )

Commerce; FIRST INTERSTATE )

BANCORP; FIRST INTERSTATE )

BANK OF OREGON, formerly, )

First National Bank of Oregon; and )

unknown defendants DOES | )

through 100, )

)

Defendants.

STATE OF OREGON )

County of Multnomah _)

M-2

Lee C. Nusich, first being duly sworn, deposes and

states:

1. laman Associate General Counsel for First Inter-

state Bank of Oregon, N.A. fka First National Bank of

Oregon and have held that position since November 1,

1982.

2. First Interstate Bank of Oregon, N.A., was sued in

Lane County Circuit Court, State of Oregon by Robert P.

McWhorter in February of 1983. A copy of McWhorter’s

First Amended and Supplemental Complaint which was

filed in that proceeding and which sets forth McWhor-

ter’s theory of the case is attached hereto as Exhibit A

and hereby made a part hereof.

3. This case continued in Lane County Circuit Court

until it was finally dismissed with prejudice pursuant to

settlement on or about April 27, 1987. The case was

dismissed by the Circuit Court without the preparation of

a formal Judgment of Dismissal. The Circuit Court did,

however, send to all parties its official notice that Judg-

ment of Dismissal was entered on April 27, 1987. A copy

of that notice from the Lane County Circuit Court evi-

dencing the dismissal having been entered in the records

of the Lane County Circuit Court is attached hereto as

Exhibit B and hereby made a part hereof.

FURTHER AFFIANT SAYETH NOT.

DATED: April 29, 1988

/s/ Lee C. Nushich

Lee C. Nusich

M-3

Subscribed and sworn to before me this 29 day of

April, 1988.

/s/ Rebecca J. Whitney

Notary Public for Oregon

My Commission Expires: 10-12-90

EXHIBIT A

IN THE CIRCUIT COURT OF THE STATE OF

OREGON FOR LANE COUNTY

ROBERT P. McWHORTER, ) Case No.

‘ ) FIRST AMENDED AND

vs ) SUPPLEMENTAL

FIRST INTERSTATE BANK Pe Se :

OF OREGON, N.A., a Pe one

national banking YC — . _—e

oentttntiogs ontract; Outrageous

‘ ) Conduct; Deceit)

Defendant. )

)

Plaintiff Robert P. McWhorter, for his first separate

claim for relief, alleges:

(Breach of Contract)

At times material herein, Plaintiff was a resident of

Eugene, Lane County, Oregon.

M-4

Defendant is, and at all times herein mentioned, was

a national banking association, existing under the laws of

the United States, doing business in the County of Lane,

State of Oregon, under the laws of the State of Oregon.

On June 11, 1969, Plaintiff and Defendant mutually

agreed that Plaintiff should work for Defendant and that

Defendant should employ Plaintiff. Plaintiff commenced

working for Defendant on October 6, 1969. On January

25, 1982, Plaintiff was employed by Defendant as a Vice

President and Branch Manager VII, and employee with a

grade ranking of 18.

At all times mentioned herein Defendant had in

effect published personnel policies, which provided that

the policies applied to any employee in that bank and

defined employee as officer and non-officer alike, and

further, that every employee considered for dismissal

would receive completely fair and equitable treatment. At

all times mentioned herein Defendant had in effect pub-

lished procedures to be followed as a precondition to

termination and before the termination would become

effective. Defendant continued to publish its personnel

policies and to amend the personnel policies at all times

herein and expected Plaintiff to be bound thereby.

M-5

At all times mentioned herein the policy and pro-

cedures above constituted conditions of employment

agreed upon between Defendant and Plaintiff. These con-

ditions restricted Defendant's right to terminate Plain-

tiff’s employment. These conditions were part of the

consideration for Plaintiff's continuing employment ser-

vices.

Plaintiff duly performed all work required of him by

Defendant and complied with all agreed conditions of

employment.

Vil

On January 25, 1982, without complying with the

above-described policy and procedure, Defendant termi-

nated Plaintiff's employment. Plaintiff was not dis-

charged by act of the Board of Directors of Defendant,

and Plaintiff, as an employee of grade 18, was not

afforded the opportunity, in accordance with Defendant’s

published policy manual, to appear before an evaluation

committee which is generally comprised of the Chairman

of the Board, Vice Chairman of the Board, President, and

Executive Vice President, although such appearance was

requested by Plaintiff.

VIII

Thereafter, on April 30, 1982, Defendant discontinued

Plaintiff's salary and benefits.

Defendant breached its employment agreement with

Plaintiff by terminating his employment and discontinu-

ing his salary and benefits without first complying with

its policies and procedures for effecting the dismissal of

an employee. Defendant did not treat Plaintiff fairly and

equitably in dismissing him, nor did it determine that he

had been treated fairly and equitably prior to dismissing

him.

On or about January 25, 1982, and at various times

thereafter, Plaintiff notified Defendant of this breach.

Since April 30, 1982, Plaintiff has continuously held

himself out as able and willing to continue employment

services for Defendant, but Defendant has refused to

reinstate him. Plaintiff has also requested that Defendant

comply with its procedures and policies for effecting

termination, but it has refused.

XII

At the time of his termination, Plaintiff was paid an

annual salary of $46,000, and received benefits with the

then potential value of approximately $500,000 all as

consideration for his employment services.

M-7

XIll

As a result of the conduct of Defendant and its offi-

cers, Plaintiff has suffered financial losses and expenses.

The losses include lost wages while seeking replacement

employment, lost future income in obtaining less remu-

nerative replacement employment, and depletion of his

savings. The expenses include the costs of locating and

obtaining replace: :nt employment, commuting to the

location of the replacement employment, maintaining a

separate residence there, and borrowing funds. These

losses and expenses total $868,000.

XIV

Defendant's conduct as alleged hereinabove has been

willful, wanton, malicious, and in disregard of societal

interests and the rights of the Plaintiff. For this conduct,

Defendant should be assessed punitive damages in the

sum of $1,500,000.

By virtue of Defendant’s breach of the employment

agreement and its continued refusal to reinstate Plaintiff,

or comply with its policies and procedures, Plaintiff has

been generally damaged in the sum of $1,404,000 and will

continue to be damaged.

(Breach of Implied Contract)

For a second separate claim for relief, Plaintiff

alleyes:

M-8

Re-alleges paragraphs I through VIII and X through

XV of the first claim for relief.

Defendant breached its employment agreement with

Plaintiff by terminating his employment and discontinu-

ing his salary and benefits without just cause and: (1)

without first determining whether facts constituting just

cause existed, (2) without first complying with its pub-

lished policies and procedures for determining whether

facts constituting just cause existed, and, for effecting the

dismissal of an employee, (3) without first advising Plain-

tiff that his performance of the duties and responsibilities

assigned him was unsatisfactory and that termination

was being considered, and (4) without first affording him

an opportunity to establish that no just cause existed or to

improve his performance, having afforded other

employees similarly situated the opportunity to do so.

The published personnel policies provide that the

requirements of this paragraph II (1), (2), (3), and (4) are

to be complied with by the Defendant prior to Plaintiff's

dismissal as an employee.

(Outrageous Conduct)

For a third separate claim for relief, Plaintiff alleges;

Re-alleges paragraphs, I, II and III of the first claim

for relief.

Defendant consistently commended Plaintiff in

annual evaluations of his performance of the respon-

sibilities and duties assigned him. He was successively

promoted from assistant cashier to Assistant Manager to

assistant Vice President to Vice President & Manager,

going from grade 7 to grade 18, all within an excep-

tionally short period of time. He received corresponding

increases in salary, as well as increases in responsibility

and duty. Defendant led Plaintiff to believe that his per-

formance and advancement so far had been prodigious,

and that he would continue to be advanced in position,

responsibility, duty and salary. Plaintiff was in good

health, was thirty-seven (37) years of age, and had

expected to work for defendant until his retirement.

Plaintiff’s last performance evaluation took place effec-

tive July 1, 1981 and stated, among other things:

“That the Eugene Main Branch is the largest

branch in region 2 and requires considerable

amount of managerial skill and talent which bob

possesses . . . This is evidenced by the very

aggressive and successful calling program and

has been responsible for developing . . . new

customer loans and . . . new customer deposits,

plus substantial business with the existing cus-

tomers since January, 1981. Bob’s calls are docu-

mented outside . . . which attest to his active

calling posture. It is through demonstrated lead-

ership ability and proper delegation that he

enjoys the respect of his staff and promotes

good customer service in the Eugene area.”

M-10

Ill

On January 25, 1981, Bill Davidson and Robert Derby,

senior officers of Defendant corporation, having previ-

ously met with each other and determined to terminate

Plaintiff, met with Plaintiff and informed his that he was

relieved of his position of employment with Defendant

without following published personnel policies.

Defendant had not previously indicated to Plaintiff

that Defendant considered Plaintiff’s job performance to

be unsatisfactory nor that Defendant contemplaied reliev-

ing him of his position as branch manager, vice president

or employee grade. On the contrary, Plaintiff’s immediate

prior performance evaluation of July 1, 1981 commended

his performance.

The reasons given to Plaintiff by Davidson and Derby

at the January 25th meeting for the decision to retieve

him were untrue or unfounded as related to Plaintiff’s job

performance. Plaintiff was given no prior notice of the

reasons nor an opportunity to refute the reasons or chal-

lenge the decision, nor an opportunity to correct the

alleged failure of performance, which opportunity had

been given to another individual.

At the January 25th meeting, Davidson and Derby

advised Plaintiff that his employment was not terminated

M-i1

but only his position as branch manager and that Defen-

dant would attempt to relocate him in a comparable

position in Defendant corporation or with an affiliated

corporation. In fact, Plaintiff's employment had been ter-

minated at the January 25th meeting. Defendant had pre-

viously determined that the discharge was irrevocable,

and Defendant did not intend to relocate or reinstate him,

although it led Plaintiff to believe otherwise on several

occasions. Defendant attempted to solicit the assistance of

a senior vice president to obtain consideration under the

‘policy manual and was summarily refused and advised

that the decision was that vice president’s and it was

final.

Vil

Defendant’s conduct was willful and in violation of

its published policies and procedures for treatment of

employees on a fair basis, equally, and effecting the dis-

missal of an employee of Plaintiff’s grade level.

VIII

As a result of Defendant’s conduct, Plaintiff has suf-

fered severe emotional distress, including shock, disap-

pointment, humiliation, anxiety and worry. Plaintiff, in

addition to the monetary losses herein alleged, has also

suffered losses of self-esteem and self-confidence.

By virtue of Defendant’s conduct Plaintiff has been

damaged in the amount of $1,500,000.

M-1i2

Defendant’s conduct was intended to inflict severe

emotional distress or was reckless of the conduct’s pre-

dictable effects on Plaintiff. As a consequence, Plaintiff is

entitled to the sum of $1,500,000 in punitive damages.

(Deceit)

For a fourth separate claim for relief, Plaintiff alleges:

Re-alleges paragraphs I, II, Ill, X and XII of the first

claim for relief.

On January 25, 1982, Bill Davidson and Robert Derby,

senior officers of Defendant corporation, met with Plain-

tiff and informed him that he was relieved of his position

of employment with Defendant.

II]

During the period of Plaintiff’s employment, Defen-

dant represented to Plaintiff that he would be treated

fairly and equitably in all facets of the employment rela-

tion, and especially in the event of the termination of his

employment. Defendant further represented that it would

comply with published policies and procedures in the

event of termination of Plaintiff's employment. Finally,

Defendant or its officers represented to Plaintiff at the

January 25th meeting that his employment was not then

M-13

terminated and that Defendant would attempt to relocate

him in another position within Defendant corporation or

with an affiliated corporation, Defendant intended Plain

tiff to rely on these representations.

These representations were false in that Defendant did

not, and did not intend to, comply with its published

policies and procedures and did not intend to treat Plain

tiff equitably and fairly in terminating his employment,

in that Defendant did not, and did not intend to, follow

its published procedures and policies in effecting his

dismissal and did intend to rely on 12 U.S.C., Section 24

(Fifth) which it alleges allows Plaintiff to be dismissed at

Will; in that Plaintiff's employment was in fact terminated

at the January 25th meeting. The termination was irrevo

cable, and Defendant did not, and did not intend to,

relocate or reinstate Plaintiff, nor did it intend to follow

its manual with reference to the Plaintiff after he became

an officer, and Defendant at the time it induced Plaintiff

to become an officer and published its personnel manual

and intended to, and did, assert U.S.C. Section 24 (Fifth)

and had no intention of being bound, despite its asser

tions that it applied to all its employees when it pub

lished its manual, officers and non-officers alike.

Plaintiff was at all times material unaware that

Defendant did not intend to treat him in accordance with

its published policy manual or to treat him equitably and

fairly in effecting his dismissal, that Defendant did not

M-14

intend to follow its procedures and policies for effecting

his dismissal, nor that the Defendant did intend to rely

on 12.U.S.C, Section 24 (Fifth), when his employment was

terminated at the January 25th meeting, and that Defen-

dant did not intend to relocate or reinstate him,

As a result of the conduct of Defendant and its offi-

cers, Plaintiff, by virtue of his reliance on the truthfulness

of Defendant's representations, has suffered financial

losses and expenses, The losses include lost wages while

secking replacement employment, lost future income in

obtaining less remunerative replacement employment,

and depletion of his savings. The expenses include the

costs of locating and obtaining replacement employment,

commuting to the location of the replacement employ

ment, maintaining a separate residence there, and bor

rowing funds, These losses and expenses total $868,000.

Vil

As a result of Defendant and its officers before his

termination and subsequent thereto, Plaintiff has suffered

severe emotional distress, including shock, disappoint:

ment, humiliation, anxiety and worry. Plaintiff has also

suffered losses of self-esteem and self-confidence, as well

as damage to his reputation,

M-15

Vill

By virtue of his reliance upon the truthfulness of

Defendant's representations, Plaintiff has been generally

damaged in the amount of $1,500,000.

Defendant and its officers made the representations

maliciously, wilfully or recklessly, in complete disregard

for the predictable detrimental consequences for Plaintiff

in the event of his reliance. Therefore, Plaintiff is entitled

to the sum of $1,500,000 in punitive damages.

WHEREFORE, Plaintiff demands judgment:

1. In favor of Plaintiff in the amount of $868,000 in

special damages, $1,404,000 in genera) Gamages and

$1,500,000 .in punitive damages on the fivst claim for

relief;

2. In favor of Plaintiff in the amount of $868,000 in

special damages, $1,404,000 in general damages and

$1,500,000 in punitive damages on the second claim for

relief;

3. In favor of Plaintiff in the amount of $1,500,000 in

general damages and $1,500,000 in punitive damages on

the third claim for relief;

4. In favor of Plaintiff in the amount of $868,000 in

special damages, $1,500,000 in general damages and

$1,500,000 in punitive damages on the fourth claim for

relief;

5. For Plaintiff's costs and disbursements incurred

herein;

M-16

6. For such other and further relief as the court may

deem just and equitable.

LUVAAS, COBB, RICHARDS &

FRASER, P.C.

Attorneys for Plaintiff

By:

ROBERT H. FRASER

OSB NO. 59033

* * *

I certify that the foregoing First Amended and Sup-

plemental Complaint, is a true, exact and complete copy

of the original.

DATED: May 20, 1983 /s/ Robert H. Fraser

One of Attorneys for Plaintiff

* * *

EXHIBIT B

CIRCUIT COURT FOR LANE COUNTY

Second Judicial District

TO: Balmer Thomas A -ot

222 Sw Columbia Street

Portland Or 97201

M-17

In accordance with ORCP 70B(1) you are hereby notified

that judgment was entered in the case noted below.

MCWHORTER ROBERT P/FIRST INTERSTATE BANK

OF OR NA

CASE NO.: 168301030

DATE FILED: 04/27/87

DATE ENTERED: 04/27/87

JUDGE: . Maurice K. Merten

N-1

APPENDIX N

Statutes and Civil Rules

15 U.S.C. Sec. 1

§ 1. Trusts, etc., in restraint of trade illegal; exception

of resale price agreements; penalty

Every contract, combination in the form of trust or

otherwise, or conspiracy, in restraint of trade or com-

merce among the several States, or with foreign nations,

is declared to be illegal: Provided, That nothing contained

in sections 1 to 7 of this title shall render illegal, contracts

or agreements prescribing minimum prices for the resale

of a commodity which bears, or the label or container of

which bears, the trademark, brand, or name of the pro-

ducer or distributor of such commodity and which is in

free and open competition with commodities of the same

general class produced or distributed by others, when

contracts or agreements of that description are lawful as

applied to intrastate transactions, under any statute, law,

or public policy now or hereafter in effect in any State,

Territory, or the District of Columbia in which such resale

is to be made, or to which the commodity is to be trans-

ported for such resale, and the making of such contracts

or agreements shall not be an unfair method of competi-

tion under section 45 of this title: Provided further, That

the preceding proviso shall not make lawful any contract

or agreement, providing for the establishment or mainte-

nance of minimum resale prices on any commodity herein

involved, between manufacturers, or between producers,

or between wholesalers, or between brokers, or between

factors, or between retailers, or between persons, firms,

or corporations in competition with each other. Every

person who shall make any contract or engage in any

N-2

combination or conspiracy declared by sections 1 to 7 of

this title to be illegal shall be deemed guilty of a misde-

meanor, and, on conviction thereof, shall be punished by

fine not exceeding fifty thousand dollars, or by imprison-

ment not exceeding one year, or by both said punish-

ments, in the discretion of the court.

28 U.S.C. Sec. 1254

§ 1254. Courts of appeals; certiorari; appeal; certified

questions ~

Cases in the courts of appeals may be reviewed by

the Supreme Court by the following methods:

(1) By writ of certiorari granted upon the petition of

any party to any civil or criminal case, before or after

rendition of judgment or decree;

18 U.S.C. Sec. 1961

§ 1961. Definitions

As used in this chapter -

(1) “racketeering activity” means (A) any

act or th:at involving murder, kidnapping,

gambling, arson, robbery, bribery, extortion,

dealing in obscene matter, or dealing in narcotic

or other dangerous drugs, which is chargeable

under State law and punishable by imprison-

ment for more than one year; (B) any act which

is indictable under any of the following provi> ~~

sions of title 18, United States Code: Section 201

(relating to bribery), section 224 (relating to

sports bribery), sections 471, 472, and 473 (relat-

ing to counterfeiting), section 659 (relating to

theft from interstate shipment) if the act indict-

able under section 659 is felonious, section 664

N-3

(relating to embezzlement from pension and

welfare funds), sections 891-894 (relating to

extortionate credit transactions), section 1029

(relative to fraud and related activity in connec-

tion with access devices), section 1084 (relating

to the transmission of gambling information),

section 1341 (relating to mail fraud), section

1343 (relating to wire fraud), section 1344 (relat-

ing to financial institution fraud), sections

1461-1465 (relating to obscene matter), section

1503 (relating to obstruction of justice), section

1510 (relating to obstruction of criminal investi-

gations), section 1511 (relating to the obstruction

of State or local law enforcement), section 1512

(relating to tampering with a witness, victim, or

an informant), section 1513 (relating to retaliat-

ing against a witness, victim, or an informant),

section 1951 (relating to interference with com-

merce, robbery, or extortion), section 1952 (relat-

ing to racketeering), section 1953 (relating to

interstate transportation of wagering parapher-

nalia), section 1954 (relating to unlawful welfare

fund payments), section 1955 (relating to the

prohibition of illegal gambling businesses), sec-

tion 1956 (relating to the laundering of mone-

tary instruments), section 1957 (relating to

engaging in monetary transactions in property

derived from specified unlawful activity), sec-

tion 1958 (relating to use of interstate commerce

facilities in the commission of murder-for-hire),

sections 2251-2252 (relating to sexual exploita-

tion of children), sections 2312 and 2313 (relat-

ing to interstate transportation of stolen motor

vehicles), sections 2314 and 2315 (relating to

interstate transportation of stolen property), sec-

tion 2321 (relating to trafficking in certain motor

vehicles or motor vehicle parts), sections 2341-

2346 (relating to trafficking in contraband ciga-

rettes), sections 2421-24 (relating to white slave

traffic), (C) any act which is indictable under

title 29, United States Code, section 186 (dealing

N-4

with restrictions on payments and loans to labor

organizations) or section 501(c) (relating to

embezzlement from union funds), (D) any

offense involving fraud connected with a case

under title 11, fraud in the sale of securities, or

the felonious manufacture, importation, receiv-

ing, concealment, buying, selling, or otherwise

dealing in narcotic or other dangerous drugs,

punishable under any law of the United States,

or (E) any act which is indictable under the

Currency and Foreign Transaction Reporting

Act;

(2) “State” means any State of the United

States, the District of Columbia, the Common-

wealth of Puerto Rico, any territory or posses-

sion of the United States, any political

subdivision, or any department, agency, or

instrumentality thereof;

(3) “person” includes any individual or

entity capable of holding a legal or beneficial

interest in property;

(4) “enterprise” includes any individual,

partnership, corporation, association, or other

legal entity, and any union or group of individ-

uals associated in fact although not a legal

entity;

(5) “pattern of racketeering activity”

requires at least two acts of racketeering activity,

one of which occurred after the effective date of

this chapter and the last of which occurred

within ten years (excluding any period of

imprisonment) after the commission of @ prior

act of racketeering activity; y

a P #

(6) “unlawful debt” means. a debt (A)

incurred or contracted in gambling activity

which was in violation of the law of the United

States, a State or political subdivision thereof, or

which is unenforceable under State or Federal

N-5

law in whole or in part as to principal or interest

because of the laws relating to usury, and (B)

which was incurred in connection with the busi-

ness of gambling in violation of the law of the

United States, a State or political subdivision

thereof, or the business of lending money or a

thing of value at a rate usurious under State of

Federal law, where the usurious rate is at least

twice the enforceable rate;

(7) “racketeering investigator” means any

attorney or investigator so designated by the

Attorney General and charged with the duty of

enforcing or carrying into effect this chapter;

(8) “racketeering investigation” means any

inquiry conducted by any-racketeering investi-

gator for the purpose of ascertaining whether

any person has been involved in any violation of

this chapter or of any final order, judgment, or

decree of any court of the United States, duly

entered in any case or proceeding arising under

this chapter;

(9) “documentary material” includes any

book, paper, document, record, recording, or

other material; and

(10) “Attorney General” includes the

Attorney General of the United States, the Dep-

uty Attorney General of the United States, the

Associate Attorney General of the United States,

any Assistant Attorney General of the United

State, or any employee of the Department of

Justice or any employee of any department or

agency of the United States so designated by the

Attorney General to carry out the powers con-

ferred on the Attorney General by this chapter.

Any department or agency so designated may

use in investigations authorized by this chapter

either the investigative provisions of this chap-

ter or the investigative power of such depart-

ment or agency otherwise conferred by law.

N-6

FEDERAL RULES OF CIVIL PROCEDURE

Rule 56. Summary Judgment

(a) For Claimant. A party seeking to recover upon a

claim, counterclaim, or cross-claim or to obtain a declara-

tory judgment may, at any time after the expiration of 20

days from the commencement of the action or after ser-

vice of a motion for summary judgment by the adverse

party, move with or without supporting affidavits for a

summary judgment in the party’s favor upon all or any

part thereof.

(b) For Defending Party. A party against whom a

claim, counterclaim or cross-claim is asserted or a declar-

atory judgment is sought may, at any time, move with or

without supporting affidavits for a summary judgment in

the party’s favor as to all or any part thereof.

shall be served at least 10 days before the time fixed for

the hearing. The adverse party prior to the day of hearing

may serve opposing affidavits. The judgment sought shall

be rendered forthwith if the pleadings, depositions,

answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law. A

summary judgment, interlocutory in character, may be

rendered on the issue of liability alone although there is a

genuine issue as to the amount of damages.

(d) Case Not Fully Adjudicated on Motion. If on

motion under this rule judgment is not rendered upon the

N-7

whole case or for all the relief asked and a trial is neces-

sary, the court at the hearings of the motion, by examin-

ing the pleadings and the evidence before it and by

interrogating counsel, shall if practicable ascertain what

material facts exist without substantial controversy and

what material facts are actually and in good faith contro-

verted. It shall thereupon make an order specifying the

facts that appear without substantial controversy, includ-

ing the extent to which the amount of damages or other

relief is not in controversy, and directing such further

proceedings in the action as are just. Upon the trial of the

action the facts so specified shall be deemed established,

and the trial shall be conducted accordingly.

(e) Form of Affidavits; Further Testimony; Defense

Required. Supporting and opposing affidavits shall be

made on personal knowledge, shall set forth such facts as

would be admissible in evidence, and shall show affirma-

tively that the affiant is competent to testify to the mat-

ters stated therein. Sworn or certified copies of all papers

or parts thereof referred to in an affidavit shall be

attached thereto or served therewith. The court may per-

mit affidavits to be supplemented or opposed by deposi-

tions, answers to interrogatories, or further affidavits.

When a motion for summary judgment is made and sup-

ported as provided in this rule, an adverse party may not

rest upon the mere-allegations or denials of the adverse

party’s pleading, but the adverse party’s response, by

affidavits or as otherwise provided in this rule, must set

forth specific facts showing that there is a genuine issue

for trial. If the adverse party does not so respond, sum-

mary judgment, if appropriate, shall be entered against

the adverse party.

N-8

(f) When Affidavits are Unavailable. Should it

appear from the affidavits of a party opposing the motion

that the party cannot for reasons stated present by affi-

davit facts essential to justify the party’s opposition, the

court may refuse the application for pidgment or may

order a continuance to permit affidavits to be obtained or

depositions to be taken or discovery to be had or may

make such other order as is just.

(g) Affidavits Made in Bad Faith. Should it appear

to the satisfaction of the court at any time that any of the

affidavits presented pursuant to this rule are presented in

bad faith or solely for the purpose of delay, the court

shall forthwith order the party employing them to pay to

the other party the amount of the reasonable expenses

which the filing of the affidavits caused the other party to

incur, including reasonable attorney’s fees, and any

offending party or attorney may be adjudged guilty of

contempt.

(as amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21,

1963, eff. July 1, 1963; Mar. 2, 1987, eff. Aug. 1, 1987.)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.