# Opposition Brief — Plunkett v. Federal Deposit Insurance

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1990
- **Citation:** 498 U.S. 985

## Text

3) i

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.

a
—

On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit

é.
4

BRIEF IN OPPOSITION OF RESPONDENTS
FIRST INTERSTATE BANK CORPORATION AND
FIRST INTERSTATE BANK OF OREGON

le
-

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

2

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?

ii

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.

iv

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% ,

Vv

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.

vi

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

ix

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

x

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

———————

xi

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

,%
vw

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,

V.

FEDERAL DEPOSIT INSURANCE CORPORATION,
Receiver of First Interstate Bank of Alaska,
FIRST INTERSTATE BANK CORPORATION;

FIRST INTERSTATE BANK OF OREGON,

Respondents.

a.
vy

On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit

yX%
wr

BRIEF IN OPPOSITION OF RESPONDENTS
FIRST INTERSTATE BANK CORPORATION AND
FIRST INTERSTATE BANK OF OREGON

a.
—

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...
4

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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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

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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

10

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 ,%
4

11

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. .

12

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

13

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.

14

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

15

. 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

16

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

17

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.

18

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.

19

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

20

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.

21

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.

22

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).

2

23

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.

Ps

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

ne

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,

eS

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.

V.
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:

ma

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.

ee

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,

)
)
)
)
)
)
)
)
)
)
)
fp
)
)

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 _)

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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:

I

(Breach of Contract)

At times material herein, Plaintiff was a resident of
Eugene, Lane County, Oregon.

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II

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.

Il

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.

IV

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

V

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.

Vi

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.

1X

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.

X

On or about January 25, 1982, and at various times
thereafter, Plaintiff notified Defendant of this breach.

Xl

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.

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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.

XV

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

I

Re-alleges paragraphs I through VIII and X through
XV of the first claim for relief.

II

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 be

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_3000%3A3. Public record. Not legal advice.