Unpublished Disposition, 902 F.2d 1579 (9th Cir. 1990)

MEMORANDUM^** 

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 Interstate 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 Insurance 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 section 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 conspiracy, interference with contract, interference with prospective economic advantage, intentional infliction of emotional distress, and an assortment of so-called "prima facie torts of various descriptions," including "gross negligence, 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 presented 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 district 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 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 incarnation, Wilcox v. First Interstate Bank of Oregon, 815 F.2d 522 (9th Cir. 1987), where summary judgment for defendant 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 misrepresented 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 activities 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 Building 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 antitrust 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 not enough. Id. at 526. Plunkett has failed to demonstrate that FIBA's pegging of its rate to that of FIBO was anything 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 misrepresentation 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 conspired 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 exercise of discretion, Jones v. Community Redevelopment Agency, 733 F.2d 646, 651 (9th Cir. 1984).

The district court is AFFIRMED.