MGIC Indem. Corp. v. Weisman, Nos. 85-1827

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore NELSON, WIGGINS and JOHN T. NOONAN, Jr.; NOONAN
Citation803 F.2d 500
Docket NumberNos. 85-1827,85-2328 and 85-2792
Decision Date05 December 1986
PartiesRICO Bus.Disp.Guide 6436 MGIC INDEMNITY CORPORATION, Plaintiff-Appellant, v. Lawrence I. WEISMAN, Thomas P. Dunn, L.N. Nevels, Jr., and Henry K.F. Kersting, Defendants-Appellees.

Page 500

803 F.2d 500
RICO Bus.Disp.Guide 6436
MGIC INDEMNITY CORPORATION, Plaintiff-Appellant,
v.
Lawrence I. WEISMAN, Thomas P. Dunn, L.N. Nevels, Jr., and
Henry K.F. Kersting, Defendants-Appellees.
Nos. 85-1827, 85-2328 and 85-2792.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Aug. 13, 1986.
Decided Oct. 27, 1986.
As Amended Dec. 5, 1986.

Page 501

Lisa W. Munger, Goodsill, Anderson, Quinn & Stifel, Honolulu, Hawaii, for plaintiff-appellant.

Page 502

Rick J. Eichor, Rice, Lee & Wong, Joseph Schneider, Conklin, Schneider & Love, Roger S. Moseley, James T. Leavitt, John Yamane, Thomas P. Dunn, Honolulu, Hawaii, for defendants-appellees.

Appeal from the United States District Court for the District of Hawaii.

Before NELSON, WIGGINS and JOHN T. NOONAN, Jr., Circuit Judges.

NOONAN, Circuit Judge.

MGIC Indemnity Corporation (MGIC), a New York corporation, appeals the dismissal for failure to state a claim upon which relief can be granted of its suit against Lawrence I. Weisman, a citizen and resident of Maryland, and against Thomas P. Dunn, L.N. Nevels, Jr., and Henry K.F. Kersting, citizens and residents of Hawaii. MGIC also appeals the award of attorneys' fees against it. We affirm the dismissal and the award of fees. We remand for a new hearing on the fees.

The Timeliness of MGIC's Appeal. The clerk of the district court originally entered judgment dismissing MGIC's amended complaint on November 29, 1984. This judgment contained a clerical error. The clerk corrected the error, whited out the November 29 date, and entered the date of judgment on the docket sheet as December 4, 1984.

If November 29, 1984 is the true date, MGIC was untimely in filing its appeal. Its counsel admittedly had notice of a memorandum from the clerk with November 29, 1984 indicated as the date of judgment. As the record now stands, however, December 4, 1984 is the correct date. In the circumstances of this case, we think it would be harsh, overtechnical, and contrary to substantive justice to hold MGIC was bound by the earlier date. The appeal was timely taken.

MGIC's Complaint. On February 19, 1979 MGIC became the insurer for at least one year of directors and officers of First Savings and Loan Association of Honolulu (First Savings). On February 25, 1980 First Savings was placed in receivership. Litigation followed.

On January 16, 1980 MGIC filed a complaint against the four defendants here, essentially charging them with conspiracy to obtain money from MGIC by instigating collusive litigation against the directors of First Savings after the collapse. The complaint in Count I charged breach of fiduciary duty, breach of contract, malpractice, and fraud. Count II charged violation of RICO, 18 U.S.C. Sec. 1962; Count III, violation of Hawaiian law; Count IV asked for punitive damages. This eight-page complaint, notably deficient in specifics, was dismissed by the district court in April 1984.

In May 1984, MGIC filed an amended complaint. For purposes of this appeal but only for such purposes we treat the allegations of the complaint as true. According to the complaint, Kersting, a shareholder of First Savings, and other shareholders had, in late February or early March 1980, engaged Weisman to recover their investment in First Savings. Weisman concluded that it would be to the advantage of the stockholders if they successfully sued the directors and thus obtained payment by MGIC of the insurance covering errors and omissions of the directors. On March 10, 1980, Weisman wrote the receiver, the Federal Savings and Loan Insurance Corporation (FSLIC), urging it to sue the directors. Later in the month Weisman arranged for letters to be sent to Dennis Alexander and Michael Provan, former directors of First Savings, notifying them that the stockholders would hold them liable and would expect their insurer to pay. On March 20, 1980, Weisman brought suit on behalf of Alexander and Provan in the federal district court. The suit was for a declaratory judgment that First Savings' insurance with MGIC was in full force and effect. The defendant was MGIC.

On June 26, 1980, as a result of further activity of Weisman and Kersting, a plaintiff named J. Ward Russell sued the directors of First Savings. He was represented by Nevels, a lawyer obtained for him by Weisman. This state suit was entitled Russell v. Takasaki. Weisman and

Page 503

Dunn assumed the defense of the defendant directors. The suit was dismissed on March 31, 1981. Weisman billed MGIC $7,500 for his defense of the directors and was paid.

On May 4, 1981 Weisman on behalf of Kersting wrote a letter to FSLIC demanding that it bring suit against the directors of First Savings. On June 17, 1981 Weisman on behalf of First Savings sought a writ of mandamus in the federal district court to compel FSLIC to sue the directors. On August 24, 1981 Weisman wrote FSLIC a letter containing information designed to stimulate such a suit. This letter contained confidential information obtained from MGIC. By January 29, 1982 Weisman had negotiated an agreement with First Hawaiian Bank by which this bank, in return for releases from various clients of Weisman, agreed to sue the First Savings directors. The suit was brought February 24, 1982 in the state court. Weisman negotiated a similar agreement dated May 31, 1982 with FSLIC, which brought its suit on June 19, 1982 in the federal district court.

On May 10, 1982 Dunn, Weisman's associate, filed an answer for Alexander in the suit by First Hawaiian. On June 22, 1982, Dunn filed an answer in the same suit on behalf of Kersting. On July 19, 1982, Dunn filed answers for both Alexander and Kersting in the FSLIC suit. On October 20, 1982 Dunn billed MGIC for his work in defending both suits and in November 1982 Dunn received payment by MGIC in the amount of $12,413.

According to MGIC, it was not informed by Weisman and Dunn that they had instigated the suits in which they represented the defendants and were paid by MGIC.

On the basis of these facts MGIC asserted that it had suffered damages "in excess of $10,000," due to Weisman and Dunn's...

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1312 practice notes
  • Kythera Biopharmaceuticals, Inc. v. Lithera, Inc., No. CV 13–6338 RSWL (SSx).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • February 20, 2014
    ...of public record outside the pleadings.” Plevy v. Haggerty, 38 F.Supp.2d 816, 821 (C.D.Cal.1998) (citing MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir.1986); Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d Cir.1991)). Such public records include Securities and Exchange Commiss......
  • US v. McCombs-Ellison, No. 87-CV-1475L.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • June 21, 1993
    ...to the standard of deference to the district court's decision regarding the award of attorney's fees. In MGIC Indemnity Corp. v. Weisman, 803 F.2d 500 (9th Cir.1986), the Ninth Circuit held that "the district court was not plainly wrong ... and ... did not abuse its discretion" when it deni......
  • Gonzalez v. Dep't (Bureau) of Real Estate, No. 2:15-cv-2448 GEB GGH PS
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • February 1, 2016
    ...court takes judicial notice of the state court opinion. A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 2. Plaintiff has named defendant Cal-Western Reconveyance......
  • Ungureanu v. A. Teichert & Son, No. CIV S-11-0316 LKK GGH PS
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • October 12, 2011
    ...over 200 pages from their matter before the WCAB. A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). However, not all court records are equal with respect to the ab......
  • Request a trial to view additional results
1307 cases
  • Kythera Biopharmaceuticals, Inc. v. Lithera, Inc., No. CV 13–6338 RSWL (SSx).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • February 20, 2014
    ...of public record outside the pleadings.” Plevy v. Haggerty, 38 F.Supp.2d 816, 821 (C.D.Cal.1998) (citing MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir.1986); Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d Cir.1991)). Such public records include Securities and Exchange Commiss......
  • US v. McCombs-Ellison, No. 87-CV-1475L.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • June 21, 1993
    ...to the standard of deference to the district court's decision regarding the award of attorney's fees. In MGIC Indemnity Corp. v. Weisman, 803 F.2d 500 (9th Cir.1986), the Ninth Circuit held that "the district court was not plainly wrong ... and ... did not abuse its discretion" when it deni......
  • Gonzalez v. Dep't (Bureau) of Real Estate, No. 2:15-cv-2448 GEB GGH PS
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • February 1, 2016
    ...court takes judicial notice of the state court opinion. A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 2. Plaintiff has named defendant Cal-Western Reconveyance......
  • Ungureanu v. A. Teichert & Son, No. CIV S-11-0316 LKK GGH PS
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • October 12, 2011
    ...over 200 pages from their matter before the WCAB. A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). However, not all court records are equal with respect to the ab......
  • Request a trial to view additional results

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