UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) WINSTON & STRAWN, LLP, ) ) Plaintiff, ) ) v. ) Civil Action No. 08-144 (RBW) ) HAROLD E. DOLEY ) and DOLEY SECURITIES, INC., ) ) Defendants. ) ____________________________________)

MEMORANDUM OPINION Winston & Strawn, LLP, the plaintiff in this civil lawsuit, seeks $84,412.19 in damages from Harold E. Doley and Doley Securities, Inc ., Complaint at 1, for alleged breach of contract in the form of non-payment of legal f ees allegedly owed to the plaintiff, id. ¶¶ 6–18. On June 26, 2009, the Court held at the conclusion of a h earing on the merits of a motion for summary judgment filed by the plaintiff that summary judgment in favor of the plaintiff was appropriate. The Court issued an order to th at effect on June 29, 2009. Currently before the Court is the defendants’ motion for reconsideration of the C ourt’s oral ruling and s ubsequent order granting summary judgment in favor of the plaintiff pursu ant to Federal Rule of Civil Procedure 59(e). Motion of the Defendant[s] Harold E. Doley and Doley Securities, Inc. to Reconsider Order Granting Plaintiff’s Motion for Su mmary Judgment (the “Defs.’ Mot.”) at 1. After carefully considering the defendants’ motion and all memo randa of law and exhibits concerning thatmotion, 1 the Court concludes that it must deny th e defendants’ motion for the reasons that follow. “As this Court has noted in the past, motions for recons ideration under Rule 59(e) are disfavored and should be granted only under extraordinary circumstances.” N.Y.C. Apparel F.Z.E. v. U.S. Customs and Border Protection Bureau , 618 F. Supp. 2d 75, 76 (D.D.C. 2009) (Walton, J.) (internal citation and quotation marks omitted). Indeed, a motion of this sort “need not be granted unless the [Court] fi nds that there is an interveni ng change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Messina v. Krakower , 439 F.3d 755, 758 (D.C. Cir. 2006) (int ernal citation and quotation marks omitted). The plaintiff does not contend that ther e has been a “change of controlling law” since the Court denied its motion for attorney’s fees, that there is any “new evidence” that merits the Court’s attention, or that some fo rm of “manifest injustice” will result from the Court’s order. Thus, the only possible basis for reconsider ation of the Court’s order granting summary judgment in favor of the plaintiff would be a “cle ar error” in the legal reasoning leading to the entry of the order. The defendants argue that the Court clearly erred in granting summar y judgment in favor of the plaintiff because (1) there is a genuine issue of material f act as to whether the defendants agreed to the range of rates set forth in the en gagement letter provided by the plaintiff and signed by the defendants, Defs.’ Mot. at 1–2; Defs.’ Mem. at 6–7, (2) the plaintiff failed to deduct $10,000 from its final bill to reflect the retainer pa id by the defendants, Defs.’ Mot. at 2, and (3)

1 In addition to the plaintiff’s complaint as well as a ll documents relating to its motion for summary judgment, the Court considered the following documents in reaching this decision: (1) the Memorandum of Points and Authorities in Support of the Motion of the Defendant[s] Harold E. Do ley and Doley Securities, Inc. to Reconsider Its Order for Summary Judgment (the “Defs.’ Mem.”) and (2) the Plai ntiff’s Opposition to Defendants’ Motion to Reconsider (the “Pl.’s Opp’n”). The plaintiff has also filed a separate motion to compel responses to post-judgment interrogatories and requests for production served on the defendants, which the Court will address separately.

2this case should have been referred to the Dist rict of Columbia Bar fo r mandatory arbitration notwithstanding the Court’s prior determination that such a defense had been waived by the defendants, id. at 3. The plaintiff contests each of these assertions. See Pl.’s Opp’n at 2–3 (arguing that Doley’s sworn statement in a declaration that the plaintiff agreed to restrict its rates to the lower end of the range for each categor y of employees constitutes inadmissible parol evidence in light of the executed engagement letter); id. at 3 (contending that “the $10,000 retainer was applied to [the d]ef endants’ bills and subtracted fromthe total that [the d]efendants owe”); id. at 3–4 (asserting that the defendants’ argum ents concerning mandatory arbitration are untimely). Each of the issues raised by the defendants in their motion for reconsideration has already been addressed by this Court. At the hearing on the plaintiff’s motion for summary judgment held on June 26, the Court explained that Ha rold Doley’s subjectiv e understanding that the plaintiff would limit its fees to the lower end of the ranges stat ed in its engagement letter was irrelevant in light of the fact th at the ranges are clearly set forth without such restrictions in the engagement letter itself. See Giotis v. Lampkin , 145 A.2d 779, 781 (D.C. 1958) (“[W]hen the parties to a contract have redu ced their entire agreement to writi ng, the court will disregard and treat as legally inoperative paro l evidence of [] prior negotiations and oral agreements.”). The Court also rejected the defendants’ arguments re garding the plaintiff’s alleged failure to credit their retainer based upon the plaintiff’s unc ontroverted evidence, which reflected a $10,000 deduction in the plaintiff’s lega l fees due to the retainer. See Plaintiff’s Statement of Material Facts As to Which There Exists No Genuine Issue for Trial, E x. A (Declaration of Thomas M. Buchanan, Esq.), at Attachment 4 (Statement of Account dated Jan. 16, 2008) (reflecting the

3application of a $10,000 credit to the amount of lega l fees incurred by the pl aintiff delineated in the invoice dated June 28, 2007). The defendants’ arguments regarding the need for arbitration have al so been presented to the Court before in the contex t of a motion filed by the defenda nts to stay this case pending arbitration before the District of Columbia bar. See Motion to Stay Proceedings to Allow Arbitration of Fee Dispute Before the Atto rney[-]Client Arbitration Board As Well As Defendant[s’] Prosecution of Other Gr[i]evances at 1–2 (making this argument). The argument arises from Rule XIII(a) of the Rules Governing the District of Columbia Bar, which provides in pertinent part: An attorney subject to the disciplinary jurisdiction of [the District of Columbia Court of Appeals] shal l be deemed to have agreed to arbitrate disputes over fees for legal services and disbursements related thereto when such arbitration is requested by a present or former client, if such client wa s a resident of the District of Columbia when the services of the attorney were engaged, or if a substantial portion of the services were performed by the attorney in the District of Columbia, or if the services included representation before a Di strict of Columbia c ourt or a District of Columbia government agency. The Court has never questioned the legitimacy of this rule, which has been recognized as a valid basis to demand arbitration by the Di strict of Columbia Court of Appeals. See Schwartz v. Chow , 867 A.2d 230, 232 n.7 (D.C. 2005) (recognizing th e validity and applicability of the rule). However, as the Court explained in reje cting the defendants’ request for a stay based upon this rule, “[t]he right to arbitration, like any contract right, can be waived,” Nat’l Found. for Cancer Research v. A.G. Edwards & Sons, Inc. , 821 F.2d 772, 774 (D.C. Cir. 1987), including “by acting inconsistently with the arbitration right,” Khan v. Parsons Global Servs., Ltd. , 521 F.3d 421, 425 (D.C. Cir. 2008) (internal citation and quotation marks omitted). “One example of

4such conduct is active participation in a lawsuit.” Id. (internal citation and quotation marks omitted). Although it recognized some differe nces between the facts in Khan and the situation presented in this case, the Court held at th e hearing on the defendants’ motion to stay, and concludes again today, that Khan controls the disposition of the defendants’ arbitration request. In that case, the plaintiffs, Azhar Ali Khan a nd Asma Azhar Khan, file d suit against Azhar Ali Khan’s former employer and its agents (collectiv ely “Parsons”) for neg ligence and intentional infliction of emotional distre ss in the District of Co lumbia Superior Court. Id. at 423–24. Parsons removed the case to this Court and filed a motion to dismiss or fo r summary judgment or to compel arbitration. Id. at 424. Another member of this Court granted summary judgment in favor of Parsons, but the Di strict of Columbia Circu it reversed that decision. Id. On remand, Parsons filed a motion to compel arbitration, wh ich was eventually granted by the member of this Court assigned to the case. Id. The Khans appealed this ruli ng as well, arguing that Parsons had waived its right to arbitr ation under its employment agreement with Azhar Ali Khan. Id. at 424–25. Once again, the District of Co lumbia Circuit reversed th is Court’s ruling, finding “no ambiguity concerning Parsons’ involvem ent in litigation on the merits.” Id. at 426. In reaching this decision, the court explicitly rejected the argument advanced by Parsons that it had not waived its right to arbitration because “it did not move for discovery, nor file an answer asserting affirmative defenses.” Id. The court reasoned that Parsons ’ request for summary judgment was inconsistent with the pursuit of any arbitration remedy because “[a] summary judgment motion by definition ‘goes to the merits of the case.’” Id. (quoting 10A Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 2712 (3d ed. 2007)). Moreover, the

5circuit court “[did] not find proba tive Parsons’ characte rization of its motion as one for dismissal of the complaint, or, in the alternative, for summary judgment” because, from its perspective, “where . . . a party moves for summary judgment through a motion including or referring to ‘matters outside the pleading,’ . . . that party has made a decision to take advantage of the judicial system and should not be able th ereafter to seek comp elled arbitration.” Id. at 427 (quoting Fed. R. Civ. P. 12(d)). As the court ex plained, “[a] less rigorou s approach to summary judgment based on materials outside the pleadings would encourage parties to attempt repeat litigation of merits issues not resolved to their satisfaction, undermining the policy that arbitration may not be used as a stra tegy to manipulate the legal process.” Id. (internal citation and quotation marks omitted). At first blush, Khan would appear to be inapplicable to this case because the defendants in this case, unlike the defendant in Khan , never requested summary judgment. However, the basis for the defendants’ motion (at least insofar as the defendants requested dismissal of the plaintiff’s complaint) was not some defect in the plaintiffs’ pleadings, but rather that the engagement letter signed by the defendants and the plaintiff was void for vagueness. Memorandum of Points and Authorities in Support of the Motion of the Defendant[s] Harold E. Doley and Doley Securities, Inc. to Dismiss the Complaint[] or[,] in the Alternative, for a More Definite Statement at 5–6. Indeed, the defenda nts referred to numer ous facts outside the plaintiff’s complaint in their reply memorandum in support of their motion to dismiss or for a more definite statement, even going so far as to attach exhibits in support of their reply. See generally Supplemental Memorandum to the Defendant ’s Motion to Dismiss or for a More Definite Statement.

6In requesting dismissal of the plaintiff’s complaint based on th e merits of the plaintiff’s breach of contract claim (as opposed to a determination of the sufficiency of the plaintiff’s allegations), the defendants “made a decision to take advantage of the judicial system,” just like the defendant in Khan

. Khan , 521 F.3d at 427. Compelling arbitr ation under such circumstances would have given rise to the same problem identified by the court in Khan : namely, allowing the party seeking arbitration to “indu lg[e] in a second bite at the very questions presented to the court for disposition.” Id. (internal citation and quotation marks omitted). Thus, the Court correctly followed Khan by denying the defendants’ motion to stay because the defendants, through their course of conduct in this case, waiv ed any right to arbitration accorded to them by Rule XIII of the Rules Governing the District of Columbia Bar. “[A] Rule 59(e) motion is not a second opportunity to present argument upon which the Court has already ruled, nor is it a means to brin g before the Court theori es or arguments that could have been advanced earlier.” Lightfoot v. District of Columbia , 355 F. Supp. 2d 414, 421 (D.D.C. 2005) (internal citati on and quotation marks omitted). The defendants’ motion for reconsideration is replete with such arguments, none of which are any more persuasive than they were when the Court rejected them the first time around. Accordingly, the Court will deny the defendants’ motion for recons ideration under Rule 59(e). SO ORDERED this 17th day of September, 2009. 2

REGGIE B. WALTON United States District Judge

2 An order will be entered contemporaneously with this memorandum opinion denying the defendants’ motion for reconsideration.

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