Appendix — Doley v. Winston & Strawn, LLP

Supreme Court, U.S.

FILED

APPENDIX

No. ____._ QRICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED

STATES

HAROLD E. DOLEY AND DOLEY

SECURITIES, INC.,

Petitioners

V

WINSTON & STRAWN LLP

Respondent

PETITION FOR A WRIT OF CERTIORARI

TABLE OF CONTRID Ga scsscpesseccccscscercovcsccccssret]

Decision, U.S. Court of Appeals

tor DO, June 8, BUR cesses A-3

U.S. District Court Order. June 29

At 1: SP a?

USDC Memorandum Opinion

pept. 17, 2008 .<:cccccuuneeees 8

Motion of Defendant Harold I. Doley and Dole;

Securities, Inc. to Reconsider Order Granting

Plaintiffs Motion for Summary

Judgment. sccuskeua 18

Declar imion ot Harold Dole, \ fe

Declaration of Allen Counts, Kisq \

\nswer of Allen Counts to the Interrogatories of thi

Plaintiff, Winston & Strawn, LLP \-36

Cheek $10.000.00 | 1°40

Invoice, Winston & Strawn, May 14, 2008 1-4]

Invoice, Winston & Strawn, April 16, 2008.. A-42

Invoice, Winston & Strawn. March 13, 2008 A-43

Declaration of Chad Robert 4-44

Declaration of Harold Doley

[Second]......... ica \-A46

Letter of Kimmel and Roxborough to

Mr. Charles Klein

(Corrected Declaration of

M. Buchanan. Esq

Defendant

/20/2009

Motion of the Defendants Har

Securiti Inc. to Dismiss the

rlaintillS Krrata Sta

Which There Exist No Genuine

Buchanan Declaration in Support

Summary al idgem«e ni t/t ><

United States Court of Appeals

For the District of Columbia

2010 U.S. App. LEXIS 11911,’

Winston & Strawn, LLP, Appellee v. Harold E. Dole

and Dolev Securities. Ine Appellant:

No. 09-7118

UNITED STATES COURT OF APPEALS FOR THI]

DISTRICT OF COLUMBIA CIRCUIT

2010 U.S. App. LEXIS 11911

June &. 2010. Filed

NOTICE:

PLEASE REFER TO FEDERAL RULES OF

APPELLATE PROCEDURE RULE 32.1

GOVERNING THE CITATION TO UNPUBLISHED

OPINIONS

PRIOR HISTORY

Appeal from the United States District Court f

District of Columbia. (No. 1:08-cv-00144-RBW)

Winston & Strawn, LLP v. Doley, 654 F. Supp. 2d 1

009 US. Dist. LEXIS 84783 (DDC, 2O00D)

COUNSEL For Winston & Strawn. LLP. Plaintiff

Appellee: Thomas Matthew Buchanan, Charles

Bennett Klein, Winston & Strawn LLP, Washingtor

DC

Hor Harold E. Doley, Doley Securities, In

Defendants - Appellants: Claude William

Roxborough, Law Office of Claude W. Roxborough

Washington, DC

JUDGES: Before: SENTELLE,. Chief Judve, and

BROWN and KAVANAUGH., Circuit Judge:

OPINION

JUDGMENT

his appeal wa

('nited States District Court for the District

Columbia and on the briefs filed by the parties. S

FED. R. APP. P. 34(a)(2); D.C. CIR. RULE 34(j). Th:

court has accorded the issues full consideration and

has determined they do not warrant a publi

pinion. See D.C. CIR. RULE 36(d). It

ORDERED AND ADJUDGED that t

court's September 1] 1009 order deny!

reconsideration of its summary

rict court I

Which Winston & Strawn sue ¢«

ation of the $ 10.000 retainer fee to the amoun

\s to appellants’ second assignment of er!

entation agreement between Ln

[*2] parties specifies that the lawyers who perform:

work for appellants may be billed for within a range

of possible fee \ppellaat presentment of a prior

]

al agreement that thev \v d only charged fi

?

d

at the low end of those ranges is inconsistent with the

written representation agreement and is barred by

the parol evidence rule. See District-Realty Title Ins.

Corp. v. Ensmann, 767 F.2d 1018, 1022, 247 U.S.

App. D.C. 228 (D.C. Cir. 1985).

Appellants' last argument to us is that the district

court erred in not staying the litigation proceedings

to allow arbitration to go forward. This argument

fails under the rule established in Khan v. Parsons

Global Services, Ltd., 521 F.3d 421, 380 U_S. App.

D.C. 320 (D.C. Cir. 2008). There, we held that a party

is deemed to have waived his right to compel

arbitration if he actively participated in the lawsuit.

At the time appellants filed their motion to stay

proceedings, they had already filed a motion, stylized

under Fed. R. Civ. P. 12(bX(6), but which was

supplemented with materials outside the pleadings.

When this occurs, "the motion must be treated as one

for summary judgment under Rule 56." FED. R. CIV.

P. 12(d). Because appellants had already actively

participated in the lawsuit, [*3] the district court

did not err in holding that they had waived their right

to compel arbitration.

Pursuant to D.C. Circuit Rule 36, this disposition will

not be published. The Clerk is directed to withhold

issuance of the mandate herein until seven days after

resolution of any timely petition for rehearing or

petition for rehearing en banc. See FED. R. APP. P.

Al(b); D.C. CIR. RULE 41.

Per Curiam

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.

ORDER

In accordance with the ora! ruling of the Court issued

at the conclusion of the hearing on

the merits of the plaintiffs motion for summary

judgment held on June 26, 2009, it is

ORDERED that the plaintiffs motion is GRANTED.

It is further

ORDERED that FINAL JUDGMENT is entered in

favor of the plaintiff against the defendants jointly

and severally in the amount of $ 84,412.19, plus

prejudgment interest and costs.

It is further

ORDERED that this case is CLOSED.

SO ORDERED this 29th day of June, 2009.

REGGIE B. WALTON

United States District Judge

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

WINSTON & STRAWN, LLP.

Plaintaff,

v. Civil Action No. 08-144 (RBW)

HAROLD Kk. DOLEY

and DOLEY SECURITIES, INC.,

Defendants.

MEMORANDUM OPINION

Winston & Strawn, LLP, the plaintiff

in this civil lawsuit, secks $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 Jegal fees allegedly

owed to the plaintiff, id. 4] 6-18. On June 26,

2009, the Court held at the conclusion of a hearing

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 that effect on June 29,

2009. Currently before the Court is the

defendants’ motion for reconsideration of the Court’s

oral ruling and subsequent order granting

summary judgment in favor of the plaintiff pursuant

to Federal Rule of Civil Procedure 59(e).

Motion of the Defendantls] Harold E. Doley and

Doley Securities, Inc. to Reconsider Order

A-8

Granting Plaintiffs Motion for Summary Judgment

(the “Defs.’ Mot.”) at 1. After carefully

considering the defendants’ motion and all

memoranda of law and exhibits concerning that

motion,(Footnote 1) the Court concludes that it must

deny the defendants’ motion for the reasons that

follow.

“As this Court has noted in the past,

motions for reconsideration under Rule 59(e) are

disfavored and should be granted only under

extraordinary circumstances.” N.Y.C. Appare!

FE’-ZE. v. U.S. Customs and Border Protection

Bureau, 618 F. Supp. 2d 75, 76 (D.D.C. 2009)

(Walton, J.) Gnternal citation and quotation marks

omitted). Indeed, a motion of this sort “need

not be granted unless the [Court] finds that there is

an intervening 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) (internal citation and quotation marks

omitted). The plaintiff does not contend that there

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 form of “manifest

injustice” will result from the Court's order.

Thus, the only possible basis for reconsideration of

the Court’s order granting summary

judgment in favor of the plaintiff would be a “clear

error’ in the legal reasoning leading to the

entry of the order.

The defendants argue that the Court

clearly erred in granting summary judgment in favor

A-9

of the plaintiff because (1) there is a genuine issue of

material fact as to whether the defendants

agreed to the range of rates set forth in the

engagement 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 paid

by the defendants, Defs.’ Mot. at 2, and (3)

[Footnote - In addition to the plaintiffs

complaint as well as all 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 Defendantls] Harold

KE. Doley and Doley Securities, Inc. to Reconsider Its

Order for Summary Judgment (the “Defs.’ Mem.”)

and (2) the Plaintiffs 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.] End of footnote. [Page 2]

[Page 3 begins] this case should have been referred to

the District of Columbia Bar for 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

A-10

rates to the lower end of the range for each category

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 djefendants’ bills and

subtracted from the total that [the dlefendants

owe”); id. at 3—4 (asserting that the defendants’

arguments 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 plaintiffs motion for summary judgment

held on June 26, the Court explained that Harold

Doley’s subjective understanding that the plaintiff

would limit its fees to the lower end ranges stated in

its engagement letter was irrelevant in light of the

fact that the ranges are clearly set forth without

restrictions in the engagement letter itself. See

Giotis v. Lampkin, 145 A2d. 779, 781 (D.C. 1958)

(“[WJhen the parties to a contract have reduced their

entire agreement to writing, the court will disregard

and treat as legally inoperative parol evidence of

[prior negotiations and oral agreements.”). The

Court also rejected the defendants’ arguments

regarding the plaintiffs alleged failure to credit

their retainer based upon the plaintiffs

uncontroverted evidence, which reflected a

$10,000 deduction in the plaintiffs legal fees due to

the retainer. See Plaintiffs Statement of Material

Facts As to Which There Exists No Genuine Issue for

Trial, Ex. A (Declaration of Thomas M. Buchanan,

Esq.), at Attachment 4 (Statement of Account dated

Jan. 16, 2008) (reflecting the

A~11

[Page 4 begins]

application of a $10,000 credit to the amount of legal

fees incurred by the plaintiff delineated in the invoice

dated June 28, 2007).

The defendants’ arguments regarding

the need for arbitration have also been presented to

the Court before in the context of a motion filed by the

defendants 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 Attorneyl-]Chient Arbitration Board As

Well As Defendantls’] Prosecution of Other

Grievances 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] shall be deemed to have agreed to

arbitrate disputes over fees for legal services

and disbursements related thereto when such

arbitration 1s requested by a present or former

chent, if such chent was 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

District of Columbia court 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 District of

Columbia Court of Appeals. See Schwartz v. Chow,

867 A. 2d 230, 232 n.7 (D.C. 2005) (recognizing the

validity and applicability of the rule). However, as the

Court explained in rejecting the defendants request

for a stay based upon this rule, “{t]he right to

arbitrate, like any contract right, can be waived.”

Nat! 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,” KAan v. Parsons Global servs.,

Ltd., 521 F. 3d 421, 425 (D.C. Cir 2008) Gnternal

citation and quotation marks omitted). “One example

of [Page 5 begins] such conduct is active participation

in a lawsuit.” Id. (internal citation and quotation

marks omitted).

Although it recognized some differences

between the facts in Khan and the situation

presented in this case, the Court held at the hearing

on the defendants’ motion to stay, and concludes

again today, that Ahan controls the disposition of the

defendants’ arbitration request. In that case, the

plaintiffs, Azhar Ali Khan and Asma Azhar Khan,

filed suit against Azhar Ali Khan’s former employer

and its agents (collectively “Parsons”) for negligence

and intentional infliction of emotional distress in the

District of Columbia Superior Court. Jd. at 423-24.

Parsons removed the case to this Court and filed a

motion to dismiss or for summary judgment or to

compel arbitration. /d. at 424. Another member of

this Court granted summary judgment in favor of

Parsons, but the District of Columbia Circuit

A-13

reversed that decision. Id. On remand, Parsons filed a

motion to compel arbitration, which was eventually

granted by the member of this Court assigned to the

case. Jd. The Khans appealed this ruling as well,

arguing that Parsons had waived its right to

arbitration under its employment agreement with

Azhar Alt Khan. Id. at 424-25.

Once again, the District of Columbia

Circuit reversed this Court’s ruling, finding “no

ambiguity concerning Parsons’ involvement 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 “l[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, Section 2712 (3d ed. 2907)). Moreover, the

[Page 6 begins] circuit court “[did] not find probative

Parsons’ characterization of its motion as one for

dismissal of the complaint, or, in the alternative, for

summary judgment” because, form 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 thereafter to seek compelled

arbitration.” Id. at 427 (quoting Fed. R. Civ. P. 12(d)).

As the court explained, “la] less rigorous approach to

summary judgment based on materials outside the

A-14

pleadings would encourage parties to attempt repeat

litigation on merits issues not resolved to their

satisfaction, undermining the policy that arbitration

may not be used as a strategy to manipulate the legal

process.” Id. Gnternal citation and quotation marks

omitted).

At first blush, Khan wouid appear to be

inapplicable to this case because the defendants in

this case, unlike the defendants in Khan, never

requested summary judgment. However, the basis for

the defendants’ motion (at least insofar as the

defendants requested dismissal of the plaintiffs

complaint) was not some defect in the plaintiff's’

pleadings, but rather that the engagement letter

signed by the defendant and the plaintiff was a void

for vagueness. Memorandum of Points and

Authorities in Support of the Motion of the

Defendantls] Harold E. Doley and Doley Securities,

Inc. to Dismiss the Complaintl] or [,] in the

Alternative, for a More Definite Statement at 5-6.

Indeed, the defendants referred to numerous facts

outside the plaintiffs 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.

{Page 7 begins] In requesting dismissal of the

plaintiffs complaint based on the merits of the

plaintiffs breach of contract claim (as opposed to a

determination of the sufficiency of the plaintiff's

allegations), the defendants “made a decision to take

A-15

advantage of the judicial system,” just like the

defendant in Khan. Khan, 521 F. 3d at 427.

Compelling arbitration under such circumstances

would have given rise to the same problem identified

by the court in Khan: namely, allowing the party

seeking arbitration to “indulg[e] in a second bite at

the very questions presented to the court for

disposition.” Id. Gnternal 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, waived any right to arbitration

accorded to them by Rule XIII of the Rules Governing

the District of Columbia Bar.

“TA] 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 bring

before the Court theories or arguments that

could have been advanced earlier.” Lightfoot v.

District of Columbia,.355 F. Supp. 2d 414, 42]

(D.D.C. 2005) (internal citation 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

reconsideration under Rule 59(e).

SO ORDERED

17th day of September, 2009. (2)

REGGIE B. WALTON

United States District Judge

A-16

[Footnote 2. An order will be entered

contemporaneously with this memorandum opinion

denying the defendants’ motion for reconsideration

Page [7]]

UNITED STATES DISTRICT COURT

District of Columbia

WINSTON & STRAWN, LLP,

Plaintiff,

Vs. Case: 1:08-CV 00144

HAROLD F. DOLEY, and

DOLEY SECURITIES, INC.,

Defendants.

Assigned to: Walton, Reggie B

Assign Date: 1/24/2006

Description: Contract

MOTION OF THE DEFENDANT'S

HAROLD E. DOLEY AND DOLEY

SECURITIES, INC. TO RECONSIDER

ORDER GRANTING PLAINTIFF'S

MOTION FOR SUMMARY JUDGMENT

Defendants Harold E. Doley and Doley Securitie

Inc., by and through their undersigned counsel

and pursuant to Federal Rules of Civil Procedure

59 (a) and 60(b), respectfully request that this Court

open the judgment to consider new testimony by

declaration of Harold Doley and reconsider its

findings that there are no genuine issues of material

facts. Upon which such reconsideration set a trial on

the issue of whether or not the parties, prior to the

signing of the contract agreed that the defendant was

to pay only the lowest rate in the range of fees stated.

THERE IS A MATERIAL ISSUE OF FACT THAT

NEEDS TO BE DETERMINED.

This case arises from allegations made by the Law

firm of Winston & Strawn, LLP. that the defendants

owe plaintiff $ 84,412.19 for legal] assistance in one

deposition taken by the Office of Thrift Supervision

on July 18, 2007. The plaintiff suggests that a

document signed on April 19, 2007 was a contract

which the defendants breached. The contract was

indefinite as to the specific hourly rates that would be

charged by firm attorneys, legal assistant. Rather it

specified a broad range of possible fees to be

charged.,.The affidavit of Harold Doley stated that he

and Mr. Buchanan agreed that he was required to

pay the lowest fee in the range set forth therein in the

contract. The affidavit clarifies that the Plaintiff did

not have discretion to pick which fees in the range,

to be charged.

Mr. Buchanan states in his affidavit that prior to the

contract he and Mr. Doley agreed to Mr. Mancusi's

fee rate of $ 480 stating, “That, Doley told Buchanan

and Mancusi that he understood and accepted the

fees and cost that were associated with W&S’s Legal

Work.” Mr. Doley states that he agreed to pay only

the lowest range of fees listed in the contract. The fact

that after the preliminary discussion the range of fees

were listed rather than a stated fee for Mr. Mancusi,

verifies Mr. Doley’s position. This is a material issue

of fact which must be determined by a fact finder. The

difference between the lower fees and the fees

arbitrarily set by the plaintiff and charged to the

defendant is substantial.

THE DEFENDANTS BILL NEVER

REFLECTED A CREDIT FOR THE $ 10,000

BEFORE THE SUIT WAS FILED.

The attorney for plaintiff stated that plaintiff gave

the defendant a credit for the $ 10,000 payment

before the suit was filed. No such credit was given.

All the bills fail to reflect the payment of the $ 10,000.

payment (see affidavit of Alan Counts Board

Chairman of Defendant’s Corporation). Also

according to the affidavit of Alan Counts the bills

were never acknowledged as the correct bills.

{ssentially no correct bill was ever presented. A trial

of the question of whether or not a correct bill was

ever presented is necessary to arrive at the true value

of the service offered. There has never been a

discussion by the parties of a correct and proper bill.

THE ENTIRE QUESTION SHOULD HAVE BEEN

SUBJECT TO MANDATORY ARBITRATION BY

THE DISTRICT OF COLUMBIA BAR.

Although, the Court gave credence to the cited case,

the motion for arbitration through the District of

Columbia Bar should have been granted. The court

relied on the case cited which gave great weight to the

fact that in our motion to dismiss we stated it

should be with prejudice. This case was not in the

procedural posture of the other cited cases which

denied arbitration. No answer had been filed and the

response under rule 12 was appropriate but not of

such posture as to cut off the right of the client to

have mandatory arbitration.

Wherefore, upon the premises considered the

defendants pray that the court reconsider its

order granting Summary Judgment and set this

matter for trial of the question of whether

of not Mr. Doley agreed to pay whatever fee set

within the range offered in the contract

by Mr. Buchanan or to pay only the lowest fee set in

the range. The other question to be determined is

whether or not a correct bill was ever sent

acknowledged by the plaintiff as corrected.

Respectfully Submitted

_/Claude ROXBOROUGH

Claude Roxborough Esq. 162313

709 Irving St., NW

Washington, DC 20010

202 270 6109

CERTIFICATE OF SERVICE

I Claude Roxborough Esq. hereby certify that a copy

of the foregoing was mailed postage

prepaid to Thomas Buchanan 1700 K Street, NW,

Washington, DC 20006 this day of

2008.

/s/Claude Roxborough

Claude Roxborough

UNITED STATES DISTRICT COURT

District of Columbia

WINSTON & STRAWN, LLP,

Plaintiff,

Vs. Case: 1:08-CV 00144

HAROLD F. DOLEY, and

DOLEY SECURITIES, INC.,

Defendants.

Assigned to: Walton, Reggie B

Assign Date: 1/24/2006

Description: Contract

MEMORANDUM OF POINTS ANDAUTHORITIES

IN SUPPORT OF THE MOTION OF THE

DEFENDANT’S HAROLD E. DOLEY AND DOLEY

SECURITIES, INC. TO RECONSIDER ITS ORDER

FOR SUMMARY JUDGMENT.

TABLE OF CONTENTS

I. Introduction 3

Ij. Factual Background 3

Ill. Argument 4

[V. Conclusion5

I. INTRODUCTION

Defendant's Harold E. Doley and Doley

Securities, INC. (“Doley”) hereby respectfully

moves this Court to reconsider its order for

Summary Judgment and set this matter down

for trial of the question of whether or not

A—-22

Mr. Doley agreed to pay whatever fee set within the

range offered in the contract by Mr. Buchanan or to

pay only the lowest fee set in the range. The other

question to be determined is whether or not a correct

bill was ever sent acknowledged by the plaintiff as

corrected.

IT. FACTUAL BACKGROUND

Defendant's Harold E. Doley and Doley Securities,

Inc... (“Doley”) sought legal advice regarding a

subpoena for a deposition to be conducted by the

Office of The Thrift Supervision. They were not

targets of the investigation or parties to any lawsuit

related to Independence Federal Savings and Loan

Inc. The defendants paid $ 10,000.00 for legal

assistance in the preparation for their deposition. An

agreement was tendered by the plaintiff Winston &

Strawn LLP., to provide representation in the

investigation which stated a specific amount for Mr.

Buchanan but stated a range for the other partners,

associates and legal assistants to be used.

Throughout the very limited representation of

the Defendants by the Plaintiff, fees for partners,

associates and legal assistance were never defined.

Rather, it was understood by Mr. Doley that he was

only to have paid the lowest fee in the range. A

number of bills were sent which were incorrect and

objected to by the defendant. No corrected bill was

ever sent which were consistent with the

agreement. The plaintiff was not given discretion to

set the fee. Rather the range was set

out to display what the lowest fee for each category

that the defendant agreed to pay. The

plaintiff provided assistance for only one

deposition. After which their services were no

longer needed.

Il. ARGUMENT

Standard for Reconsideration, a Motion for

Summary Judgment

Under Rule 56 of the Federal Rules of Civil Procedure

a summary judgment may be granted only upon a

showing that there is no genuine issue as to any

material fact and that the moving party is entitled to

a judgment as a matter of law. Summary judgment is

appropriate only when there are no material facts in

issue and when it 1s clear that the moving party is

entitled to judgment as a matter of law. Maddox v.

Bano, 422 A.2d 763 (D.C. 1980); Willis v. Cheek, 387

A.2d 716 (D.C. 1978); Super. Ct. Civ. P. 56. On

appeal, this court must view the record 1n the hght

most favorable to the non-movant, and any

doubt as to the existence of a factual dispute must be

resolved against the movant. Yasuna v. Miller, 399

A.2d 68 (D.C. 1979); Turner v. American Motors

General Corp. , 392 A.24a 1005 (D.C. 1978).

In this case there are several genuine issues of

material fact precluding summary judgment for

either party. They are: l.whether of not Mr. Doley

agreed to pay whatever fee set within the range

offered in the contract by Mr. Buchanan or to pay

only the lowest fee set in the range. 2. whether or not

a correct bill was ever sent acknowledged by the

plaintiff as corrected and properly reflecting credits,

fees and rates.

The Plaintiff states in the Complaint the following:

“This matter is a simple breach of contract case that

cannot be more clear. Defendants agreed by written

contract for W&S to represent them in a legal matter,

and in exchange, to payW&S for its legal services.

The fees and cost of W&S’s legal services were

explained to Defendants both orally and in the

written agreement. W&S performed legal services on

behalf of Defendants at the rates that were spelled

out in the written agreement, and without complaint

from Defendants. As a result of the work performed

by W&S on behalf of Defendants, Defendants owe

W&S $ 84,412.19, which Defendants have-not paid,

and thus defendants have breached a written

contract with W&S.”

The alleged contract referred to by the Plaintiff is

clear as to Mr. Buchanan but as to others it reflected

a range of rates to which the plaintiff onlv agreed to

pay the lowest rate. The affidavit of Mr. Buchanan

states that he and Mr. Doley agreed to a $480.00 rate

for Mr. Mancusi although, he did not put it into the

contract. The contract expressed a range consistent

with Mr. Doley's declaration that he only agreed to

pay the lowest range and signed upon it being so

reflected in the contract. Coupled with the confusion

about the bills as to their correctness, a trial is

required of these significant questions and

conflicting testimonies. See Exhibits

THE ENGAGEMENT LETTER IS OUT

OF LINE WITH TO THE PLAINTIFF'S

OWN GUIDELINES

... The plaintiff submitted as his exhibit 1 to the

Complaint a statement by Ms. Ann Massie Nelson

who in an article stated among other things the

following regarding engagement letters for clients:

DETAIL THE PAYMENT FOR SERVICES AND

THE TIMING FOR PAYMENT.

As all lawyers know, issues over billing and

payment are frequently the flash point for lawyer

chent disputes. Include the hourly fee for each

attorney and paralegal, how any contingency fee will

be calculated, and what expenses will be charged, the

more details provided in the engagement letter, the

less wiggle room for disputes to arise. Retainers may

deserve special attention because they’re often

confusing to clients. Are they applied to the first bill

or to the last’? These matters need to be spelled out.

( Exhibit 1 of the plaintiffs complaint article entitled

ABA General Practice Solo & Small Firm Division

Volume 19, number 7)

The contract / engagement letter was not clear as to

the spelling out of the fees for each attorney. Mr.

Doley was clear that, he could only pay the lowest fee

in the range of fees. Mr. Buchanan in his

contradictory declarations believed he had Mr. Doley

agree to pay Mr. Mancusi $ 480 per hour before the

contract was signed. Who is to be believed? This

question must be decided by a fact finder, because the

contract is not clear.

Iv. CONCLUSION

For all of the foregoing reasons, the lj fendants

respectfully request that this court reconsider it

order for Summary Judgment and set a trial of the

question of whether of not Mr. Doley agreed to pay

whatever fee set within the range offered in the

contract by Mr. Buchanan or to pay only the

lowest fee set in the range. The other question to be

determined is whether or not a correct bill was ever

sent acknowledged by the plaintiff as corrected.

JNITED STATES DISTRICT COURT

District of Columbia

WINSTON & STRAWN, LLP.

Plaintiff,

Vs. Case 1:08-CV- 00144

HAROLD F. DOLEY. and

DOLEY SECURITIES, INC..

Defendants.

Assigned to: Walton

Assign Date: 1/24/2006

Descripton: Contract

Pursuant to 28 USC § 1746, in heu of a personal

appearance, | Harold E. Doley Jr. make the

following statement:

1. lam an adult Citizen of the United

States, resident of the State of New York

and have personal knowledge of the facts

and matters attested to in this

declaration.

2. Doley Securities LLC. is owned by the

Doley Foundation LLC, which exists to

support and advance the educational

project known as the "Thurgood Marshall

College Scholarship Fund". I am not a

stockholder, corporate officer or Board

Member of Doley Securities LLC.

The corrected declaration of Mr. Thomas

M. Buchanan, Esq. is untrue. I

categorically deny paragraphs 7 & 8. |

never “understood and accepted” a rate of

$480.00 per hr. for Mr. Mancusi. I agreed

to pay only the lowest rate for partners

and associates and Mr. Buchanan

understood that. The contract I signed

set a rate schedule showing the lower

rate, If what Mr. Buchanan said was true

he would have placed it in the contract

as he did his own rate.

When we signed the agreement it was

understood by Mr. Buchanan that the

lowest range for Mr. Mancuso was

$405.00 per hr., other associates was

$200.00 per hr. and legal assistants

$135.00. All of our preliminary

discussions focused on the fact that we

would and could only pay the very basic

and lowest cost for professionals and

legal assistances.

The first bill was sent on June 28. 2007 and

it totaled $68,931 and reflected rates for

the partner, associate which were not the

lowest rate as agreed. We objected and

were told it was their error and that a

corrected bill would be

sent. The second bill was sent on July 18,

2007 and it added $20,253.97 and

reflected rates for the partner and

A-29

associate other than what we agreed. We

objected. It seemed to be the same bill as

before but with more money added.

The third bill was issued in August and it

added $5.253.97 reflecting the same

rates as before. The $10.000 retainer was

never reflected in the bill.

The day before the deposition I

complained about the bill and was told by

Mr. Mancusi that they (accounting) was

having problems with their billing. He

stated "I am not an accountant". The

Deposition took place on June 5, 2007.

Even though I told them the bills have

been consistently incorrect, we were

always being put off. The was never a full

discussion over a corrected bill. The June

28, 2007 bill, the July 18, 2007 and the

August 28, 2007 bill reflected no change

whatsoever in the hourly rate or the

$10,000 credit. We were told by Mr.

Mancusi to wait for the corrected bill. It

never came.

The $10,000 credit was never credited

until after the suit was filed. Mr. Counts

and I explained our position as to the fees

and hours incorrectly posted and offered

to pay $40,000 minus the $10,000 paid.

The minimum

amounts in the range should have been

$405.00 for a partner and $200.00 for an

associate. This would have reduced the

bill by $21,321.75. The hours expended

were excessive and the $10,000.00 was

never reflected.

Mr. Buchanan in his corrected affidavit

stated that I had agreed to Mr. Mancusi's

specific fee. I state that I did not rather I

asserted at all times we could only pay the

minimum range of fees for other lawyers

and assistants. Mr. Buchanan was

incorrect about having a meeting with

Mr. Chad Roberts and by "Errata"

changed his declaration. He is incorrect

about our preliminary understanding. A

fact finder must determine who is telling

the truth. The signed contract for legal

services did not give W&S discretion to

assign a fee so long as it was within a

range. The very fact that Mr. Buchanan,

in his two attempts to declare the truth,

under oath, tried to make a point that we

agreed to a specific fee for Mr. Mancusi,

illustrates inconsistency, confusion and

indifference to the truth. There is a

significant question of fact here and the

Law Firm has the burden of being above

board. Contracts for legal services should

not be oppressive and vague to the

advantage of Lawyers. This question is

material.

I declare under penalty of perjury that the

foregoing is true and correct to the best of my

knowledge and belief

j

Harold Doley

Subscribed and sworn ) ] ) Ol e 1) | 44 VAULU Py,

Notary Public

Louis A. Gerd

UNITED STATES DISTRICT COURT

District of Columbia

WINSTON & STRAWN, LLP,

Plaintiff

Vs.

HAROLD E. DOLEY and

DOLEY SECURITIES, INC.,

Defendants

Case 1:08-CV 00144

Assigned to: Walton, Reggie B

Assign Date: 1/24/2006

Description: Contract

DECLARATION OF ALLEN COUNTS ESQ.

Pursuant to 28 USC 1746, in lieu of personal

appearance, | ALLEN COUNTS make the following

statement:

J am counsel to Harold Doley and I have

personal knowledge of the facts and matters attested

to in this declaration.

1. | have read the declarations of Mr. Buchanan and

Mr. Mancusi of the Law Firm of Winston & Strawn

LLP as well as the complaint and all the invoices

sent to Mr. Harold Doley.

2. I personally responded to the invoices dated June

28, 2007, July 18, 2007 and August 28, 2007 by

contacting the Law firm and advising them that

the bill was incorrect.

3. On each occasion they apologized and stated that

they were having problems with their own

accounting. On behalf of Harold Doley | advised

them that the bill would not be paid because the

hours were out of line and the hourly rate was

incorrect.

4. On the second billing I again rejected the

accounting and advised them that they had not

corrected the mistakes as to the hourly rate, the

number of hours and there was no reflection or

accounting of the $10,000 payment. They again

apologized and stated again they were having

problems with their accounting department.

. The Invoice dated 08/28/07 stated a new total of

$54,412.19 without reflection any of the objections

[ had raised as to the hourly rate, the total number

of hours and the Payment of $10,000.

». | advised our District of Columbia attorney to

prepare a letter reflecting our position as the

amount owed which is attached. Harold Doley has

computed the amount due to the law Firm of

Winston & Strawn LLP to be $20,000.00. The

amount is consistent with the concerns and

objections I raised to the Law Firm Accounting

representative.

Allen Counts Esq.

Subscribed and sworn to this 5 day of March 2009

Notary Public

Keith A. Doley

Notary Public

LA Bar No. 18187

Parish of Orleans, State of

Louisiana

My commission is issued for Life

UNITED STATES DISTRICT COURT

District of Columbia

WINSTON & STRAWN, LLP,

Plaintiff,

Vs. Case 1:08-CV 00144

HAROLD E. DOLLY, and

DOLEY SECURITIES, INC.,

Defendants.

Assigned to: Walton, Reggie B.

Assign Date: 1/24/2006

Description: Contract

ANSWER OF ALLEN W. COUNTS ESQ. TO THE

INTERROGATORIES OF THE PLAINTIFF

WINSTON & STRAWN, LLP

Comes now Allen W. Counts, Esq. by and

through Claude Roxborough, Esq. and respectfully

answers the plaintiffs Interrogatories as follows:

Interrogatory No.1 Identify all instances in which

you, or someone on your behalf, complained about the

Winston & Strawn invoices in which you, or someone

on your behalf to any representative of Winston &

Strawn. For each such instance, identify the

individual of individuals who complained to Winston

& Strawn, the date of each complaint, the substance

of the complaint, the person at Winston & Strawn

who received the complaint, and any and al]

documents that relate to the complaint.

ANSWER:

On behalf of Doley Securities and Harold Doley, I was

requested to contact Winston & Strawn regarding a

legal bill and billing statements for legal services.

After speaking with Chad Robert, President of Doley

Securities, 1t was apparent that the legal bill was

incorrect as the $10,000 initial retainer was never

reflected. I began conversing by phone with Michacl

Mancusi in October 2007 and advised him at that

time that the bill for legal services was incorrect.

The bill did not reflect the amounts already paid and

the billing rate was not what had been agreed to by

Mr. Harold Doley on behalf of the Corporation.

Interrogatory No.2 Identify the date on which you

retained Allen Counts to communicate with Winston

& Strawn, concerning this matter.

ANSWER:

I was never “retained” by Harold Doley or Doley

Securities. [Iam the Chairman and an attorney and

as such Harold Doley asked me to call Winston &

Strawn about the bill. Iam not General Counsel for

Doley Securities. I was asked to reach out to

Winston and Strawn as early as September 2007

regarding the inaccurateness and excessively high

amount of the legal bill for the services provided. |

began speaking with Michael Mancusi about these

matters in October 2007.

Interrogatory No. 3 — Identify the dates of each

communication between Allen Counts and Winston &

Strawn, and the purpose of each communication.

A-37

For each such communication, identify the date of

each communication, the substance of the

communication, the person at Winston & Strawn who

received the Communication, and any and all

documents that related to the communications.

ANSWER:

October 9, 2007 my office in Oklahoma received a call

from Michael Mancusi and my secretary took the call

along with his secretaries name (Bea) and Mr.

Mancusi’ cell phone number and advised him I was

traveling and I would return his call. I spoke with

Chad Robert to make sure the bill did not reflect the

amount and reviewed the contract and called Mr.

Mancusi back on my cell phone some time after

October 7. Conversation was regarding the bill and

our dispute thereof.

October 17, 2007 my office received a call from

Michael Mancusi while I was traveling. My

secretary retrieved the message from the answering

machine (he called at 7:30 am) at the Oklahoma

office, noted the call on the call log and sent me an

email with Mr. Mancusi’s information. 1 was tied up

in meetings most of the trip and I advised my

secretary to let Mr. Mancusi know | would call him on

Friday when my schedule was free.

October 18, 2007 my office received a call from Mr.

Mancusi and my secretary advised him I would call

him back on Friday morning.

I returned Mr. Mancusi's call and advised him | had

been traveling and told him that the bill was

A-38

incorrect and excessive and we had several

discrepancies from what was laid out in the contract

that was signed as far as rates, etc. He advised he

would try to get a correct bill that included the credit

for the $10,000 retainer and would check with billing

to see what could be done. This began our dispute of

the legal bill with Winston & Strawn.

November 11, 2007 my office received a call from Mr.

Tom Buchanan and in my conversations with him, I

reiterated the bill and the billing amount were

incorrect as a 8 hour deposition (of which most of this

time politics was being discussed) should be billed at

over $90,000 (not including the retainer). He was

well aware that we were disputing this bill as early as

September. We were going to try to come to some

sort of settlement at which time | offered a payment

of $40,000 less the $10,000 retainer fee for an amount

of $30,000 as the amount billed and the amount of

work performed did not coincide in the least. We

had even discussed a payment plan for the offer. He

said he would get back to me on the offer.

January 16, 2008 Mr. Tom Buchanan called my

Oklahoma office and left a message for me to give him

acall. I do not recall the exact date I called him back

but they did not want to accept our settlement.

Allen W. Counts, Esq.

CHECK: DOLEY SECURITIES

First NBC Bank

14-05430650

Doley Securities, LLC #1685

Ten Thousand Dollars Retainer Ofc. Thrift

Supervision

Pay to the Order of Winston & Strawn 4/20/07

$ 10,000.00

Doley Securities

S/ Chad Robert

Authorizing Signature

Doley Securities, LLC. 1685

Winston & Strawn LLP Retainer-Ofce. of Thrift

Supervision 4/20/07

Professional Fees 10,000.00

Total 10,000.00

INVOICE WINSTON & STRAWN, LLP

WINSTON & STRAWN, LLP

HAROLD DOLEY/DOLEY SECURITIES May

14, 2008 T.M. Buchanan

Statement of Account

Invoice Over 60 days

Chent: 105438-Harold Doley/Doley Securities

Matter: 0001-OTS Investrigation

Invoice # Date Amount Credit Total

1993138 6/28/07 68,931.85 10,000.00 58,931.85

199623) 7/18/07 20,226.37 0.00 20,226.37

2002543 8/28/07 5,253.97 0.00 5,253.97

Total for Matter 0001 84,412.19

Balance Outstanding $84,412.19

INVOICE WINSTON & STRAWN, LLP

WINSTON & STRAWN, LLP

HAROLD DOLEY/DOLEY SECURITIES April

16, 2008 T.M. Buchanan

Statement of Account

Invoice Over 60 days

Client: 105438-Harold Doley/Doley Securities

Matter: 0001-OTS Investigation

Invoice # Date Amount Credit Total

1993138 6/28/07 68,931.85 10,000.00 58,931.85

1996231 7/18/07 20,226.37 0.00 20,226.37

2002543 8/28/07 5,253.97 0.00 5,253.97

Total for Matter 0001 84,412.19

Balance Outstanding $84,412.19

A-42

INVOICE WINSTON & STRAWN, LLP

WINSTON & STRAWN, LLP

HAROLD DOLEY/DOLEY SECURITIES March

13, 2008 T.M. Buchanan

Statement of Account

Invoice Over 60 days

Client: 105438-Harold Doley/Doley Securities

Matter: 0001-OTS Investigation

Invoice # Date Amount Credit Total

1993138 6/28/07 68,931.85 10,000.00 58,931.85

1996231 7/18/07 20,226.37 0.00 20,226.37

2002543 8/28/07 5,253.97 0.00 5,253.97

Total for Matter 0001 84,412.19

Balance Outstanding $84,412.19

UNITED STATS DISTRICT COURT

District of Columbia

WINSTON &. STRAWN, LLP.

Plaintiff,

Vs. Case: 1 :08-CV 00144

HAROLD F. DOLEY

DOLEY SECURITIES

Defendants.

Assigned to: Walton, Reggie B

Assign Date: 1/24/2006

Description: Contract

DECLARATION OF CHAD ROBERT

Pursuant to 28 USC § 1746, in leu of a personal

appearance, I Chad Robert make the following

statement:

l am an adult Citizen of the United States and the

president of Doley Securities, Inc. and a resident of

the State of Louisiana and I have personal

knowledge of the facts and matters attested to in

this declaration.

I. I have read the declaration of Mr. Thomas

Buchanan, Esq. and am incredulous. No such

meeting ever took place. I have never been in

Washmegton, DC period, Jet alone to meet with

either Mr. Buchanan or Mr. Mancusi.

2. The assertions in paragraphs 7 and 8 of the

declaration of Mr. Buchanan Esq. are completely

untrue.

/Chad Roberts

Subscribed and sworn to this 29th dav of

April, 2008

i

Notary Public.

Case 1 :08-cv-00144-RBW

Document 32 Filed 07//4/09 Page 29 of 31

UNITED STATES DISTRICT COURT

District of Columbia

WINSTON & STRAWN, LLP

Plaintiff,

Vs.

HAROLD E. DOLEY, and

DOLEY SECURITIES, INC.,

Defendants

Case: 1:08-CV 00144

Assigned to: Walton, Reggie B

Assign Date: 1124/2006

DECLARATION OF HAROLD DOLEY

Pursuant to 28 USC § 1746, in heu of a persona!)

appearance, | Harold DolJey make the following

statement.

1.1 am an adult Citizen of the United States, resident

of the State of New York and have personal

knowledge of the facts and matters attested to in this

declaration.

2. 1 have read the declaration of Mr. Thomas M.

Buchanan, Esq. particularly paragraphs 7 & 8 and

categorically deny that there was ever a preliminary

meeting with Mr. Chad Robert, Mr. Buchanan, Mr.

Mancusi and myself, wherein the hourly rate for Mr

Mancusi and other associates was discussed. It is

shocking that such would be said under oath by Mr.

Buchanan. No such meeting ever took place.

I declare under penalty of perjury that the foregoing

is true and correct to the best

of my knowledge and belief.

Harold Doley

Law Office of

KIMMEL & ROXBOROUGH, LLC

709 Irving St., NW

Washington, DC 20010

(202) 368-8847

roxboroughI@Aol.com

April 20, 2008

Mr. Charles Klein

Winston & Strawn LLP

1700 K Street, NW

Washington, DC

Re: Winston & Strawn LLP vs. Harold Doley et al

1:08-cv-00144, analysis formula for possible

settlement

Dear Sir:

As you know I have filed a motion to dismiss the

above entitled case or in the alternative for a more

definite statement. My motion addresses what I

conclude to be an indefinite contract where certain

essential terms were not defined. That contract was,

therefore, without mutual assent. However,

Quantum Merit would still apply despite the

technical failure of its terms.

In my preliminary analysis | cited the following

terms in the contract signed with the law firm.

2. Fees. Although J will be the attorney responsible

for this engagement, portions of the work may be

performed by other firm attorneys and legal

assistant, as necessary. My current hourly rate is

A-48

$595.00. Our hourly rates for partners range from

$405.00 to $845.00; for associates, from $200.00 to

$590.00; and for legal assistants, from $135 to

$285.00. Our billing rates are subject to adjustment

from time to time, usually in January of each year.

Each of you will be jointly and severally hable for the

total fees and costs of representing you collectively in

this lawsuit.

Comparing the bill with the contract it seems clear,

the only definite fee stated was that of Mr. Thomas

Buchanan. The partners and associates were a

range of possible fees. The bill shows Mr. Mancusi

charged $480.00, an amount with the range ofa

partner and Mr. Court charging $365.00, an amount

within the range of an associate. There was no

evidence of any collateral agreement as to those fees

for them thus my clients only agreed to pay the

minimum amount. Those minimum amounts would

be $405.00 for a partner and $200.00 for an associate.

My clients feel that the amount of time for the review

of documents, most of which were from Sullivan &

Cromwell LLP, and preparation of him for the

deposition was excessive. They reviewed the bill and

proffered the following adjustments.

INVOICE No. 1993138

INVOICE DATE 06/28/07

(PROPOSED ADJUSTMENT)

Timekeeper Summary

Attorney/other prof

Rate _—_—_—_—____ Fees billed

T. Buchanan

595.00

M. Mancusi 36.50

405.00 5,592.50

J. Court 37.50

200.00 7.500.00

Total Attorney/Other

Prof 80.50

26,960.00

INVOICE NO. 1996231

INVOICE DATE 07/18/07

(PROPOSED ADJUSTMENT)

Timekeeper Summary

Attorney/other prof _ ___Hours

Rate = —s—— Cécile

T. Buchanan

595.00 2,826.25

M. Mancusi

405.00 3442.50

J. Court

200.00 2,200.00

Total Attorney/Other

Pro

8,468.75

INVOICE NO. 2002543

INVOICE DATE 07/18/07

PROPOSED ADJUSTMENT)

Timekeeper Summary

25.75

Attorney/other prof Hours

Rate a Fees Billed

T. Buchanan 1.00

595.00 595.00

M.Mancusi 3.5

405.00 1,417.50

J. Court 8.5

200.00 1,750.00

Total Attorney/Other

Prof 13.00

Total proposed adjustment

$39,191.25

Less Amount Paid

$10,000.00

EE

Total proposed due

$ 29,191.25

My clients are prepared to pay immediately

$20,000.00 in full settlement of this matter. They

feel strongly that the hours of Mancusi and Court

were essentially duplicative.

We make this offer in good faith and is the best

assessment of the servic’’s given in the matter of

preparation for a Deposition. We feel that the hours

expended were duplicative. Your firm failed to take

into account my clients initial position that they could

not afford to pay a great deal on this matter. They

never agreed to the level of fee and quantity of time

stated in the bill. Had my clients been apprised of

the likelihood of being charged over $90,000.00 for

preparation for a deposition they could have never

retained your very excellent firm.

[tis our hope that you accept an immediate payment

of $20,000.00 offered here in full satisfaction of this

entire matter.

Sincerely

Claude Roxborough

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

WINSTON & STRAWN, LLP,

Plaintiff,

Vs. Case No. 1:08-cv00144(RBW)

HAROLD E. DOLEY

and DOLEY SECURITIES, INC.,

Defendants.

CORRECTED DECLARATION OF THOMAS M.

BUCHANAN, ESQ.

Pursuant to 28 U.S.C. § 1746, in licu of a

personal appearance, I, Thomas Buchanan, make the

following statement:

1. [ am over 21 years of age, and [ have

personal knowledge of the facts and matters attested

to in this Declaration, and I am competent to be a

witness to the facts and matters attested to in this

Declaration.

2. Iam a partner with Winston & Strawn

LLP (““W&S”), which is an international law firm with

offices through the United States and abroad.

I. The Defendants

3. Harold E. Doley is an experienced

businessman. According to the website of Doley

Securities, Inc. (“DSI”), he is the founder of DS], has

been an individual seat holder on the New York Stock

Exchange since 1973, and is an underwriting member

of Lloyd’s of London. See Attachment 1 (Company

Information).

4. According to its website, DSI was

founded in 1973. It specializes in providing

investment products and services to institutional

clients, and its specialties include raising capital for

securities issuers, providing secondary market

services for institutional investors, and furnishing

financial advisory services to institutions,

corporations, government and political subdivisions.

See id. Chad Robert serves as the President of DSI.

II. Background

5. Before Mr. Doley and DSI retained

W&S, the Office of Thrift Supervision (“OTS”) served

on Defendants a subpoena for documents. In

response, Defendants produced thousands of pages of

documents to the OTS.

6. OTS issued a second subpoena to

Defendants requesting additional documents and Mr.

Doley’s deposition. In the early spring of 2007, after

the return date of the second round of documents had

already passed but before any documents were

produced, Defendants approached W&S seeking legal

counsel.

4 Before W&S’s representation of

Defendants began, a partner of mine, Michael A.

Mancusi, and I met in person with Mr. Doley, who

was representing his interest and the interests of

DSI. Mr. Mancusi and I explained to Mr. Doley the

legal work that would need to be done to properly

represent Mr. Doley and DSI. We explained that we

needed to review the documents they already

produced, and also review more documents that could

be responsive to the second subpoena. In addition,

we explained that we would need to prepare Mr.

Doley for his deposition and then defend his

deposition. At the meeting, Mr. Doley indicated to

me that he understood what W&S’s work would

entail.

8. During that initial meeting, Mr.

Mancusi and I also explained the fees and costs that

would be associated with W&S’s representation of

Defendants. In particular, I described that the

matter would be billed on an hourly rate basis, in

quarterly increments, and that my hourly billing rate

was $595 and Mr. Mancusi's billing rate was $480.

We also explained that associates of W&S may also

be working on the matter, but they would bill at lower

hourly rates. Mr. Doley told Mr. Mancusi and me

that he understood and accepted the fees and costs

that were associated with W&S’s work on the matter.

Iii. The Parties’ Agreement

9. On April 19, 2007, before W&S

conducted any work on behalf of Defendants, I sent to

both Mr. Doley and DSI an engagement letter

agreement to memorialize the parties agreement.

This agreement provides, among other things, that

A-56

“the firm’s chents will be clients Harold Doley and

Doley Securities, Inc. The scope of our engagement

will be limited to the representation of each of you in

the [investigation being conducted by the OTS].”

The agreement also states that W&S’s “policy at the

outset of an engagement with new clients is to outline

not only the nature of the engagement, but also the

basis on which the firm will provide legal services and

bill for them.” See Attachment 2 Ltr. Agree. At 1).

10. The letter agreement states, in part,

that W&S’s fees for work on the matter would be

determined on an hourly basis. I provided

Defendants with my then-current hourly rate of $595,

as well as the hourly rate ranges for partners,

associates, and legal assistants. See id. (Ltr. Agree.

At § 2)

11. The letter agreement also states that

there would be costs associated with W&S’s

representation of Defendants in addition to W&S's

legal fees. See id. (Ltr. Agree. At 4 3)

12. The letter agreement also states that

W&S renders on-account bills monthly and expects

its clients to pay account statements within 30 days.

See id. (Ltr. Agree. At §] 4).

13. The letter agreement also requested

that Defendants pay a “$10,000 retainer to initiate

the engagement” and explained that “[tlhis retainer

will be applied against ongoing fees and expenses.”

(Ltr. Agree. At 4] 10).

14. Mr. Doley signed the letter agreement

on April 20, 2007, on his behalf, and Mr. Robert

signed the engagement letter on April 20, 2007, on

behalf of DSI. In the letter agreement, both Mr.

Doley and DSI acknowledged that they were given

the opportunity to consult with independent counse!

before signing the engagement letter. See id. (Ltr.

Agree. At 4).

15. Mr. Doley and DSI paid the $10,000

retainer on May 23, 2007.

IV. W&S’s Performance Under the Agreement

16. W&S performed legal services on behalf

of Defendants after the parties executed the

engagement letter agreement. First, there was a

dispute over what OTS claimed Defendants produced

pursuant to the first subpoena, and what Defendants

believed that they produced. In connection with this

dispute, W&S had to review the thousands of pages of

documents that were produced pursuant to the first

subpoena and then meet with OTS representatives to

compare what they received to what Defendants

believed was produced. Second, W&S needed to

review thousands of additional pages to determine if

Defendants needed to suppice ment their production

based on the second OTS subpoena. As those

documents were due before W&S even began its

representation of Defendants, W&S had to conduct

their document review over a short period time, and

the firm did produce additional documents on behaif

of Defendants. Third, W&S had to prepare Doley for

his deposition. The firm also defended Doley's

deposition. Finally, W&S provided legal advice to

Defendants regarding certain purchases of stock.

7. This legal work was performed by me,

Mr. Mancusi, and an associate. As described in the

letter agreement, my billing rate was $595. Mr.

Mancusi's billing rate was $480, and Mr. Court billed

at a rate of $365. See Attachment 3 (Invoices).

18. In total W&S devoted 215.25 of legal

work on behalf of Defendants. Mr. Mancusi billed

102 hours, Mr. Court billed 101 hours, and [ billed

12.25 hours. All of this work was appropriate and

necessary to W&S’s representation of Defendants See

id (Invoices).

V. Defendants’ Breach of The Agreement

19. W&S sent three bills to Defendants in

June, July and August of 2007. The June bill totaled

$68,931.85, the July bill totaled $20,226.37, and the

August bill totaled $5,253.97. All three bills not only

described the total amount of charges, but also gave a

description of the work performed by Mr. Mancusi,

Mr. Court and me. The total charges to Defendants

was $94,412.19. Seeid. Invoices). W&S sent

Defendants monthly statements of account

statements Defendants never contested. See

Attachment 4 (Statements of Account).

20. Defendants never complained to W&S about

the quality or quantity of work that W&S was

performing. Nor did Defendants ever complain

outside the context of this lawsuit about the amount

W&S charged for its legal services on behalf of

Defendants. But that payment never came

21 W&S applied the $10,000 retainer to amounts

owed by Defendants to the law firm. To date

Defendants owe W&S $84,412.19

Case 1:08-cv-00144-RBW Document

27 Filed 05/26/09 Page 1 of 1

UNITED STATES DISTRICT COURT

District of Columbia

WINSTON & STRAWN, LLP,

Plaintiff,

Vs. Case: 1:08-CV 00144

HAROLD F. DOLEY, and

DOLEY SECURITIES, INC.,

Defendants.

Assigned to: Walton, ReggieB.

Assign Date: 1/24/2006

Description: Contract

ANSWER TO THE COMPLAINT

Comes now the defendants Doley Securities Inc.

and Harold Doley by and through its attorney

Claude Roxborough Esq. For their answer to the

complaint of Winston & Strawn, LLP., states the

following:

1. The defendants admit to the allegations stated

in paragraph 1,2,3,4,56,8,9, 10, 11, 12, and 17. of

the plaintiffs complaint.

2. The defendants deny the allegations

contained in paragraph 7. 13. 14, 15, 16, 17, 18,

19 of the plaintiffs complaint.

Wherefore, the plaintiff admits that work was

performed by the plaintiff but demands strict

proof that the rates charged were in fact agreed

upon and that the extraordinary hours stated

A~61

were indeed performed.

Respectfully Submitted

Claude ROXBOROUGH 7

Claude Roxborough, Esq. 162313

709 Irving St. NW

Washington, DC 20010

202 368 8847

CERTIFICATE OF SERVICE

I, Claude Roxborough Esq. hereby certify that a

copy of the foregoing was mailed postage prepaid to

Thomas Buchanan 1700 K Street, NW, Washington,

DC 20006 this 20 day of May 2009.

_/s/Claude Roxborough

Claude Roxborough

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

WiNSTON & STRAWN, LLP,

Plaintiff,

vs. Case No: 1:08-cv-00144 (RBW)

HAROLD E. DOLEY

and DOLEY SECURITIES, INC.,

Defendants.

PLAINTIFF'S OPPOSITION TO DEFENDANTS’

MOTION TO RECONSIDER

Defendants’ Motion to Reconsider should be

summarily denied. On June 29, 2009, this Court

granted summary judgment for Plaintiff against

Defendants, jointly and severally, in the amount of

$84,412.19, plus prejudgment interest and costs. See

kt. 31. In their Motion to Reconsider, Defendants

have not even attempted to meet the strict standard

for reconsideration by arguing that there has been an

intervening change of controlling law, or that

there now exists evidence that was not available to

them before summary judgment was entered.

As discussed in more depth below, therefore,

Defendants have not met their burden to clearly

establish a manifest error of law or fact sufficient to

warrant reconsideration of summary judgment.

A motion for reconsideration under Federal Rules of

Evidence 59(e) and 60(b) “need not be granted unless

the district court finds that there is an intervening

change of controlling law, the availability of new

evidence, or the need to correct a clear error or

A-63

prevent manifest injustice.” Agrocomplect, AD v. Rep.

of Iraq, 247 F.R.D. 213, 215 (D.D.C. 2008)

(Walton, J.) (quoting Messina v. Krakower, 439 F.3d

755, 758 (D.C. Cir. 2006); see also FED.R.

CIV. 59(e) and 60{b). The movant bears the burden to

“clearly establish a manifest error of law

lpage 2]

or fact.” Ctr. for Sci. in the Pub. Interest v. FDA, No.

Civ. A. 03-1962, 2004 WL 2218656, at *2

(D.D.C. Sept. 17, 2004) (Walton, J.). As this Court has

stated previously, “motions for reconsideration under

Rule 59(e) are ‘disfavored’ and ‘should be granted

only under extraordinary circumstances.”

Agrocomplect, 247 F.R.D. at 215; Ctr. for Sci. mm the

Pub. Interest, 2004 WL 2218656, at *2. Defendants

offer three arguments for reconsideration, but

none has any merit.

First, Defendants argue based solely on a belated

declaration of Defendant Harold E. Doley that there

is a triable issue material issue of fact as to whether

Defendants agreed to pay only the lowest range of

fees listed in the parties’ contract. But this

declaration is hardly “new evidence.” In fact,

Defendants offer no excuse for failing to submit this

evidence with Defendants’ opposition to summary

judgment. They inexplicably waited until after losing

summary judgment to raise this purported triable

issue of material fact. Such delay cannot

support reconsideration. This Court previously

rejected a similar motion to reconsider where the

motion relied on information that was available to

the moving party before a dismissal order was

entered. See Agrocomplect, 247 F.R.D. at 215, n.5.

A-64

Even if the Doley declaration were new evidence

(which it is not), st still would not raise a triable issue

of material fact. This Court, in rejecting Defendants’

motion to dismiss, previously held that the letter

agreement signed between Plaintiff and Defendants

is a binding and enforceable contract. See Dkt. 17.

This enforceable contract unambiguously discusses

the range of rates for partners and associates: “Our

hourly rates for partners range from $405.00 to

$845.00; for associates, from $200.00 to $590.00,” and

at no point even hints that Defendants would be

charged fees only in the low end of the ranges. Dkt.

10-7, pg 12. The Doley declaration thus constitutes

inadmissible and non-contemporaneous parol

evidence that is

[page 3]

insufficient as a matter of law to raise a material

issue of fact for trial. See U.S. ex rel D.L.J. Ine.

v. Allegheny Jefferson Millwork, LLC, 540 F.Supp.2d

165, 172 (D.D.C. 2008) (“When the parties

to a contract have reduced their entire agreement to

writing, the court will disregard and treat as

legally inoperative parol evidence of prior

negotiations and oral agreements”); Ul/iman Schutte

Const., LLC v. Emerson Process Management Power

& Water Solutions, No. Civ.A. 02-1987(RMC), 2006

WL 1102838 at *11 (D.D.C. March 31, 2006, “Ifa

writing constitutes the parties’ ‘entire contract,’ the

parol evidence rule applies, and ‘evidence of any

previous oral or written neyotiations or agreements

involving the same subject matter as the contract is

almost always inadmissible to explain or vary the

terms of the contract.’”)

Second, Defendants argue that reconsideration is

warranted because early bills issued by Plaintiff did

A-65

not credit Defendants for their $10,000 retainer. This

is a complete nonissue that was raised and resolved

at the summary judgment. hearing. As Plaintiff

explained in its summary judgment papers and at

oral argument, the $10,000 retainer was applied to

Defendants’ bills and subtracted from the total that

Defendants owe. See Dkt. 12-2 at 5, | 20; Dkt. 10-7 at

45 (statement showing $10,000 credit given to

Defendants). This Court’s judgment accurately takes

into account the $10,000 credit. See Dkt. 31.

Defendants do not, and cannot, argue otherwise.

See Ctr. for Sci. in the Pub. Interest, 2004 WL

2218656, at *2 (“A motion to reconsider a

judgment dismissing one’s claim is ‘not simply an

opportunity to reargue facts and theories upon

which a court has already ruled”).

Finally, Defendants argue that this case should have

been subject to arbitration. This argument, like the

others, is not supported by any change in controlling

law or new evidence. It also is untimely. This issue

was fully briefed by the parties and was decided by

this Court on February 10, 2009. See Dkt. 18. Dkt. 19,

and Dkt. 20. Any motion for reconsideration

[page 4]

on this issue has long passed. FED. R.CIV. 59(e) (fal

motion to alter or amend a judgment must be filed no

later than 10 days after the entry of the judgment”).

CONCLUSION

For the foregoing reasons, Plaintiff requests that this

Court deny Defendants’ Motion to Reconsider.

Respectfully submitted,

\s\

Thomas M. Buchanan # 337907

Charles B. Klein, # 450984

Winston & Strawn LLP

1700 K Street, N.W.

Washington, D.C. 20006-3817

(202) 282-5000

Dated: July 21, 2009 Counsel for Plaintiff

UNITED STATES DISTRICT COURT

District of Columbia

WINSTON & STRAWN, LLP,

Plaintiff,

Vs. Case: 1:08-CV 00144

HAROLD F. DOLEY, and

DOLEY SECURITIES, INC.,

Defendants.

Assigned to: Walton, Reggie B

Assign Date: 1/24/2006

Description: Contract

MOTION OF THE DEFENDANTS

HAROLD E. DOLEY AND DOLEY

SECURITIES, INC. TO DISMISS THE

COMPLAINT, OR IN THE ALTERNATIVE,

FOR A MORE DEFINITE STATEMENT

(Oral Hearing Requested)

Defendants Harold E. Doley and

Doley Securities, Inc., by and through their

undersigned counsel and pursuant to Federal

Rules of Civil Procedure 12(b)(6), and 12(e),

respectfully requests that this Court dismiss

with Prejudice Plaintiffs Complaint,

or in the alternative, compel Plaintiff to draft

a more definite statement of his claims.

This case arises from allegations

made by the Law firm of Winston & Strawn, LLP.

that tk= defendants owe plaintiff $ 84,412.19 for legal

A-68

ee

assistance in one deposition taken by the Office of

Thrift Supervision on July 18, 2007. The plaintiff

suggests that a document signed on April 19, 2007

was a contract which the defendants breached. The

contract was indefinite as to the specific hourly rates

that would be charged by firm attorneys, legal

assistant but specified a broad range of possible fees

and was not definite. The Contract’s indefiniteness

renders the contract void and as such warrants the

dismissal of this complaint with prejudice. In the

alternative because the complaint is so vague and

ambiguous, the defendants cannot reasonably be

required to frame a responsive pleading and request

a more definite statement.

The reasons therefore are more specifically addressed

in the accompanying Memorandum of points and

authorities attached hereto.

Respectfully Submitted

__/Claude ROXBOROUGH |

Claude Roxborough Esq. 162313

709 Irving St. NW

Washington, DC 20010

202 368 8847

CERTIFICATE OF SERVICE

I] Claude Roxborough Esq. hereby certify that a copy

of the foregoing was mailed postage

prepaid to Thomas Buchanan 1700 K Street, NW,

Washington, DC 20006 this day of

2008.

__/s/Claude Roxborough

A-69

Claude Roxborough

ORAL HEARING REQUESTED

The Defendants respectfully request and oral hearing

on this motion.

UNITED STATES DISTRICT COURT

District of Columbia

WINSTON & STRAWN, LLP,

Plaintiff,

Vs. Case: 1:08-CV 00144

HAROLD F. DOLEY, and

DOLEY SECURITIES, INC.,

Defendants.

Assigned to: Walton, Reggie B

Assign Date: 1/24/2006

Description: Contract

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

TABLE OF CONTENTS

I. Introduction 3

II. Factual Background 3

Ill. Argument 4

A. Standard for Motion to Dismiss 4

B. Standard for Motion for More Definite Statement 4

C. Contract 4

IV. Conclusion 5

I. INTRODUCTION

Defendant's Harold EK. Doley and Doley Securities,

INC. (“Doley”) hereby respectfully moves this Court

for an Order dismissing the Complaint filed by

Plaintiff Winston & Strawn, LLP with prejudice for

failure to state a claim upon which relief may be

granted. In the alternative, Harold E. Doley and

Doley Securities, INC. (“Doley”) respectfully

requests an Order compelling Plaintiff to file a more

definite statement of their case.

IT. FACTUAL BACKGROUND

Defendant's Harold E. Doley and Doley Securities,

Inc... (““Doley”) sought legal advice regarding a

subpoena for a deposition to be conducted by the

Office of The Thrift Supervision. They were not

targets of the investigation or parties to any lawsuit

related to Independence Federal Savings and Loan

Inc. The defendants paid $10,000.00 for legal

assistance in the preparation for their deposition. An

agreement was tendered by the plaintiff Winston &

Strawn LLP., to provide representation in the

investigation which was indefinite as to the amount

to be paid for hourly services providing only a range.

Throughout the very limited representation of the

Defendants by the Plaintiff, fees for partners,

associates and legal assistance were never defined.

The April 19, 2007 agreement was and remained

unduly uncertain and so indefinite that no contract

was formed. The plaintiff provided assistance for only

one deposition. After which their services were no

longer needed.

A-72

Il. ARGUMENT

1. Standard for Motion to Dismiss

When considering a Federal Rules of Civil Procedure,

FRCP 12(b)(6) motion based on a defendant's

assertion that plaintiff fails to state a claim upon

which relief can be granted, this Court's evaluation is

limited to the four corners of the Complaint. See

Aronoff v. Lenkin Co., 618 A.2d 669, 684 (D.C. 1992)

(citations omitted). In reviewing such a

motion, this Court accepts all allegations in the

Complaint as true, and construes the pleading in the

light most favorable to the plaintiff. Id. In doing so,

however, this Court must dismiss vague and

conclusory allegations because such statements

cannot substitute for the required statement of facts

necessary to state a claim. See Leonard v. District of

Columbia, 704 A. 2d 618, 630-31(D.C. 2002). Dismisal

is also proper when it appears that a plaintiff can

prove no legally sufficient facts to support the claim

for relief. See Schiff v. American Assn of Retired

Persons, 697 A. 2d 1193, 1196 (D.C. 1997).

Applying these standards here, Plaintiffs' Complaint

must be dismissed in its entirety, Not only are all

allegations vague, conclusory, and wholly lacking in

substance, but there is also no set of facts under

which Plaintiffs can state viable claims given the

allegations raised in their Complaint. Dismissal is

proper since Plaintiff cannot prove any legally

sufficient facts to support his claim for relief.

2. Standard for Motion for a More Definite Statement

By the lan ,uage of FRCP 12(e) itself, "If a pleading to

which a responsive pleading is permitted is so vague

or ambiguous that a party cannot reasonably be

required to frame a responsive pleading, the party

may move for a more definite statement...." Courts

will examine the pleading for "vagueness or lack of

clarity," see McDanielv. Cusimano, 148 A.2d 303,

305 (D.C. 1959) (analyzing the District of Columbia

Rules of Procedure), or, in the alternative, for

"sufficient definiteness to enable the defendant to

frame an answer," see Montgomery v. Kingsland, 166

F.2d 953, 956 (D.C. Cir. 1948) (analyzing the Federal

Rules of Civil Procedure.

The Plaintiff States in the Complaint the following:

This matter is a simple breach of contract case that

cannot be more clear. Defendants agreed by written

contract for W&S to represent them in a legal matter,

and in exchange, to pay W&S for its legal services.

The fees and cost of W&S’s legal services were

explained to Defendants both orally and in the

written agreement. W&S performed legal services on

behalf of Defendants at the rates that were spelled

out in the written agreement, and without complaint

from Defendants. As a result of the work performed

by W&S on behalf of Defendants, Defendants owe

W&S $ 84,412.19, which Defendants have-not paid,

and thus defendants have breached a written

contract with W&S.

The alleged contract referred to by the Plaintiff is not

clear and appears to be nothing more than a rate

A-74

sheet with ranges of possible charges from various

possible service providers in the firm. The complaint

fails to identify in any paragraph what charges from

any specific provider was identified charged and or

refused. Although the parties may have manifested

an intention to make a contract, if the content of their

agreement is unduly uncertain and indefinite no

contract is formed. Restatements, Contracts (2d) § 32

(1); Corbin § 95; 1 Williston § 37’ Parks v. Atlanta

News Agency, Inc, 115 Ga. App. 842,156 S.E. 2d 137.

c. Contract

The rule of contract law is that. an “offer must be so

definite as to its material terms or require such

definite terms in the acceptance that the promises

and performances to be rendered by each party are

reasonably” certain. Restatement, Contracts § 32

Material terms include subject matter, price,

payment terms, quantity, quality, duration, and work

to be done. 1 Williston §§ 38-48; 1 Corbin §§ 95-100.

The requirement of definiteness cannot be pushed to

extreme limits. However as Corbin says:

“In considering expressions of agreement, the courts

must not hold the parties to some impossible, or ideal,

or unusual standard. It must take language as it 1s

and people as they are. All agreements have some

degree of indefiniteness and some degree of

uncertainty. In spite of its defects, language renders a

practical service. In spite of ignorance as to the

language they speak and write, with resulting error

and misunderstanding, people must be held to the

promises they make. The court must not be overly

fearful of error: it must not be pedantic or meticulous

A-75

in interpretation of expressions.” 1 Corbin § 95 The

Courts do not. agreements so as to carry into effect. the

reasonable intention of the parties, if that can be

determined. Jn re Wonderfair Stores, Inc., 511 F2d

1209.

favor the destruction of contracts because of

uncertainty, but will, if feasible, construe

This claim, as currently stated, must be dismissed.

The plaintiff seeks to enforce a contract. that fails to

recite duration, work to be done, and quantity of

hours to be performed, by whom and at what specific

rate. The alleged contract is so open ended as

to constitute merely a work sheet listing ranges of

possible charges that could be made for Quantum

Merit work. While there is clearly, intent to be served

by the plaintiff, the defendant did not agree to an

open ended arbitrary assessment of fees in a

representation for a single deposition. The complaint

as such rehes on an alleged failure to pay what

plaintiff arbitrary suggest is owed from it’s work

sheet of ranges of possible charges and as such should

be dismissed.

Ifthe Court chooses not to dismiss the complaint 1t

should require the plaintiff to specify what specific

charge and time expended by the plaintiff and others

responsible for the work performed. There should

also be a clear statement or explanation as to where,

when, how and what terms were breached by the

defendants. Also, a specific detailed hour by

hour involvement of each individual participant

assigned by the plaintiff to the

preparation for the deposition.

A-/6

IV. CONCLUSION

Kor all of the foregoing reasons, the Defendants

respectfully request that this court dismiss all of

Plaintiffs claims with prejudice, and if certain claims

as to the Defendant cannot be dismissed, Defendants

respectfully request that this Court compel Plaintiff

to frame a more definite statement of their claims.

Case 1:08-cv-00144-RBW Document 19

Filed 01/06/09 Page 1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

WINSTON & STRAWN LLP,

Plaintiff,

vs. Case No. 1:08-CV 00144 (RBW)

HAROLD E. DOLEY, and

DOLEY SECURITIES, INC.,

Defendants.

PLAINTIFF'S

OPPOSITION TO DEFENDANTS’

MOTION TO STAY.

PROCEEDINGS

Plaintiff Winston & Strawn LLP, by

and through its undersigned counsel, hereby opposes

the Motion to Stay Proceedings to AJow Arbitration

of Fee Dispute Before the Attorney Client Arbitration

Board as Well as Defendants' Prosecution of Other

Grievances filed by Defendants Harold E. Doley and

Doley Securities, Inc. A proposed order is attached.

INTRODUCTION

Having filed and lost their motion

seeking a dismissal with prejudice, Defendants

now ask to stay this case while they seek judgment

from a different tribunal. Defendants cannot seek

this Court's judicial judgment and then, when not

satisfied with it, obtain a second bite at the apple.

They have waived their right to arbitrate the

parties' dispute. The D.C. Circuit recently

A-78

addressed virtually identical facts and held that a

stay of litigation in favor of arbitration constituted

reversible error. In KAan v. Parsons Global Servs.,

521 F.3d 421 (D.C. Cir. 2008), the Court of Appeals

held that arbitration should not have been compelled

where, as here, the defendants actively participated

in the litigation by filing a

Case 1:08-cv-00144-RBW Document 19

Filed 01/06/09 Page 2 of 8

dispositive motion. This is because "arbitration may

not be used as a strategy to manipulate the

legal process." 1d at 427 (citation omitted).

Khan is directly on point. As in Khan,

Defendants have been fully aware for months of

their right to arbitration. Yet, they moved to dismiss

on the merits and, in fact, even invited the Court to

consider matters outside the pleadings. Having

decided to move for dismissal with prejudice rather

than arbitrate, Defendants "must. now accept the

result of its chosen litigation strategy: waiver of its

right to compei arbitration." id at 428. This 1s

especially true here, where the case has been

pending for almost a year already and further delay

would prejudice Winston & Strawn.

As demonstrated in more depth below,

this Court should swiftly deny Defendants' motion

to stay and set a deadline for their opposition to

Winston & Strawn's pending summary judgment

motion.

BACKGROUND

This is a simple breach of contract. case

involving Defendants' failure to pay their legal fees.

Defendant Harold EK. Doley, an experienced

businessman, and his company, Defendant Doley

Securities, Inc., agreed in writing that Winston &

Strawn would represent them in connection with a

regulatory investigation by the Office of Thrift

Supervision. In exchange, Defendants agreed to

pay Winston & Strawn for these legal services.

Pursuant to that agreement,

Winston & Strawn attorneys devoted more than

200 hours of billable work to representing

Defendants and sent. three invoices for legal services

in dune, July and August 2007 totaling more than

$90,000. Defendants paid none of the invoices

(although a $10,000 retainer was applied to the

outstanding balance). Defendants never complained

about the work performed or the bills for service until

this htigation. See Dkt. 10,

Case 1:08-cv-00144-RBW Document 19

Filed 01/06/09 Page 3 of 8

Kx. 6 (Buchanan Decl. at paragraphs 3-19). The

representation was successful in that no charges

were brought against Defendants.

Before filing suit, Winston & Strawn

attempted to negotiate payment from Defendants,

but to no avail. At any point during these

negotiations, Defendants could have sought to

arbitrate the matter with the Attorney/Chent

A~-80

Arbitration Board of the District. of Columbia

Bar. But Defendants simply decided to ignore the

requests for payment.

On January 24, 2008, after

negotiations were unsuccessful, Winston & Strawn

filed its Complaint for breach of contract. Dkt. 1. At.

that point, Defendants could have sought to have

this matter arbitrated by the D.C. Bar. Again,

Defendants chose not to arbitrate.

Instead, on March 7, 2008, Defendants

moved to dismiss the Complaint on the merits,

seeking a dismissal with prejudice. Dkt. 4 at 1

("Defendants Harold E. Doley and Doley Securities,

Inc., by and through their undersigned counsel and

pursuant to Federal Rules of Civil Procedure

12(b)(6), and 12(e), respectfully requests that this

Court dismiss with Prejudice Plaintiffs Complaint")

(emphasis added). On May 6, 2008, two months after

moving to dismiss, Defendants filed a supplemental

memorandum that attached two exhibits outside of

the pleadings: (1) a settlement letter from

Defendants’ counsel, and (2) a declaration from the

President of Do ley Securities Inc. See Dkt. 14 at Exs.

1 and 2.

In this supplemental pleading,

Defendants recognized that they "could

respectfully settle this dispute through arbitration

with the Bar," thus confirming their knowledge

of this arbitration right at the time. Dkt. 14 at 5.

Nevertheless, Defendants opted for litigation

and continued to ask this Court to dismiss the case

on the merits.

Case 1:08-cv-00144-RBW Document 19

Filed 01/06/09 Page 4 of 8

On November 21, 2008, the Court

heard----and denied----Defendants' motion to

dismiss. Dkt. 17. It was only after this denial

that Defendants first mentioned their intent to

move to stay the case pending arbitration.

To date, Defendants have not officially

requested arbitration with the D.C. Bar; the

agreement to arbitrate and request for arbitration

attached to Defendants' motion are not signed by

either Defendant. See Dkt. 18 at 5-6. And the D.C.

Bar has no record of request for arbitration by either

Defendant. Nor have Defendants answered the

Complaint even though that answer was due on

December 10, 2008, ten days after the motion to

dismiss was denied. !

ARGUMENT

Defendants Waived Their Right to Arbitrate

This Dispute By Actively Participating

In The Lawsuit.

D.C. Bar Rule XII1(a) reads an

arbitration provision into the parties' contract for

legal services by stating: "An attorney subject to the

disciplinary jurisdiction of this Court shall

be deemed to have agreed to arbitrate disputes over

fees for legal services ...." But Defendants have

waived that right to arbitration.

[tis well estabhshed that the right to

A-82

arbitration, like any other contract right, can

be waived. National] Foundation for Cancer Research

v. A.G. Edwards & Sons, Inc., 821 F.2d

772,774 (D.C. Cir. 1987); Cornell & Co. v. Barber &

Ross Co., 360 F.2d 512, 513 (D.C. Cir.

1966). It is equally clear that a party waives his right

to arbitrate when he actively participates in

a lawsuit or takes other action inconsistent with that

night. Cornell 360 F.2d at 513; Ahan, 52]

F.3d at 425. Waiver may be found absent a showing

of prejudice. National Foundation, 821

1 See FED R. Civ. P. 12(a)(4)(A) (“if the court denies

the motion or postpones its disposition until trial. the

responsive pleading must be served within 10 days

after notice of the court's action"); FED R. Civ. P.

55(a) ("When a party against whom a judgment for

affirmative relief is sought has failed to plead or

otherwise defend and that failure is shown by

affidavit or otherwise, the clerk must enter the

party's default.").

Case 1:08-cv-00144-RBW Document 19

Filed 01/06/09 Page 1 of 8

F. 2d at 777. Once having waived the right to

arbitrate, that party is barred from proceeding with

arbitration. Jd.

This case is controlled by the D.C.

Circuit's recent decision in Ahan. In that case,

the D.C. Circuit reversed the district court's grant of

A~83

motion to compel arbitration, holding that

the defendant waived his right to arbitrate by filing a

summary judgment motion at the outset of

the litigation. The Court reached this holding even

though no answer was filed and discovery

had not yet begun. The Court rejected the argument

that, "at most... [only] a motion for

summary judgment on the merits of an arbitrable

claim, filed after substantial discovery, can

waive the movant's right to arbitrate that claim."

521 F.3d at 426. Instead, the Court found a

waiver of the right to arbitrate because the

defendants knew they had such a right and, yet,

decided to file a dispositive motion that referenced

matters outside of the pleadings. As the Court

explained, when a "party has made a decision to

take advantage of the judicial system [he]

should not be able thereafter to seek compelled

arbitration ... thus indulging in ‘a second bite at

the very questions presented to the court for

disposition.” /d. at 426-27.

Khan is on point. Defendants have

known about their right to arbitration since

May 2008, at the latest. Dkt. 14 at 5. Yet, they

made a conscious decision to proceed with the

litigation in the hope that this Court would construe

the allegations on the merits and dismiss the

case with prejudice. In support of its motion to

dismiss, Defendants even relied on evidence

cutside the pleadings----including a declaration from

thus further

taking action inconsistent with preserving the right

to compel arbitration. See id. at 428; see also St.

Mary's Med. Ctr of Evansville, Inc. v. Disco

Aluminum Products Co., Inc., 969 F.2d 585, 589 (7th

A-84

Cir. 1992) (“Submitting a case to the district court for

decision is not. consistent

Case 1:08-cv-00144-RBW Document 19

Filed 01/06/09 Page 6 of 8

with a desire to arbitrate. A party may not normally

submit a claim for resolution in one forum and then,

when it is disappointed with the result in that forum,

seek another forum.").

After almost a year of litigation, it is far

too late for Defendants to reverse course and seek a

change of venue. In fact, delay in seeking arbitration

has been viewed by the D.C. Circuit as a decision to

waive arbitration. In National Foundation, the

defendant waited about a year after the Supreme

Court found an issue in the complaint was arbitrable

before seeking arbitration. The Court of Appeals held

that the defendant's "extended silence" and "much

delayed demand for arbitration" showed that it had

"made a conscious decision to continue to seek

judicial judgment on the merits of [the plaintiffs]

arbitrable claims." 821 F.2d at 777.

The same is true here. Defendants'

intentional delay of almost a year after the

Complaint was filed to seek arbitration should be

deemed to have waived their right to arbitration.

Although the issue of waiver was raised at the

November 21 hearing, the cases Defendants cite do

not discuss waiver at all. Jn those cases, unlike here,

the chents sought arbitration at the earhest time

possible, even before a complaint was filed in court.

See Bolton v. Bernabet & Katz, PLLC, 954 A.2d 953,

A-85

957 (D.C. 2008); Schwartz v. Chow, 867 A.2d 230, 232

(D.C. 2005). Defendants have thus failed to justify

their belated effort to compel arbitration

Il. Staying The Case Would Prejudice Winston

& Strawn.

As discussed above, waiver of the right

to arbitrate may be found absent a showing of

prejudice. National Foundation, 821 ¥.2d at 777.

Nevertheless, Winston & Strawn would, in fact, be

prejudiced if forced to abandon this litigation and

start the case fresh before a different tribunal.

First, Winston & Strawn's invoices

have been outstanding for over a year and a

half. Repeated requests for payment have been met

with delay----a delay that would be further

Case 1:08-cv-00144-RBW Document 19

Filed 01/06/09 Page 7 of 8

compounded if, as Defendants request, a year of

litigation before this Court would be deemed wasted.

If this matter were referred to arbitration, Winston &

Strawn would have to begin its request for payment

anew, thus essentially providing Defendants with a

further reprieve from their contractual obligations.

Defendants should not be rewarded for their

wait-and-see attitude in seeking arbitration with an

even greater delay in having this simple matter

resolved. See In re Tyeo Intern. Ltd. Secs. Litig., 422

F.3d 41, 47 (ist Cir. 2005) ("arbitration is 'not meant

to be another weapon in the arsenal for imposing

delay and costs in the dispute resolution process")

(citations omitted).

Second, Winston & Strawn has

already incurred the expense of litigation, including

responding to Defendants' motion to dismiss and

filing its summary judgment motion. See Dkts. 9, 10

and 13. The pending summary judgment motion is

very straightforward and could be resolved quickly

after Defendants respond. Thus, the case should

proceed on that trajectory. See Khan, 521 F.3d at 428

(finding prejudice because the plaintiffs had to

respond to a dispositive motion and “bear the

expense of this proceeding").

CONCLUSION

For the foregoing reasons, Plaintiff

requests that this Court deny Defendants’ Motion to

Stay and order Defendants to respond to its pending

Motion for Summary Judgment.

Respectfully Submitted,

Thomas M. Buchanan # 337907

Charles B. Klein, # 450984

Winston & Strawn LLP

1700 K Street, N.W.

Washington, D. C. 20006- 3817

(202) 282-5000

Counsel for Plaintift

Dated: January 6, 2009

Case 1:08-cv-00144-RBW Document 19

Filed 01/06/09 Page8 of 8

CERTIFICATE OF SERVICE

Jase 1:08-cv-00144-RBW Document 9

Filed 04/22/08 Page 1 of 9

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

WINSTON & STRAWN, LLP,

Plaintiff,

VS.

HAROLD E. DOLEY

and DOLEY SECURITIES, INC.,

Defendants.

PLAINTIFF'S OPPOSITION TO

DEFENDANTS' MOTION TO DISMISS,

ORIN THE ALTERNATIVE, FOR A MORE

DEFINITE STATEMENT

Plaintiff Winston & Strawn LLP

("Plaintiff or "W&S"), by and through its

undersigned counsel, hereby opposes the Motion to

Dismiss the Complaint, or in the Alternative, for a

More Definite Statement ("Motion to Dismiss"), filed

by Defendants Harold E. Doley and Doley Securities,

Inc. (together, "Defendants")'

INTRODUCTION

Plaintiff's Complaint alleges that the

parties entered into an attorney-client relationship

and Defendants owe W&S more than $85,000 for

invoiced fees and expenses. In their Motion to

Dismiss, Defendants argue that this claimed debt is

A-88

unenforceable as a matter of law because the

engagement letter and corresponding invoices

purportedly are "so indefinite that no contract was

formed." Defs' Br. at 2. In essence, Defendants'

theory of defense is that engagement letters used by

nearly every law firm in the country and authorized

by the D.C. Rules of Professional Responsibility do

not create binding contracts with their chents. This

argument should be rejected out of hand.

Case 1:O08-cv-00144 Document 9

04/22/08 Page 2 of 9

The engagement letter here - like most

attorney-client engagement letters — stated the

nature of the engagement, explained that fees would

be billed within a range of hourly billing rates, and

described the costs to be included jn the charges.

Doley, a sophisticated businessman, and his

company had the opportunity to consult with

independent counsel and, on their own volition and

understanding of what the agreement entailed,

signed the engagement letter agreement. After the

contract was signed, W&S conducted, and billed for,

legal services on Defendants’ behalf. But Defendants

have failed to pay for these services. This is a classic

example of a breach of contract. Consequently,

Defendants' Motion to Dismiss should be

denied

Defendants’ request for a more definite

statement is similarly without merit. Defendants are

on fair notice of the basic claim against them and

should be able to frame a responsive pleading

BACKGROUND

As the Complaint describes, in the early

spring of 2007, Defendants selected W&S to

represent each of them in connection with an

investigation by the Office of the Thrift

Supervision ("OTS"). Compl. Par. 6. Before W&S's

representation of Defendants began, two

partners of W&S explained to Defendants the fees

and costs that would be associated with

W&S's representation of the Defendants - fees and

costs to which Defendants agreed. /d. paragraph 17

Based on that oral agreement, and before any work

was done on Defendants behalf, W&S sent to

Defendants an engagement letter agreement. /d

paragraph. &

The parties’ agreement discussed the

terms of the attorney-chent relationship and

explicitly stated, among other things, that: (1) the

nature of the engagement would concern W&S's

representation of Defendants in the OTS

Investigation; (2) W&S's fees would be

Case 1] ‘(O8-cv-00144-RBW Document 9

Filed 04/22/08 Page 3 of 9

determined on an hourly basis within an hourly rate

range; (3) the firm's monthly bills would include

allocable charges for costs and expenses incurred in

performing the legal services; (4) the firm expected

Defendants to pay these bills within 30 days of the

invoice; and (4) Defendants were to pay a $10,000

retainer to initiate the engagement. Id. paragraphs

8-10. Defendants were given the opportunity to

consult with independent counsel regarding the

engagement letter, a right they acknowledged, and

Defendants signed the engagement letter on April

20, 2007. Id. paragraphs 11-12. W&S received the

$10,000 retainer from Defendants on May 23, 2007.

Id. paragraph 10.

After the parties signed the engage

ment letter, W&S performed legal work on behalf of

Defendants based on the terms of the parties’

agreement. /d. paragraph 13. The legal work

included reviewing thousands of documents that

were produced to the OTS; providing advice

regarding certain purchases of stock; and preparing

Doley for, and defending, his deposition. Jd. W&S

devoted a total of 215.25 hours, or billable work, to

these matters. /d.

Defendants owe W&S $84,412.19 for

these legal services, a debt that W&S communicated

to Defendants through various invoices. /d.

paragraphs 14-15. Defendants never objected to the

quality or quantity of the work done by W&S on

Defendants behalf, and never complained about the

amount W&S charged for its legal services on behalf

of Defendants. /d. paragraph 14. In fact, Doley

promised on several occasions that payment was

forthcoming. /d. But payment never came. /d. As a

result, W&S seeks relief for breach of contract

MOTION TO DISMISS STANDARD

Defendants recognize, as they must,

that in reviewing a motion to dismiss, the Court

must "accept all allegations in the Complaint as

true, and construel[] the pleading in the light most

favorable to the plaintiff Defs’ Br. at 2; see also

Warren v. D.C., 353 F.3d 36, 39 (D.C. Cir. 2004).

Under this standard, Defendants' Motion to Dismiss

must be denied unless "it appears beyond doubt

that the plaintiff can prove no set of facts in

support of his claim which

Case 1 ‘(O8-cv-00144-RBW Document 9

Filed 04/22/08 Page 4 of 9

would entitle him to relief. All factual doubts must be

resolved and all inferences made in favor of the

plaintiffl]." Tele-Communications of Key West \

United States, 757 F.2d 1330, 1334-35 (D.C. Cir

1985) (emphases and alteration in original) (citations

omitted).

ARGUMENT

As demonstrated below, this Court

should deny Defendants' Motion to Dismiss and their

alternative Motion for a More Definite Statement.

I The Motion To Dismiss Should Be

Denied Because The Complaint States

A Basic Breach of Contract Claim

The sole issue raised in Defendants’

Motion to Dismiss is whether the complaint

satisfies the elements of a breach of contract claim. It

clearly does. To state a breach of contract claim for

failure to pay, a “complaint will be sufficient if it

alleges that the defendant is under an obligation to

pay the plaintiff a certain amount. of money and

interest, that he or she has refused to comply with

the obligation, and that payment is due, for which

judgment is requested."

WILLISTON ON CONTRACTS § 62:7 at 315 (2002).

Plaintiffs Complaint satisfies this low

pleading threshold. First, it alleges that Defendants

have an obligation to pay W&S for legal services

rendered on their behalf. See Compl. paragraph 17

("Defendants contracted with W&S when agreeing in

writing to the terms of the engagement letter under

which Defendants explicitly confirmed that they

would be jointly and severably liable for the total fees

and costs of W&S representing Defendants in the

Lawsuit."), 7d paragraph 13 ("After the engagement

letter was signed, W&S performed legal work on

behalf of Defendants in the Lawsuit")' Second, the

Complaint alleges that Defendants owe W&S a

certain amount of money based on the contract. See

id. paragraph 15 ("To date, Defendants owe W&S

$84,412.19). Finally, the Complaint asserts that

Defendants have failed to comply with their

obligation, for which judgment is required. See 7a.

par. 18 ("Defendants breached the terms of the

Case 1 :08-cev-00144-RBW Document 9 Filed

04/22/08 Page 5 of 9

engagement letter when they failed to pay W&S fees

and costs totaling $84,412.19")' These allegations -

which, of course, must be accepted as true in this

context - sufficiently allege a contractual obligation

owed and breached by Defendants.

Defendants do not seriously contest that

the Complaint pleads the elements of a breach of

contract claim. Rather, they argue that the parties'

engagement letter and corresponding invoices are too

indefinite to be enforceable. This argument has no

merit.

The engagement letter at issue here is

precisely the type of written instrument

encouraged by the American Bar Association and

contemplated by the D.C. Rules of Professional

Conduct to memorialize an enforceable

attorney-client relationship and mutual

obligations, See Stephen M. Terrell, Rules of

Engagement? Taking the Offense When It

Comes to Defense, ABA General Practice v.19 n.7,

at 1 (Oct./Nov. 2002) ("The engagement letter is the

key to the attorney-client relationship. It 1s the

contract that, along with the Rules of Professional

Conduct, governs your relationship with your client.")

(Ex. 1); D.C. Rules of Profl. Conduct 1. 5b) ("When

the lawyer has not regularly represented the client,

the basis or rate of the fee, the scope of the lawyer's

representation, and the expenses for which the client

will be responsible shall be communicated to the

chent, in writing, before or within a reasonable time

after commencing the representation.").

The very purpose of the letter

agreement signed by the parties here was to

"reduceL the possibility of misunderstanding."

See D.C. Rules of Profl. Conduct 1.5(b) comment

2. By virtue of the parties' written agreement,

there can be no "misunderstanding" that

Defendants owe W&S for legal services rendered

under the terms of the parties’ agreement.

In fact, the law is clear that W&S's

allegations give rise to a claim for breach of

contract under the theory of account stated. An

account stated arises where, as here, there is a

Case 1 :08-cv-00144-RBW Document 9

Filed 04/22/08 Page 6 of 9

course of dealing between the parties, the creditor

(here, W&S) has issued statements of account

or invoices, and the debtor (here, Defendants) has

failed to challenge the statements. See Reed

Rescarch, Inc. v. Schumer Co., 243 F.2d 602,605

(D.C. Cir. 1957).

In Ailey v. Mattingly, 42 App. D.C. 290

(D.C. Cir. 1914), the D.C. Circuit applied the account

stated doctrine in the legal fee dispute context,

affirming summary judgment in favor of the lawyer.

The Court of Appeals explained that "laJn account

rendered [by a legal fee invoice], and not objected to

within a reasonable time, is to be regarded as

admitted by the party charged to be prima facie

correct, and may not be impeached save for fraud,

A—~95

error, or mistake." Jd. at 294. It affirmed the grant of

summary judgment in favor of the lawyer because

"the account forming the basis of the action was held

by the defendant for a period of eight months

without being disputed in any way." /d. at. 295. In so

ruling, the D.C. Circuit rejected the defendant's

defense "that plaintiffs’ bill is too high" - finding that

"[tlhis averment raises no question of either accident

or mistake." /d., see also Brand vy. Westall, Civ Act.

No. 94-0312, 1995 WL 235579 (Apr. 21, 1995 D.D.C.

1995) (granting summary judgment on behalf of

lawyers in a fee dispute based on an account stated

theory).

‘These cases are on point. The complaint

makes clear that the parties here entered into an

engagement letter agreement governing the

attorney-client relationship, W&S performed

legal services under that agreement, W&S then

submitted invoices to Defendants for services

rendered, and Defendants accepted those invoices

without objection. Compl., paragraphs 8-15. In

fact, Doley promised W&S on several occasions that

payment was forthcoming. /d. paragraph 14. Thus,

W&S has clearly made out a claim for breach of

contract based on the theory of account stated.

See Riley, 42 App. D.C. at 294-95; Brand, 1995 WL.

235579, at *5.

6

N.-96

Case 1 :08-cv-00144-RBW Document 9

Filed 04/22/08 Page 7 of 9

lI. Defendants' Motion For A More Definite

Statement Should Be Denied As Well

Because Defendants Have Full Notice of

the Allegations Against Them.

Defendants cannot seriously argue that

they do not understand the basic breach of contract

claim against them. Consequently, there is no basis

to require W&S to serve a more definite statement,

as requested.

The Federal Rules of Civil Procedure

require a plaintiff to set forth only a "a short and

plain statement of the claim showing that the

pleader is entitled to relief,’ in order to 'give the

defendant fair notice of what the ... claim is and the

grounds upon which it rests. "" Bell Atl Corp. v.

Twombly, 550 U.S. ---, 127 S. Ct. 1955, 1964 (2007)

(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957));

Fed. R Civ. P. 8(a). To be sure, "[t]he notice pleading

rules are not meant to impose a great burden on a

plaintiff." Hoey v. 1.C., Civ. Action No. 07-00919

(JDB), 2008 WL 8392038, at *5 (D.D.C. Mar. 31,

2008).

Although courts technically can

order a plaintiff to file a more definite statement,

that procedure "is plainly designed to strike at

unintellhigibility rather than lack of detail."

MOORE'S FEDERAL PRACTICE § 12.36[1)

(2008). Indeed, "[clourts frown on a litigant's use

A-97

of the motion as a ‘shotgun tactic’ to substitute for

discovery, or as a dilatory tactic to postpone

filing an answer." Jd, accord Sultanate a/Omanv.

& S Computer Servs., Inc., Civ. Action

No. 87-2688-0G, 1988 WL 47638, at *2 (D.D.C. Apr.

29, 1988) ("[A] motion for a more

definite statement is reviewed with skepticism and

will be granted only to cure an unintelligible

claim").

As discussed above, Plaintiff's

Complaint alleges a simple claim for breach of

contract that is spelled out in detail. Defendants

appear to Understand these charges. See Defs' Mot.

at 1 ("The plaintiff suggests that a document signed

on April 19, 2007 was a contract which

as

Case 1 :08-cv-00144-RBW

Document 9 Filed 04/22/08 Page 8 of 9

the defendants breached"). They do not argue

that any of the allegations are unintelligible

Accordingly, there is no need for a more

definite statement.

CONCLUSION

For the foregoing reasons, Plaintiff requests that

this Court deny Defendants' Motion to Dismiss the

Complaint, or in the Alternative, for a More Definite

Statement.

Respectfully submitted,

/S!

Thomas M. Buchanan # 337907

Charles B. Klein, # 450984

Winston & Strawn LLP

1700 K Street, N.W.

Washington, D.C. 20006-3817

(202) 282-5000

Counsel for Piaintiff

Dated: April 22, 2008

Case 1:08-cv-00144-RBW Document

9 Filed 04/22/08 Page 9 of 9

CERTIFICATE OF SERVICE

Case 1 :08-cv-OO 144-RBW Document 1

Filed 01/24/08 Page 1 of 4

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CASE NO.

WINSTON & STRAWN, LLP,

Plaintiff,

HAROLD E. DOLEY

and DOLEY SECURITIES, INC.,

Defendants.

COMPLAINT

Plaintiff, Winston & Strawn, LLP ("W&S"),

sues Defendants, Harold E. Doley ("Doley"), and

Doley Securities, Inc. ("DSI") (collectively,

"Defendants”")'

Nature of the Case

This matter is a simple breach of contract case

that cannot be more clear. Defendants agreed by

written contract for W&S to represent them in a legal

matter, and in exchange, to pay W&S for its legal

services. The fees and costs of W&S's legal services

were explained to Defendants both orally and in the

written agreement. W&S performed legal services on

A—~100

behalf of Defendants at the rates that were spelled

out in the written agreement, and without any

complaint from Defendants. As a result of the work

performed by W&S on behalf of Defendants,

Defendants owe W&S $84,412.19, which Defendants

have not paid, and thus Defendants have breached a

written contract with W&S.

l. W&S is, and at all relevant times,

an Illinois limited liability partnership.

Case 1 :08-cv-00144-RBW Document ]

Filed 01/24/08 Page 2 of 4

The work performed by W&S attorneys on behalf of

Defendants was performed primarily in

Washington, D.C

2. Upon information and belief,

Doley is, and at all relevant times was, a

New York citizen who resides at 67 N. Broadway

Irvington, NY 10533, and is an officer, director,

and shareholder of DSI.

3 Upon information and belief, DS]

is, and at all relevant times was, a corporation

incorporated in Delaware and having an office and

principal place of business in New Orleans,

Louisiana. DSI's present principal address is 616

Baronne Street, New Orleans, LA 70113.

4 This Court has subject matte:

A~1Q1

jurisdiction pursuant to 28 U.S.C. § 1332, as

the matter in controversy exceeds, exclusive of

interest and costs, the sum of $75,000 and is a

civil action between citizens of different states.

5. Pursuant to 28 U.S.C. § 1391,

venue hes in the District of Columbia, where a

substantial part of the events or omissions giving rise

to the claim occurred.

FACTUAL BACKGROUND

6. In the early spring of 2007,

Defendants selected W&S to represent each of

them in the investigation of Defendants being

conducted by the Office of the Thnft Supervision

(the "Lawsuit").

‘sf s$efore W&S's representation of

Defendants began, partners of W&S, Thomas M.

Buchanan ("Buchanan") and Michael A. Mancusi

("Mancusi") explained to Defendants the fees and

costs that would be associated with W&S's

representation of the Defendants. Defendants orally

told Buchanan and Mancusi that they understood

and accepted the fees and costs that would come with

W&S's work on the Lawsuit

Case 1 :08-cv-00144-RBW Document

1 Filed 01/24/08 Page 3 of 4

8. On April 19, 2007, before W&S

conducted any work on behalf of Defendants,

Buchanan sent to Defendants an engagement letter.

The engagement letter provided that W&S's "policy

at the outset of an engagement with new clients is to

outline not only the nature of the engagement, but

also the basis on which the firm will provide legal

services and bill for them." Engagement Letter at 1

(Ex. 1).

9. The engagement letter explicitly

described that W&S's fees for work on the Lawsuit

would be determined on an hourly basis and that

there would be costs associated with W&S's

representation of Defendants in addition to W&S's

fees.

10. The engagement letter also

described how and when W&S would bill

Defendants, and when Defendants were expected to

pay W&S. The engagement letter requested

that Defendants pay a "$10,000 retainer to initiate

the engagement” and explained that "[t}his

retainer will be applied against ongoing fees and

expenses." Engagement Letter at 4 paragraph 10

(Ex. 1). W&S received the $10,000 retainer on May

23, 2007.

11. Additionally, Defendants

acknowledged in the engagement letter that they

were given the opportunity to consult with

independent counsel regarding the engagement

letter.

A-—-103

12. On April 20, 2007, Doley signed

the engagement letter for himself and Chad Robert

signed the engagement letter on behalf of DSI. Robert

is the President of DSI.

13. After the engagement letter was"

signed, W&S performed legal work on behalf of

Defendants in the Lawsuit The legal work included

reviewing thousands of documents that were

produced to the Office of the Thrift Supervision,

providing advice regarding certain purchases of

stock, preparing Doley for a deposition, and defending

Doley's deposition. The legal work was performed by

Buchanan and Mancusi, anda W&S associate.

These W&S attorneys devoted 215.25 hours to this

Case legal work.

Case 1 :08-cv-00144-RBW Document 1

Filed 01/24/08 Page 4 of 4

14. Defendants never complained to

W&S about the quality or quantity of work that W&S

was performing. Nor did Defendants ever complain

about the amount W&S charged for its legal services

on behalf of Defendants. In fact, Defendant Doley

promised on several occasions that payment was

forthcoming. But payment never came.

15. W&S has applied the $10,000

retainer to amounts owed by Defendants to W&S.

To date, Defendants owe W&8 $84,412.19.

A-104

COUNT I: BREACH OF CONTRACT

16. Plaintiff realleges and

incorporates paragraphs 1-15 in this complaint.

17. Defendants contracted with

W&S when agreeing in writing to the terms of the

engagement letter under which Defendants

explicitly confirmed that they would be jointly

and severably lable for the total fees and costs of

W&S representing Defendants in the Lawsuit.

See Engagement Letter (Ex. 1).

18. Defendants breached the terms of

the engagement letter when they failed to pay W&S

fees and costs totaling $84,412.19.

19. W&S suffered damages as a

result of Defendants' breach of contract.

WHEREFORE, W&S requests

judgment against. Defendants, jointly and severally,

of $84,412.19 plus pre-judgment interest, costs and

expenses, and such other and further damages and

relief as this Court may deem proper.

Respectfully submitted,

Thomas Buchanan # 337907

Charles B. Klein #450984

Winston & Strawn LLP

1700 K Street, N.W.

Washington, D.C. 20006-3817

(202) 282-5000

A-105

Case 1 :-O8-cv-00144-RBW Document

12 Filed 05/06/08 Page 1 of 3

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

WINSTON & STRAWN LLP,

Plaintiff,

VS.

Case No: 1:08-cv-00144 (RBW)

HAROLD E. DOLEY

and DOLEY SECURITIES, INC.,

Defendants.

PLAINTIFF'S ERRATA STATEMENT OF

MATERIAL FACTS AS TO WHICH_

THERE EXISTS NO GENUINE ISSUE FOR TRIAL

AND BUCHANAN DECLARA TION IN SUPPORT

OF ITS MOTION FOR SUMMARY JUDGMENT

Piaintiff Winston & Strawn LLP ("Winston &

Strawn") has attached hereto a

Corrected Statement of Facts as to Which There

Exists No Genuine Issue for Trial ("Statement

of Facts") and a Corrected Declaration of Thomas M.

Buchanan ("Buchanan Declaration") in

support of its motion for summary judgment, which

was filed on April 24, 2008.

After reading Defendants' Supplemental

Memorandum to the Defendant's Motion

to Dismiss or for a More Definite Statement

("Supplemental Motion to Dismiss"), Plaintiff

realized that it inadvertently stated that Chad

Robert attended a meeting among Thomas

’ A 106

Buchanan and Michael Mancusi of Winston &

Strawn, and Harold E. Doley, of Doley Securities,

Inc. While Mr. Doley was there, Mr. Robert did not

attend the meeting. Plaintiff's corrected

Statement of Facts and corrected Buchanan

Declaration fixes that mistake.

These corrected documents are not relevant to

Defendants' motion to dismiss. Rather, they

concern Plaintiffs' motion for summary judgment,

to which Defendants have not yet. responded.

Case 1 :08-cev-00144-RBW Document

12 Filed 05/06/08 Page 2 of 3,

Dated: May 6, 2008

Respectfully submitted,

/s/

Thomas Buchanan # 337907

Winston & Strawn LLP

1700 K Street, N.W.

Washington, D.C. 20006-3817

(202) 282-5000

Case 1 :08-cv-00144-RBW Document

12 Filed 05/06/08 Page 3 of 3,

CERTIFICATE OF SERVICE

District of Columbia Bar Rules

Rule XIII. Arbitration.

(a) An attorney subject to the disciplinary

jurisdiction of this Court shall 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 was a

resident of the District of Columbia when the

services of the attorney were engaged, or ifa

substantial portion of the services were

performed by the attorney in the District of

Columbia, or if the services included represent:

tation before a District of Columbia court or a

District of Columbia government agency.

(b) The arbitration provided under this rule shall

be final and binding on the parties according to

applicable law, and shall be enforceable in the

Superior Court and in any other court having

jurisdiction. Unless the attorney and client

agree otherwise, the arbitration shall be before

the Attorney-Client Arbitration Board of the

District of Columbia Bar, and shall be

pursuant to such reasonable rules and

regulations (including those relating to fees for

arbitration services) as may be promulgated

from time to time by the District of Columbia

Bar and the Attorney-Client Arbitration

Board.

The Attorney/Client Arbitration Board (ACAB)

Rules of Procedure

1. The Attorney/Chent Arbitration Board (ACAB):

The Attorney/Client Arbitration Board is usually

referred to by its initials, as the “ACAB.” The ACAB

has 11 volunteer members: seven are lawyers and

four are non-lawyers. These 11 members are selected

by the District of Columbia Bar (the “D.C. Bar”) and

serve three-year terms; none serve more than two

consecutive terms. The ACAB uses volunteer

arbitrators, which it selects, and who serve two-year

terms that may be renewed at the discretion of the

ACAB. These arbitrators are lawyers and

non-lawyers who have training and experience in

arbitrating disputes. The ACAB uses either a single

arbitrator (“sole arbitrator”) or a three member panel,

depending upon the amount of money in dispute. The

ACAB Manager, who is a lawyer and employee of the

D.C. Bar, handles the day-to-day business of the

ACAB along with the Associate Program Specialist

and the Senior Administrative Assistant, who are

also employees of the D.C. Bar.

The ACAB handles two kinds of matters: disputes

about legal fees, and disputes about legal

malpractice. These rules of procedure cover only

disputes about legal fees. There is a separate set of

rules of procedure for disputes about legal

malpractice.

8. Agreement to Arbitrate: After the petition is filed

and after the petition has been opened by the ACAB:

A-109

(a) If the petition is filed by a client, the lawyer is

deemed to have agreed to arbitrate and the

arbitration will go forward unless the chent

withdraws the petition before the lawyer responds to

the petition. The ACAB will send the lawyer a copy of

the petition and a copy of these rules, and the

arbitration process will begin. Petitions to arbitrate

filed by the client may not be withdrawn by the client

after the lawyer responds unless the lawyer and the

client agree to do so 1n writing.

(b) If the petition is filed by a lawyer, the ACAB will

send the client a copy of these rules and an

Agreement to Arbitrate form.

() If the client signs the Agreement to Arbitrate and

returns it to the ACAB, the arbitration process will

begin. A signed Agreement to Arbitrate form is

binding and cannot be withdrawn by the chent unless

both the lawyer and the client agree to do so in

writing.

(ii) If the client refuses to sign the Agreement to

Arbitrate, then the arbitration process will not begin.

The arbitration service offered by the ACAB to clients

is voluntary. If the chent does not agree to arbitrate,

the ACAB cannot compel the client to do so.

Gii) The ACAB will enforce an attorney/client

agreement to arbitrate a fee dispute which is entere¢

into prior to the dispute sought to be arbitrated if the

pre-dispute agreement complies with D.C. Bar Lega

Ethics Committee Opinion 218 (copy attached.) In

this instance, the ACAB can compel a client to

arbitrate a fee dispute filed by a lawyer. Petitions to

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arbitrate filed by a lawyer may not be withdrawn by

the lawyer after the client responds unless the lawyer

and the client agree to do so in writing.

10. Informal Settlement: The ACAB encourages

informal settlement of disputes prior to the

arbitration hearing.

11. Voluntary mediation: The ACAB offers voluntary

mediation as an option to parties 1n a pending fee

dispute. Mediation is voluntary for both the clicnt

and the lawyer. Both parties must agree in writing to

mediate before the ACAB will schedule a mediation

session. Both parties will receive information about

the voluntary mediation program after a fee dispute

has been opened and docketed by the ACAB. If either

party does not agree in writing to mediate, or if a

settlement is not reached at a mediation session, the

ACAB will continue processing the case for

arbitration.

13. Assigning arbitrators: The ACAB will assign

either one arbitrator or three arbitrators to decide the

dispute. Arbitrators are selected from the ACAB’s

trained and experienced volunteers.

(a) If the combined amount of the claim and any

counterclaim is less than or equal to $10,000, one

arbitrator will be assigned to decide the dispute. The

sole arbitrator may be either a lawyer ora

non-lawyer.

(b) If the combined amount of the claim and any

counterclaim is greater than $10,000, a panel of three

arbitrators will be assigned to decide the dispute. The

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panel will include at least one lawyer and at least one

non-lawyer. A Chairperson will be designated by the

ACAB. The lawyer and the chent may agree to a

panel including all lawyers or all non-lawyers or to

have the dispute heard by a sole arbitrator.

(c) If requested by both the lawyer and the client, and

if feasible, the ACAB will select an arbitrator with

particular expertise in the practice area of the

underlying dispute.

19. Hearing: The lawyer and the client are entitled to

a hearing at which they may present evidence and

cross-examine witnesses. The arbitrator(s) may

schedule a preliminary hearing to resolve any

threshold or dispositive issues (e.g., jurisdiction,

statute of limitations).

(a) The sole arbitrator or the Chairperson will give

any notices required in connection with the hearing,

decide questions of procedure or scheduling, issue

any necessary subpoenas permitted by law, preside at

the hearing, administer oaths, ruie on the admission

and exclusion of evidence, and exercise any other

powers of arbitrators pursuant to District of

Columbia law. The requesting party shall be

responsible for service of the subpoenas.

(b) There is no provision for formal discovery. The

sole arbitrator or the Chairperson may, within his or

her discretion, grant a request for discovery based or

the relevancy and materiality of the request. Any

request for discovery shall be submitted at least 30

calendar days prior to a scheduled hearing.

(c) Anyone involved in a hearing, as lawyer, client, or

witness, is entitled to be represented by an attorney.

It is the responsibility of anyone wishing to be

represented by an attorney to make the necessary

arrangements in advance as the hearing will not be

delayed for someone who has failed to make the

appropriate arrangements. Counsel for parties

should enter their appearance in writing to the ACAB

prior to a scheduled hearing.

(d) If both the lawyer and the client agree, the

hearing may be waived and the arguments of each

may be submitted in writing, together with any

supporting documents, and the dispute may be

decided on the basis of the written submissions. Even

if the hearing is waived, the arbitrators may require

oral testimony from any witness, and issue a notice to

that effect to the lawyer and the client.

(e) The lawyer and the client are entitled to attend all

hearings. Attendance at a scheduled hearing is a

waiver of any deficiency in the notice of the hearing.

Witnesses waiting to be heard may be excluded from

the hearing until they testify.

(f) The burden of proof shall be on the lawyer to prove

the reasonableness of the fee by a preponderance of

the evidence.

(z) The lawyer and the client are entitled to be heard

at the hearing, either personally or through an

attorney or other advisor or representative.

(i) Opening statements outlining the case may be

presented at the hearing. The lawyer and the client

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will be provided equal time in which to make such

statements.

(ii) Evidence may be presented at the hearing by the

testumony of witnesses and in documentary form. The

lawyer and the client will be afforded full and equal

opportunity for the presentation of any relevant

evidence.

Gil) Questions may be asked by the lawyer and the

client in cross-examination at the hearing of any

witness who testifies.

(iv) Questions may be asked by the arbitrators(s) of

any party or witness who testifies.

(v) Closing statements summarizing the case may be

presented by the lawyer and the client at the hearing

after all the evidence has been received.

(h) All relevant evidence will be considered, within

the discretion of the arbitrator(s). Relevant evidence

may include evidence relating to claims of alleged

malpractice or alleged negligence, but only to the

extent that those claims bear upon the fees, costs or

related expenses to which the lawyer is entitled.

(i) Testimony will be given under oath.

(j) Hearings which cannot be completed on the first

day will be continued, with due regard to the

circumstances of those involved in the hearing and

the desirability of a speedy determination. When al’

necessary statements and evidence have been heard,

the hearing will be closed.

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(k) If either the lawyer or the client fails to appear at

the hearing, the arbitrators may hear and decide the

dispute upon the evidence produced and,

notwithstanding any failure to appear, may enter a

binding award. No decision may be based solely on

the absence of the lawyer or the client.

(1) At any time before the award is signed, the hearing

may be recpened by a sole arbitrator or a majority of

a three-arbitrator panel, either at the request of the

lawyer or the client with a showing of good reason, or

for reasons determined by the arbitrators.

(m) Hearings are neither transcribed nor recorded by

the ACAB. Requests by a party to have the ACAB

transcribe or record the hearing will be denied. The

parties are prohibited from transcribing or recording

the hearing using their own or third-party resources

(note-taking by hearing participants is not

prohibited, however).

20. Standards: Arbitrators use the following

standards in deciding fee disputes:

(a) Fee arrangements between lawyer and client

should be clear and unambiguous. It is the

responsibility of the lawyer to ensure this, and to

explain to a new client, in writing, before or within a

reasonable time after the lawyer has been employed,

the scope of the lawyer’s representation, what the fee

will be, how the fee will be computed, what charges

there may be in addition to the fee, and how and

when the client will be expected to pay.

(b) Unless there are unique aspects of the fee

arrangement, the lawyer may utilize a standardized

letter, memorandum, or pamphlet explaining the

lawyer's fee practices, and indicating those practices

applicable to the specific representation. Such

publications would, for example, explain applicable

hourly billing rates, if billing on an hourly basis 1s

contemplated, and indicate what charges (such as

filing costs, transcript costs, duplicating costs, long

distance telephone costs) are imposed in addition to

hourly rate charges.

(c) A fee may be contingent on the outcome of the

matter for which the service is rendered, except ina

criminal case where no contingent fee may be

charged. A contingent fee agreement shall be in.

writing and shall state:

Gi) The method by which the fee is to be determined,

including the percentage or percentages that shy«'|

accrue to the lawyer in the event of settlement, tiial

or appeal; and

Gi) Whether htigation and other expenses are to be

deducted from the recovery, and whether such

expenses should be deducted before or after the

contingent fee is calculated.

(d) A lawyer may require advance payment of any fee

but 1s obliged to return any unearned portion.

(e) A lawyer shall keep a client reasonably informed

about the status of a matter and promptly comply

with reasonable requests for information.

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(f) When developments occur during the

representation that renders an earlier estimate

substantially inaccurate, a revised estimate should

be provided to the client.

(gz) The client is entitled to a written bill, which

includes:

Gi) In an arrangement based on hourly rates, a

statement of how the time on which a lawyer’s fee is

based was spent.

Gi) In an arrangement based on contingent fees, a

statement stating the outcome of the matter and, if

there is a recovery, showing the remittance to the

chent and the method of its determination.

(iii) In an arrangement in which fees or costs ar

allocated among clients, a statement explaining to

the client the basis for the allocation.

(h) A lawyer's fee shall be reasonable. Factors to be

considered in determining the reasonableness of a fee

include the following:

(i) The time and labor required, the novelty ane

difficulty of the questions involved, and the skill

required to perform the legal service properly;

(ii) The likelihood, if apparent to the client, that the

acceptance of the particular employment will

preclude other employment by the lawyer;

(iii) The fee customarily charged in the District of

Columbia for similar legal services;

(iv) The amount involved and the result obtained;

(v) The time limitations imposed by the client or by

the circumstances;

(vi) The nature and length of the professional

relationship with the client;

(vil) The experience, reputation, and ability of the

lawyer or lawyers performing the services; and

(vil) Whether the fee is fixed or contingent

a) A lawyer's charges for disbursements, costs and

expenses shall be reasonable. Factors to be

considered in determining the reasonableness of

charges other than fees include the following:

G) A lawyer may not charge a client for overhead

expenses generally associated with properly

maintaining, staffing and equipping an office.

(ui) A lawyer may recoup expenses reasonably

incurred in connection with the client's matter for

support services provided by the lawyer or the law

firm, such as photocopying, long distance telephone

calls, computer research, special deliveries

secretarial overtime, and other simular services, so

long as the charge reasonably reflects the lawyer's

actual cost for the services rendered

(ii) A lawyer may not charge a chent more than the

actual disbursements for services provided by third

parties like court reporters, travel agents, or expert

witnesses

4) Other statutory and common law principles

applicable in the District of Columbia to fee

arrangements between lawyer and client may also be

used by the arbitrators

27. Other information: Copies of the sections of the

District of Columbia Code that govern arbitration

proceedings, the District of Columbia Rules of

Professional Conduct and other information about

the ACAB arbitration process are available at the

D.C. Bar. The District of Columbia Rules of

Professional Conduct and Legal Ethics Opinions may

also be obtained from the D.C. Bar’s Web site at

www.dcbar.org/ethics.