Tullis et al v. UMB Bank, N.A. et al

Filing 158

MEMORANDUM OPINION Plaintiffs' motion to strike denied 152 . UMB's motion for a protective order to bar further discovery granted 142 . UMB's motion to quash Plaintiffs' subpoenas duces tecum denied 144 . Plaintiffs&# 039; request that UMB be ordered to produce its legal file denied 120 . Plaintiffs' third motion for reconsideration denied 132 . UMB's motions requesting that Plaintiffs indemnify UMB's attorney's fees and expenses granted in part as stated herein. 137 116 . UMB granted 45 days to file documents as stated herein. Judge David A. Katz on 12/5/11. (G,C)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

DAVID H. TULLIS,
Plaintiff,

Case No. 3:06 CV 7029

-vsMEMORANDUM OPINION
UMB BANK, N.A., et al.,
Defendant.
KATZ, J.
At issue is Defendant / Counter-Claimant UMB Bank, N.A.’s (“UMB”) motions seeking
indemnification for attorney’s fees and expenses from Plaintiffs / Counter-Defendants Dr. David
H. Tullis (“Dr. Tullis”) and Dr. Michael S. Mack (“Dr. Mack”), (collectively “Plaintiffs”). Also
pending before the Court are sundry discovery-related motions–all of which stem from UMB’s
request for attorney’s fees–as well as Plaintiffs’ third motion for reconsideration.
For the reasons that follow, UMB’s motions for attorney’s fees (Doc. 116; Doc. 137) are
granted in part, UMB’s motion for a protective order (Doc. 142) is granted, and UMB’s motion to
quash (Doc. 144) is denied. All of Plaintiffs’ motions are denied. (Doc. 152; Doc. 120; Doc.
132).
I. Procedural Background
“Plaintiffs . . . are two physicians from Toledo who maintained pension funds through the
Toledo Clinic Employees’ 401(k) Profit Sharing Plan (“Plan”), an ERISA-governed, ‘defined
contribution’ pension plan.” Tullis v. UMB Bank, N.A., 515 F.3d 673, 675 (6th Cir. 2008). As part
of the Plan, the Toledo Clinic entered into a Master Trust Agreement (“MTA”) with UMB, which
designated UMB as a Plan Trustee. (Doc. 95-2).

In the early 1990s, the plaintiffs chose William Davis of Continental Capital
Corporation (“Capital”) as their investment advisor. In October 1999, the U.S.
Securities and Exchange Commission entered a Temporary Restraining Order against
Capital because two of its brokers were engaged in fraudulent activities. The plaintiffs
contend that [UMB] . . . knew of the fraud yet failed to inform them.
Tullis, 515 F.3d at 675.
In January 2006, Plaintiffs sued UMB in this Court alleging, inter alia, that UMB breached
its fiduciary duty and violated ERISA. In April 2006, UMB filed a Counter-Claim against
Plaintiffs seeking indemnification for any costs, including attorney’s fees and expenses, that arose
from defending the action. In August 2009 this Court granted summary judgment in favor of
UMB both as to Plaintiffs’ Complaint and UMB’s Counter-Claim for indemnification. (Doc. 109;
Doc. 110). Plaintiffs filed a motion for reconsideration on August 21, 2009, which this Court
denied on September 21, 2009.1
On October 8, 2009, UMB filed the instant motion for attorney’s fees and expenses on its
claim for indemnification. (Doc. 116). Plaintiffs did not respond, but instead filed a second
motion for reconsideration on October 12, 2009. Before this Court ruled on the second motion,
Plaintiffs filed a Notice of Appeal to the Sixth Circuit on October 16, 2009. Plaintiffs then
requested that the Sixth Circuit remand the matter to this Court for disposition of the motion. The
Sixth Circuit denied Plaintiffs’ request, (Doc. 126), and this Court subsequently denied Plaintiffs’
second motion for reconsideration on January 19, 2010. (Doc. 127).
Contemporaneously with the above, Plaintiffs filed a motion on October 16, 2009, (Doc.
120), requesting that this Court order UMB to produce its “legal file” so that Plaintiffs may assess

1

The Sixth Circuit ultimately affirmed this Court’s decision granting summary judgment to UMB.
(Doc. 128); see Tullis v. UMB Bank, N.A., 423 Fed. Appx. 567 (6th Cir. May 18, 2011).
2

the reasonableness of the attorney’s fees requested by UMB. UMB opposed the motion, (Doc.
139), and pursuant to this Court’s Order (Doc. 130) filed a supplement to its original request for
attorney’s fees to reflect an updated balance of fees incurred during post-judgment motion
practice. (Doc. 137).
On June 15, 2011, Plaintiffs filed their third motion for reconsideration. (Doc. 132).
Moreover, on July 20, 2011, Plaintiffs filed a notice of their third set of discovery requests, (Doc.
138), and on August 18, 2011, Plaintiffs filed a notice of issuance of subpoenas duces tecum to the
Toledo Clinic, (Doc. 141), demanding production of detailed billing and payment records between
UMB, The Toledo Clinic, and UMB’s counsel. UMB responded with a motion for a protective
order barring further discovery, (Doc. 142), and a motion to quash Plaintiffs’ subpoenas. (Doc.
144).
On September 12, 2011, this Court issued an order granting UMB leave to brief the issue
of indemnification as it relates to UMB’s claim for attorney’s fees. (Doc. 148). Plaintiffs were
granted one week to respond. Id. UMB filed its brief (“indemnification brief”) on October 3,
2011. (Doc. 151). Instead of responding on the merits, however, Plaintiffs filed a FED. R. CIV. P.
12(f) motion to strike the affidavits accompanying UMB’s indemnification brief. (Doc. 152).
UMB responded to the motion to strike on October 20, 2011. (Doc. 153).
On October 24, 2011, this Court granted UMB leave to file documents under seal that
prove its obligation to repay the Toledo Clinic for any attorney’s fees that were paid by the Toledo
Clinic on UMB’s behalf. (Doc. 154). Instead of filing proof of its obligation to repay the Toledo
Clinic, UMB filed 137 pages of RCO attorneys’ billing entries that were invoiced to, and paid by,
the Toledo Clinic. (Doc. 156; Doc. 157).

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II. UMB’s Request for Attorney’s Fees and Costs
A. Plaintiffs’ Indemnification Responsibility
Pursuant to this Court’s order granting UMB summary judgment on its Counter-Claim for
indemnification, and pursuant to the Sixth Circuit’s affirmation of that ruling, UMB seeks
indemnification by Plaintiffs for attorney’s fees and expenses in the amount of $470,620.78.2
(Doc. 151 at 7). The legal representation and payment method that led to the above dollar figure
is more complicated than a one-firm, one-payor scenario. Instead, payment of UMB’s legal fees
involved an indemnification relationship between UMB and the Toledo Clinic, whereby a
provision of the MTA obligates the Toledo Clinic to indemnify UMB for any losses it sustained
under the agreement, including the fees and expenses associated with the instant litigation. (See
MTA, Doc. 95-2 at ¶13; Doc. 151-1 at ¶3). Additionally, UMB claims it is obligated to repay the
Toledo Clinic if UMB recovers any such attorney’s fees.
Applying this indemnification rubric to the instant matter, UMB was initially represented
by Mansour Gavin Gerlack and Manos Co. LPA, (“MGGM”), and UMB has paid MGGM
$81,903.34. (Doc. 151 at 3; Doc. 151-1 at ¶¶3-4). Pursuant to the MTA’s indemnification
provision, UMB’s primary representation was taken over by Robison, Curphy and O’Connell

2

UMB’s original motion sought attorney’s fees and expenses in the amount of $358,038.82. (Doc.
116 at 9). With leave of this Court, UMB filed an addendum to its motion to reflect the updated
amount of fees and expenses incurred–$466,657.46–from defending against an additional twentyone months of post-judgment motion practice and an appeal to the Sixth Circuit. (Doc. 137 at 2).
Again with leave of this Court, UMB briefed the issue of indemnification, and included in its brief
the updated–and now current–amount of fees and expenses: $470,620.78. (Doc. 151 at 7).
UMB’s indemnification brief reserves the right to seek additional fees and expenses as they
continue to be incurred. Id.
4

(“RCO”) in July 2006, and the Toledo Clinic began paying for the legal fees charged by RCO.3
(Doc. 151 at 3; Doc. 151-1 at ¶3, ¶5). RCO has billed $388,717.44 in connection with the matter.
(Doc. 151-2 at ¶4). UMB now seeks to be indemnified by Plaintiffs for the combined total of
MGGM’s fees and RCO’s fees: $470,620.78.4
Throughout their motions, Plaintiffs advance several arguments in an attempt to avoid
indemnifying UMB. First, Plaintiffs contest the reasonableness and necessity of UMB’s
attorney’s fees. (Doc. 120 at 2). Specifically, Plaintiffs opine that the amount of fees “appear
[sic] grossly excessive,” and assert that “Plaintiffs’ counsel’s attorney’s fees are a small fraction of
the fees being claimed by [UMB].” (Doc. 120 at 2-3).
UMB conversely suggests that Plaintiffs are responsible for the size of the bill vis-à-vis
their post-judgment motion practice and discovery requests, which include three motions for
reconsideration, two appeals to the Sixth Circuit, a motion requesting that UMB produce its entire
“legal file,” and a belated third set of formal discovery requests. (Doc. 116 at 3).
In any event, UMB submitted briefs and affidavits attesting to the reasonableness of the hours
worked and the rates charged by its attorneys under Ohio law. (See generally Doc. 116 at 5-8 and
attached affidavits). Furthermore, notwithstanding proof that the attorney’s fees are reasonable,
UMB correctly asserts that “as a matter of Ohio law where the promise is to indemnify from ‘all’

3

While RCO assumed primary responsibility in July 2006, MGGM remained involved in UMB’s
representation. (Doc. 151-1 at ¶3).
4

Not included in the $470,620.78 currently sought by UMB is $1,671.32 invoiced by MGGM but
not yet paid by UMB, as well as $4,905.00 of RCO’s un-billed work in process. (See Doc. 151 at
3; Doc. 151-1 at ¶4; Doc. 151-2 at ¶4). As noted above, UMB’s indemnification brief reserves the
right to seek additional fees and expenses as they continue to be incurred. (Doc. 151 at 7).
5

attorney’s fees, the surety is not required to prove either the necessity or the reasonableness of the
fees incurred and paid.” Sheet Metal Workers Local 98 Pension Fund v. Airtab, Inc., 2009 U.S.
Dist. LEXIS 27052, at *7-*8 (S.D. Ohio April 1, 2009) (citing Am. Contractor’s Indem. Co. v.
Nicole Gas Prod., Ltd., 2008 WL 4416671, at *6 (Ohio Ct. App. Sept. 30, 2008)). Thus, because
the indemnification agreements in this case designate “any and all” costs as those which must be
indemnified–and there is no limitation as to reasonableness–Plaintiffs’ argument is unavailing.
See Am. Contractors, 2008 WL 4416671, at *6 (indemnity agreement provided for payment of
“any and all” attorney’s fees).
Second, Plaintiffs postulate a scenario in which the Toledo Clinic never paid RCO’s fees
at all. Instead, Plaintiffs theorize that UMB may have itself paid RCO’s fees, that the Toledo
Clinic reimbursed those fees to UMB pursuant to the MTA’s indemnification provision, and that
UMB is now seeking a windfall double-recovery from Plaintiffs. Plaintiffs offer no evidence in
support of their “theoretical musing,” see Fisher v. Trinova Corp., 1998 U.S. App. LEXIS 26249,
*28 (6th Cir. Oct. 13, 1998), but apparently ask this Court to disregard the evidence of record
which wholly negates it. This Court will not do so. As explained above, UMB’s General Counsel
submitted an affidavit stating that the Toledo Clinic paid for RCO’s fees. (Doc. 151-1 at ¶3, ¶5).
Thus, Plaintiffs’ argument fails.
Third, Plaintiffs contest the affidavit of UMB’s General Counsel Dennis Rilinger, (Doc.
151-1), and the most recent affidavit of RCO attorney Mark Abramson, (Doc. 151-2). The
affidavits–which accompany UMB’s indemnification brief, (Doc. 151)–establish the amount of
outstanding attorney’s fees and describe the indemnification relationship between UMB and the
Toledo Clinic. In a FED. R. CIV. P. 12(f) motion to strike–which Plaintiffs filed in lieu of a

6

response to UMB’s indemnification brief–Plaintiffs contend the affidavits violate the requirement
that “[a]ny affidavit supporting a motion must be served with the motion.” FED. R. CIV. P. 6(c)(2).
Specifically, Plaintiffs argue that UMB was required to file the affidavits with its original request
for attorney’s fees, not with its indemnification brief. Moreover, Plaintiffs urge that the affidavits
improperly bolster UMB’s motion for attorney’s fees, and that “[s]uch 11th hour motion practice
denies a non-moving party of its reasonable opportunity to reply to all of the issues presented.”
(Doc. 152 at 3-4).
Plaintiffs are correct that FED. R. CIV. P. 6(c)(2) generally requires that affidavits
accompany a party’s original motion. Such a rule helps prevent “a scenario in which endless surreply briefs are filed . . . or [a situation where] a movant is incentivized to save his best arguments
for his reply brief so as to secure a tactical advantage based on the nonmovant’s lack of
opportunity to rebut them . . . .” Hardy v. Jim Walter Homes, Inc., 2008 U.S. Dist. LEXIS 26842,
at *33 (S.D. Ala. April 1, 2008); accord Peters v. The Lincoln Elec. Co., 285 F.3d 456, 476 (6th
Cir. 2002). As explained above, however, UMB’s filing was submitted pursuant to this Court’s
order granting UMB leave to brief the issue of indemnification, (Doc. 148), not as a standalone
reply.5 Moreover, to the extent that UMB’s indemnification brief was a reply, the attached
affidavits appropriately respond to a new issue that Plaintiffs raised in their opposition brief;
namely, the theory that UMB was reimbursed by the Toledo Clinic and is now seeking a windfall
double-recovery. See Peters, 285 F.3d at 476-77 (affidavits properly attached to reply brief when
they contested new issues first brought to light in adversary’s opposition brief); Fisher, 1998 U.S.

5

That UMB chose to style its indemnification brief as a “reply” to Plaintiffs’ opposition to
attorney’s fees does not alter the authority under which the brief was submitted.
7

App. LEXIS 26249, at *28 (affidavits in reply brief properly “provided concrete proof rebutting
[adversary’s newly raised] theoretical musings and clarified for the court the actual state of affairs
. . . .”).6 Furthermore, this Court will not accept Plaintiffs’ audacious attempt at using their
opportunity for responding to UMB’s affidavits to insist that they did not have an opportunity to
respond. Per this Court’s order, Plaintiffs were granted one week to respond to UMB’s filing.
(Doc. 148). Instead of responding, they filed the instant FED. R. CIV. P. 12(f) motion to strike in
which they decry their supposed disadvantage. Plaintiffs’ argument is not well taken, and their
motion to strike is denied.
Fourth, Plaintiffs argue that UMB has not sufficiently proven that it is obligated to repay
the Toledo Clinic for the $388,717.44 for which the Toledo Clinic paid on UMB’s behalf. Indeed,
the only evidence of UMB’s purported obligation is an affidavit from UMB’s General Counsel,
Dennis Rilinger, which states that “UMB is obligated to reimburse the Toledo Clinic from
damages awarded on UMB’s Counterclaim up to the amount paid by the Toledo Clinic for RCO’s
representation of UMB less any amounts paid directly by UMB for legal representation . . . .”
(Doc. 151-1 at ¶5).
On Plaintiffs’ challenge to the sufficiency of Rilinger’s affidavit, this Court granted UMB
thirty days to file documents under seal proving its obligation to repay the Toledo Clinic. (Doc.
154). Instead of filing such proof, UMB filed 137 pages of RCO attorneys’ billing entries that
were invoiced to, and paid by, the Toledo Clinic. (Doc. 156; Doc. 157). Such billing entries do

6

FED. R. CIV. P. 6(c)(2)’s requirement that an affidavit be filed with the original motion was
codified at FED. R. CIV. P. 6(d) until 2007. Compare FED. R. CIV. P. 6(d) (2006) (revised 2007),
and FED. R. CIV. P. 6(c)(2) (2007). Thus, Peters and Fisher reference Rule 6(d) instead of Rule
6(c)(2). Peters, 285 F.3d at 476; Fisher, 1998 U.S. App. LEXIS at *25.
8

not provide proof that UMB is obligated to repay the Toledo Clinic, regardless of which party paid
for the billings. In the interest of fairness, however, and in the interest of judicial economy, this
Court withholds judgment as to whether UMB is obligated to repay the Toledo Clinic. UMB will
be granted leave for forty-five days to file underlying documents proving its obligation to repay
the attorney’s fees and expenses paid for by the Toledo Clinic. Such documents may be filed
under seal if UMB so desires.
B. Damnification
In addition to Plaintiffs’ arguments discussed, supra, Plaintiffs contend that UMB is not
yet entitled to be indemnified under Ohio law because it has not incurred “an actual cost, expense,
loss, judgment, liability, or expenditure.”7 (Doc. 149 at 4). Specifically, Plaintiffs invoke Dana
Corp. v. Fireman’s Fund Ins. Co., 169 F. Supp. 2d 732 (N.D. Ohio 1999) (Carr, J.), aff’d sub nom
Dana Corp. v. Celotex Asbestos Settlement Trust, 251 F.3d 1107 (6th Cir. 2001), which held that
under an indemnity contract in Ohio, a party must be “damnified”–i.e., it must incur an actual
damage or loss–before the party is entitled to indemnification. 169 F. Supp. 2d at 736. Moreover,
Dana held that contracts for indemnity are necessarily different from contracts requiring one party
to pay a sum certain to another party. Id. at 736-37 (citations omitted). Whereas contracts to pay

7

Notably, the parties do not specify which state’s law governs their indemnification dispute, and
the relevant indemnification agreements do not uniformly designate a controlling law. The Toledo
Clinic Employees’ 401(K) Profit Sharing Plan & Trust states that Ohio law controls the “Plan,”
and Missouri law controls the “Trust.” (Doc. 95-5 at ¶12.1). The Toledo Clinic Employees’
Money-Purchase Pension Plan, (Doc. 95-3), the Toledo Clinic Employees’ 401(K) and ProfitSharing Plan, (Doc. 95-4), and the Designation of Agent for an IDA, (Doc. 95-10), do not specify
a controlling law. The MTA states that Missouri law controls. (Doc. 95-2 at ¶14.2). Despite this
ambiguity, however, the parties repeatedly invoke Ohio law when arguing the issue. (See Doc 116
at 5; Doc. 149 at 6; Doc. 146 at 2-4; Doc. 151 at 4 n.3). Accordingly, this Court draws on Ohio
law to settle the dispute.
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provide a right of action as soon as a debt matures and is unpaid, contracts for indemnity provide a
right of action only after a party has been damnified. Id. (citing Henderson-Achert Lithographic
Co. v. John Shillito Co., 64 Ohio St. 236, 254-55 (Ohio 1901)). The Sixth Circuit affirmed this
understanding of Ohio’s indemnification law. Dana, 251 F.3d at 1114-15, aff’g 169 F. Supp 2d
732 (“We agree with the district court’s reasoning and conclusion . . . . We disagree with the
Trust in all respects.”).
In the instant matter, the parties do not suggest that their contract is anything other than
one for indemnification. Moreover, the relevant indemnification provisions, which require
Plaintiffs to “indemnify and hold [or save] harmless” UMB, bear out this conclusion. See Dana,
251 F.3d at 1116 (contract to “reimburse and indemnify,” and nothing more, is a contract for
indemnity, not a contract to pay). The parties are therefore litigating an indemnity contract, and
the issue becomes whether UMB has already been damnified such that it is entitled to
indemnification under Ohio law.
Noting that the Toledo Clinic paid for RCO’s fees and expenses, Plaintiffs insist that UMB
has not been damnified because the total amount of money UMB is seeking has not yet come out
of its pocket. (See Doc. 146 at 2-6; Doc. 149 at 3-6). Conversely, UMB marginalizes the
applicability of Dana, and maintains that its purported obligation to repay the Toledo Clinic is a
liability sufficient to constitute damnification. (See Doc. 151 at 4, n.3 (“To the extent that [Dana]
has any bearing on the instant issue, [UMB has in fact been damnified] [b]ecause UMB has
actually paid for certain of its legal fees, and because UMB is liable to the Toledo Clinic for the
remaining fees incurred on its behalf . . . .”)). Moreover, UMB urges that the indemnity provision
in the Designation of Agent for an IDA (Doc. 95-10) expressly contemplates the mere accrual of

10

liability as sufficient to trigger indemnification. (See Doc. 151 at 6 (citing Doc. 95-10) (Plaintiffs
shall indemnify UMB “against any and all costs, expenses, losses, judgments and liabilities of any
nature whatsoever, arising from any claim, demand, or cause of action from any source
whatsoever . . . .” ) (emphasis added)).
UMB’s argument is not persuasive. The Sixth Circuit in Dana roundly rejected the notion
that an indemnification agreement’s use of the word “liability” can negate the prerequisite of
damnification. See Dana, 169 F. Supp. 2d at 738 (“Whether the agreement referred to the losses
or liabilities of Smith & Kanzler Company is immaterial–Dana’s duty to indemnify is limited to
compensating Phillip Carey for the extent of its damnification–not for what Smith & Kanzler
Company itself may have been liable.”). Nor can it redefine “damnification” as requiring
anything other than an actual loss. See Dana, 251 F.3d at 1116 (“We are not persuaded otherwise
by the Trust’s attempt to distinguish between ‘loss’ and ‘liability’ for purposes of determining
when the obligation to indemnify is triggered.”). Furthermore, that UMB has paid out of its own
pocket $81,903.34 of MGGM’s fees does not constitute damnification with respect to the
remaining $1,671.32 that MGGM has invoiced to UMB, but that UMB has not yet paid.
Moreover, UMB’s payment to MGGM certainly does not damnify it with respect to the
$388,717.44 of RCO’s fees that were paid by the Toledo Clinic.
This is not to suggest that Plaintiffs may avoid indemnifying UMB for the entire amount
requested. As explained above, Plaintiffs have a contractual obligation to indemnify UMB against
any and all attorney’s fees and costs arising out of the instant litigation. Plaintiffs’ obligation is
not triggered, however, until UMB has been damnified. Accordingly, Plaintiffs must immediately
indemnify UMB the $81,903.34 that UMB has paid MGGM. This Court withholds judgment,

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however, regarding UMB’s damnification with respect to the $388,717.44, and with respect to any
other attorneys’ fees and expenses arising from the instant litigation. As with the issue of UMB’s
obligation to repay the Toledo Clinic, UMB will be grated leave for forty-five days to file
payment records, accompanied by affidavits, proving that UMB has been damnified as to any
outstanding attorneys’ fees and expenses. Upon a timely filing as outlined herein, this Court will
issue an Order directing Plaintiffs to indemnify UMB.8
III. Discovery-Related Motions
In the wake of UMB’s motions for attorney’s fees, Plaintiffs engaged in a series of
attempts at obtaining discovery–ostensibly to determine the reasonableness of UMB’s fees, and to
explore the theory that UMB is angling for a windfall double-recovery. Specifically, on October
16, 2009, Plaintiffs filed a motion requesting a court order that UMB be required to turn over its
“legal file” so an expert can determine whether UMB’s attorney’s fees are reasonable. (Doc. 120).
On July 20, 2011, Plaintiffs filed notice of its third set of discovery requests, which seek
information related to attorney’s fees. (Doc. 138). Finally, on August 18, 2011, Plaintiffs served
on the Toledo Clinic two subpoenas duces tecum seeking a record of all payments that the Toledo
Clinic made to UMB, and to UMB’s counsel. (Doc. 141). Currently pending before the Court are
Plaintiffs’ motion requesting production UMB’s legal file, (Doc. 120), UMB’s motion for a
protective order to bar Plaintiffs from engaging in further discovery, (Doc. 142), and UMB’s
motion to quash the subpoenas duces tecum. (Doc. 144).

8

This Court recognizes that, given the complexity of payment relationships, UMB’s damnification
may result from UMB paying its lawyers directly, from UMB indemnifying the Toledo Clinic
pursuant to the MTA, or from some combination thereof.
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First, Plaintiffs’ motion requesting production of UMB’s entire legal file is over broad and
seeks privileged information. Request denied.
Second, UMB’s motion for a protective order barring Plaintiffs from engaging in further
discovery is granted. More than two years after the expiration of the discovery deadline, and
without leave of this Court, Plaintiffs filed a third set of formal discovery requests seeking
information related to UMB’s attorney’s fees. Additionally, and as noted herein, Plaintiffs filed a
motion requesting UMB’s entire legal file, and have served two non-party subpoenas related to
UMB’s attorney’s fees.
UMB correctly asserts that “Plaintiffs have been on notice of UMB’s Counterclaim [for
attorney’s fees] since it was filed on April 12, 2006 . . . . Plaintiffs’ opportunity to conduct
whatever discovery they deemed necessary to defend against this Counterclaim has long since
passed . . . .” (Doc. 142 at 2-3). Further, as explained below, none of Plaintiffs’ belated attempts
at discovery seek information that is either relevant or needed. As such, Plaintiffs’ untimely and
duplicative discovery requests directly contravene the Supreme Court’s admonition that “[a]
request for attorney’s fees should not result in a second major litigation,” Hensley v. Eckerhart,
461 U.S. 424, 437 (1983). Moreover, Plaintiffs’ requests give rise to the sort of annoyance, undue
burden, and expense sought to be precluded by FED. R. CIV. P. 26(c). Accordingly, UMB’s
motion for a protective order barring Plaintiffs from engaging in further discovery is granted, to
include Plaintiffs’ third set of formal discovery requests. (Doc. 141).
Third, UMB’s motion to quash Plaintiffs’ subpoenas duces tecum must be denied. The
subpoenas, which were served on the non-party Toledo Clinic, demand:
(1) A record of all payments made for billings received from UMB Bank or from
billings received from legal counsel representing UMB Bank in the pending
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Federal Court action bearing this case number; (2) If you have paid Robinson [sic],
Curphey & O’Connell for representing UMB Bank, N.A., produce a record of
those payments giving dates and amounts.
(Doc. 141-1; Doc. 141-2) (emphasis added).
UMB contends the subpoenas improperly demand production of privileged information in
violation of Fed. R. Civ. P. 45(c)(3)(A)(iii), because “[a]ny relationship between the Toledo Clinic
and [UMB] which might impose an obligation by one to pay legal fees incurred on behalf of the
other is entitled to privilege between those entities and their attorneys.” (Doc. 144 at 3). UMB
also argues the subpoenas impose an undue burden in violation of Fed. R. Civ. P. 45(c)(3)(A)(iv)
because they require production of information that is irrelevant and unneeded.
Regarding UMB’s privilege argument, UMB overstates the issue at hand. Plaintiffs’
subpoenas request payment records, and payment records alone. Thus, the relevant issue is
whether records reflecting payment of the disputed attorney’s fees are protected by either the
attorney-client privilege or the work product privilege. In the instant matter, they are not.
The attorney-client privilege “does not envelope everything arising from the existence of
an attorney-client relationship.” United States v. Goldfarb, 328 F.2d 280, 282 (6th Cir. 1964).
“The attorney-client privilege only precludes disclosure of communications between attorney and
client and does not protect against disclosure of the facts underlying the communication.”
Humphreys, Hutcheson & Moseley v. Donovan, 755 F.2d 1211, 1219 (6th Cir. 1985); see also
United States v. Haddad, 527 F.2d 537, 538-39 (6th Cir. 1975) (“In the absence of special
circumstances, the amount of money paid or owed to an attorney by his client is generally not
within the attorney-client privilege.”); United States v. Skeddle, 989 F. Supp. 890, 904 (N.D. Ohio
1997) (Carr, J.) (quoting Duttle v. Bandler & Kass, 127 F.R.D. 46, 52 (S.D.N.Y. 1989)) (“To be

14

given privileged status, ‘fee information must amount to or reveal confidential information
regarding the advice sought from the attorney.’”). Similarly, while the work product privilege
protects an attorney’s mental impressions that may be reflected in his or her billing records, the
privilege does not extend to payment records, where no such attorney work product is revealed.
See Nesse v. Pittman, 202 F.R.D. 344, 356 (D.D.C. 2001). Thus, because Plaintiffs’ subpoenas do
not require disclosure of privileged attorney-client communications, and do not require disclosure
of an attorney’s work product, the subpoenas are not violative of a legal privilege.
Regarding UMB’s undue burden argument, UMB correctly asserts that the relevance of,
and need for information are factors in determining whether a subpoena imposes an undue burden.
See Light Sources, Inc. v. Cosmedico Light, Inc., 2005 U.S. Dist. LEXIS 15253, at *8-*9 (N.D.
Ohio July 28, 2005) (Gaughan, J.) (citing Am. Electric Power Co., Inc. v. United States, 191
F.R.D. 132, 136 (S.D. Ohio 1999)) (“Whether a subpoena imposes an ‘undue burden’ upon a
witness is a case specific inquiry that turns on ‘such factors as relevance, the need of the party for
the documents . . . and the burden imposed.”). Moreover, because Plaintiffs’ subpoenas ostensibly
seek to determine the reasonableness of fees, and in light of the fact that this Court determined,
supra, that reasonableness is not relevant to the matter at hand, it follows that the information
subpoenaed by Plaintiffs is likewise irrelevant. Further, to the extent Plaintiffs’ subpoenas seek
information to verify that UMB has been damnified, such information is unneeded by Plaintiffs.
As explained above, this Court has ordered UMB to file proof of damnification before it is entitled
to any fees not already awarded in this Memorandum. Plaintiffs therefore have no need to
subpoena information that this Court has ordered UMB to file.

15

While Plaintiffs seek irrelevant and unneeded information, however, UMB has no standing
to quash the subpoenas on grounds of undue burden. See Donahoo v. Ohio Dep’t of Youth Servs.,
211 F.R.D. 303 (N.D. Ohio 2002) (Limbert, M.J.) (citing Clayton Brokerage Co., Inc. v. Clement,
87 F.R.D. 569 (D. Md. 1980)) (notwithstanding subpoena’s violation of FED. R. CIV. P.
45(c)(3)(A), movant party’s motion to quash denied for lack of standing because subpoena was
served on a non-party, and did not implicate a right or privilege belonging to movant party).
Therefore, UMB’s motion to quash Plaintiffs’ subpoenas must be denied.
IV. Plaintiffs’ Third Motion for Reconsideration
On June 15, 2011, Plaintiffs filed their third motion for reconsideration of this Court’s
August 8, 2009 entry of summary judgment in favor of UMB.9 UMB did not respond. This Court
finds that Plaintiffs’ motion is baseless and must be denied.
First, Plaintiffs object that this Court denied their second motion for reconsideration after
the Sixth Circuit–where Plaintiffs’ summary judgment appeal was then pending–declined
Plaintiffs’ request to remand the matter for disposition of the second motion. (Doc. 126). In the
instant, third motion for reconsideration, Plaintiffs suggest this Court did not have the authority to
deny the second. “Querry: Did the District Court have jurisdiction to do so once the Appellate
Court refused to remand it to him for a decision?” (Doc. 132 at 2) (emphasis omitted).
FED. R. CIV. P. 62.1(a)(2) controls this issue:

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Plaintiffs’ motion requests that this Court “amend or alter its Decision as issued on the 18th day of
May, 2011 . . . .” (Doc. 132 at 1). Notably, this Court did not issue a decision on May 18, 2011.
The Sixth Circuit Court of Appeals did, however, affirm summary judgment in favor of
Defendants on May 18, 2011, and it is presumably this decision to which Plaintiffs are referring.
In any event, this Court construes Plaintiffs’ motion as a request to reconsider this Court’s
judgment in favor of Defendants.
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(a) Relief Pending Appeal. If a timely motion is made for relief that the court
lacks authority to grant because of an appeal that has been docketed and is pending,
the court may:
(1) defer considering the motion;
(2) deny the motion;
(3) state either that it would grant the motion if the court of appeals
remands for that purpose or that the motion raises a substantial
issue.
FED. R. CIV. P. 62.1(a) (emphasis added). Clearly, this Court had the authority under FED. R. CIV.
P. 62.1 (a)(2) to deny Plaintiffs’ second motion, notwithstanding the Sixth Circuit’s denial of
remand.10
Second, invoking FED. R. CIV. P. 59-60, Plaintiffs advance several substantive arguments
in an attempt to re-litigate summary judgment. Plaintiffs do not specify which provisions of FED.
R. CIV. P. 59-60 provide a basis for their motion and arguments, and this Court finds none.
A motion for relief under FED. R. CIV. P. 59 must be filed within twenty-eight days after
the entry of judgment. See FED. R. CIV. P. 59(b), (d), (e). A motion for relief under FED. R. CIV.
P. 60 “must be made within a reasonable time–and for reasons (1), (2), and (3) no more than a
year after the entry of the judgment . . . .” See FED. R. CIV. P. 60(c)(1). The instant motion was
filed on June 15, 2011, more than twenty-two months after this Court entered judgment in favor of
UMB. Thus, Plaintiffs’ motion does not satisfy any of the express time lines in FED. R. CIV. P. 5960. Moreover, to the extent Plaintiffs attempt to invoke FED. R. CIV. P. 60(b)(4)-(6), the motion
was not filed within a “reasonable time.” See Dillard v. Nat’l Union Fire Ins. Co., 2011 U.S. Dist.

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Indeed, when the Sixth Circuit denied Plaintiffs’ remand request, it cited FED. R. CIV. P. 62.1(a)(2)
and its corresponding Rule of Appellate Procedure. (See Doc. 126). Such an explicit reference
should have been sufficient to satisfy Plaintiffs’ “query” prior to their decision to file a third
motion for reconsideration.
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LEXIS 81334, at *3-*4 (E.D. Mich. July 26, 2011) (Plaintiff’s Rule 60(b) motion not filed within
a “reasonable time” where fourteen months and eighteen months elapsed after judgments from
which plaintiff sought relief, and where plaintiff “essentially [sought] reconsideration and [raised]
the same type of arguments already presented to, and rejected by, [the District Court].”).
Plaintiffs’ third motion for reconsideration is denied.
V. Conclusion
For the reasons stated herein, this Court rules as follows:
UMB’s motions (Doc. 116; Doc. 137) requesting that Plaintiffs indemnify UMB’s
attorney’s fees and expenses are granted in part. Plaintiffs are hereby ordered to indemnify UMB
in the amount of $81,903.34;
UMB is hereby granted leave for forty-five days to:
1.

File documents under seal proving its obligation to repay the Toledo Clinic for the

$388,717.44 in attorney’s fees and expenses that the Toledo Clinic paid on UMB’s behalf;
2.

File proof that it has been damnified with respect to any outstanding attorney’s fees

and expenses arising from this matter, including with respect to the $388,717.44 paid by the
Toledo Clinic.
Upon such timely filing, this Court will enter an order directing Plaintiffs to indemnify
UMB for those fees and expenses.
Plaintiffs’ FED. R. CIV. P. 12(f) motion to strike UMB’s affidavits and arguments (Doc.
152) is denied.
Plaintiffs’ request that UMB be ordered to produce its legal file (Doc. 120) is denied.

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UMB’s motion for a protective order to bar further discovery (Doc. 142) is granted.
Plaintiffs are prohibited from engaging in further discovery including with respect to Plaintiffs’
third set of written discovery requests served on July 20, 2011.
UMB’s motion to quash Plaintiffs’ subpoenas duces tecum (Doc. 144) is denied.
Plaintiffs’ third motion for reconsideration (Doc. 132) is denied.
IT IS SO ORDERED.
S/ David A. Katz
DAVID A. KATZ
U. S. DISTRICT JUDGE

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