Quigley v. Soul Surgery LLC et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Elizabeth Quigley,
Plaintiff,
v.
Soul Surgery LLC, et al.,
Defendants.
NO. CV-24-01050-PHX-SMM (ASB)
ORDER
This matter was assigned to Magistrate Judge Alison S. Bachus. (Doc. 7). On
December 15, 2025, the Magistrate Judge filed a Report and Recommendation (“R&R”)
with this Court. (Doc. 40).1 The Magistrate Judge has recommended that Plaintiff’s Motion
for Award of Attorney’s Fees and Costs, (Doc. 38), be granted in-part. To date, no
1 This case is assigned to a Magistrate Judge. However, not all parties have
consented to the jurisdiction of the Magistrate Judge. Thus, the matter is before this Court
pursuant to General Order 21-25, which states in relevant part:
When a United States Magistrate Judge to whom a civil action has been
assigned pursuant to Local Rule 3.7(a)(1) considers dismissal to be
appropriate but lacks the jurisdiction to do so under 28 U.S.C. § 636(c)(1)
due to incomplete status of election by the parties to consent or not consent
to the full authority of the Magistrate Judge,
IT IS ORDERED that the Magistrate Judge will prepare a Report and
Recommendation for the Chief United States District Judge or designee.
IT IS FURTHER ORDERED designating the following District Court
Judges to review and, if deemed suitable, to sign the order of dismissal on
my behalf:
Phoenix/Prescott: Senior United States District Judge Stephen M.
McNamee
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objections have been filed.
STANDARD OF REVIEW
When reviewing a magistrate judge’s report and recommendation, this Court “shall
make a de novo determination of those portions of the report . . . to which objection is
made” and “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); see also
Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991). However, the relevant provision
of the Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any
review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474
U.S. 140, 149 (1985); see also Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005)
(“Of course, de novo review of a R & R is only required when an objection is made to the
R & R.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)
(“Neither the Constitution nor the [Federal Magistrates Act] requires a district judge to
review, de novo, findings and recommendations that the parties themselves accept as
correct.”). Likewise, it is well-settled that “failure to object to a magistrate judge’s factual
findings waives the right to challenge those findings.” Bastidas v. Chappell, 791 F.3d 1155,
1159 (9th Cir. 2015) (quoting Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012)).
DISCUSSION2
Plaintiff’s counsel, Mr. Clifford Bendau II, requests a total of $14,182.63 in attorney
fees and costs, comprising of $7,609.50 in attorney fees at an hourly rate of $445 for 17.1
hours of work, $824.60 in out-of-pocket costs, and $5,748.53 in anticipated collection
costs. (See Doc. 38). Having reviewed the R&R of the Magistrate Judge, and no Objections
having been made by any party thereto, the Court hereby incorporates and modifies the
Magistrate Judge’s R&R. (Doc. 40).
The Court agrees with the R&R that a modification to Mr. Bendau’s hourly rate is
reasonable and aligns with prevailing FLSA action rates in this District. (Id. at 4). The
2The factual and procedural history of this case is set forth in the Magistrate Judge=s
Report and Recommendation (Doc. 40).
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Court also agrees that Plaintiff’s requested out-of-pocket costs and anticipated collection
costs are not reasonable. (Id. at 8). Because Plaintiff and Defendants Heather Mulligan and
John Doe Mulligan stipulated to bearing their own costs and fees, the Court will not award
service fees against those Defendants. (See Doc. 32); see also LRCiv 54.1(d). Additionally,
as noted in the R&R, there is simply no way for the Court to assess the reasonableness of
Plaintiff’s anticipated collection costs. (Doc. 40 at 9). Moreover, the Court finds that Mr.
Bendau’s attorney fees are not reasonable or permissible in part.
The R&R recommended that the Court reduce Mr. Bendau’s hours billed by 1.9, as
several time entries are not recoverable as attorney’s fees. (Id. at 5–6). Mr. Benadu’s
timesheet includes 58 task entries, of which the R&R has recommended that 16 of those
entries are administrative or pertain to Plaintiff’s Show Cause Orders. (Id. at 4–6); (see
also Doc. 38-4 at 2–3). “It simply is not reasonable for a lawyer to bill, at [his] regular
hourly rate, for tasks that a non-attorney employed by [him] could perform at a much lower
cost.” Davis v. City of San Francisco, 976 F.2d 1536, 1543 (9th Cir. 1992), opinion vacated
in part on other grounds on denial of reh’g, 984 F.2d 345 (9th Cir. 1993). When “clerical
tasks are billed at hourly rates, the court should reduce the hours requested” as those tasks
should be “subsumed in [the] firm[‘s] overhead.” Nadarajah v. Holder, 569 F.3d 906, 921
(9th Cir. 2009). “[T]he imposition of attorneys’ fees against a party who abused the judicial
process is limited to compensation for the wronged party.” Lu v. United States, 921 F.3d
850, 860 (9th Cir. 2019).
The Court agrees with the R&R that Mr. Bendau’s administrative tasks and show
cause entries should be excluded from his total hours billed. See Nadarajah, 569 F.3d at
921; see also Lu, 921 F.3d at 860. The Court further identifies an additional task entry that
falls squarely under administrative or clerical tasks; “Draft, file Magistrate Consent Form
(0.3 hours)” (Doc. 38-4 at 2). This task requires no legal expertise and consists solely of
entering parties’ names and signatures. Therefore, the Court finds that the reasonable
attorney’s fees award to be $5,674.00, reflecting 14.9 hours at an hourly rate of $395.00.3
3 The Court reminds Mr. Clifford Bendau II of his continuing obligation to comply with
Rule 11 of the Federal Rules of Civil Procedure. Should Mr. Bendau persist in seeking
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CONCLUSION
Accordingly,
IT IS ORDERED adopting as modified the Report and Recommendation of the
Magistrate Judge. (Doc. 40).
IT IS FURTHER ORDERED granting in-part Plaintiff’s Motion for Award of
Attorney’s Fees and Costs. (Doc. 38).
IT IS FURTHER ORDERED awarding Plaintiff $5,674.00 in attorneys’ fees and
$645.80 in out-of-pocket costs for a total of $6,318.80, for which Defendants are jointly
and severally liable.
IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment
accordingly.
Dated this 13th day of January, 2026.
relief not authorized by law, the Court may impose the appropriate sanctions.
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