Lopez v. Air Pro Heating & Cooling LLC et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Alonso Alexander Guardado Lopez,
Plaintiff,
v.
Air Pro Heating & Cooling LLC, et al.,
Defendants.
No. CV-25-02009-PHX-JZB
REPORT AND RECOMMENDATION
TO THE HONORABLE STEPHEN M. MCNAMEE, UNITED STATES DISTRICT
JUDGE:
Pending before the Court is Plaintiff Alonso Alexander Guardado Lopez’ “Motion
for Entry of Default Judgment Against Defendants” (“Motion for Default Judgment”) (doc.
12). This Report and Recommendation is filed pursuant to General Order 21-25.1 For the
following reasons, the Court recommends Plaintiff Lopez’ Motion for Default Judgment
be granted.
1 General Order 21-25 provides:
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 [Senior United States District
Judge Stephen M. McNamee] to review and, if deemed suitable, to sign the
order of dismissal . . . .
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I. Background.
Plaintiff initiated this civil action with the filing of his Verified Complaint on June
10, 2025. See (doc. 1.) Plaintiff served all Defendants on June 16, 2025. See (docs. 7–9.)
Defendants’ deadline to answer or otherwise respond to the Verified Complaint was on
July 7, 2025. See (doc. 10-1 at 1); see also Fed. R. Civ. P. 12(a)(1)(A). Defendants did not
appear or otherwise defendant, leading to Plaintiff filing his Application for Entry of
Default Against Defendants on July 31, 2025. (Doc. 10.) The Clerk entered default against
all Defendants on August 1, 2025. (Doc. 11.) Plaintiff filed this pending Motion for Default
Judgment on August 28, 2025. (Doc. 12.)
In his Motion for Default Judgment, Plaintiff seeks damages for unpaid minimum
and overtime wages under the Fair Labor Standards Act (“FLSA”), the Arizona Minimum
Wage Act (“AMWA”), and the Arizona Wage Act (“AWA”) against Defendants Air Pro
Heating & Cooling LLC, Eduardo Marquez and Becky Jimenez.2 (Doc. 12 at 1.) In his
Verified Compliant, Plaintiff alleges that he was employed by Defendants between April
16, 2025, to April 30, 2025, where he “generally worked approximately between 40 and
50 hours per workweek.” (Doc. 1 at 7.) Plaintiff further alleges that in his final workweek,
he worked approximately 43 hours but was never compensated. (Doc. 12-1 at 2.) Plaintiff
seeks judgment in the amount of $2,508—consisting of trebled damages in the amount of
$2,451 and liquidated overtime damages in the amount of $57 against Defendants Air Pro
Heating & Cooling LLC, Eduardo Marquez and Becky Jimenez3—augmented by post-
judgment interest pursuant to 28 U.S.C § 1961, and permission to file a motion for
attorneys’ fees and costs following a potential award of default judgment. (Id. at 9–12.)
II. Legal Standard.
Rule 55 states that “[w]hen 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
2 Plaintiff notes that Becky Jimenez’ full legal name is unknown, but she is believed
to be the spouse of Eduardo Marquez. (Doc. 1 at 1.) Plaintiff alleges that both Defendant
Marquez and Defendant Jimenez “have caused events to take place giving rise to the claims
in this Complaint as to which their marital community is fully liable.” (Id. at 4.)
3 Of that amount, Plaintiff seeks $497.70 solely against Defendant Air Pro Heating
and Cooling LLC. (Doc. 12 at 10.)
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otherwise, the clerk must enter the party’s default.” Fed. R. Civ. P. 55(a). After entry of
default, the district court has discretion to grant default judgment. See Fed. R. Civ. P.
55(b)(2); see also Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980).
The Court’s “starting point is the general rule that default judgments are ordinarily
disfavored.” Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986). In considering default
judgment against parties that have “failed to plead or otherwise defend, a district court has
an affirmative duty to look into its jurisdiction over both the subject matter and the parties.”
In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999). A default judgment entered by a district court
devoid of personal or subject matter jurisdiction is void. Id. A court has personal
jurisdiction over a party where that party has sufficient “minimum contacts” with the
territory “such that the maintenance of the suit does not offend ‘traditional notions of fair
play and substantial justice.’” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)
(quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). A court has federal-question subject
matter jurisdiction where, “on the face of the plaintiff’s properly pleaded complaint,” the
civil action in question “aris[es] under the Constitution, laws, or treaties of the United
States.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 392 n.6 (1987) (quoting 28 U.S.C.
§ 1331).
After personal and subject matter jurisdiction have been established the court must
consider whether default judgment is proper under the Eitel factors. See Eitel, 782 F.2d at
1471–72. The Eitel factors are:
(1) the possibility of prejudice to the plaintiff[;] (2) the merits of plaintiff’s
substantive claim[;] (3) the sufficiency of the complaint[;] (4) the sum of
money at stake in the action; (5) the possibility of a dispute concerning
material facts; (6) whether the default was due to excusable neglect[;] and
(7) the strong policy underlying the Federal Rules of Civil Procedure
favoring decisions on the merits.
Id. In applying the Eitel factors, the Court notes that, “for default judgment purposes[,] . .
. ‘well-pled allegations in the complaint regarding liability are deemed true.’” Arizona Bd.
of Regents v. Doe, 555 F. Supp. 3d 805, 815 (D. Ariz. 2021), aff’d sub nom. Arizona Bd.
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of Regents for and on behalf of Arizona State U. v. Doe, No. 21-16525, 2022 WL 1514649
(9th Cir. May 13, 2022) (quoting Fair Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th
Cir. 2002)). “However, necessary facts not contained in the pleadings, and claims which
are legally insufficient, are not established by default.” Cripps v. Life Ins. Co. of N. Am.,
980 F.2d 1261, 1267 (9th Cir. 1992).
III. Discussion.
The Court will proceed as follows. First, the Court will analyze whether in has
subject matter jurisdiction and personal jurisdiction over the Parties. Next, the Court will
analyze whether default judgment is proper under the Eitel factors.
A. Subject Matter and Personal Jurisdiction.
The Court must have jurisdiction over the Parties to enter default judgment. In re
Tuli, 172 F.3d at 712. Accordingly, the Court will analyze whether it has subject-matter
jurisdiction, personal jurisdiction, and whether the District of Arizona is the proper venue
for this action.
1. Subject-Matter Jurisdiction.
Regarding subject-matter jurisdiction, Plaintiff asserts federal and state claims
under the FLSA, AMWA, and AWA against the Defendants. (Doc. 12 at 1.) The Court has
federal-question subject matter jurisdiction over Plaintiff’s FLSA claim pursuant to 28
U.S.C. § 1331 and 29 U.S.C. § 201, et seq. The Court also exercises supplemental
jurisdiction over Plaintiff’s AMWA and AWA claims because they are “so related to
claims in the action within such original jurisdiction that they form part of the same case
or controversy[.]” 28 U.S.C. § 1367(a); Royal Canin U. S. A., Inc. v. Wullschleger, 604
U.S. 22 (2025) (“The statute thus confers supplemental jurisdiction over state-law claims
sharing a sufficient factual relationship with the federal claims in a case.”).
2. Personal Jurisdiction.
Personal jurisdiction is also satisfied in this case. There are two flavors of personal
jurisdiction, namely general jurisdiction and specific jurisdiction. Freestream Aircraft
(Bermuda) Ltd. v. Aero Ltd. Grp., 905 F.3d 597, 602 (9th Cir. 2018). “General jurisdiction
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exists when the defendant’s contacts with the forum state are so continuous and systematic
as to render the defendant essentially at home in that forum.” Id. at 602 n.2. Crucially,
when analyzing personal jurisdiction, a court must find that service was effected. See
Sherrill v. Ariz. Health Care Cost Containment Sys., No. CV-13-195-TUC-JGZ, 2013 WL
12122671 (D. Ariz. Apr. 24, 2013) (“A federal court is without personal jurisdiction over
a defendant unless the defendant has been served in accordance with Fed. R. Civ. P. 4.”)
(citation omitted).
In the case at hand, all defendants appear to be residents of Arizona, and service was
effected upon all three pursuant to Fed. Rule Civ. P. 4. Defendant Marquez was personally
served at the Air Pro Heating & Cooling LLC business location. (Doc. 8.) Defendant Air
Pro Heating & Cooling LLC was served through its agent authorized by law, Defendant
Marquez. (Doc. 7.)
Defendant Becky Jimenez was served via an individual authorized to receive service
via appointment—namely, Defendant Marquez—at the Air Pro Heating & Cooling LLC
business location. (Doc. 9.) In the Proof of Service (doc. 9), Plaintiff’s process server noted
that:
During service upon Eduardo Marquez at Air Pro Heating & Cooling LLC,
Eduardo was able to reach Becky Jimenez on her phone. I provided Becky
the option to return and personally serve her, but Becky stated that Eduardo
was authorized to accept service on her behalf. I handed the Summons for
Becky to her spouse, Eduardo Marquez.
(Doc. 9 at 1.) Due to the obscurity of whether Defendant Jimenez was properly
served, the Court ordered Plaintiff to file a supplemental brief clarifying whether Defendant
Jimenez received service of the complaint. See (doc. 13.) In the supplemental brief,
Plaintiff re-affirms that Becky Jimenez did in-fact instruct Plaintiff’s process server to give
provide the summons to her husband, Defendant Marquez. See (doc. 14 at 1–2.)
Additionally, Plaintiff provided supplemental evidence supporting that Defendant
Marquez was Defendant Jimenez’ spouse, and that Defendant Jimenez did work at Air Pro
Heating & Cooling LLC. See (id. at 4–9.)
While not as clear as serving Defendant Jimenez or her spouse Defendant Marquez
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at their abode, see Fed. R. Civ. P. 4(e)(2)(B), the Court finds that this a valid service upon
“an agent authorized by appointment[.]” Fed. R. Civ. P. 4(e)(2)(C). Under the Second
Restatement of Agency, “[a]uthority is the power of the agent to affect the legal relations
of the principal by acts done in accordance with the principal’s manifestations of consent
to [them].” Restatement (Second) of Agency § 7 (A.L.I. 1958). “Manifestation of consent”
amounts to “conduct from which, in light of the circumstances, it is reasonable for another
to infer consent” to be one’s agent. Id. cmt. b. By consenting to service upon her spouse at
Air Pro Heating & Cooling LLC, Defendant Jimenez authorized Defendant Marquez to
receive summons on her behalf. See Sanchez v. Scrubs, No. CV 17-5599-GW(JEMX),
2017 WL 10605264, at *2 (C.D. Cal. Dec. 5, 2017) (“Any agent who accepts service must
be shown to have been authorized to bind his principal by acceptance of process.”) (citation
and internal quotation omitted); see also Steven Biacker-McKee & William M. Janssen,
Federal Civil Rules Handbook 228 (2004); Nazareth Nat’l Bank & Tr. Co. v. E.A. Intern.
Tr., No. CIV.A. 98-6163, 1999 WL 549036, at *2 (W.D. Pa. July 26, 1999) (finding service
was properly effected where a security guard who was instructed by the Defendant to
receive service was given the summons). Accordingly, the Court finds that personal
jurisdiction is proper in the case at hand.
3. Venue.
Venue is proper in the present case. Venue is proper in “a judicial district in which
any defendant resides, if all defendants are residents of the State in which the district is
located.” quoting 28 U.S.C. § 1391(b)(1). “Additionally, “[v]enue is proper in any district
‘in which a substantial part of the events or omissions giving rise to the claim occurred.’”
Noodles Dev., LP v. Hui, No. CV-12-01165-PHX-ROS, 2013 WL 12111103, at *6 (D.
Ariz. July 22, 2013) (quoting 28 U.S.C. § 1391(b)(2)). Because all the Defendants appear
to be Arizona residents, and because the acts giving rise to Plaintiff’s claims occurred in
Arizona, venue is satisfied.
B. Default Judgment.
Plaintiff seeks an entry of default judgment as to all named Defendants. The Court
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will accordingly analyze whether default judgment is proper under the seven Eitel factors.
1. The Possibility of Prejudice to the Plaintiff.
The first factor favors granting Plaintiff’s motion for default judgment because
Plaintiff will be prejudiced if default judgment is not entered. No Defendant has responded
to Plaintiff’s complaint nor “participate[d] in the litigation.” (Doc. 12 at 3.) “If Plaintiff’s
motion for default judgment is not granted, Plaintiff ‘will likely be without other recourse
for recovery.’” United States v. $86,496.00 in U.S. Currency, 2008 WL 2687141, at *2 (D.
Ariz. 2008) (quoting PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1177 (C.D.
Cal. 2002).
2. The Merits of Plaintiff’s Substantive Claim and the Sufficiency of the Complaint.
The second and third Eitel factors “are often analyzed together and require courts to
consider whether a plaintiff has stated a claim on which it may recover.” Ent. USA Inc. v.
Baldinsky, No. CV-22-00970-PHX-DWL, 2023 WL 8185673, at *3 (D. Ariz. Nov. 27,
2023) (citation omitted). In Plaintiff’s Complaint, he notes Defendants failed to
compensate him for 40 hours of general wages and 3 hours of overtime-pay. See (doc. 1 at
8–9); see also (doc. 12 at 5). Because these allegations are taken as true, Plaintiff has stated
a claim upon which he may recover. See Castro v. C&C Verde LLC, No. CV-18-04715-
PHX-JZB, 2019 WL 13244384, at *2 (D. Ariz. July 9, 2019) (stating that in considering a
motion for default, the plaintiff’s allegations about not being properly paid overtime wages
“are taken as true”). Therefore, these factors weigh in favor of granting Plaintiff’s motion
for default judgment.
3. The Sum of Money at Stake in the Action.
Under the Fourth Eitel factor, “the Court considers the amount of money at stake in
relation to the seriousness of the defendant[s’] conduct.” Su v. Infinisys Inc., No. CV-23-
00776-PHX-DWL, 2023 WL 6517445, at *2 (D. Ariz. Oct. 5, 2023). This factor requires
the Court to “assess whether the recovery sought is proportional to the harm caused by
defendant[s’] conduct.” Landstar Ranger, Inc. v. Parth Enters., Inc., 725 F. Supp. 2d 916,
921 (C.D. Cal. 2010).
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Here, Plaintiff seeks $4,461.30 in unpaid wages, overtime, and liquidated damages.4
(Doc. 12 at 8–11.) Plaintiff notes that he “does not have complete time or pay records in
his possession, and Defendants have not produced complete and exact time records for
Plaintiff as a result of their refusal to participate in this matter.” (Id. at 4.) However,
Plaintiff asserts that “[t]he failure by an employer to keep and maintain adequate and
accurate records for its employees violates the FLSA and 29 C.F.R. § 516’s strict
recordkeeping requirements.” (Id.) Furthermore, Plaintiff cites the Ninth Circuit’s decision
in Brock v. Seto. (Id.) In Brock, the Ninth Circuit noted that “an employee has carried out
his burden if he proves that he has in fact performed work for which he was improperly
compensated and if he produces sufficient evidence to show the amount and extent of that
work as a matter of a just and reasonable inference.” Brock v. Seto, 790 F.2d 1446, 1448
(9th Cir. 1986) (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946))
(emphasis omitted).
In light of the evidence provided and the lack of evidence to the contrary provided
by the defaulting Defendants, the Court finds that Plaintiff’s request for $4,461.30—with
$2,508 coming from Defendant Air Pro Heating & Cooling LLC and $1,953.30 against
Defendants Air Pro Heating & Cooling LLC, Eduardo Marquez, and Becky Jimenez—is
reasonable. Accordingly, this factor weighs in favor of granting Plaintiff’s motion for
default judgment. See Castro, 2019 WL 13244384, at *3 (finding a judgment in the amount
of $44,975.98 reasonable for payment of overtime the plaintiff worked).
4. The Possibility of a Dispute Concerning Material Facts, Whether the Default
was Due to Excusable Neglect, and the Strong Policy Favoring Decisions on the
Merits.
Where the Defendants have not participated in the litigation, the “fifth, sixth, and
seventh factors are easily addressed.” Zekelman Indus. Inc. v. Marker, No. CV-19-02109-
PHX-DWL, 2020 WL 1495210, at *3 (D. Ariz. Mar. 27, 2020). As the Zekelman court
noted:
4 Plaintiff notes that he will pursue attorneys’ fees and costs if the Court enters an
award for default judgment. (Doc. 12 at 11.)
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The fifth and sixth factors weigh in favor of default judgment or are
neutral. Due to Defendants’ failure to participate, there is no dispute over
material facts (except as to damages) and no indication that default is due to
excusable neglect.
The seventh factor generally weighs against default judgment, given
that cases “should be decided on their merits whenever reasonably possible.”
Eitel, 782 F.2d at 1472. However, the existence of Rule 55(b) of the Federal
Rules of Civil Procedure, which authorizes default judgments, “indicates that
this preference, standing alone, is not dispositive.” PepsiCo, 238 F. Supp. 2d
at 1177.
Id. at *4. Because there is no dispute over material facts due to Defendants’ default, and
because Defendants default was not due to excusable neglect as the Defendants were all
served, the Court finds that the fifth and sixth Eitel factors weigh in favor of granting
Plaintiff’s motion for default judgment. Finally, because no Defendant has contested
Plaintiff’s Complaint, the Court finds that while this factor disfavors default judgment, it
is insufficient to wholly preclude Plaintiff from receiving default judgment.
IV. Conclusion.
Having determined that subject-matter jurisdiction, personal jurisdiction, and venue
is proper in the current action, and finding that the Eitel factors weigh in favor of entering
default judgment against the Defendants, the Court recommends Plaintiff’s Motion for
Entry of Default Judgment Against Defendants be granted.
Accordingly,
IT IS RECOMMENDED that Plaintiff’s Motion for Entry of Default Judgment
Against Defendants (doc. 12) be GRANTED.
IT IS FURTHER RECOMMENDED that judgment in the amount of $2,508 be
entered against Defendant Air Pro Heating & Cooling LLC.
IT IS FURTHER RECOMMENDED that judgment in the amount of $1,953.30
be entered against Defendants Air Pro Heating & Cooling LLC, Eduardo Marquez, and
Becky Jimenez.
IT IS FURTHER RECOMMENDED that Plaintiff may file a motion for
attorneys’ fees and costs within FOURTEEN (14) DAYS if the District Court adopts this
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Report and Recommendation.
IT IS ORDERED that the Clerk shall mail a copy of this Report and
Recommendation to: 2816 E Jones Ave., Ste 4, Phoenix, AZ, 85040. Defendants shall have
up to and until NOVEMBER 14, 2025, to file objections to this recommendation. See 28
U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 6, 72.
This recommendation is not an order that is immediately appealable to the Ninth
Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should
not be filed until entry of the District Court’s judgment. The parties shall have up to and
until NOVEMBER 14, 2025, to file specific written objections with the Court. See 28
U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 6, 72. Thereafter, the parties have 14 days
within which to file a response to the objections.
Failure to file timely objections to the Magistrate Judge’s Report and
Recommendation may result in the acceptance of the Report and Recommendation by the
District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the
Magistrate Judge may be considered a waiver of a party’s right to appellate review of the
findings of fact in an order or judgment entered pursuant to the Magistrate Judge’s
recommendation. See Fed. R. Civ. P. 72.
Dated this 22nd day of October, 2025.
Honorable John Z. Boyle
United States Magistrate Judge
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