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-SMM (JZB)
REPORT AND RECOMMENDATION
TO THE HONORABLE STEPHEN M. MCNAMEE, UNITED STATES DISTRICT
JUDGE:
Pending before the Court is Plaintiff’s “Motion for Award of Attorneys’ Fees and
Costs Against All Defendants” (“Motion for Attorneys’ Fees”) (doc. 18). This Report and
Recommendation is filed pursuant to LRCiv 72.2, permitting a magistrate judge to issue
reports and recommendations in connection with “post judgment proceedings[.]” LRCiv
72.2(a)(16).
Plaintiff seeks an award of $11,752.50 in attorneys’ fees in costs pursuant to the Fair
Labor Standards Act (“FLSA”) and Arizona Minimum Wage Act (“AMWA”). (Doc. 18 at
1, 17.) Both statutes allow the prevailing party to recover attorneys’ fees and costs. See
A.R.S. § 23-364(G); see also 29 U.S.C. § 216(b). In light of the Clerk of Court’s entry of
Default Judgment (docs. 16–17), and because the sums requested are reasonable and
supported with the requisite documentation, the Court recommends granting Plaintiff’s
Motion for Attorneys’ Fees with modifications in the amount of attorneys’ fees awarded
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and omission of speculative collection costs.
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 defend, 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.)
On August 28, 2025, Plaintiff filed a Motion for Entry of Default Judgment Against
Defendants. (Doc. 12.) On October 23, 2025, this Court issued a Report and
Recommendation recommending that Plaintiff’s Motion for Entry of Default Judgment be
granted. (Doc. 15.) On November 13, 2025, the District Court issued an Order modifying
this Court’s Report and Recommendation and granting Plaintiff’s Motion for Entry of
Default Judgment. (Doc. 16.)
On November 25, 2025, Plaintiff filed the instant Motion. (Doc. 18.) In conjunction
with the Motion, Plaintiff filed a LRCiv 54.1 Bill of Costs (doc. 19) on the same day.
II. Legal Standard.
Pursuant to Rule 54, a party may move for attorneys’ fees and related non-taxable
expenses via motion that: (a) is filed within “14 days after the entry of judgment”; (b)
specifies the “grounds entitling the movant to the award”; (c) “state[s] the amount sought”
and (d) “disclose, if the court so orders, the terms of any agreement about fees for the
services for which the claim is made.” Fed. R. Civ. P. 54(d)(2)(B); see also LRCiv 54.2.
Here, the grounds entitling the movant to an award of attorneys’ fees and costs are
the FLSA and AMWA. Under the FLSA, where an employer fails to pay an employee’s
wages as required under 29 U.S.C. § 206, “[t]he court in such action shall, in addition to
any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be
paid by the defendant, and costs of the action.” 29 U.S.C. § 216(b). Under the AMWA,
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where an “employer . . . fails to pay the wages . . . required under this article,” the
“prevailing plaintiff shall be entitled to reasonable attorney’s fees and costs of suit.” A.R.S.
§ 23-364(G). A party who prevails on default judgment is considered the prevailing party.
See G&G Closed Cir. Events LLC v. Carbajal, No. CV-20-00838-PHX-SPL, 2020 WL
6699485, at *1 (D. Ariz. Nov. 13, 2020) (“Parties prevailing on default judgment are still
prevailing parties for the purposes of awarding attorneys’ fees.”).
In analyzing the reasonableness of requested attorneys’ fees, the Court applies the
Lodestar method. See Puente Arizona v. Penzone, No. CV-14-01356-PHX-DGC, 2017 WL
4805116, at *1 (D. Ariz. Oct. 25, 2017). The Lodestar method is a two-step process
whereby the court first “multiplies the number of hours reasonably expended on a case by
a reasonable hourly rate.” Roberts v. City of Honolulu, 938 F.3d 1020,1023 (9th Cir. 2019)
(cleaned up). “Second, the court determines whether to modify the lodestar figure, upward
or downward, based on factors not subsumed in the lodestar figure.” Kelly v. Wengler, 822
F.3d 1085, 1099 (9th Cir. 2016).
The reasonable hourly rate is assessed by “the prevailing market rate in the relevant
community.” Id. To obtain an award of attorneys’ fees and costs, the prevailing party must
file a motion for fees and submit evidence in support of the proposed award. Machowski v.
333 N. Placentia Prop., LLC, 38 F.4th 837, 841 (9th Cir. 2022). In determining the
reasonably hourly rate, the Court is not guided by the hours charged by the prevailing
party’s attorney, but is rather “guided by the rate prevailing in the community for similar
work performed by attorneys of comparable skill, experience, and reputation.” Chalmers
v. City of Los Angeles, 796 F.2d 1205, 1210–11 (9th Cir. 1986), opinion amended on denial
of reh’g, 808 F.2d 1373 (9th Cir. 1987) (citing Blum v. Stenson, 465 U.S. 886, 896 n.11
(1984)).
The number of hours considered in the Lodestar calculus is not limited to those
hours expended up to a favorable judgment. Rather, “[i]n statutory fee cases, federal courts,
including our own, have uniformly held that time spent in establishing the entitlement to
and amount of the fee is compensable.” In re Nucorp Energy, Inc., 764 F.2d 655, 659–60
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(9th Cir. 1985). This includes FLSA actions. See Gary v. Carbon Cycle Ariz. LLC, 398 F.
Supp. 3d 468, 479 (D. Ariz. 2019) (“Indeed, courts within the Ninth Circuit have awarded
attorneys’ fees to prevailing plaintiffs in FLSA actions for the costs incurred in preparing
their motions for attorneys’ fees.”).
“[I]n appropriate cases, the district court may judge the ‘presumptively reasonable’
lodestar figure based upon the factors listed in Kerr v. Screen Extras Guild, Inc. . . . that
have not been subsumed in the lodestar calculation.” Intel Corp. v. Terabyte Int’l, Inc., 6
F.3d 614, 622 (9th Cir. 1993). The Kerr factors are:
(1) the time and labor required, (2) the novelty and difficulty of the questions
involved, (3) the skill requisite to perform the legal service properly, (4) the
preclusion of other employment by the attorney due to acceptance of the case,
(5) the customary fee, (6) whether the fee is fixed or contingent, (7) time
limitations imposed by the client or the circumstances, (8) the amount
involved and the results obtained, (9) the experience, reputation, and ability
of the attorneys, (10) the ‘undesirability’ of the case, (11) the nature and
length of the professional relationship with the client, and (12) awards in
similar cases.
Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), abrogated on other
grounds by City of Burlington v. Dague, 505 U.S. 557 (1992).1
III. Discussion.
In the case at hand, Plaintiff’s attorney was hired on a contingency fee basis, not on
an hourly basis. See (doc. 18 at 4); see also (doc. 18-1.) Plaintiff’s attorney is requesting
an hourly rate of $495. (Doc. 18 at 4.) In total, Plaintiff’s attorney has spent 17.2 hours on
this action. (Id. at 6.) Plaintiff seeks $7,654 in attorneys’ fees for those hours worked.2 (Id.)
Additionally, Plaintiff’s attorney is seeking $577.80 in out-of-pocket costs, and $3,520.70
“in attorneys’ fees and costs to be incurred in potential collection efforts[.]” (Id. at 7.) In
total, Plaintiff’s attorney is seeking $11,752.50 in attorneys’ fees and costs. (Id.)
The Court finds that the hours billed and the hourly rate requested is presumptively
1 Local Rule 54.2(c) adds an additional factor to the list, namely, “Any other matters
deemed appropriate under the circumstances.” LRCiv 54.2(c)(3)(M).
2 The Court notes Plaintiff’s woeful math in this matter. Specifically, the Court notes
that 17.2 multiplied by 495 equates 8,514, not 7,654. Rather 445 times 17.2 equates 7,654.
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reasonable in light of the District of Arizona’s precedent.3 See Ubinger v. Urb.
Housekeeping LLC, No. CV-23-01802-PHX-ROS, 2024 WL 3045303, at *3 (D. Ariz. June
18, 2024) (finding that 24.2 hours worked at $445, for a total of $10,769.00, was
presumptively reasonable) (emphasis added). However, this preliminary finding does not
end the Court’s analysis. Rather, because the Court finds the Lodestar figure presumptively
reasonable, it will need to address Plaintiff’s request in light of the Kerr factors. Thereafter,
the Court will address Plaintiff’s request for out-of-pocket costs and presumptive collection
effort costs.
A. Reasonableness of Requested Attorneys’ Fees.
The Court will address each individual Kerr reasonableness factor below.
1. Time and Labor.
Plaintiff represents that her counsel expended 17.2 hours on this action. (Doc 18. at
6.) The Court finds no issue with the tenth of an hour time increment counsel uses. See
(doc. 18-5 at 2–3.) However, the Court will excise several time entries as they are
administrative or clerical tasks.
“Attorneys’ fees should not be given for the performance of administrative tasks
which could and should be performed by secretarial or paralegal staff.” Gary, 398 F. Supp.
3d at 487. Administrative or clerical tasks include: (a) sending and receiving a
representation agreement; (b) gathering documents to send to process server; and (c) filing
notice that service was executed, to name a few. See Avila v. JBL Cleaning LLC, No. CV-
23-00398-PHX-DJH, 2025 WL 755421, at *2 (D. Ariz. Mar. 10, 2025) (excising those
delineated activities from counsel’s total hours worked).
Here, counsel’s timesheet contains several activities that fall squarely under the
administrative or clerical banner. Those activities are:
• Send representation agreement (0.1 hours);
• Receive signed agreement, create file (0.1 hours);
3 Additionally, the Court notes that Plaintiff’s Motion for Attorneys’ Fees (doc. 18)
and Bill of Costs (doc. 19) were filed within 14-days of Entry of Default Judgment.
Accordingly, both documents are timely. See LRCiv. 54.1(a); see also LRCiv. 54.2(b)(2);
Fed. R. Civ. P. 54(b)(2)(B)(i).
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• Send complaint to client for review and signature (0.1 hours);
• Receive signed complaint (0.1 hours);
• Finalize, file complaint (0.1 hours);
• Draft Magistrate consent form, file (0.1 hours);
• Compile case documents, send to process server (0.2 hours);
• Two entries of email threads with process server regarding case (0.3
hours);
• Email thread with process server re service executed (0.1 hours);
• Review Party Agreement to Magistrate Judge Jurisdiction (0.1 hours);
• Finalize, file application for entry of default (0.1 hours);
• Send, receive signed declaration from client (0.1 hours);
• Finalize, file motion for default judgment (0.1 hours);
• Send motion to Chambers (0.1 hours);
• Discuss Order with Process Server (0.2 hours); and
• Finalize, file motion for attorneys’ fees and costs (0.1 hours).
See (doc. 18-5 at 2–3.)
The Court recommends these entries be excised from the total hours billed. Such
omission would be in line with the District of Arizona’s precedent. See Avila, 2025 WL
755421, at *2; see also Romero v. Synergy Restoration LLC, No. CV-24-01602-PHX-
MTL, 2025 WL 509259, at *3 (D. Ariz. Feb. 14, 2025) (excising substantially the same
list of billed errors). This brings the total hours incurred to 15.2 hours.
2. Novelty and Difficulty of the Questions Involved.
Because this action resulted in default judgment, there were few—if any—novel or
challenging questions incurred. Additionally, Plaintiff notes that the legal issues “were not
novel in this jurisdiction . . . . [and t]his was a straightforward claim[.]” (Doc. 18 at 8.) This
factor is accordingly neutral and does not result in any modification of the Lodestar
amount. See Ubinger, 2024 WL 3045303, at *3 (“This case involved a straightforward
claim that comes reasonably often before this Court. This factor is neutral.”) (cleaned up).
3. Skill Requisite to Perform the Legal Service Properly.
Plaintiff contends that while FLSA suits are “otherwise straightforward [in] nature,”
that “[t]he legal issues raised by this . . . action were sophisticated and required extensive
knowledge of the law[.]” (Doc. 18 at 9.) The Court is unconvinced. Rather, “[t]he Court
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finds it takes a moderate amount of skill to litigate FLSA cases.” Verduzco v. Value Dental
Ctrs. Mesa W. AZ LLC, No. CV-20-02380-PHX-DJH, 2022 WL 2718163, at *2 (D. Ariz.
July 12, 2022).
4. Preclusion of Other Employment.
Plaintiff states that counsel “was not significantly precluded from other work
because of this representation.” (Doc. 18 at 9.)
5. Customary Fee.
Plaintiff asserts that the $495-an-hour fee is reasonable. (Id. at 4.) The Court
disagrees. Considering the majority of the District of Arizona’s precedent have found that
$445 an hour is reasonable, including this Court’s decision two months ago, the Court finds
$445 an hour is the reasonable benchmark. See, e.g., Romero, 2025 WL 509259, at *3
(“Counsel asserts that his hourly rate of $445.00 is reasonable[.] The Court agrees.”) (citing
Romero v. Steel Roots LLC, No. CV-23-01033-PHX-ROS, 2024 WL 2389353, at *2 (D.
Ariz. May 23, 2024) (“The Court finds the prevailing rates for FLSA cases in the District
of Arizona and Mr. Bendau’s experience support the requested hourly rate. The Court finds
the $445 hourly rate reasonable.”)); Miles v. Thomas Suites Campus of Care LLC, No. CV-
24-01286-PHX-SMM (JZB), 2025 WL 3251709, at *5 (D. Ariz. Nov. 3, 2025) (finding
$445 an hour is reasonable), report and recommendation adopted as modified, No. CV-24-
01286-PHX-SMM (JZB), 2025 WL 3237453 (D. Ariz. Nov. 20, 2025); Heredia v.
IPVision Inc., No. CV-24-00116-TUC-RCC, 2024 WL 3951980, at *2 (D. Ariz. Aug. 27,
2024) (finding $445 an hour reasonable).
6. Whether the Fee is Fixed or Contingent.
Plaintiff notes that the representation agreement between himself and Clifford
Bendau4 was on a contingency fee. (Doc. 18 at 9.) Additionally, Plaintiff asserts that
because this was a contingency fee agreement, that the Court may increase counsel’s hourly
rate. (Id. at 10.) “The Court acknowledges that agreeing to a contingency fee basis of
4 The Court notes that Plaintiff’s timesheet seems to evince Christopher Bendau
worked on this matter. However, Plaintiff’s Motion states that Clifford Bendau worked on
this action. Accordingly, the Court shall construe this action as if it were litigated by
Clifford Bendau.
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representation supports the potential for a larger award of attorneys’ fees.” Lemus v.
Blackrock CM Inc., No. CV-24-02561-PHX-JAT, 2025 WL 460548, at *3 (D. Ariz. Feb.
11, 2025) (citing Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008)).
7. Time Limitation Imposed.
Plaintiff states that “[t]here was no time limitation imposed by either the client or
the circumstances.” (Doc. 18 at 11.) Accordingly, this factor is of minimal weight in the
reasonableness inquiry. See Lemus, 2025 WL 460548, at *3.
8. The Amount Involved and Results Obtained.
“Where a plaintiff has obtained excellent results, his attorney should recover a fully
compensatory fee.” Hensley v. Eckerhart, 461 U.S. 424, 435 (1983). Plaintiff’s counsel
claims that “he has obtained excellent results and has assisted Plaintiff in recovering well
in excess of the total amount in unpaid wages that Defendants owed him.” (Doc. 18 at 12.)
This factor, and the results received, “weighs in favor of awarding the full lodestar
amount.” Ubinger, 2024 WL 3045303, at *3.
9. Experience, Reputation, and Ability of the Attorney.
Plaintiff’s counsel asserts that he is an experienced attorney in FLSA suits. See (doc.
18 at 12–13.) The Court acknowledges counsel’s experience in FLSA matters.
10. The Undesirability of the Case.
Plaintiff’s counsel asserts that this case was undesirable because of “the speculative
amount of available fees, the opportunity cost of taking on a matter that did not result in
payment, and the possibility of expending costs for filing and service that would have been
lost in the event of non-recovery all contributed to the risk involved.” (doc. 18 at 13.) While
the Court agrees that this case was undesirable, “this factor does not justify an adjustment
to the lodestar amount.” Ubinger, 2024 WL 3045303, at *3.
11. The Nature and Length of the Professional Relationship with the Client.
Plaintiff notes that this is the only instance Clifford Bendau has represented him.
See (doc. 18 at 13.) This factor is accordingly neutral. See, e.g., Ubinger, 2024 WL
3045303, at *3 (“Mr. Bendau has never represented Plaintiff before this case. This factor
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is neutral.”).
12. Awards in Similar Cases.
Plaintiff asserts that the requested amount of attorneys’ fees is reasonable. See (doc.
18 at 13.) Considering this District of Arizona’s precedent, the Court agrees that a reduced
amount of attorneys’ fees is reasonable.5 See Lemus, 2025 WL 460548, at *3 (granting
$7,743.00 in attorneys’ fees); see also Delgado v. Fast Wireless LLC, No. CV-24-00203-
PHX-JAT, 2025 WL 40761, at *4 (D. Ariz. Jan. 7, 2025) (granting $8,588.50 in attorneys
fees’).
13. Conclusion Based on Kerr Reasonableness Factors.
For the foregoing reasons, the Court finds Plaintiff’s requested attorneys’ fees to be
reasonable with modification. Accordingly, the Court recommends that the attorneys’ fees
award be reduced to $6,764.00.
B. Out-of-Pocket Costs.
Plaintiff seeks $577.80 in out-of-pocket costs.6 (Doc. 18 at 14.) This includes $405
in fees of the Clerk and $172.80 in fees for service of summons and subpoena. (Doc. 19 at
1.) These amounts are taxable costs, and accordingly, Plaintiff must comply with LRCiv
54.1 to receive them. See LRCiv 54.1(a), (e)(1). Seeing as Plaintiff filed a Bill of Costs
within the 14-day deadline, see (doc. 19), the Court recommends Plaintiff be awarded out-
of-pocket costs in the amount of $577.80.
//
5 As a final note, the Court acknowledges that the requested amount of attorneys’ fees
is in excess of the award received. Compare (doc. 16) with (doc. 18). However, such
discrepancy has not precluded attorneys’ fees in the past. See Quesada v. Thomason, 850
F.2d 537, 539 (9th Cir. 1988) (“[C]ourts should not reduce lodestars based on relief
obtained simply because the amount of damages recovered on a claim was less than the
amount requested.”); see also Medina v. Gilbert Mega Furniture, LLC, No. CV-16-04033-
PHX-SPL, 2019 WL 3778406, at *3 (D. Ariz. Aug. 12, 2019) (awarding attorneys’ fees
around 10 times the amount awarded) (citing Fegley v. Higgins, 19 F.3d 1126, 1134–35
(6th Cir. 1994)).
6 The Court notes that Plaintiff appears to misstate the amount of out-of-pocket costs
requested. See (Doc. 19 at 13) (“Plaintiff’s Counsel seek reimbursement of actual litigation
expenses in the amount of $707.61.”). This is not the first mistake the Court has caught in
Plaintiff’s motion. The Court recommends that for future motions for attorneys’ fees and
costs, Plaintiff double-check the total dollar amounts requested before submitting recycled
motions.
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C. Prospective Collection Costs.
Plaintiff also seeks $3,520.70 “in attorneys’ fees and costs to be incurred in potential
collection efforts[.]” (Doc. 18 at 7.) This includes a $850 retainer, plus 25% of the recovery
for collections efforts, which Plaintiff estimates is $2,6270.70.7 (Id. at 17.) In support of
this request, Plaintiff files an exhibit containing an example Client Representation
Agreement regarding collections matters and a photocopy of an example check paying the
$850 retainer. See (doc. 18-9); see also (doc. 18-10.)
While the Court understands that these fees are necessary to recover from
Defendants, it does not agree that a $3,520.70 award is warranted. While Plaintiff
references a few cases stating that such speculative costs are recoverable, see generally
(doc. 18 at 17), those decisions appear to run afoul of the majority of this District’s prior
decisions. See Romero, 2025 WL 509259, at *5 (“The Court finds this request speculative
because anticipated collection costs simply are not ripe for award.”); see also Steel Roots
LLC, 2024 WL 2389353, at *4 (“The Court recognizes Plaintiff may well need to pay the
$650 retainer and 25% of the recovery for collection efforts, but these fees and costs are
not ripe to recover before Plaintiff incurs them.”); Lemus, 2025 WL 460548, at *4
(“Plaintiff seeks $3,201.06 in anticipated collection expenses[.] Plaintiff concedes that the
District of Arizona frequently denies such requests[.] In fact, this Court has specifically
denied such requests.”); Ubinger, 2024 WL 3045303, at *4 (“But costs that Plaintiff has
not yet incurred, and may never incur, still qualify as “speculative.”). Additionally,
granting anticipated costs runs afoul of this Court’s prior Report and Recommendation on
the matter in a separate case—which, on this matter, the District Court agreed. See, e.g.,
Miles, 2025 WL 3251709, at *5.
Therefore, the Court finds an advance award of anticipated collections costs
inappropriate. However, as the $850 cost is more concrete than the other anticipated costs,
the Court recommends awarding $850.00.
7 The Court notes that this another instance of woeful calculation. Specifically, the
total award Plaintiff received—without considering post-judgment interest—is $2,451.00.
(Doc. 16 at 4.) Consequently, 25% of 2,451.00 is $612.75, not $2,6270.70.
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Accordingly,
IT IS RECOMMEDED that Plaintiff’s Motion for Award of Attorneys’ Fees and
Costs Against All Defendants (doc. 18) be GRANTED WITH MODIFICATIONS.
IT IS FURTHER RECOMMENDED that Plaintiff receive attorneys’ fees in the
amount of $6,764.00.
IT IS FURTHER RECOMMENDED that Plaintiff receive out-of-pocket costs in
the amount of $577.80.
IT IS FURTHER RECOMMENDED that Plaintiff receive $850.00 in collection
costs.
IT IS FURTHER RECOMMENDED that, in all other respects, Plaintiff’s Motion
for Award of Attorneys’ Fees and Costs Against All Defendants (doc. 18) be DENIED.
//
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//
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This recommendation is not an order that is immediately appealable to the Ninth
Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of
Appellate Procedure, should not be filed until entry of the district court’s judgment. The
parties shall have 14 days from the date of service of a copy of this Report and
Recommendation within which to file specific written objections with the Court. See 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days
within which to file a response to the objections.
Failure to timely file 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 timely file objections to any factual determinations of the
Magistrate Judge will be considered a waiver of a party’s right to appellate review of the
findings of fact in an order of judgment entered pursuant to the Magistrate Judge’s Report
and Recommendation. See Fed. R. Civ. P. 72.
Dated this 6th day of February, 2026.
Honorable John Z. Boyle
United States Magistrate Judge
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