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 “Renewed Motion for Award of Attorneys’
Fees and Costs Against All Defendants” (“Renewed Motion for Attorneys’ Fees”) (doc.
23). Plaintiff’s Renewed Motion for Attorneys’ Fees was timely filed in response to the
District Court’s February 25, 2026, Order. Compare (doc. 23) with (doc. 22). This Report
and Recommendation (“R&R”) 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 a total award of $7,074.80 in attorneys’ fees and costs—comprised
of $6,497.00 in attorneys’ fees and $577.80 in costs—pursuant to the Fair Labor Standards
Act (“FLSA”) and Arizona minimum wage law. (Doc. 23 at 1, 11.) Both the FLSA and
Arizona state law permit a prevailing party to recover attorneys’ fees and costs. See 29
U.S.C. § 216(b); see also A.R.S. § 23-364(G). In light of the Clerk of Court’s entry of
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Default Judgment (docs. 16–17) and the District Court’s prior Order (doc. 22), the Court
recommends Plaintiff’s Renewed Motion for Attorneys’ Fees be granted with
modifications in the amount of attorneys’ fees awarded.
I. BACKGROUND.
As previously noted:
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.)
(Doc. 20 at 2.)
On November 25, 2025, Plaintiff filed his first Motion for Attorneys’ Fees. (Doc.
18.) In conjunction with that Motion, Plaintiff filed an LRCiv 54.1 Bill of Costs (doc. 19)
on the same day. On February 6, 2026, this Court issued an R&R recommending the motion
be granted in part. (Doc. 20.) On February 25, 2026, the District Court rejected the R&R
and required Plaintiff to file a renewed motion on or before March 6, 2026. (Doc. 22 at 5.)
On March 5, 2026, Plaintiff filed his Renewed Motion for Attorneys’ Fees. (Doc. 23.)
II. LEGAL STANDARDS.
A. Eligibility and Entitlement.
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
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services for which the claim is made.” Fed. R. Civ. P. 54(d)(2)(B); see also LRCiv 54.2.
Here, the grounds entitling Plaintiff to an award of attorneys’ fees and costs are the
FLSA and the Arizona Minimum Wage Act (“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, 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.”).
B. Reasonableness.
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
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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
(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.
As previously noted, Plaintiff filed the instant Motion in response to the District
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).
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Court’s prior Order (doc. 22). (Doc. 23 at 1.) The instant Motion does not appear to be
counsel’s standard ‘cookie cutter’ motion for attorneys’ fees, but is rather an individualized
motion in response to the District Court’s Order. Nevertheless, the instant Motion does not
directly re-address the Kerr reasonableness factors. Instead, Plaintiff’s Renewed Motion
for Attorneys’ Fees “waives” claims that the District Court has deemed unreasonable,
attaches an updated time sheet reflecting which hours were waived by counsel, incorporates
his prior Motion for Attorneys’ Fees, and notes his objection to the District Court’s prior
Order. (Id. at 2, 5–10); (doc. 23-1 at 2–3.) Because the Renewed Motion incorporates his
prior Motion for Attorneys’ Fees, the Court shall analyze it where the instant Motion has
not directly addressed a Kerr factor. Furthermore, this Court will not address Plaintiff’s
objections, other than to say that the District Court’s Order is well-reasoned precedent, and
should be treated as such.
Plaintiff’s instant Motion seeks $6,497.00 in attorneys’ fees for 14.6 hours worked.2
(Doc. 23 at 11.) Additionally, Plaintiff seeks $577.80 in out-of-pocket expenses. (Id.) All
told, Plaintiff seeks a total award of $7,074.80. Plaintiff’s counsel was not hired on an
hourly basis. Rather, he was hired on a contingency fee basis. See (doc. 18 at 4); see also
(doc. 18-1.)
The Court finds that the updated hours billed and updated hourly rate requested
presumptively reasonable.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); see also Delgado
v. Fast Wireless LLC, No. CV-24-00203-PHX-JAT, 2025 U.S. Dist. LEXIS 2433, at *5
(D. Ariz. Jan. 7, 2025) (finding 19.3 hours worked as presumptively reasonable). Because
2 Plaintiff states that the $6,497.00 total is comprised of 14.6 hours worked at an
hourly rate of $495. (Doc. 23 at 11.) Once again, the Court notes a mathematical error in
Plaintiff’s work. Specifically, 6,497 ≠ 14.6 x 495. Rather, 6,497 = 14.6 x 445. Counsel is
reminded of the District Court’s admonition that the Court is neither “his auditor in chief”
nor tasked with fixing errors in calculation. (Doc. 21 at 4–5.) However, considering the
Court finds $445 an hour reasonable, see infra section III.A.5, Plaintiff’s error is not fatal
to the instant Motion.
3 Undersigned notes that Plaintiff’s Bill of Costs (doc. 19) was filed within 14-days
of Entry of Default Judgment. Hence, it is timely. See LRCiv 54.1(a).
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the updated hours and hourly rate are presumptively reasonable, the Court shall address the
Kerr factors.
A. Reasonableness of Requested Attorneys’ Fees.
The Court will address each individual Kerr reasonableness factor below.
1. Time and Labor.
Plaintiff’s counsel asserts that he spent 14.6 hours on this action. (Doc 23 at 11);
(doc. 23-1 at 3.) Plaintiff has “waived” all entries in this action that the District Court held
as unreasonable. (Id. at 1–2.) Additionally, the Court has identified other time entries that
should be excised.
“Attorneys’ fees should not be given for the performance of administrative tasks
which could and should be performed by secretarial or paralegal staff.” See Gary, 398 F.
Supp. 3d at 487; see also Avila v. JBL Cleaning LLC, No. CV-23-00398-PHX-DJH, 2025
WL 755421, at *2 (D. Ariz. Mar. 10, 2025) (excising administrative activities from
counsel’s total hours worked). While hours spent on administrative tasks are not
compensable, the hours worked on a motion for attorneys’ fees is compensable. See In re
Nucorp Energy, Inc., 764 F.2d at 659–60 (holding that time spent on establishing
“entitlement to and amount of the [attorneys’] fee is compensable”).
As noted above, Plaintiff’s Renewed Motion is an individualized document filed in
response to the District Court’s prior Order. Although Plaintiff has waived those entries
that the District Court considered unreasonable, his timesheet still reflects several entries
that appear unreasonable. First, the Court finds Plaintiff’s entry “Review Amended Order”
unreasonable considering the District Court’s amended order and initial order were nearly
identical—i.e., nothing of substance was changed between the initial order on February 24,
2026, to the amended order on February 25, 2026. Compare (doc. 22) with (doc. 21).
Therefore, the 0.1-hour entry is unreasonable.
Second, the Court finds Plaintiff’s 4.5 hours worked on the Renewed Motion for
Attorneys’ Fees and the 0.6 hours spent researching Wong and Rodriguez unreasonable.
The Court reiterates “that time spent in establishing the entitlement to and amount of the
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fee is compensable,” In re Nucorp Energy, Inc., 764 F.2d at 659–60, not time spent
objecting to the District Court’s prior decision. Regarding counsel’s research of Wong and
Rodriguez, undersigned notes that only Rodriguez was used to support Plaintiff’s
entitlement to an award of attorneys’ fees—i.e., it was used to establish the standard of
review for attorneys’ fee motions. (Doc. 23 at 3–4.) Because Plaintiff used Wong to object
to the District Court’s prior decision, it was not used in establishing Plaintiff’s entitlement
to an award of attorneys’ fees. Hence, the Court will cut the time entry in half to 0.3 hours.
Regarding the time spent drafting the Renewed Motion, the Court notes that roughly
a third of the Motion was dedicated to objecting to the District Court’s prior decision. See
(id. at 2, 5–9.) Because roughly a third of the Renewed Motion was spent lodging
objections to the District Court’s prior Order, undersigned does not find that the full 4.5
hours spent drafting the instant Motion was spent on establishing an entitlement to
attorneys’ fees. Cf. In re Nucorp Energy, Inc., 764 F.2d at 659–60. Consequently, the Court
will reduce the hours spent on drafting by a third—i.e., 1.5 hours.
Therefore, the Court recommends the total hours billed be set at 12.7 hours.
2. Novelty and Difficulty of the Questions Involved.
The Court reiterates that, because this action resulted in a default judgment, there
were few novel or challenging questions incurred by Plaintiff. See (doc. 20 at 6.) Plaintiff
does not oppose this finding in his original Motion for Attorneys’ fees—which was
incorporated by his Renewed Motion. (Doc. 18 at 8) (noting that the issues involved in the
action “were not novel in this jurisdiction”). Consequently, this factor is neutral and does
not result in any modification of the Lodestar amount. Ubinger, 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.
In his incorporated Motion for Attorneys’ Fees, Plaintiff alleged that although FLSA
suites are generally straightforward, the issues in the instant action “were sophisticated and
required extensive knowledge of the law[.]” (Doc. 18 at 9.) The Court, as it noted in its
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initial R&R, is unconvinced. See (doc. 20 at 6.) FLSA suits “take[] a moderate amount of
skill to litigate[.]” 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). Accordingly, this factor is
also neutral.
4. Preclusion of Other Employment.
In his initial Motion for Attorneys’ Fees, Plaintiff stated that counsel “was not
significantly precluded from other work because of this representation.” (Doc. 18 at 9.)
Plaintiff does not re-address this factor in his Renewed Motion. See generally (doc. 23.)
Hence, this factor is neutral.
5. Customary Fee.
Plaintiff, in both his Renewed Motion and initial Motion, asserts that the $495-an-
hour fee is reasonable.4 (Id. at 11); (doc. 18 at 4.) Plaintiff has ignored this Court’s prior
finding that a $495-an-hour fee is unreasonable. (Doc. 20 at 7.) As this Court previously
noted:
Considering the majority of the District of Arizona’s precedent have
found that $445 an hour is reasonable, . . . the Court finds $445 an hour is the
reasonable benchmark. See, e.g., Romero v. Synergy Restoration LLC, No.
CV-24-01602-PHX-MTL, 2025 WL 509259, at *3 (D. Ariz. Feb. 14, 2025)
(“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).
(Id.)
Lending further credit to this finding is the District Court’s recent decision in Rios
4 See supra note 2.
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v. Lux Interior & Renovation LLC, which held that a $445-an-hour fee is reasonable. Rios
v. Lux Interior & Renovation LLC, No. CV-23-01686-PHX-DJH, 2026 U.S. Dist. LEXIS
60160, at *9–10 (D. Ariz. Mar. 23, 2026). Hence, undersigned recommends Plaintiff’s
counsel’s hourly rate be reduced to $445.
6. Whether the Fee is Fixed or Contingent.
Counsel was hired by Plaintiff on a contingency fee basis. (Doc. 18 at 9.) “The Court
acknowledges that agreeing to a contingency fee basis of 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.
In his initial Motion for Attorneys’ fees, which is incorporated in the instant Motion,
see (doc. 23 at 2), Plaintiff states that “[t]here was no time limitation imposed by either the
client or the circumstances.” (Doc. 18 at 11.) Therefore, this factor is of minimal relevance
in the Court’s balance of the Kerr factors. See Lemus, 2025 WL 460548, at *3.
8. The Amount Involved and Results Obtained.
In his initial Motion for Attorneys’ fees, which is incorporated in the instant Motion,
see (doc. 23 at 2), 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.) “Where a plaintiff has obtained excellent results,
his attorney should recover a fully compensatory fee.” Hensley v. Eckerhart, 461 U.S. 424,
435 (1983). Because Plaintiff’s counsel obtained a positive result, this factor “weighs in
favor of awarding the full lodestar amount.” Ubinger, 2024 WL 3045303, at *3.
9. Experience, Reputation, and Ability of the Attorney.
In the instant Motion and his initial Motion for Attorneys’ Fees, Plaintiff’s counsel
asserts his experience in litigating FLSA suits. See (doc. 23); see also (doc. 18.) The Court
acknowledge counsel’s experience.
//
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10. The Undesirability of the Case.
In his Renewed Motion for Attorneys’ Fees, Plaintiff’s counsel indirectly asserts the
undesirability of FLSA suits, such as by noting the need for him to pay for expenses “out
of pocket in each [FLSA] matter[.]” (Doc. 23 at 10.) Such statements on undesirability are
bolstered by his initial Motion for Attorneys’ Fees, which was incorporated in the instant
Motion. See, e.g., (doc. 18 at 13) (noting the “the speculative amount of available fees” in
FLSA suits and the chance that out-of-pocket expenses may not be recovered). The Court
agrees that the instant action was undesirable. However, “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.
Considering that this is the only matter that counsel Clifford Bendau has represented
Plaintiff, see (doc. 18 at 13), this factor is accordingly neutral. See Ubinger, 2024 WL
3045303, at *3 (“Mr. Bendau has never represented Plaintiff before this case. This factor
is neutral.”).
12. Awards in Similar Cases.
This Court finds that a reduced award of attorneys’ fees in the amount of $5,651.50
is reasonable in light of this District’s precedent.5 See Rios, 2026 U.S. Dist. LEXIS 60160,
at *12 (awarding $11,392.00 in attorneys’ fees for 25.6 hours worked); see also Lemus,
2025 WL 460548, at *3 (granting $7,743.00 in attorneys’ fees); Delgado, 2025 U.S. Dist.
LEXIS 2433, at *4 (D. Ariz. Jan. 7, 2025) (granting $8,588.50 in attorneys’ fees).
13. Conclusion Based on the Kerr Reasonableness Factors.
Based on the foregoing, the Court recommends that the attorneys’ fees award be
reduced to $5,651.50.
B. Out-of-Pocket Costs.
In the instant Motion, Plaintiff seeks $577.80 in out-of-pocket costs. (Doc. 23 at
5 The Court notes that the reduced amount of attorneys’ fees is still in excess of the
actual award received. See (doc. 16). The Court notes that attorneys’ fees in excess of the
actual award is not prohibited. 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.”).
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11.) This includes $405 Clerk’s fees and $172.80 in fees for service of summons and
subpoena. (Doc. 19 at 1.) Seeing as Plaintiff filed a Bill of Costs and an invoice within the
14-day deadline, see (doc. 19), he has complied with LRCiv 54.1’s requirements.
Therefore, the Court recommends Plaintiff be awarded out-of-pocket costs in the amount
of $577.80.
Accordingly,
IT IS RECOMMEDED that Plaintiff’s Renewed Motion for Award of Attorneys’
Fees and Costs Against All Defendants (doc. 23) be GRANTED WITH
MODIFICATIONS.
IT IS FURTHER RECOMMENDED that Plaintiff receive attorneys’ fees in the
amount of $5,651.50.
IT IS FURTHER RECOMMENDED that Plaintiff receive out-of-pocket costs in
the amount of $577.80.
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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 25th day of March, 2026.
Honorable John Z. Boyle
United States Magistrate Judge
Case 2:25-cv-02009-SMM-JZB Document 24 Filed 03/26/26 Page 12 of 12