Torres v. ARL Construction LLC et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Raul Rojas Torres,
Plaintiff,
v.
ARL Construction LLC, et al.,
Defendants.
No. CV-25-02251-PHX-ASB
REPORT AND RECOMMENDATION
TO HON. STEPHEN M. MCNAMEE, SENIOR UNITED STATES DISTRICT
JUDGE:
Before the Court is Plaintiff’s Motion for Default Judgment Against Defendants
(Doc. 15). No Response was filed to the Motion, and the time for same has passed. For
the reasons below, undersigned recommends the Motion be granted and default judgment
be entered as to all Defendants. Undersigned provides this Report and Recommendation
to the District Judge pursuant to General Order 21-25 because not all parties to this matter
have consented to the jurisdiction of the undersigned Magistrate Judge.
A. Procedural History
On June 27, 2025, Plaintiff filed a Complaint against ARL Construction, LLC, and
Jose A. Amaya and Antonia Schmidt Bermudez, a married couple. (Doc. 1.) All
defendants (collectively, “Defendants”) were served. (See Docs. 7-8, 11.) Plaintiff filed
an Application for Entry of Default as to Defendants, and the Clerk of Court entered default
as to all Defendants. (Docs. 12, 13.) After Plaintiff filed nothing for over sixty days after
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entry of default, the Court issued an Order to Show Cause for failure to prosecute. (Doc.
14. Plaintiff’s Motion for Default Judgment against Defendants was timely filed (Doc.
15).1 No response followed. Thus, the Motion for Default Judgment is now ripe as to all
Defendants in this matter.
B. Legal Standard – Default Judgment
Once default has been entered against a party, the Court has discretion to enter
default judgment against that party. See Fed. R. Civ. P. 55(b)(2); Aldabe v. Aldabe, 616
F.2d 1089, 1092 (9th Cir. 1980). “When entry of judgment is sought against a party who
has 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).
After the Court has been satisfied that it has personal and subject matter jurisdiction,
the Court must consider the factors enumerated by the Ninth Circuit in Eitel v. McCool,
782 F.2d 1470, 1471-72 (9th Cir. 1986) when deciding whether to grant default judgment.
Those 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. Upon default, and thus
when applying the Eitel factors, “the factual allegations of the complaint, except those
relating to the amount of damages, will be taken as true.” Geddes v. United Fin. Grp., 559
F.2d 557, 560 (9th Cir. 1977). In its default judgment analysis, the Court “is not required
to make detailed findings of fact.” Fair Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th
Cir. 2002).
C. Analysis – Default Judgment
The Court has considered the record of these proceedings, including Plaintiff’s
Declaration in Support of Motion for Entry of Default Judgment (Doc. 15-1). The Court
1 Because Plaintiff timely filed the default judgment motion, the Court will set aside its
Order to Show Cause; see order below.
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finds that Plaintiff has complied with the requirements of Rule 55 of the Federal Rules of
Civil Procedure. The Court therefore considers jurisdiction.
1. Jurisdiction
Subject matter jurisdiction is first present because Plaintiff has brought two claims
under 29 U.S.C. §§ 206-07 (the Fair Labor Standards Act or “FLSA”). See 28 U.S.C. §
1331. The remaining counts (Counts 3 and 4) are brought under Arizona law, specifically
the Arizona Minimum Wage Act (“AMWA”, A.R.S. § 363) and the Arizona Wage Act
(“AWA”, A.R.S. § 23-350), respectively. Under 28 U.S.C. § 1367(a), this Court “shall
have supplemental jurisdiction over all other claims that are so related to claims in the
action within such original jurisdiction that they form part of the same case or controversy
under Article III of the United States Constitution.” Undersigned concludes the state law
claims form part of the same case or controversy as Plaintiff’s federal law claims for
purposes of § 1367(a), because all of the claims “derive from a common nucleus of
operative fact and are such that a plaintiff would ordinarily be expected to try them in one
judicial proceeding.” Trustees of the Constr. Indus. & Laborers Health & Welfare Tr. v.
Desert Valley Landscape & Maint., Inc., 333 F.3d 923, 925 (9th Cir. 2003) (citations and
internal quotation marks omitted). Undersigned does not find that any exceptions under
28 U.S.C. § 1367(c) apply, and supplemental jurisdiction over the state law claims is
present. Personal jurisdiction exists, as all Defendants are either organized in, or are
residents of, this District, and the record establishes service was effectuated upon them.
Because jurisdiction is proper, the Court next considers the Eitel factors.
2. Eitel factors
In deciding whether to grant default judgment, the Court must weigh “(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.” Eitel, 782 F.2d at 1471-72.
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a. Factor 1
Under the first factor, the Court considers the possibility of prejudice to Plaintiff.
The Court finds the first factor weighs in Plaintiff’s favor. Plaintiff has prosecuted this
case since its inception. Defendants have not participated in this matter at all. Plaintiff has
no alternative means to resolve the claims in his Complaint against Defendants. Thus,
there is a strong possibility of prejudice to Plaintiff if default judgment is not entered. See
Ramirez v. Unique Transitional Homes Staffing LLC, No. CV-23-01882-PHX-DGC, 2024
WL 1740020, at *2 (D. Ariz. Apr. 23, 2024) (finding the same in an action for unpaid
wages because the plaintiff would be without recourse or redress if default judgment were
denied).
b. Factors 2 and 3
Under the second and third factors, the Court must consider the merits of each claim
made in the Complaint, as well as the Complaint’s sufficiency. Given the interplay of the
second and third factors, the Court considers them together. See Eitel, 782 F.2d at 1472.
Here, both factors weigh in favor of granting default judgment. The Court finds the
Complaint contained sufficient detail regarding Defendants’ alleged violations of federal
and state wage statutes. (See Doc. 1.) The allegations are taken as true. Geddes, 559 F.2d
at 560.
First, the Court considers the second and third factors as they pertain to the federal
wage statute. Plaintiff alleges both minimum wage and overtime wage violations under
the FLSA. (Doc. 1 at 10-14.) “The FLSA requires employers to pay their employees a
minimum hourly wage and additional overtime wages for any time spent working in excess
of a forty-hour workweek (not less than one and a half times the hourly wage).” Ramirez,
2024 WL 1740020, at *2 (citing 29 U.S.C. §§ 206(a), 207(a)). “To establish a minimum
wage or overtime violation of the FLSA, Plaintiff must establish three elements: (1) she
was an employee of Defendants, (2) she was covered under the FLSA, and (3) Defendants
failed to pay her minimum wage or overtime wages.” Smith v. Nov. Bar N Grill LLC, 441
F. Supp. 3d 830, 834 (D. Ariz. 2020). The FLSA defines an “employee” as “any individual
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employed by an employer” and an “employer” as “any person acting directly or indirectly
in the interest of an employer in relation to an employee[.]” 29 U.S.C. § 203(d), (e)(1).
“An individual can be subject to liability under the FLSA as an employer if they ‘exercise
control over the nature and structure of the employment relationship, or economic control
over the relationship.’” Avila v. JBL Cleaning Servs. LLC, No. CV-23-00398-PHX-DJH,
2024 WL 863710, at *3 (D. Ariz. Feb. 29, 2024) (quoting Boucher v. Shaw, 572 F.3d 1087,
1091 (9th Cir. 2009)). In his Complaint, Plaintiff alleges he was an employee of
Defendants at all relevant times and Defendants exercised control over his work and wages.
(Doc. 1, ¶¶ 11-25.) Plaintiff further alleges he worked for Defendants from February 2024
to September 2024 as a framing carpenter, and his hourly rate was $25.00. (Id. at ¶¶ 32-
37.) Plaintiff alleges that in his final three workweeks of employment with Defendants, he
worked 40 hours per week, for a total of 120 hours, but he was not paid for his final two
workweeks. (Id. at ¶¶ 41-43.) Taking those factual allegations as true, Plaintiff has
established he was an employee of Defendants, and that Defendants were employers under
the FLSA.
“To bring an FLSA claim for unpaid minimum wages, a plaintiff must ‘allege facts
showing that there was a given week in which he was entitled to but denied minimum
wages.’” Avila, 2024 WL 863710, at *4 (quoting Landers v. Quality Commc’ns, Inc., 771
F.3d 638, 645 (9th Cir. 2014)). In his Complaint, Plaintiff alleges he was not paid for his
final two workweeks. (Doc. 1 at ¶¶ 42-43.) Those allegations are further accepted as true,
and Plaintiff has stated a plausible minimum wage claim under the FLSA for the final two
workweeks.
“To bring an FLSA claim for unpaid overtime wages, a plaintiff must allege at least
one workweek in which she worked in excess of forty hours and [was] not paid overtime
wages.” Avila, 2024 WL 863710, at *4 (citing Landers, 771 F.3d at 646). In his Complaint,
Plaintiff alleges he generally worked “approximately between 40 and 48 hours or more per
workweek,” but he also alleges he “worked a total of approximately 40 hours each
workweek” in his final three workweeks of work for Defendants. (Doc. 1, ¶¶ 39, 41.)
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Plaintiff also alleges that “during the weeks in which he worked overtime,” he “generally
worked approximately eight (8) hours overtime per week,” but he was not paid for those
hours “[t]hroughout the duration of Plaintiff’s employment.” (Id. at ¶¶ 52-55.) Accepting
those allegations as true, undersigned finds Plaintiff has generally stated a claim for
overtime under FLSA for weeks in which he worked overtime, but not for the last three
workweeks because he pled that he worked 40 hours for each of those weeks. (See id. at
41.)
The Court next turns to the second and third Eitel factors as they relate to Plaintiff’s
claim under the AMWA. (See Doc. 1 at 13-14.) “The AMWA establishes the minimum
wage an employer must pay an employee in Arizona.” Avila, 2024 WL 863710, at *4;
A.R.S. § 23-363. “Like the FLSA, the AMWA defines an ‘employee’ as ‘any person who
is or was employed by an employer.’” Id. § 23-362(A). The AMWA goes on to define
an “employer” as “any corporation proprietorship, partnership, joint venture, limited
liability company, trust, association, political subdivision of the state, [and] individual or
other entity acting directly or indirectly in the interest of an employer in relation to an
employee.” A.R.S. § 23-362(B). Here, Plaintiff has sufficiently alleged that Defendants
(which are either limited liability companies or individuals) are employers under the
AMWA; that Plaintiff was their employee; and that Plaintiff was not paid for his last two
workweeks of employment. (See Doc. 1 at 3-8.) Thus, Plaintiff has stated a colorable
claim under the AMWA.
Finally as to these two Eitel factors, the Court considers Plaintiff’s claim under the
AWA. That statute mandates that “[e]ach employer, on each of the regular paydays, shall
pay to the employees all wages due to the employees up to that date[.]” A.R.S. § 23-
351(C). An “employee,” as defined by the AWA, is very similar to the FLSA and AMWA.
See A.R.S. § 23-350(2) (defining “employee” as “any person who performs services for an
employer under a contract of employment either made in this state or to be performed
wholly or partly within” Arizona). “However, the AWA limits the term ‘employer’ to
include ‘any individual, partnership, association, joint stock company, trust or corporation,
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the administrator or executor of the estate of a deceased individual or the receiver, trustee
or successor of any of such persons employing any person.’” Avila, 2024 WL 863710, at
*4 (quoting A.R.S. § 23-350(3)). That is, “[u]nlike the FLSA and the AMWA, the AWA
‘does not ... authorize individual liability against the owners, officers, and directors of a
corporate employer in a case where the claim is for the employer's wholesale failure to pay
wages.’” Id. (quoting Rosen v. Fasttrak Foods LLC, No. CV-19-05292-PHX-DWL, 2021
WL 2981590, at *5 (D. Ariz. Jul. 15, 2021)). Indeed, Plaintiff’s Complaint contains an
AWA claim against only the entity, Defendant ARL Construction, LLC2, and not the
individually-named defendants. (Doc. 1 at 14-15.) The facts alleged by Plaintiff establish
that he was employed by Defendant ARL Construction, LLC and that he was not paid for
the last two workweeks he was employed by that entity, in violation of the AWA. (See id.
at 3-9.)
Accordingly, after taking the allegations in the Complaint as true, undersigned
concludes Plaintiff has stated claims upon which he may recover under both Fair Labor
Standards Act (29 U.S.C. § 201, et seq.), the AMWA (A.R.S. § 23-363), and the AWA
(A.R.S. § 23-350 et seq.).
c. Factor 4
Under the fourth factor, the Court considers the amount of money at stake in relation
to the seriousness of Defendants’ conduct. See PepsiCo., Inc. v. Cal. Sec. Cans, 238
F.Supp.2d 1172, 1176 (C.D. Cal. 2002). In the case at bar, Plaintiff seeks total damages in
the amount of $12,875.00 against Defendant(s).3 (Doc. 15 at 8-9, 11; Doc. 12-1 at 4-5.)
He also seeks post-judgment interest and leave to file a motion for attorney’s fees and costs.
(Doc. 15 at 11-12.) Given the number of hours Plaintiff has alleged that he worked without
2 The Court notes that the instant Motion names a different entity, Steel Roots LLC, at one
point. (See Doc. 15 at 12.) This appears to be a scrivener’s error, as the remainder of the
Motion names the correct one. Plaintiff’s counsel are reminded to proofread their filings
before submitting them to this Court, as this is not the first time this Court has addressed a
similar issue in counsel’s pleadings. See Ramos Perez v. Evolet’s Painting Servs., LLC,
No. CV 25-01886-PHX-ASB, 2025 WL 4063609, at *3 n.1 (D. Ariz. Dec. 15, 2025), report
and recommendation adopted, 2026 WL 147655 (D. Ariz. Jan. 20, 2026).
3 The Court considers infra the sufficiency of Plaintiff’s evidence regarding sought
damages.
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compensation, the Court finds the amount of sought damages to be reasonable. This factor
weighs in favor of default judgment.
d. Factor 5
The fifth factor requires the Court to consider the possibility of dispute concerning
the material facts. This factor favors default judgment, as Defendants have failed to
participate in this matter since being served. Since that time, they have made no effort to
meaningfully challenge Plaintiff’s Complaint or engage in the discovery process.
e. Factor 6
Sixth, the Court considers whether the default was due to excusable neglect. The
record is devoid of any indication that Defendants’ failure to participate in this case or
otherwise defend against the Complaint since June 2025 is the result of excusable neglect.
Defendants were duly served with this lawsuit. (See Docs. 7-8, 11.) Thus, they have been
made aware of the pendency of this matter and their attendant obligations. No evidence to
indicate Defendants have excusably neglected this matter is before the Court. Thus, the
factor weighs in favor of default judgment.
f. Factor 7
Finally, the Court is mindful of “the general rule that default judgments are
ordinarily disfavored,” and that matters “should be decided upon their merits whenever
reasonably possible.” Eitel, 782 F.2d at 1472. However, Defendants have completely
failed to defend this lawsuit, despite their knowledge that it is ongoing. Defendants’
conduct has rendered impossible the decision of this case on its merits.
After considering and weighing the Eitel factors, undersigned finds default
judgment is appropriate and recommends to the District Judge that default judgment be
entered against Defendants.
3. Damages
When considering the amount of damages, the Court does not take the factual
allegations contained in the Complaint as true. See Geddes, 559 F.2d at 560; TeleVideo
Sys., Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987). Rather, Plaintiff is required to
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prove up the damages he sought in his Complaint. Philip Morris, U.S.A. v. Castworld
Prods., Inc., 219 F.R.D. 494, 498 (C.D. Cal. 2003). Further, “a default judgment must not
differ in kind from, or exceed in amount, what is demanded in” Plaintiff’s Complaint. Fed.
R. Civ. P. 54(c). “In determining damages, a court can rely on the declarations submitted
by the plaintiff or order a full evidentiary hearing.” Philip Morris, 219 F.R.D. at 498 (citing
Fed. R. Civ. P. 55(b)(2)).
Undersigned has carefully reviewed the Complaint (Doc. 1) and Plaintiff’s
Declaration (Doc. 15-1). Although the Complaint did not include a specific dollar amount
of sought damages, the Complaint generally detailed the relief sought as to each of the
claims pled. (See Doc. 1 at 10-16.) In his Complaint, Plaintiff pled the federal minimum
wage and overtime claims, the AMWA claim, and the AWA claim. (See id. at 10-15.) In
support of those claims, Plaintiff’s Complaint described the weeks and hours generally
worked, alleged that Plaintiff was not paid for some of that work, and contained Plaintiff’s
hourly wage. (See id. at 6-9.) The Court addresses minimum wages, unpaid wages under
the AWA, and then overtime wages.
a. Minimum wages (FLSA and AMWA)
In his Complaint, Plaintiff alleges he was not paid for the final two workweeks of
his employment with Defendants, and that his regular hourly rate was $25.00. (Doc. 1 at
¶¶ 34, 42-43.) He further alleges he worked approximately 40 hours per week during his
final three workweeks. (Id. at ¶ 41.)
Despite what he pled in his Complaint as to not being paid for the last two weeks he
worked for Defendants (Doc. 1 at ¶¶ 42-43), Plaintiff avers in his Declaration that he was
not paid for his final three workweeks. (Doc. 15-1 at ¶ 9.) Plaintiff does not address this
discrepancy in his Motion. (See Doc. 15.)
Because “a default judgment must not … exceed in amount[] what is demanded in”
Plaintiff’s Complaint, Fed. R. Civ. P. 54(c), undersigned will recommend that the number
of hours for which Plaintiff is owed minimum wages is 80, which represents two, 40-hour
workweeks. Thus, the unpaid federal minimum wages are $580.00 (80 hours x $7.25 per
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hour) and the unpaid Arizona minimum wages are $1,148.00 (80 hours x $14.35 per hour).
“When an employer is found liable under the FLSA for failure to pay minimum and
overtime wages, the employee is entitled to ‘unpaid minimum wages, [ ] unpaid overtime
compensation ... and in an additional equal amount as liquidated damages.’” Avila, 2024
WL 863710, at *6 (citing 29 U.S.C. § 216(b) and adding emphasis). “Double damages are
the norm, and single damages are the exception.” Id., citing Alvarez v. IBP, Inc., 339 F.3d
894, 910 (9th Cir. 2003)). Therefore, Plaintiff’s unpaid federal minimum wages are
doubled to $1,160.00. And “[w]hen a defendant is found liable under the AMWA for
failure to pay minimum wages, the plaintiff is entitled to treble damages – the un[d]erpaid
wages, including interest thereon, ‘and an additional amount equal to twice the underpaid
wages.’” Ramirez, 2024 WL 1740020, at *5 (citing A.R.S. § 23-364(G)). Therefore, under
the AMWA, Plaintiff’s Arizona minimum wage damages are trebled to $3,444.00.
Because double recovery is prohibited, see Avila, 2024 WL 863710, at *6 (citing
Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 333 (1980)), the larger, trebled
Arizona minimum wages award of $3,444.00 “engulfs” the federal minimum wages award
of $1,160.00. Therefore, as to minimum wage statutory damages, Plaintiff has established
an award of $3,444.00 against all Defendants.
b. AWA wages
Plaintiff also brought suit against Defendant ARL Construction, LLC under the
AWA, which allows for trebled damages of Plaintiff’s unpaid wages (not only unpaid
minimum wages) under A.R.S. § 23-355. (See Doc. 1 at 15-16.) Specifically, A.R.S. §
23-355 provides that “the employee may recover in a civil action against an employer or
former employer an amount that is treble the amount of the unpaid wages.” (Emphasis
added.)
In his Motion, Plaintiff boldly, and without citing any supporting authority, states
the Court “must” treble his liquidated damages under A.R.S. § 23-355. (Doc. 15 at 10.)
The Court disagrees. “The treble damages provision of A.R.S. § 23-355 is discretionary.”
Alvarez v. Talaveras Renovations LLC, No. CV-23-02654-PHX-DWL, 2024 WL 663431,
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at *3 (D. Ariz. Feb. 16, 2024) (citing Swanson v. Image Bank, Inc., 77 P.3d 439, 443 (Ariz.
2003) (“Under the plain language of the statute, the award of treble damages for the bad-
faith withholding of wages is discretionary with the court.”).
Here, Plaintiff’s Declaration contains no discussion of whether his wages were
withheld in bad faith. (See Doc. 15-1 at 2-5.) “Because Plaintiff’s declaration provides no
indication why Defendants withheld his wages, it does not support the conclusion that the
withholding was done ‘unreasonably and in bad faith.’” Alvarez, 2024 WL 663431, at *3
(quoting Swanson v. Image Bank, Inc., 43 P.3d 174, 183 (Ariz. Ct. App. 2002)). Because
Plaintiff has failed to demonstrate that his wages were withheld unreasonably and in bad
faith, the Court will recommend the District Judge decline to award treble damages under
the AWA.4
c. Overtime wages
As noted supra, the language of the Complaint is quite broad vis-à-vis overtime.
Specifically, Plaintiff alleges he generally worked “approximately between 40 and 48
hours or more per workweek,” but he also alleges he “worked a total of approximately 40
hours each workweek” in his final three workweeks of work for Defendants. (Doc. 1, ¶¶
39, 41.) Thus, it does not appear from the Complaint that Plaintiff alleges any overtime in
his last three workweeks. Plaintiff further alleges that “during the weeks in which he
worked overtime,” he “generally worked approximately eight (8) hours overtime per
week.” (Id. at ¶¶ 52-55.) He states generally that he worked in excess of 40 hours “[d]uring
the time that [he] worked for Defendants” without providing further detail. (See id. at ¶
51.) In other words, he generally alleges he worked overtime while employed, but he does
4 If the District Judge were to decide to award damages under the AWA, Plaintiff estimates
that his unpaid wages for his last 3 workweeks (120 hours), at his regular rate of pay
($25.00/hour), were $3,000.00. (Doc. 15-1, ¶ 11.) However, as described supra, Plaintiff
cannot exceed what he originally pled in his Complaint, which was that he was unpaid for
the last two workweeks (80 hours at $25.00 per hour). (See Doc. 1 at ¶¶ 34, 42-43); see
Fed. R. Civ. P. 54(c). Thus, the reasonable amount of wages would be $2,000.00.
Trebled, those unpaid wage damages Plaintiff may recover pursuant to A.R.S. § 23-355
against ARL Construction, LLC total $6,000.00. Because the $6,000.00 engulfs the
minimum wages award of $3,444.00, damages under the AWA in the amount of $6,000.00
against Defendant ARL Construction, LLC would be appropriate. Again, however, the
papers are devoid of any discussion of bad faith withholding. Thus, undersigned does not
recommend trebling under the AWA.
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not state which weeks or how many weeks he worked overtime. (See Doc. 1.) While this
is sufficient for pleading standards, it does not prove the amount of damages. The Court
therefore turns to Plaintiff’s Declaration. See Philip Morris, 219 F.R.D. at 498.
In his Declaration, Plaintiff avers he “was never paid overtime.” (Doc. 15-1 at ¶
12.) Thus, Plaintiff has clarified that Defendants failed to pay him for the entire duration
of his employment with them. Plaintiff further attests in his Declaration that he worked 5
hours of overtime per week, for each of the 31 workweeks before his last 3 workweeks, for
a total of 155 hours. (Id. at ¶¶ 13-14.) For those 155 hours, Plaintiff avers, he should have
been paid an overtime premium of $12.50. (Id. at ¶ 13.) The total amount of overtime
wages due is therefore $1,937.50 (155 hours x $12.50 per hour). Undersigned finds that
figure to be a reasonable estimate, given the number of hours worked by Plaintiff and the
overtime rate as calculated. (See id. at ¶¶ 13-14.) As noted supra, 29 U.S.C. § 216(b)
requires doubling of overtime damages. Thus, the total amount of federal overtime
damages is $3,875.00.
d. Total recommended damages; motion for further relief
Therefore, the total amount of statutory damages that undersigned will recommend
be awarded against Defendants ARL Construction, LLC and Jose A. Amaya and Antonia
Schmidt Bermudez, jointly and severally, is $7,319.00 ($3,444.00 in minimum wage
damages + $3,875.00 in overtime damages).
Finally, Plaintiff requests leave to file a motion for attorney’s fees and costs (Doc.
15 at 11-12). Because good cause appears under the applicable federal and state statutes,
undersigned will recommend that the District Judge order such a motion be filed within 14
days of the District Judge’s Order. Finally, Plaintiff requests post-judgment interest be
awarded. (Id.) Post-judgment interest may be added to the award pursuant to 28 U.S.C. §
1961(a); thus, undersigned will recommend that post-judgment interest be awarded.
//
//
//
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D. Conclusion
For the foregoing reasons,
IT IS THEREFORE RECOMMENDED:
1. That Plaintiff’s Motion for Default Judgment Against Defendants (Doc. 15) be
granted, specifically:
a. Plaintiff is awarded statutory damages in the amount of $7,319.00 against
Defendants ARL Construction, LLC, and Jose A. Amaya and Antonia
Schmidt Bermudez, jointly and severally, without trebling of AWA damages;
and
b. Post-judgment interest on those judgments be assessed at the statutory rate
pursuant to 28 U.S.C. § 1961.
2. That the Court order any motion for attorney’s fees and costs be filed no later
than 14 days from the date the District Judge’s Order is filed, and if no motion
is timely filed, the request for fees/costs be deemed abandoned. In addition,
given Plaintiff’s counsel’s history of requesting fees for disallowed tasks in other
matters before this Court5, undersigned recommends that the District Judge order
that said Motion shall not contain any requests for fees that are barred under
controlling case law, such as clerical tasks, and direct that all billing entries be
specific as to what precise tasks were performed.
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 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.
5 This history was discussed in Villa v. Express Truss & Framing Sys. LLC, No. CV 24-
01890-PHX-ASB, Doc. 33 at 4-6. The District Judge accepted the recommendation
contained therein and reminded Plaintiff’s counsel of their Rule 11 obligations. Id., Doc.
24 at 2.
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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
recommendation. See Fed. R. Civ. P. 72.
ORDER
IT IS ORDERED setting aside the Court’s Order to Show Cause (Doc. 14).
Dated this 20th day of February, 2026.
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