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-SMM (ASB)
REPORT AND RECOMMENDATION
TO HON. STEPHEN M. MCNAMEE, SENIOR UNITED STATES DISTRICT
JUDGE:
Before the Court and ripe for disposition is Plaintiff’s Renewed Motion for
Attorney’s Fees (Doc. 22), supported by its accompanying affidavits and exhibit (Doc. 22-
1) and Plaintiff’s Bill of Costs (Doc. 20). 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. Background
The Court incorporates by reference its summary of the procedural history of this
matter that was contained in the previous Report and Recommendation (Doc. 16). That
Report and Recommendation was adopted on March 9, 2026, when this Court granted
Plaintiff’s Motion for Default Judgment (Doc. 15), against Defendants ARL Construction,
LLC, Jose A. Amaya, and Antonia Schmidt Bermudez (collectively, the “Defaulting
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Defendants”); awarded statutory damages in the amount of $7,319.00 to Plaintiff against
the Defaulting Defendants, jointly and severally; and permitted Plaintiff to file a motion
for attorney’s fees by March 23, 2026. (Doc. 17.) Plaintiff timely filed his Motion for
Attorney’s Fees (Doc. 19) and a Bill of Costs (Doc. 20).
In considering Plaintiff’s original Motion for Attorney’s Fees, the Court determined
that the Defaulting Defendants each meet the statutory definition of a “defendant” and that
Plaintiff qualifies as a “prevailing party” such that fees must be awarded. (Doc. 21 at 2.)
In addition, the Court acknowledged that Plaintiff is entitled to an award of reasonable fees
and costs. (Id.) However, the Court denied the Motion because it concluded Plaintiff had
requested fees that are not recoverable under binding precedent, as the Court has detailed
in prior, similar cases litigated by Plaintiff’s counsel. (Id. at 2-4.) The Court further
permitted Plaintiff to file a renewed motion seeking fees that cured the deficiencies. (Id.
at 4.)
Plaintiff then timely filed his instant, Renewed Motion for Attorney’s Fees. (Doc.
22.) No response to the renewed Motion for Attorney’s Fees was filed. Per LRCiv 7.2(i),
a lack of response can be deemed as consent to granting of the Motion; nevertheless, the
Court considers the Motion on its merits under the applicable law.
B. Applicable Law and Analysis
As noted previously, the Court finds Plaintiff is entitled to an award of reasonable
fees and costs under federal and Arizona law against the Defaulting Defendants. (Doc.
21.) With the benefit of the renewed Motion, the Court now determines whether the
amount Plaintiff seeks for fees and costs is reasonable under applicable law.
At the outset, the Court notes the Plaintiff very clearly opposes the Court’s denial
of the initial Motion, arguing that the Court should have instead simply excluded hours that
it deemed unreasonable. (See Doc. 22 at 4.) Indeed, Plaintiff (through counsel) goes on at
length in the renewed Motion regarding the importance of counsel’s work in these types of
cases, implying that this Court does not “accept” the “notion” that employees should be
paid for the work they do, or insinuating that the Court believes counsel who represent
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plaintiffs in FLSA cases are not “as competent as the employer1-paid lawyers.” (Id.)
Rather than engage with these inflammatory remarks, the Court will focus – as it always
does – on applying the relevant law to the facts presented.
1. Fees
Although “[t]he award of an attorney’s fee is mandatory, … the amount of the award
is in within the discretion of the court.” Houser v. Matson, 447 F.2d 860, 863 (9th Cir.
1971) (citation omitted). “To determine a reasonable attorneys’ fee under FLSA, the Court
uses the lodestar method.” Gary v. Carbon Cycle Ariz. LLC, 398 F.Supp.3d 468, 485 (D.
Ariz. 2019) (citations omitted); see also Ferland v. Conrad Credit Corp., 244 F.3d 1145,
1149 n.4 (9th Cir. 2008) (“District courts must calculate awards for attorneys’ fees using
the ‘lodestar’ method.”). To calculate the lodestar, the Court multiplies “the number of
hours the prevailing party reasonably expended on the litigation by a reasonable hourly
rate.” Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996) (citing McGrath v.
Cty. of Nev., 67 F.3d 248, 252 (9th Cir. 1995)).
a. Hourly rate
Therefore, the Court first calculates the lodestar amount. “When a party seeks an
award of attorneys’ fees, that party bears the burden of submitting evidence of the hours
worked and the rate paid. In addition, that party has the burden to prove that the rate
charged is in line with the ‘prevailing market rate of the relevant community.’” Carson v.
Billings Police Dep’t, 470 F.3d 889, (citing Guam Soc’y of Obstetricians & Gynecologists
v. Ada, 100 F.3d 691, 696 (9th Cir. 1996)); Vargas v. Howell, 949 F.3d 1188, 1194 (9th
Cir. 2020) (quoting Blum v. Stenson, 465 U.S. 886, 895) (1984) (“Reasonable hourly rates
‘are to be calculated according to the prevailing market rates in the relevant community.’”).
The “relevant community,” in turn, “is the forum in which the district court sits.” Camacho
v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008) (citing Barjon v. Dalton, 132
F.3d 496, 500 (9th Cir. 1997)).
1 Plaintiff (through counsel) characterizes those employers as “abusive” and “slave-
driving.” (Id.) Plaintiff (through counsel) further suggests that workers are being “re-
victimize[d]” by “dis-incentivizing their lawyers from taking on their legitimate wage
claims.” (Id.)
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Here, Plaintiff’s counsel seeks fees at an hourly rate of $445.00. (Doc. 22 at 10.)
Plaintiff acknowledges that his original Motion contained a calculation using that hourly
rate but requested a rate of $495.00 per hour, instead of $445.00. (Id. n. 10.) In support of
the requested amount of $445.00 in the renewed Motion, Plaintiff provides nothing
specific; instead, he incorporates the prior (denied) Motion. (See Doc. 22 at 2.) Attached
to the original Motion was a declaration that spotlighted three fee orders in which $495.00
per hour was approved by courts. (See Doc. 19-6.) Of those three cited orders, one was
not attached as an exhibit2, one was an unsigned January 2024 order from out of this Circuit
(Doc. 19-2), and one was an order that did not analyze reasonableness of fees (Doc. 19-3).
Counsel also provides the Court with a fee order in which $445.00 per hour was found to
be reasonable in a FLSA action. (Doc. 19-4.) Based on undersigned’s review of the record
and recent cases in this District, undersigned concludes that an hourly rate of $395.00 is
reasonable.
b. Number of hours
In the instant, renewed Motion, Plaintiff (through counsel) seeks fees for 13.4 hours
expended by Clifford Bendau, II. (Doc. 22 at 10.) Undersigned has reviewed the
Itemization of Attorney’s Fees and Costs submitted as Exhibit A. (Doc. 22-1.)
Undersigned notes that Plaintiff is no longer seeking fees for the majority of
administrative or clerical tasks performed by counsel. Although Plaintiff emphasizes in
the renewed Motion that he is doing so only in this case, the Court will take this opportunity
to once again remind counsel that the Supreme Court observed in Missouri v. Jenkins that
“purely clerical or secretarial tasks should not be billed at a paralegal [or lawyer’s] rate,
regardless of who performs them … ‘[The] dollar value [of that non-legal work] is not
enhanced just because a lawyer does it.’” 491 U.S. 274, 288 n.10 (1989) (quotation
omitted). In addition, undersigned will recommend that the October 1, 2025 entry
“Finalize, file Application for Entry of Default” be excluded because filing documents is a
clerical task that must be excluded; that entry is .1 hours.
2 The Declaration indicates it may be found at “Exhibit A,” but Exhibit A is the fee
agreement. (Doc. 19-1.)
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Undersigned will recommend that the District Judge exclude Plaintiff’s December
15, 2025 sought time reviewing this Court’s Order to Show Cause why the case should not
be dismissed for failure to prosecute. The docket shows over two months passed from
when default was entered before the Court ordered Plaintiff to show cause. As it has in
prior cases with Plaintiff’s counsel, the Court was left to prod Plaintiff’s counsel to proceed
with the “just, speedy, and inexpensive determination” of this action. See Fed. R. Civ. P.
1 (requiring the Court and parties to employ the Rules “to secure just, speedy, and
inexpensive determination of every action and proceeding”). The Court does not find
awarding fees for reviewing the Order to Show Cause to be reasonable, nor is it in the
interests of justice to award fees for same; the excluded amount is .1 hours. In the same
vein, undersigned defers to the District Judge as to the propriety of awarding fees for the
instant, renewed Motion for Attorney’s Fees, particularly in light of the District Judge’s
repeated reminders to counsel of the pertinent law on reasonableness.
c. Lodestar calculation and conclusion
Therefore, of the 13.4 hours billed by Clifford Bendau, II, undersigned recommends
that the District Judge exclude .2 hours. The resulting lodestar amount is therefore
$5,214.00, which represents 13.2 hours for Clifford Bendau, II, at an hourly rate of
$395.00.
“Although in most cases, the lodestar figure is presumptively a reasonable fee
award, the district court may, if circumstances warrant, adjust the lodestar to account for
other factors which are not subsumed within it.” Ferland, 244 F.3d at 1149 n.4. That is,
“in rare cases, district court may make upward or downward adjustments to the
presumptively reasonable lodestar on the basis of those factors set out in Kerr v. Screen
Extras Guild, Inc., 526 F.2d 67, 69-70 (9th Cir. 1975), cert. denied, 425 U.S. 951 (1976)…
that have not been subsumed in the lodestar calculation.” Gates v. Deukmejian, 987 F.2d
1392, 1402 (9th Cir. 1992) (internal citations omitted). 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,
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(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.
526 F.2d at 70; see also LRCiv 54.2(c)(3).
This matter is a straightforward wage case, wherein the Defaulting Defendants
never participated. Plaintiff’s counsel did not have to conduct any discovery regarding
those Defaulting Defendants, and there were no complex or significantly contested issues.
After considering the Kerr factors, the Court finds no reason to adjust the lodestar.
2. Costs
In addition to fees, Plaintiff seeks filing and service costs totaling $717.54. (Doc.
22 at 10, Doc. 19 at 15.) The itemization attached to the renewed Motion lists the same
total, which represents $405.00 in filing fees plus $312.54 in service fees. (Doc. 22-1 at
3.) Those costs are further detailed in the process server’s invoice. (Id. at 5.) The same
costs appear in the Bill of Costs filed by Plaintiff.3 (Doc. 20.) Undersigned finds the sought
out-of-pocket costs to be reasonable and supported by the documentation. Therefore,
Plaintiff’s awardable costs are $405.00 in filing fees and $312.54 in allowed service fees,
for a sum of $717.54. That amount will be recommended to the District Judge.
C. Conclusion
For the foregoing reasons, IT IS THEREFORE RECOMMENDED:
1. That Plaintiff’s Renewed Motion for Attorney’s Fees (Doc. 22) be granted in
part; and
2. That the Court award Plaintiff $5,214.00 in attorney’s fees and $717.54 in costs,
for a total of $5,931.54, against ARL Construction, LLC, Jose A. Amaya, and
3 Undersigned notes that the Bill of Costs erroneously lists the Court as being in the District
of Nevada. (Doc. 20.)
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Antonia Schmidt Bermudez, jointly and severally. This recommended award
excludes .2 total hours in attorney’s fees and acknowledges the District Judge
may find fees associated with the renewed Motion for Attorney’s Fees to be
unreasonable. This recommended award is in addition to the statutory damages
previously awarded by the Court in Doc. 17.
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.
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.
Dated this 6th day of May, 2026.
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