Quigley v. Soul Surgery LLC et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Elizabeth Quigley,
Plaintiff,
v.
Soul Surgery LLC, et al.,
Defendants.
No. CV-24-01050-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 Motion for Award of
Attorneys’ Fees and Costs Against All Defendants (Doc. 38), which is supported by its
accompanying affidavits and exhibits (Docs. 38-1 through 38-9), and Plaintiff’s Bill of
Costs (Doc. 39). For the reasons below, undersigned recommends the Motion be granted
in part and fees and costs be ordered as to Defendants Soul Surgery LLC and John Mulligan
and Jane Doe Mulligan (collectively, the “Defaulting 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. Background
The Court incorporates by reference its summary of the procedural history of this
Fair Labor Standards Act (“FLSA”) and Arizona Minimum Wage Act (“AMWA”) matter
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that was contained in the previous Report and Recommendation (Doc. 35). That Report
and Recommendation was adopted on August 21, 2025, when this Court granted Plaintiff’s
Motion for Default Judgment (Doc. 33) against Defendants Soul Surgery LLC and John
Mulligan and Jane Doe Mulligan; awarded statutory damages in the amount of $7,128.75
to Plaintiff against all three Defaulting Defendants, jointly and severally; awarded
additional statutory damages in the amount of $4,031.25 against Defendant Soul Surgery
LLC only; and directed that post-judgment interest on payments be assessed at the statutory
rate pursuant to 28 U.S.C. § 1961. (Doc. 36.) The Court further approved the Amended
Stipulation of Dismissal of Defendant Heather Mulligan and John Doe Mulligan. (Id.)
Thus, the Defaulting Defendants are the only remaining defendants in this case.
Plaintiff then timely filed her instant Motion for Attorney’s Fees and Bill of Costs.
(Docs. 38-39.) Although Plaintiff styled the Motion as being against “All Defendants,”
which would therefore presumably include defendants who have not been defaulted,
Plaintiff clarified in her Motion that she seeks attorney’s fees and costs against the
Defaulting Defendants only. (Doc. 38 at 2.) No response to the 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
In a FLSA action, an award of reasonable attorney’s fees and costs to a prevailing
plaintiff is mandatory. 29 U.S.C. § 216(b) (“The 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.”). Similarly, under the AMWA, a
“prevailing plaintiff shall be entitled to reasonable attorney’s fees and costs of suit.” A.R.S.
§ 23-364(G). The Ninth Circuit has held that the word “defendant” in the FLSA
“describe[s] the party who may be liable for the plaintiff’s attorney’s fees” and “refers to
the employer against whom the charge of violation has been brought.” Richard v. Alaska
Airlines, Inc., 750 F.2d 763, 766 (9th Cir. 1984). The Defaulting Defendants have not
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disputed that the statutory definition applies to them, and the Court finds that the Defaulting
Defendants each meet the statutory definition of a “defendant.”
The Court further concludes that Plaintiff is the “prevailing party,” as Plaintiff
“succeed[ed] on any significant issue in litigation which achieve[d] some of the benefit the
part[y] sought in bringing suit” regarding the Defaulting Defendants. Hensley v. Eckerhart,
461 U.S. 424, 433 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.
1978)); see also Haworth v. State of Nev., 56 F.3d 1048, 1052 (9th Cir. 1995) (applying
Hensley in an analysis whether a plaintiff in a FLSA action was the prevailing party). The
Defaulting Defendants have not disputed that Plaintiff is the “prevailing party” under
federal or Arizona law.
Thus, the Court finds Plaintiff is entitled to an award of fees and costs under federal
and Arizona law against the Defaulting Defendants. The Court must now determine
whether the amount Plaintiff seeks for fees and costs is reasonable under applicable law.
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
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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)).
Here, Plaintiff’s counsel, Clifford Bendau, II, seeks fees at an hourly rate of
$445.00. (Doc. 38 at 5.) In support of the requested amount, counsel highlights fee orders
from this court. (See Docs. 38-2, 38-3, and Doc. 38 at 4-5.) Counsel also provides the
Court with a fee order in which $395.00 per hour was found to be reasonable in a FLSA
action. (Doc. 38-7.) Based on the Court’s review of recent cases in this District and orders
provided by Plaintiff, the Court concludes that an hourly rate of $395.00 is reasonable.
b. Number of hours
Counsel seeks fees for 17.1 hours expended by Clifford Bendau, II. (Doc. 38 at 5.)
The Court has reviewed the Itemization of Attorney’s Fees and Costs submitted as Exhibit
D to the Motion. (Doc. 38-4.) Of note, this Court is struck by the fact that counsel once
again attempts to seek fees for tasks that this Court has repeatedly found are barred under
binding precedent.
First, counsel seeks his hourly rate for tasks such as emailing and filing documents.
(See Doc. 38-4.) In Shorty v. Day and Night Med. Trans. Inc., No. CV 23-00084-PHX-
ASB, 2023 WL 9101629, at *3 (D. Ariz. Dec. 15, 2023), report and recommendation
adopted 2024 WL 50124 (D. Ariz. Jan. 4, 2024), this Court specifically excluded such fees
due to binding precedent, which is discussed infra. In Villa v. Express Trust & Framing
Sys. LLC, No. CV 24-01890-PHX-SMM (ASB), 2025 WL 2421028 (D. Ariz. Jul. 24, 2025)
the Court again excluded those sought fees for the very same reason. The District Judge
adopted that recommendation and reminded Plaintiff’s counsel “of his obligation to comply
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with Federal Rule of Civil Procedure 11 and that sanctions may result if counsel persists in
seeking relief that is not permitted under the law.” 2025 WL 2420405 at *1 (D. Ariz. Aug.
21, 2025). And indeed, one of Plaintiff’s own exhibits to his instant Motion includes
another Judge’s specific finding that “[c]ertain entries” included in Plaintiff’s counsel’s
billing records reflected time spent on “clerical tasks, such as sending and filing documents,
and preparing a case file” and were not allowed under the law. (Doc. 31-8 at 3-4) (Dunson
v. RMH Franchise Corp., No. CV 23-00148-TUC-RM, (D. Ariz. Sept. 29, 2023)) (citing
Nadarajah v. Holder, 569 F.3d 906, 921 (9th Cir. 2009)). To be sure, 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). And the Ninth Circuit stated in Nadarajah, 569 F.3d at
921, that clerical tasks “should [be] subsumed in firm overhead rather than billed at
paralegal rates.” Despite this case law and the Court’s admonishment, though, counsel
continues to seek these fees.
The Court notes that Rule 11(b)(2) of the Federal Rules of Civil Procedure dictates
that “[b]y presenting to the court a pleading, written motion, or other paper . . . an attorney
or unrepresented party certifies that to the best of the person’s knowledge, information, and
belief, formed after an inquiry reasonable under the circumstances . . . the claims, defenses,
and other legal contentions are warranted by existing law or by a nonfrivolous argument
for extending, modifying, or reversing existing law or for establishing new law.” It is
unclear how the instant Motion, insofar as it seeks fees for services that binding precedent
expressly disallows, comports with Rule 11(b)(2). The Court does not recommend action
under Rule 11 at this juncture, but the Court will recommend that counsel be reminded of
this Rule 11 obligations and potential sanctions for failure to comply with the Rule.1
1 Elsewhere in his Motion, counsel touts his years of experience in this area of practice and
the hundreds of cases he has litigated. (See Doc. 38 at 11-12.) While the Court does not
question counsel’s experience, counsel fails to explain why he persists in making requests
for such fees after multiple judges have made specific findings that those types of fees are
not permitted.
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Pursuant to the above case law, the Court has determined that the following billing
entries by Clifford Bendau, II, constitute clerical or secretarial tasks for which attorney’s
fees should not be awarded:
• Send representation agreement (.1)
• Receive signed agreement, create file (.1)
• Send complaint to client for review & signature (.1)
• Receive signed Complaint (.1)
• Finalize, file complaint (.1)
• Review Complaint, send to client (.1)
• Compile case documents, send to process server (.3)
• File service executed (2 entries) (.2)
• Finalize, file Application for Entry of Default (.1)
• Send, receive signed declaration from client (.1)
• Finalize, file motion for default judgment (.1)
• Send Motion to Chambers (.1)
• Finalize, file motion for attorneys’ fees and costs (.1).
The total for the above, disallowed clerical or secretarial tasks is 1.6 hours.
In addition, the Court excludes Plaintiff’s sought time reviewing this Court’s two
orders to show cause. First, the Court excludes the sought .1 hours spent on reviewing the
Court’s May 24, 2024 Order to Show Cause for failure to comply with LRCiv 3.7(b). The
Court does not find it in the interests of justice to monetarily award Plaintiff’s lack of
compliance with the Local Rules. Next, for the same reason, the Court excludes the sought
.1 hours Plaintiff lists in connection with reviewing the Court’s May 15, 2025 Order to
Show Cause why the case should not be dismissed for failure to prosecute and the .1 hours
sought to review the Order setting aside the second Order to Show Cause. But for counsel’s
actions (or lack thereof), such an order would have been unnecessary. The Court notes that
it has similarly excluded such sought fees in a past case, see Shorty, 2023 WL 9101629, at
*3-4, and Villa, 2025 WL 2421028, at *3; it is concerning that counsel continues to seek
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to be rewarded for these actions. A total of .3 hours is therefore excluded in the interests
of justice.
c. Lodestar calculation and conclusion
Therefore, of the 17.1 hours billed by Clifford Bendau, II, the Court excludes 1.9
hours (1.6 + .3). The resulting lodestar amount is therefore $6,004.00, which represents
15.2 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,
(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.
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2. Costs
In addition to fees, Plaintiff seeks filing and service costs of $824.60 and “$5,748.53
to cover anticipated costs of collecting on the anticipated forthcoming judgment.” (Doc.
31 at 16-17.) The Court addresses each request in turn.
First, the Court considers Plaintiff’s request for costs he has already expended for
service and filing. The Court finds the sought out-of-pocket costs to are only partially
reasonable and supported by the documentation. For reasons that Plaintiff does not make
clear, she seeks reimbursement of service fees on parties other than the Defaulting
Defendants. Specifically, Plaintiff entered into a stipulation with Defendants Heather
Mulligan and John Doe Mulligan, with each party bearing their own fees and costs. (Doc.
32). And yet, Plaintiff seeks her service costs and fees related to Defendants Heather
Mulligan and John Doe Mulligan. (Doc. 38-4 at 5.) The Court will exclude the service
fees related to non-defaulting Defendants Heather Mulligan and John Doe Mulligan,
$178.80 ($64.00 + $64.80 + $50.00), from the allowed service fees. Allowed service fees
are therefore $240.80 (419.60 – $178.80). Therefore, Plaintiff’s awardable costs are
$405.00 in filing fees and $240.80 in allowed service fees, for a sum of $645.80. (See Doc.
38-4 at 4-5.) Undersigned will recommend that amount be awarded.
Next, Plaintiff requests she be awarded “anticipated collection costs” in the amount
of $5,748.53. (Doc. 38 at 14-16.) In support of this request for “anticipated collection
costs,” Plaintiff provides the Court with an order entered by another judge of this District.
(Doc. 38-3 (Alvarez v. Talaveras Renovations LLC, No. CV 23-02654-PHX-DWL, 2024
WL 1195462 (D. Ariz. Mar. 20, 2024).) That judge allowed such costs in a similar FLSA
and AMWA matter. (See id.) In her Motion, Plaintiff recognizes that other judges in this
District have found that “anticipated collection costs” are speculative and have denied
requests for them, but Plaintiff contends Alvarez should persuade the Court to award those
costs to her in this case. (See id.) Plaintiff further contends that she will have to pay a
$850.00 retainer to the collections law firm and an additional 25% of whatever is
recovered. (Id. at 15.) Plaintiff assumes that she will recover the entirety of the amount of
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judgment ordered by this Court, and therefore the collections law firm’s “share will be
$4,898.53.” (Id.)
After carefully considering the cases cited by Plaintiff, as well as other cases from
this District, the undersigned will not recommend the anticipated collection costs be
awarded. As the Court has observed in a similar case: “Although Plaintiff has provided
documentation to support that Plaintiff will actually incur the anticipated collection costs—
thereby alleviating concerns that such costs are too speculative—there is simply no way to
evaluate, at this time, whether such costs are reasonable.” Rasmussen v. Dream Helpers
LLC, No. CV-23-01808-PHX-SMM (JZB), 2025 WL 582747, at *2 (D. Ariz. Feb. 24,
2025). “Summarily awarding costs in the thousands of dollars for what could amount to a
perfunctory collection effort does not fall within the realm of reasonable costs.” Id.
Undersigned agrees with that analysis and therefore will recommend that the request for
$5,748.53 in anticipated collection costs be denied.
C. Conclusion
For the foregoing reasons, IT IS THEREFORE RECOMMENDED:
1. That Plaintiff’s Motion for Attorney’s Fees (Doc. 38) be granted in part; and
2. That the Court award Plaintiff $6,004.00 in attorney’s fees and $645.80 in costs,
for a total of $6,649.80, against Defendants Soul Surgery LLC and John
Mulligan and Jane Doe Mulligan, jointly and severally. This recommended
award excludes a total of 1.9 total hours in attorney’s fees, $178.80 in service
costs, and $5,748.53 in “anticipated collection costs” post-judgment. This
recommended award is in addition to the statutory damages previously awarded
by the Court in Doc. 36.
3. That Plaintiff’s counsel be reminded of his obligation to comply with Rule 11 of
the Federal Rules of Civil Procedure and that sanctions may result if counsel
seeks relief that is not permitted under the law.
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
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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 15th day of December, 2025.
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