Opinion
CV-23-01111-PHX-SMM (DMF)
02-26-2024
Eduardo Ramos, Plaintiff, v. Probuilds LLC, et al., Defendants.
REPORT AND RECOMMENDATION
Honorable Deborah M Fine United States Magistrate Judge
TO THE HONORABLE STEPHEN M. MCNAMEE, SENIOR UNITED STATES DISTRICT JUDGE:
On June 16, 2023, Plaintiff Eduardo Ramos (“Plaintiff”) filed a Verified Complaint (“Complaint”) naming three Defendants: Probuilds LLC, Joaquin Roberto Quijano, and Jane Doe Quijano (collectively, “Defendants”), and the matter was randomly assigned to the undersigned. (Docs. 1, 3) In the Complaint, Plaintiff alleged violations of the Fair Labor Standards Act, the Arizona Minimum Wage Act, and the Arizona Wage Act. (Doc. 1 at 10-16) On July 5, 2023, Plaintiff consented to proceed before a United States Magistrate Judge. (Doc. 7)
Before appearances and consent of all defendants, there is not full consent for a Magistrate Judge to enter dispositive orders. See Williams v. King, 875 F.3d 500 (9th Cir. 2017). Thus, pursuant to General Order 21-25, this Report and Recommendation is made to Senior United States District Judge Stephen M. McNamee.
After application for and entry of default (Docs. 15, 16), Plaintiff filed a Motion for Entry of Default Judgment Against Defendants (Doc. 17). On November 7, 2023, the undersigned filed a Report and Recommendation to Senior District Judge Stephen M. McNamee, recommending that Plaintiff's Motion for Entry of Default Judgment Against Defendants be granted, that Plaintiff be awarded $3,200 plus post-judgment interest against Defendant Probuilds LLC, and that all Defendants be jointly and severally liable for $2,277.50 plus post-judgment interest. (Doc. 18) No objection was filed to the undersigned's November 7, 2023, Report and Recommendation.
On January 16, 2024, Senior District Judge McNamee issued an order adopting the undersigned's Report and Recommendation. (Doc. 20) On the same date, the Clerk of Court entered default judgment against Defendants and awarded Plaintiff $3,200 plus postjudgment interest against Defendant Probuilds LLC, for which all Defendants were jointly and severally liable for $2,277.50 plus post-judgment interest. (Doc. 21)
On November 16, 2023, Plaintiff filed the pending Motion for Award of Attorneys' Fees and Costs Against All Defendants (“Motion for Attorneys' Fees and Costs”). (Doc. 19) No Defendant has filed a response to Plaintiff's Motion for Attorneys' Fees and Costs, and the time to do so has expired. On February 1, 2024, Plaintiff filed a Bill of Costs for filing fee and service of process costs. (Doc. 23) On February 23, 2024, the Clerk of Court taxed the requested costs in favor of Plaintiff against Defendants. (Doc. 24)
For the reasons set forth below, it is recommended that Plaintiff's Motion for Attorneys' Fees and Costs be granted in part as set forth below.
I. PROCEDURAL HISTORY
Plaintiff's June 16, 2023, Complaint asserted four counts for relief. (Doc. 1) In Count One of the Complaint, Plaintiff asserted that all Defendants failed to pay Plaintiff overtime wages in violation of the Fair Labor Standards Act at 29 U.S.C. § 201, et seq. (“FLSA”). (Doc. 1 at 10-12) In Count Two, Plaintiff asserted that all Defendants failed to pay Plaintiff minimum wages for “approximately the final workweek of his employment with Defendants,” in violation of FLSA. (Id. at 12-13) In Count Three, Plaintiff asserted that all Defendants failed to pay Plaintiff minimum wages “for approximately the final workweek of his employment with Defendants,” in violation of the Arizona Minimum Wage Act, A.R.S. § 23-362, et seq. (“AMWA”). (Id. at 14-15) In Count Four, Plaintiff asserted that Defendant Probuilds LLC failed to pay Plaintiff his wages due and owed in violation of the Arizona Wage Act, A.R.S. § 23-350, et seq. (“AWA”). (Id. at 15-16)
On July 5, 2023, Plaintiff consented to Magistrate Judge Jurisdiction. (Doc. 7) On June 26, 2023, Defendants were served with the Complaint and summons through personal service upon Defendant Joaquin Roberto Quijano in Peoria, Arizona. (Docs. 12, 13, 14)
On August 12, 2023, Plaintiff filed an Application for Entry of Default against Defendants. (Doc. 15) On the same day, Plaintiff's counsel certified that Plaintiff's Application for Entry of Default was mailed to Defendants at the address at which Defendants were served. (Id. at 2) On August 14, 2023, the Clerk of Court entered default against Defendants pursuant to Fed.R.Civ.P. 55(a). (Doc. 16)
On September 7, 2023, Plaintiff filed a Motion for Entry of Default Judgment Against Defendants (“Motion for Default Judgment”). (Doc. 17) In the motion, Plaintiff's counsel certified that a copy of Plaintiff's Motion for Default Judgment was mailed to Defendants at the address at which Defendants were served. (Id. at 13) No Defendant filed a response to Plaintiff's Motion for Default Judgment.
On November 7, 2023, the undersigned filed a Report and Recommendation to Senior District Judge Stephen M. McNamee, recommending that Plaintiff's Motion for Entry of Default Judgment Against Defendants be granted and that Plaintiff be awarded $3,200 plus post-judgment interest against Defendant Probuilds LLC, of which all Defendants were jointly and severally liable for $2,277.50 plus post-judgment interest. (Doc. 18) Plaintiff was instructed to file a motion for attorney's fees and non-taxable costs compliant with LRCiv 54.2 within fourteen days of the Report and Recommendation. (Id. at 17) No Defendant filed an objection to the undersigned's November 7, 2023, Report and Recommendation.
On January 16, 2024, Senior District Judge McNamee issued an order adopting the undersigned's Report and Recommendation. (Doc. 20) On the same day, the Clerk of Court entered default judgment against Defendants and awarded Plaintiff $3,200 plus post-judgment interest against Defendant Probuilds LLC, of which all Defendants were jointly and severally liable for $2,277.50 plus post-judgment interest. (Doc. 21)
On November 16, 2023, Plaintiff filed the pending Motion for Award of Attorneys' Fees and Costs Against All Defendants (“Motion for Attorneys' Fees”). (Doc. 19) Plaintiff requests a total of $9,967.60, including $7342.50 in attorneys' fees, $625.10 in out-of-pocket costs, and $2,000.00 to be incurred in potential collection efforts. (Id. at 3-16) In the motion, Plaintiff's counsel certified that a copy of Plaintiff's Motion for Attorneys' Fees was mailed to Defendants at the address at which Defendants were served. (Id. at 17) No Defendant has filed a response to Plaintiff's Motion for Attorneys' Fees, and the time to do so has expired.
On February 1, 2024, because the out-of-pocket expenses requested in Plaintiff's Motion for Attorneys' Fees appeared to be taxable costs, the Court issued an order reminding that Plaintiff's counsel had until February 2, 2024, to comply with LRCiv 54.1 regarding taxable costs. (Doc. 22) On the same date, Plaintiff's counsel filed a Bill of Costs, requesting $625.10 in taxable costs for the filing fee and service of process on Defendants. (Doc. 23) On February 23, 2024, the Clerk's Office awarded Plaintiff his taxable costs per the Bill of Costs in the amount of $625.10. (Doc. 24)
II. PLAINTIFF'S MOTION FOR AWARD OF ATTORNEYS' FEES AND COSTS AGAINST ALL DEFENDANTS (Doc. 19)
FLSA requires the Court to award “a reasonable attorney's fee to be paid by the defendant, and costs of the action” to a prevailing party. 29 U.S.C. § 216(b). The AMWA further states that a “prevailing plaintiff shall be entitled to reasonable attorney's fees and costs of suit.” A.R.S. § 23-364(G). Although an award of attorneys' fees in a FLSA action is mandatory, the Court has discretion as to the amount of fees and costs to award. See Houser v. Matson, 447 F.2d 860, 863 (9th Cir. 1971). Prior to awarding attorneys' fees and costs, the Court must determine entitlement, eligibility, and whether the attorneys' fees and costs requested by Plaintiff are reasonable. See McGlothlin v. ASI Capital Ventures LLC, No. CV-19-04895-PHX-DJH, 2021 WL 857367, at *1 (D. Ariz. Mar. 8, 2021) (party seeking fees must show entitlement, eligibility, and that fees and costs requested are reasonable); LRCiv. 54.2(c).
The Court determines an award of attorneys' fees using the lodestar method, for which the fee “‘is calculated by multiplying the number of hours the prevailing party reasonably expended on the litigation by a reasonable hourly rate.'” Camacho v. Bridgeport Financial, Inc., 523 F.3d 973, 978 (9th Cir. 2008) (citing Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 n.4 (9th Cir. 2001)). The lodestar amount is presumptively reasonable, but the Court may “‘adjust the lodestar to account for other factors which are not subsumed within it.'” Id. In doing so, the Court considers the factors set forth in 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)). The factors set forth in Kerr include:
(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.
A. Eligibility
As stated above, FLSA requires the Court to award a reasonable attorneys' fee and costs to a prevailing plaintiff. 29 U.S.C. § 216(b). Similarly, the AMWA states that a “prevailing plaintiff shall be entitled to reasonable attorney's fees and costs of suit.” A.R.S. § 23-364(G). Because Plaintiff brought claims in this matter pursuant to FLSA and the AMWA, each of which allow a prevailing plaintiff to recover attorneys' fees and costs, Plaintiff is eligible for reasonable attorneys' fees and costs.
The Motion for Attorneys' Fees requests an award in favor of Plaintiff, but the proposed form of Order is written as an award in favor of Plaintiff's counsel. (Doc. 19 at 1, 16; Doc. 19-14) The recipient of the fees and costs awarded to Plaintiff is a matter between Plaintiff and his counsel outside of the attorneys' fees and costs award of this Court. (See Doc. 191 at 3)
B. Entitlement
FLSA and the AMWA provide that a prevailing plaintiff is entitled to reasonable attorneys' fees and costs. 29 U.S.C. § 216(b); A.R.S. § 23-364(G). A prevailing party is one which has “succeed[ed] on any significant issue in litigation which achieves some of the benefit the part[y] sought in bringing suit.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); see also Haworth v. State of Nev., 56 F.3d 1048, 1052 (9th Cir. 1995) (applying Hensley standard to FLSA matter).
On January 16, 2024, the Court entered default judgment against Defendants and awarded Plaintiff a total of $3,200.00 in unpaid minimum and overtime wages plus post-judgment interest. (Docs. 20, 21) Because Plaintiff was awarded his unpaid minimum and overtime wages against Defendants, Plaintiff is the prevailing party in this matter. See Aguirre v. Custom Image Pros LLC, No. CV-23-00334-PHX-MTL, 2023 WL 5932805, at *2 (D. Ariz. Sept. 12, 2023) (citing Orozco v. Borenstein, No. CV-11-02305-PHX-JFM, 2013 WL 4543836, at *2 (D. Ariz. Aug. 18, 2013)) (plaintiff is prevailing party where default judgment granted wages sought). Accordingly, Plaintiff is entitled to reasonable fees and costs of this action.
C. Reasonableness of the Requested Attorneys' Fees
In the Motion for Attorneys' Fees, Plaintiff's counsel requests an award of $9,967.60. (Doc. 19 at 4-16) Plaintiff's counsel's request includes $7,342.50 in attorneys' fees, comprised of 16.5 hours of labor billed at $445 per hour; $625.10 in litigation costs, which have since been awarded pursuant to the Bill of Costs subsequently filed; and $2,000.00 in anticipated collection costs. (Id.; Docs. 23, 24) In support of the Motion for Attorneys' Fees, Plaintiff's counsel has attached the representation agreement between Plaintiff and Plaintiff's counsel (Doc. 19-1); an Itemization of Attorneys' Fees & Costs Expended by Plaintiff's counsel (Doc. 19-9); a declaration in support of the Motion from Plaintiff's counsel (Doc. 19-10); and orders for attorneys' fees and costs in similar cases (Docs. 19-2, 19-3, 19-4, 19-5, 19-6, 19-7, 19-8, 19-11, 19-12, 19-13).
1. Time and Labor Required
Plaintiff's counsel asserts that he spent 16.5 hours working on this matter, that this matter lasted for five to six months, and that this matter did not involve significant labor in analyzing legal or factual issues. (Doc. 19 at 8; see also Doc. 19-9) Plaintiff's counsel states that he spent time on this matter “to set up the case file, examine the facts, develop the case, communicate with Plaintiff, review documents, draft and file a Complaint, communicate with Defendants, draft and file the Application for Entry of Default and Motion for Default Judgment, and prepare this motion for attorney's fees and costs.” (Doc. 19 at 8)
Although Plaintiff's counsel states that “the primary hindrance to the swift resolution of this matter was Defendants' decision not to comply with the terms of the settlement agreement” (Doc. 19 at 8), Plaintiff's counsel does not mention any settlement agreement elsewhere in the motion, nor is any apparent in the record.
A prevailing plaintiff is “entitled to recover a reasonable attorneys' fee for every item of service which, at the time rendered, would have been undertaken by a reasonable and prudent lawyer to advance or protect his client's interest[.]” Gary v. Carbon Cycle Arizona LLC, No. CV-18-02796-PHX-JAT, 398 F.Supp.3d 468, 486 (D. Ariz. 2019) (cleaned up). The prevailing plaintiff may be entitled to compensation for time spent establishing entitlement to fees, as well as establishing the amount of fees. Id. at 479. Attorneys' fees may not be awarded for clerical and administrative tasks such as filing documents or preparing and serving summons. Gary, 398 F.Supp.3d at 487 (collecting cases).
To the Motion for Attorneys' Fees, Plaintiff's counsel attached an itemized billing statement, in which Plaintiff's counsel includes the following administrative and clerical tasks:
• 0.1 hours on June 5, 2023, for “Send representation agreement”
• 0.1 hours on June 5, 2023, for “Receive representation agreement, set up file”
• 0.1 hours on June 16, 2023, for “Finalize, file complaint”
• 0.1 hours on June 20, 2023, for “Send documents to process server”
• 0.1 hours on June 21, 2023, for “Communicate with process server re status”
• 0.1 hours on June 23, 2023, for “Communicate with process server re status”
• 0.1 hours on July 6, 2023, for “Draft, file Magistrate Consent Form”
• 0.1 hours on July 19, 2023, for “File service executed”
• 0.1 hours on August 12, 2023, for “File service executed”
• 0.1 hours of the 0.4 hours billed on August 12, 2023, for “file application for entry of default”
• 0.1 hours of the 0.2 hours billed on September 7, 2023, for “file motion for default judgment”
• 0.1 hours of the 0.5 hours billed on November 16, 2023, for “file motion for attorneys' fees”(Doc. 19-9 at 2-3) This Court has recognized that such tasks are administrative. See Aguirre, No. CV-23-00334-PHX-MTL, 2023 WL 5932805, at *3 (reducing for clerical tasks such as finalizing and filing documents, sending documents to process server and communicating with process server) (citing Stamper v. Freebird Logistics Inc., No. CV-22-00155-PHX-MTL, 2022 WL 4448457, at *2-3 (D. Ariz. Sept. 23, 2022), and Jimenez v. Terrific Tree Trimmer, LLC, No. CV-22-01787-PHX-SPL, 2023 WL 4452077, at *2 (D. Ariz. July 11, 2023)). Accordingly, a total of 1.2 hours for these administrative entries are appropriately deducted from the 16.5 hours billed by Plaintiff's counsel.
The remainder of tasks billed by Plaintiff's counsel are compensable, and 15.3 hours reflects a reasonable amount of time spent on this matter. See, e.g., Coe v. Hirsch, No. CV-21-00478-PHX-SMM (MTM), 2022 WL 508841, at *1 (D. Ariz. Jan. 21, 2022) (finding 14.6 hours reasonable); Shorty v. Day and Night Medical Trans Incorporated, No. CV-23-00084-PHX-ASB, 2023 WL 9101629, at *3-4 (D. Ariz. Dec. 15, 2023) (finding 23.2 hours reasonable); Jimenez, No. CV-22-01787-PHX-SPL, 2023 WL 4452077, at *2 (finding 15.4 hours reasonable).
2. Novelty and Difficulty of Questions Involved
Plaintiff's counsel asserts that this matter did not involve novel legal issues, that Plaintiff's claim was “straightforward,” that similar claims have been brought in other jurisdictions across the country, and that this matter involved analysis of court cases, statutes, and regulations. (Doc. 19 at 8) This Court has found that minimum wage and overtime claims do not present novel or difficult questions. See Aguirre, No. CV-23-00334-PHX-MTL, 2023 WL 5932805, at *3; Verduzco v. Value Dental Centers Mesa West AZ LLC, No. CV-20-02380-PHX-DJH, 2022 WL 2718163, at *2 (D. Ariz. July 12, 2022). This factor does not require adjustment to the lodestar amount.
3. Skill Required
Plaintiff's counsel states that “[t]he legal issues raised by this FLSA action were sophisticated and required extensive knowledge of the law, despite its otherwise straightforward nature.” (Doc. 19 at 8-9; see also Doc. 19-10 at 6) Plaintiff's counsel asserts that “FLSA is a complex statute,” that FLSA “requires counsel who understand its intricacies and nuances[,]” and that Plaintiff would not have obtained the same results without the assistance of Plaintiff's counsel. (Id.) This Court has found that it takes a moderate amount of skill to litigate a FLSA case. See, e.g., Verduzco, No. CV-20-02380-PHX-DJH, 2022 WL 2718163, at *2. This factor does not require adjustment to the lodestar amount.
4. Preclusion of Other Employment
Plaintiff's counsel avers that he was not significantly precluded from other work due to representing Plaintiff in this matter. (Doc. 19 at 9) This factor does not require adjustment to the lodestar amount.
5. Customary Fee
Plaintiff's counsel asserts that an hourly rate of $445 is reasonable. (Doc. 19 at 4-6; Doc. 19-10 at 4-5) The party seeking attorneys' fees bears the burden of demonstrating that the requested hourly rate is “in line with the prevailing market rate of the relevant community.” Gary, 398 F.Supp.3d at 485. The “relevant community is the forum in which the district court sits.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 982 (9th Cir. 2008). The Court may consider affidavits of Plaintiff's counsel “and other attorneys regarding prevailing fees in the community, and rate determinations in other cases, particularly those setting a rate for” Plaintiff's counsel. United Steelworkers of America v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990).
Plaintiff's counsel recognizes that “the District of Arizona has not consistently awarded [Plaintiff's counsel] the hourly rate he seeks here” yet “has consistently and previously determined that an hourly rate as high as $395” was reasonable. (Doc. 19 at 5) Plaintiff's counsel requests that this Court award an increased hourly rate of $445 because such a rate “is commensurate with [Plaintiff's counsel's] expertise and experience and would align with the rate he has been awarded time and again in both the Northern and Southern Districts of Ohio.” (Id. at 6) In support of this request, Plaintiff cites awards from the Western District of Pennsylvania, the Southern District of Ohio, and the Northern District of Ohio. (Doc. 19 at 5) Plaintiff's counsel asserts that he “has consistently been awarded $445 per hour in Ohio since August 18, 2020[.]” (Id. at 6) Nevertheless, neither Pennsylvania nor Ohio is the relevant community in this matter. Instead, Arizona, as the forum in which this Court sits, is the relevant community for determining the “prevailing market rate” of attorneys' fees. See Camacho, 523 F.3d at 982.
In the District of Arizona, Plaintiff's counsel has regularly been awarded a $350 to $395 hourly rate. See Aguirre, No. CV-23-00334-PHX-MTL, 2023 WL 5932805, at *3 (awarding $395 hourly rate); Vazquez v. Johnson, No. CV-22-01720-PHX-MTL, 2023 WL 4205126, at *2 (D. Ariz. June 27, 2023) (reducing requested $445 rate and awarding $378.75 hourly rate in line with awards in this District); Million v. Pindernation Holdings LLC, No. CV-23-00072-PHX-MTL, 2023 WL 3585237, at *1 (D. Ariz. May 22, 2023) (awarding $395 hourly rate); Jimenez, No. CV-22-01787-PHX-SPL, 2023 WL 4452077, at *2 (reducing requested $395 rate and awarding $350 hourly rate); Verduzco, No. CV-20-02380-PHX-DJH, 2022 WL 2718163, at *2 (reducing requested $378.75 rate and awarding $350 hourly rate); Stamper, No. CV-22-00155-PHX-MTL, 2022 WL 4448457, at *3 (awarding $350 hourly rate).
To his Motion for Attorneys' Fees, Plaintiff's counsel has attached one October 2023 order in Ekstrand v. Tru Realty LLC, et al., No. CV-23-1416-PHX-SRB (Doc. 17), in which Plaintiff's counsel was awarded the requested hourly rate of $445. (Doc. 19-2 at 2-3) However, in Ekstrand, the Court provided no analysis in awarding Plaintiff's counsel his requested hourly rate of $445. Moreover, in the present Motion for Attorneys' Fees, Plaintiff's counsel has not demonstrated that a $445 hourly rate is the prevailing market rate in the District of Arizona. See Gary, 398 F.Supp.3d at 485. Given previous awards to Plaintiff's counsel in this District, a reduced hourly rate of $395 is in line with prevailing community rates.
6. Whether the Fee is Fixed or Contingent
Plaintiff's counsel asserts that the “representation agreement between Plaintiff and Plaintiff's counsel was based on a contingency fee.” (Doc. 19 at 9-11; Doc. 19-10 at 7) Plaintiff's counsel has attached the representation and fee agreement between Plaintiff and Plaintiff's counsel to the Motion for Attorneys' Fees. (Doc. 19-1 at 2-9) Plaintiff and Plaintiff's counsel agreed that if Plaintiff's employer did not pay attorneys' fees and costs in full, Plaintiff's counsel would receive a fee of 40 percent of Plaintiff's total recovery. (Id. at 3) Given the Court's default judgment award of $3,200.00 in damages to Plaintiff, the requested attorneys' fee is larger than the potential 40 percent contingent fee agreed upon by Plaintiff and Plaintiff's counsel. However, a district court should not reduce attorneys' fees “simply because the damage award was small.” Quesada v. Thompson, 850 F.2d 537, 540 (9th Cir. 1988); see also Reyes v. LaFarga, No. CV-11-01998-PHX-SMM, 2015 WL 12425810, at *4 (D. Ariz. July 16, 2015) (declining to decrease reasonable fee in AMWA suit despite contingency fee agreement). In calculating attorneys' fees under a fee-shifting statute, the Court considers what Defendants must pay, not what Plaintiff owes counsel. Orozco, No. CV-11-02305-PHX-JFM, 2013 WL 4543836, at *2 (citing Venegas v. Mitchell, 495 U.S. 82, 90 (1990)). Given the risk involved in a contingency fee matter, this factor supports the lodestar amount.
Plaintiff's counsel cites Silva v. Miller, 547 F.Supp. 1299, 1305 (S.D. Fla. 2008), for the proposition that the Court may increase an hourly rate due to a contingent fee agreement, but the court in Silva cited Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994), in which the Eleventh Circuit states that a contingent fee was one of a handful of factors supporting an upwards adjustment of counsel's hourly rate.
7. Time Limitations
Plaintiff's counsel avers that neither Plaintiff nor the circumstances of this matter imposed any time limitation. (Doc. 19 at 11) This factor does not require adjustment to the lodestar amount.
8. Amount Involved and Results Obtained
In Plaintiff's Motion for Default Judgment and supporting declaration, Plaintiff requested $3,200.00 in unpaid overtime and minimum wage damages plus post-judgment interest against Defendant Probuilds LLC, of which all Defendants would be jointly and severally liable for $2,277.50 plus post-judgment interest. (Doc. 17 at 11; Doc. 17-1 at 35) On January 16, 2024, the Court entered default judgment against Defendants in the amount requested by Plaintiff. (Docs. 20, 21) A small award of damages does not require a decrease in attorneys' fees. Quesada, 850 F.2d at 540; see also Medina v. Gilbert Mega Furniture, LLC, No. CV-16-04033-PHX-SPL, 2019 WL 3778406, at *3 (D. Ariz. Aug. 12, 2019). Where a plaintiff “has obtained excellent results, his attorney should recover a fully compensatory fee[.]” Hensley, 461 U.S. at 435-36. In obtaining all of Plaintiff's unpaid wages through default judgment, Plaintiff's counsel “has obtained excellent results[,]” supporting the lodestar amount. Id. 9. Experience, Reputation, and Ability of the Attorneys
Plaintiff's counsel asserts that he has extensive experience, exclusively in “state and federal employment wage and hour litigation, primarily under the FLSA.” (Doc. 19 at 12) Plaintiff's counsel asserts that he was admitted to practice law in 2012, has litigated over 500 lawsuits for employees in numerous federal district courts, has been lead counsel on over 50 FLSA collective action matters, and has obtained reversals for plaintiffs in the Ninth, Tenth, and Eleventh Circuit Courts of Appeals. (Id.; Doc. 19-10 at 3-4) Plaintiff's counsel's experience supports the lodestar amount.
10. Undesirability of the Case
Plaintiff's counsel asserts that representing Plaintiff in this matter involved risk, including “low damages, 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[.]” (Doc. 19 at 13; Doc. 19-10 at 6-7) Although Plaintiff's counsel does not expressly state that this case was undesirable, given the small amount in controversy and the contingent nature of any fees, this matter was likely an undesirable case. This factor supports the lodestar amount.
11. Nature and Length of the Professional Relationship with the Client
Plaintiff's counsel asserts that this is the only matter in which Plaintiff's counsel represented Plaintiff. (Doc. 19 at 13) The Complaint in this matter was filed in June 2023 (Doc. 1), and Plaintiff's counsel's itemization of time expended in this matter reflects that Plaintiff's counsel had an initial conversation with Plaintiff on May 31, 2023 (Doc. 19-1 at 2). This factor does not require adjustment to the lodestar amount.
12. Awards in Similar Cases
To the Motion for Attorneys' Fees, Plaintiff's counsel has attached several cases demonstrating awards of attorneys' fees in similar actions in this Court. (Doc. 19-2 at 2-3; Doc. 19-5 at 2-9; Doc. 19-6 at 2-3; Doc. 19-7 at 2; Doc. 19-8 at 2-3; Doc. 19-11 at 2-6; Doc. 19-12 at 2-4; Doc. 19-13 at 2-3) (Cranston v. Ocean Blue Caribbean Restaurant and Bar Corporation, et al., No. CV-22-01924-PHX-JJT (D. Ariz. June 16, 2023) (Doc. 24) (awarding $8,018.50 in attorneys' fees); Tammara Wade v. Legacy Inn & Suites LLC, et al., No. CV-22-00560-PHX-JJT (D. Ariz. Jan. 19, 2023) (Doc. 22) (awarding $6,363.00 in attorneys' fees); Davis v. Shri Hari Hotels LLC, et al., No. CV-22-00756-PHX-SPL (D. Ariz. Aug. 24, 2022) (Doc. 18) (awarding $4,515 in attorneys' fees for 12.9 hours); Knapp v. Invictus Protective Services LLC, et al., No. CV-19-00878-PHX-DWL (D. Ariz. June 7, 2019) (Doc. 21) (awarding $7,307.50 in attorneys' fees for 18.5 hours); Parra v. Leiva Detail Specialists LLC, et al., No. CV-23-00277-PHX-SMB (D. Ariz. July 14, 2023) (Doc. 15) (awarding $6,003.55 in attorneys' fees); Million, No. CV-23-00072-PHX-MTL, 2023 WL 3585237, at *1 (awarding $4,898 in attorneys' fees for 12.4 hours); Aguirre, No. CV-23-00334-PHX-MTL, 2023 WL 5932805, at *3 (awarding $8,808.50 in attorneys' fees for 22.3 hours)).
Plaintiff's requested award, adjusted for a reduction in Plaintiff's counsel's hourly rate and for a deduction of 1.2 hours in non-compensable administrative tasks, as discussed in sections III(C)(1) and (5), supra, totals $6,043.50, or 15.3 hours at an hourly rate of $395. This amount is in line with awards in similar cases in this Court. As such, this factor supports the lodestar amount.
D. Adjusted Lodestar Amount
In sum and on balance of the Kerr factors, Plaintiff's counsel's hourly rate should be reduced to $395 and 1.2 hours in non-compensable administrative tasks deducted. No other Kerr factor supports adjustment of the lodestar. Accordingly, Plaintiff is entitled to $6,043.50 in attorneys' fees, comprised of 15.3 hours at an hourly rate of $395.
E. Requested Fees and Costs
1. Actual Expenses
In a FLSA action, a prevailing plaintiff is entitled to costs of the action. 29 U.S.C. § 216(b). Similarly, a prevailing plaintiff in an action under the AMWA is entitled to reasonable costs of suit. A.R.S. § 23-364(G). Local Rule of Civil Procedure of the District of Arizona (“LRCiv”) 54.1 sets forth the procedure to recover taxable costs in this Court, while a motion compliant with LRCiv 54.2 may request applicable non-taxable costs.
The Motion for Attorneys' Fees requests reimbursement of litigation costs in the amount of $625.10, including the $402 filing fee in this matter and $223.10 in incurred service costs. (Doc. 19 at 13-14) On February 1, 2024, because the requested litigation expenses in the Motion for Attorneys' Fees appeared to be taxable costs, the Court ordered that Plaintiff had until February 2, 2024, to comply with LRCiv 54.1 regarding taxable costs. (Doc. 22) On the same date, Plaintiff's counsel filed a Bill of Costs for $625.10 in taxable costs, as previously requested in the Motion for Attorneys' Fees. (Doc. 23) To the Bill of Costs, Plaintiff's counsel attached documentation supporting the costs of filing and service. (Id. at 3-4)
On February 23, 2024, the Clerk's Office awarded Plaintiff taxable costs per the Bill of Costs in the amount of $625.10. (Doc. 24) Thus, this portion of Plaintiff's Motion for Attorneys' Fees is moot.
2. Anticipated Collection Attorneys' Fees and Costs
The Motion for Attorneys' Fees also requests an award of $2,000.00 for attorneys' fees and costs anticipated in collection of the Court's Judgment entered. (Doc. 19 at 15) In other words, Plaintiff seeks a $2,000.00 award of post-judgment collection attorneys' fees and costs before those fees and costs have been incurred. Plaintiff's counsel cites several cases from this District in which anticipated collection costs have been found to be reasonable, but Plaintiff does not show that such anticipated costs are reasonable in this matter. (Id.) (citing Vazquez, No. CV-22-01720-PHX-MTL, 2023 WL 4205126, at *4; Million, No. CV-23-00072-PHX-MTL, 2023 WL 3585237, at *1; Davis, No. CV-22-00756-PHX-SPL (Doc. 18); Wade, No. CV-22-00560-PHX-JJT (Doc. 22); Cranston, No. CV-22-01924-PHX-JJT (Doc. 24)). In support of the request, Plaintiff's counsel only states that “[considering that Plaintiff and Plaintiff's counsel will likely need to pay fees and additional costs in their collection effort, the requested additional $2,000 in fees/costs to be incurred in collection efforts is reasonable.” (Doc. 19 at 15)
Although Defendants have not responded in this matter, an award of collection costs is speculative. See Stamper, No. CV-22-00155-PHX-MTL, 2022 WL 4448457, at *4 (citing Farm Credit of Nw. Fla., ACA v. R & B Const. of S. Alabama, Inc., 2009 WL 4456340, at *5 n.7 (S.D. Ala. Nov. 24, 2009) (award of collection costs speculative even where defendant has not responded and default judgment has been awarded). Plaintiff's counsel does not show that he will incur collection costs in this matter, nor does Plaintiff's counsel address specific anticipated collection efforts. Plaintiff's counsel has made no showing regarding Defendant's financial status or that Defendants will resist payment. Simply, recovery of attorneys' fees and costs incurred in pursuit of collection of the Court's judgment is not ripe.
Further, Plaintiff's counsel does not demonstrate that anticipated collection costs are recoverable under the fee shifting provisions of FLSA or the AMWA. Recently, under similar circumstances, this Court determined that counsel may not recover anticipated collection costs in the absence of explanation or authority to support Plaintiff's counsel's entitlement to such costs. See Shorty, No. CV-23-00084-PHX-ASB, 2023 WL 9101629, at *4; Mumphrey v. Good Neighbor Community Services LLC, No. CV-23-00923-PHX-ROS, 2023 WL 8702103, at *5 (D. Ariz. Dec. 15, 2023) (rejecting request for anticipated collection costs and collecting cases); Stamper, No. CV-22-00155-PHX-MTL, 2022 WL 4448457, at *4 (same). As such, Plaintiff's counsel has not shown that the requested anticipated collection attorneys' fees and costs are reasonable or recoverable. However, Plaintiff may seek collection attorneys' fees and costs if and after they are incurred, and the Court will address propriety of awarding attorneys' fees and costs in pursuit of collection at such time.
III. CONCLUSION
Plaintiff has not demonstrated entitlement to a $2,000.00 award of post-judgment collection attorneys' fees and costs in advance of such fees and costs being incurred. On balance of the Kerr factors, Plaintiff's request for attorneys' fees for work already performed is reasonable with a deduction of 1.2 hours for administrative tasks and with reduction of Plaintiff's counsel's hourly rate to $395. Plaintiff's request for taxable costs in his motion are moot given the taxation of such costs by the Clerk of Court. It is therefore recommended that Plaintiff be awarded attorneys' fees totaling $6,043.50, comprised of 15.3 hours at an hourly rate of $395 jointly and severally against all Defendants.
Accordingly, IT IS RECOMMENDED that Plaintiff's Motion for Award of Attorneys' Fees and Costs Against All Defendants (Doc. 19) be granted in part as set forth herein.
IT IS FURTHER RECOMMENDED that Plaintiff be awarded $6,043.50 (plus interest accruing at the statutory rate) for attorneys' fees for work already performed jointly and severally against Defendants Probuilds LLC, Joaquin Roberto Quijano, and Jane Doe Quijano.
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) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen 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, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely 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 file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.