Opinion
CV-23-01153-PHX-MTM
02-16-2024
Ungerer & Company, Plaintiff, v. Alkaline88 LLC, Defendant.
ORDER
HONORABLE STEPHEN M. MCNAMEE SENIOR UNITED STATES DISTRICT JUDGE
This matter was assigned to Magistrate Judge Michael T. Morrissey. (Doc. 3). On January 26, 2024, the Magistrate Judge filed a Report and Recommendation with this Court. (Doc. 19). The Magistrate Judge has recommended that Plaintiff's Motion for Default Judgment, (Doc. 17), be granted. To date, no objections have been filed.
This case is assigned to a Magistrate Judge. However, not all parties have consented to the jurisdiction of the Magistrate Judge. Thus, the matter is before this Court pursuant to General Order 21-25, which states in relevant part:
When a United States Magistrate Judge to whom a civil action has been assigned pursuant to Local Rule 3.7(a)(1) considers dismissal to be appropriate but lacks the jurisdiction to do so under 28 U.S.C. § 636(c)(1) due to incomplete status of election by the parties to consent or not consent to the full authority of the Magistrate Judge,
IT IS ORDERED that the Magistrate Judge will prepare a Report and Recommendation for the Chief United States District Judge or designee.
IT IS FURTHER ORDERED designating the following District Court Judges to review and, if deemed suitable, to sign the order of dismissal on my behalf:
Phoenix/Prescott: Senior United States District Judge Stephen M. McNamee
STANDARD OF REVIEW
The Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1)(C); see Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991). Parties have fourteen days from the service of a copy of the Magistrate's recommendation within which to file specific written objections to the Court. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Failure to object to a Magistrate Judge's recommendation relieves the Court of conducting de novo review of the Magistrate Judge's factual findings and waives all objections to those findings on appeal. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). A failure to object to a Magistrate Judge's conclusion “is a factor to be weighed in considering the propriety of finding waiver of an issue on appeal.” Id.
DISCUSSION
Having reviewed the Report and Recommendation of the Magistrate Judge, and no Objections having been made by any party thereto, the Court hereby incorporates and adopts the Magistrate Judge's Report and Recommendation as to Plaintiff's request for default judgment. However, the Court finds that Plaintiff is not entitled to attorney fees pursuant to A.R.S. § 12-341.01 and thus modifies the Magistrate Judge's findings as to this conclusion.
Section § 12-341.01 provides that attorney fees may be awarded in “any contested action arising out of a contract, express or implied[.]” A contested action “is one in which the defendant has appeared and generally defends against the claims and demands made by the plaintiff.” Morrison v. Shanwick Intern. Corp., 804 P.2d 768, 775 (Ariz.Ct.App. 1990) (considering a request for attorney fees made pursuant to § 12-341.01). Here, Defendant never appeared or defended against the claims brought by Plaintiff. Accordingly, Plaintiff prevailed in an uncontested action. See Larisa F Stokes v. Franzheim, No. CV-21-00638-TUC-JGZ, 2022 WL 3714636, at *1 (D. Ariz. Aug. 29, 2022) (finding attorney fees unrecoverable under § 12-341.01 because a default judgment is not a contested action); see also Granite State Ins. Co. v. SME Pro. Serv., LLC, No. CV-18-2488-PHX-JGZ, 2019 WL 299923, at *5 (D. Ariz. Jan. 31, 2019) (same); BRT Funding, LLC v. Carlsbad Dev. I, LLC, No. 08-1151-PHX-FJM, 2009 WL 2486008, at *3 (D. Ariz. Aug. 12, 2009) (same).
Because this action was not contested, Plaintiff cannot recover attorney fees under § 12-341.01. Plaintiff has asserted no other basis for recovering attorney fees and so the Court concludes that Plaintiff is not entitled to a fee award.
CONCLUSION
Accordingly, for the reasons set forth, IT IS ORDERED adopting the Report and Recommendation of the Magistrate Judge as modified. (Doc. 19).
IT IS FURTHER ORDERED granting Plaintiff's Motion for Default Judgment against Defendant. (Doc. 17).
IT IS FURTHER ORDERED awarding Plaintiff $124,477.90 plus postjudgment interest at the applicable statutory rate against Defendant.