Aguirre v. Custom Image Pros LLC

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Raul Aguirre, No. CV-23-00334-PHX-MTL

10 Plaintiff, ORDER

11 v.

12 Custom Image Pros LLC, et al.,

13 Defendants. 14 15 Before the Court is Plaintiff Raul Aguirre’s Motion for Award of Attorneys’ Fees 16 and Costs pursuant to LRCiv 54(b)(2). (Doc. 19.) Defendants Custom Image Pros LLC, 17 Timothy Simpson, and Jane Doe Simpson (now known as Jamie L. Simpson) 18 (collectively, the “Defendants”) failed to respond. For the following reasons, the Court 19 will grant the Motion. 20 I. Background 21 The Court previously set forth the factual background of this case. (See Doc. 16.) 22 As relevant here, Plaintiff worked for Defendants as a manual laborer from 23 approximately late-January 2023 through February 2023. (Doc. 1 at 6–8.) On February 24 23, 2023, Plaintiff filed a Complaint with this Court, seeking relief for unpaid wages 25 under the Fair Labor Standards Act (“FLSA”), the Arizona Minimum Wage Act, and the 26 Arizona Wage Act. (Id. at 1–2.) Defendants were timely served on March 1, 2023. (Docs. 27 7–9.) Defendants failed to answer or otherwise respond by the March 22, 2023 deadline, 28 and the Clerk of the Court entered default against Defendants on March 30, 2023. (Doc. 1 11.) Plaintiff then moved for default judgment (doc. 15), which this Court granted on 2 June 28, 2023. (Doc. 16.) Subsequently, Plaintiff filed the pending Motion for Award of 3 Attorneys’ Fees, requesting a total of $11,764.30. (Doc. 19 at 6.) This request includes 4 $9,203.50 for Plaintiff’s attorney Clifford P. Bendau’s (“Counsel”) billed hours, as well 5 as $560.80 for out-of-pocket costs, and $2,000 for costs anticipated in efforts to collect 6 the judgment. (Id.) 7 II. Legal Standard 8 The FLSA requires that the Court award the prevailing party reasonable attorneys’ 9 fees. 29 U.S.C. § 216(b). Before the Court awards attorneys’ fees, however, it must 10 determine the prevailing party and whether the requested attorneys’ fees are reasonable. 11 LRCiv 54.2(c); McGlothlin v. ASI Cap. Ventures LLC, No. CV-19-04895-PHX-DJH, 12 2021 WL 857367, at *1 (D. Ariz. Mar. 8, 2021) (finding that a “party seeking an award 13 of attorney’s fees must show it is eligible and entitled to an award[,] that the amount 14 sought is reasonable” and that “[t]o be entitled to an award, Plaintiff must have 15 prevailed”). 16 “District courts must calculate awards for attorneys’ fees using the lodestar 17 method.” Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 (9th Cir. 2001). “Under 18 this approach, a ‘presumptively reasonable’ fee award ‘is the number of hours reasonably 19 expended on the litigation multiplied by a reasonable hourly rate.’” Coe v. Hirsch, No. 20 CV-21-00478-PHX-SMM (MTM), 2022 WL 508841, at *1 (D. Ariz. Jan. 21, 2022) 21 (quoting Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 982 (9th Cir. 2008)). While in 22 most cases the lodestar is “presumptively reasonable,” the Court may adjust the lodestar 23 amount to account for the factors set forth in Kerr v. Screen Extras Guild, Inc., 526 F.2d 24 67, 70 (9th Cir. 1975). Those factors include: 25 (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the 26 legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the 27 customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, 28 (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the 1 “undesirability” of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in 2 similar cases. 3 Id.; see also LRCiv. 54.2(c)(3). 4 III. Discussion 5 A. Eligibility for and Entitlement to Attorneys’ Fees 6 For purposes of the FLSA, the prevailing party is the one that “succeed[ed] on any 7 significant issue in litigation which achieves some of the benefit the part[y] sought in 8 bringing suit.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (quoting Nadeau v. 9 Helgemoe, 581 F.2d 275, 278–79 (1st Cir. 1978)); see also Haworth v. State of Nev., 56 10 F.3d 1048, 1052 (9th Cir. 1995) (applying the Hensley standard to an analysis of whether 11 the plaintiff is the prevailing party in an FLSA case). Courts in this district have held that 12 where the filing of an action causes a defendant to pay unpaid wages, the plaintiff 13 becomes the prevailing party and is thus entitled to fees. Orozco v. Borenstein, No. 14 CV-11-02305-PHX-FJM, 2013 WL 4543836, at *2 (D. Ariz. Aug. 18, 2013). Here, 15 Plaintiff is a prevailing party because of this Court’s default judgment order granting 16 Plaintiff the wages sought. (Doc. 16.) For this reason, the Court finds that Plaintiff is 17 eligible and entitled to receive reasonable attorneys’ fees. See 29 U.S.C. § 216(b). 18 B. Reasonableness of Requested Attorneys’ Fees 19 1. Time and Labor Required 20 Plaintiff requests an award of $11,764.30. (Doc. 19 at 6.) This includes $9,203.50 21 for 23.3 hours billed by Plaintiff’s counsel, $560.80 in out-of-pocket costs, and $2,000 22 for anticipated costs to be incurred in collecting on the judgment. (Id.) The Court must 23 apply the loadstar approach to determine whether this request is reasonable. Coe, 2022 24 WL 508841, at *1. To calculate the loadstar amount, the Court considers whether the 25 requesting party expended a reasonable number of hours and if the requesting party billed 26 those hours at a reasonable rate. Id. “The party seeking an award of attorneys’ fees bears 27 the burden of demonstrating that the rates requested are ‘in line with the prevailing 28 market rate of the relevant community.’” Gary v. Carbo Cycle Ariz. LLC, 398 F. Supp. 1 3d 468, 485 (D. Ariz. 2019) (quoting Carson v. Billings Police Dep’t, 470 F.3d 889, 891 2 (9th Cir. 2006)). “[T]he relevant community is the forum in which the district court sits.” 3 Camacho, 523 F.3d at 979. 4 In this case, Counsel charged an hourly rate of $395.00. (Doc. 19 at 6.) The Court 5 finds that an hourly fee in the range of $300 to $400 to be reasonable in the Phoenix legal 6 market. See, e.g., Coe, 2022 WL 508841, at *1 (awarding attorneys’ fees at a rate of 7 $378.75 per hour); Mayweathers v. Iconic Results LLC, No. CV-20-01216-PHX-DJH, 8 2020 WL 8181700, at *3 (D. Ariz. Nov. 10, 2020) (awarding attorneys’ fees at a rate of 9 $378.75 per hour, even though the case was “easy”); Gualotuna v. Estrella Gymnastics 10 LLC, No. CV-16-00597-PHX-DLR, 2016 WL 8669298, at *2 (D. Ariz. Oct. 28, 2016) 11 (awarding attorneys’ fees for a twenty-year attorney and a three-year attorney at rates of 12 $475 and $375 per hour respectively). The Court finds that Plaintiff has met his initial 13 burden of demonstrating the reasonableness of Counsel’s hourly rates. 14 Next, the Court must consider whether Counsel expended a reasonable number of 15 hours. Coe, 2022 WL 508841, at *1. The Court excludes attorneys’ fees for clerical and 16 administrative tasks. See Gary, 398 F. Supp. 3d at 487; see also Missouri v. Jenkins, 491 17 U.S. 274, 288 n. 10 (1989) (explaining that “purely clerical or secretarial tasks should not 18 be billed at a paralegal [or lawyer’s] rate, regardless of who performs them”); Neil v. 19 Comm’r of Soc. Sec., 495 F. App’x. 845, 847 (9th Cir. 2012) (holding that “the district 20 court did not abuse its discretion in declining to award [ ] attorney’s fees for purely 21 clerical tasks such as filing documents and preparing and serving summons”). 22 Counsel asserts this case required 23.3 hours of his time. (Doc. 19 at 7.) Upon 23 review of Counsel’s time sheet, the Court finds Counsel billed for clerical and 24 administrative tasks and will reduce Counsel’s time for the following hours: 25 0.1 hours of the 0.3 billed on February 23, 2023, for “[f]inalize, file complaint.” 26 0.2 hours on February 24, 2023, for “[s]end documents to 27 process server.” 28 0.2 hours on February 24, 2023, for “[c]ommunicate with process server re service and Defendants.” 1 0.1 hours on March 2, 2023, for “[f]ile Service Executed.” 2 0.1 hours on March 29, 2023, for “[f]ile application for entry of default.” 3 0.1 hours of the 0.2 hours billed on May 2, 2023, for “[d]raft, 4 file status report.” 5 0.1 hours of the 0.5 hours billed on May 23, 2023, for “[f]inalize, file motion for default judgment.” 6 0.1 hours on June 29, 2023, for “[f]inalize, file motion for 7 attorneys’ fees.” 8 (Doc.19-8, at 2–4.) This Court has previously recognized these tasks to be administrative 9 in nature. See, e.g., Stamper v. Freebird Logistics Inc., No. CV-22-00155-PHX-MTL, 10 2022 WL 4448457 at *2–3 (D. Ariz. Sept. 23, 2022) (reducing fees for clerical tasks such 11 as filing court documents and sending documents to process servers); Jimenez v. Terrific 12 Tree Trimmer, LLC, No. CV-22-01787-PHX-SPL, 2023 WL 4452077 at *2 (D. Ariz. 13 July 11, 2023) (reducing fees for clerical tasks such as communicating with process 14 server and sending documents to process server). Accordingly, the Court deducts 1 hour 15 for these entries and determines that 22.3 hours reflects the reasonable amount of time 16 spent on this matter. The revised total amount of Counsel’s fees is $8,808.50 (reflecting 17 22.3 hours billed at $395.00 an hour). 18 2. Novelty and Difficulty 19 The Court finds this case did not present any novel or difficult issues. Verduzco v. 20 Value Dental Ctrs. Mesa W. AZ LLC, No. CV-02380-PHX-DJH, 2022 WL 2718163, at 21 *2 (D. Ariz. July 12, 2022) (determining that an Arizona minimum wage and overtime 22 claim did not present any novel or difficult issues). 23 3. Requisite Skill 24 The Court finds it takes a “moderate amount of skill to litigate FLSA cases.” Id. 25 Plaintiff’s attorney avers the legal issues raised by this FLSA action were “sophisticated 26 and required extensive knowledge of the law,” but also admits that the action had a 27 “straightforward nature.” (Doc. 19 at 8.) On balance, this constitutes a moderate amount 28 of skill. 1 4. Preclusion of Other Employment 2 Counsel admits that he was “not significantly precluded” from other employment 3 because of this representation. (Id. at 8.) 4 5. Customary Fee 5 Counsel asserts that his hourly rate of $395.00 is reasonable. (See id. at 4–5.) The 6 Court agrees. See, e.g., Coe, 2022 WL 508841, at *1 (awarding attorneys’ fees at a rate of 7 $378.75 per hour); Mayweathers, 2020 WL 8181700, at *3 (awarding attorneys’ fees at a 8 rate of $378.75 per hour, even though the case was “easy”); Gualotuna, 2016 WL 9 8669298, at *2 (awarding attorneys’ fees for a twenty-year attorney and a three-year 10 attorney at rates of $475 and $375 per hour respectively). 11 6. Experience, Reputation and Ability of the Attorneys 12 According to Counsel, his practice area remains exclusively within employment 13 wage litigation, primarily under the FLSA. (Doc. 19 at 11.) He has practiced law since 14 2012 and litigated more than 400 lawsuits on behalf of employees in various 15 jurisdictions. (Id.) Counsel asserts that he has also been lead counsel “on approximately 16 50 FLSA collective action matters.” (Id.) 17 7. Fixed or Contingent Fee 18 Counsel worked on a contingency basis, requiring forty percent of the total 19 recovery. (Id. at 9–10, Doc. 19-1 at 2.) 20 8. Time Limitations 21 Nothing indicates Plaintiff imposed time limitations on this matter. See Pozez v. 22 Ethanol Cap. Mgmt., LLC, No. CV-07-00319-TUC-CKJ, 2013 WL 12095669, at *4 (D. 23 Ariz. July 15, 2013) (granting plaintiff’s attorneys’ fees even where there were no time 24 limitations imposed). 25 9. Amount Involved and Results Obtained 26 “Where a plaintiff has obtained excellent results, his attorney should recover a 27 fully compensatory fee . . .” Hensley, 461 U.S. at 435–36. Here, Plaintiff received 28 $13,150 for all his estimated unpaid wages. (Doc. 16 at 1.) The Court therefore finds 1 Plaintiff obtained excellent results. 2 10. The Case’s Undesirability 3 Counsel does not label this case as particularly undesirable but notes the inherent 4 risk involved with contingency fee cases, namely “[t]he low damages, the speculative 5 amount of available fees, the opportunity cost of taking on a matter that did not result in 6 payment, and the possibility of expending costs . . . that would have been lost in the event 7 of non-recovery.” (Doc. 19 at 12.) 8 11. Nature and Length of Relationship with the Client 9 Before the case at hand, Counsel had not represented Plaintiff. (Id. at 12.) This 10 case has been present on the Court’s docket since February 2023. (See Doc. 1.) 11 12. Awards in Similar Cases 12 Plaintiff contends that the requested fees “are based on the lodestar method and 13 are consistent with Ninth Circuit authority and with fees awarded and decided in similar 14 cases in this jurisdiction.” (Doc. 19 at 12.) Additionally, Plaintiff referred this Court to a 15 variety of cases for awards in actions of a similar nature in Arizona. (Doc. 19-3; Doc. 16 19-4; Doc. 19-5; Doc. 19-6.) 17 C. Other Matters 18 Lastly, Plaintiff requests $2,000 for anticipated costs of collection efforts for the 19 default judgment and the award of attorneys’ fees. (Doc. 19 at 13–14.) Plaintiff asserts 20 that this amount is reasonable because both Plaintiff and Counsel will likely incur 21 additional costs collecting their awards. (Id. at 14.) Plaintiff cites cases where this Court 22 found $2,000 to be a reasonable estimate of the costs involved in the collection of a 23 judgment and attorneys’ fees from defaulted defendants under similar circumstances. 24 (Id.) The Court also finds the requested amount reasonable. See, e.g., Vazquez v. Johnson, 25 No. CV-22-01720-PHX-MTL, 2023 WL 4205126 at *4 (D. Ariz. June 27, 2023) (finding 26 $2,000 in anticipated collection costs reasonable); Million v. Pindernation Holdings LLC, 27 No. CV-23-00072-PHX-MTL, 2023 WL 3585237 at *1 (D. Ariz. May 22, 2023) (finding 28 $2,000 in anticipated collection costs reasonable). IV. Conclusion 2 On balance of the Kerr factors, the Court finds that Plaintiff’s request is | reasonable, absent the 1-hour deduction for clerical tasks. Therefore, the Court awards 4|| Plaintiff attorneys’ fees of $8,808.50, out-of-pocket costs in the amount of $560.80, and 5 || additional costs of $2,000 in anticipated efforts to collect the judgment. 6 Accordingly, 7 IT IS ORDERED granting Plaintiff's Motion for Award of Attorneys’ Fees and 8] Costs (doc. 19) as follows: Plaintiff is awarded $8,808.50 in attorneys’ fees, $560.80 in 9|| out-of-pocket costs, and an additional $2,000 for reasonably anticipated collection fees and expenses. The total award is $11,369.30. 11 IT IS FURTHER ORDERED that Defendants Custom Image Pros LLC, 12|| Timothy Simpson, and Jamie L. Simpson are jointly and severally liable for the full 13 |) $11,369.30, plus interest accruing at the statutory rate, from the date of this Order. 14 Dated this 11th day of September, 2023. 15 WMichak T. Shure M Michael T, Liburdi 18 United States District Judge 19 20 21 22 23 24 25 26 27 28

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