Elizabeth Quigley v. Soul Surgery LLC, et al.

• Court: District Court, D. Arizona
• Decided: January 14, 2026
• Docket: 2:24-cv-01050
• Status: Unknown

Opinion

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

9 Elizabeth Quigley, NO. CV-24-01050-PHX-SMM (ASB)

10 Plaintiff, ORDER

11 v.

12 Soul Surgery LLC, et al.,

13 Defendants. 14 15 This matter was assigned to Magistrate Judge Alison S. Bachus. (Doc. 7). On 16 December 15, 2025, the Magistrate Judge filed a Report and Recommendation (“R&R”) 17 with this Court. (Doc. 40).1 The Magistrate Judge has recommended that Plaintiff’s Motion 18 for Award of Attorney’s Fees and Costs, (Doc. 38), be granted in-part. To date, no 19 1 This case is assigned to a Magistrate Judge. However, not all parties have 20 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: 21 When a United States Magistrate Judge to whom a civil action has been 22 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) 23 due to incomplete status of election by the parties to consent or not consent to the full authority of the Magistrate Judge, 24 IT IS ORDERED that the Magistrate Judge will prepare a Report and 25 Recommendation for the Chief United States District Judge or designee. 26 IT IS FURTHER ORDERED designating the following District Court Judges to review and, if deemed suitable, to sign the order of dismissal on 27 my behalf: 28 Phoenix/Prescott: Senior United States District Judge Stephen M. McNamee 1 objections have been filed. 2 STANDARD OF REVIEW 3 When reviewing a magistrate judge’s report and recommendation, this Court “shall 4 make a de novo determination of those portions of the report . . . to which objection is 5 made” and “may accept, reject, or modify, in whole or in part, the findings or 6 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); see also 7 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991). However, the relevant provision 8 of the Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any 9 review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 10 U.S. 140, 149 (1985); see also Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005) 11 (“Of course, de novo review of a R & R is only required when an objection is made to the 12 R & R.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) 13 (“Neither the Constitution nor the [Federal Magistrates Act] requires a district judge to 14 review, de novo, findings and recommendations that the parties themselves accept as 15 correct.”). Likewise, it is well-settled that “failure to object to a magistrate judge’s factual 16 findings waives the right to challenge those findings.” Bastidas v. Chappell, 791 F.3d 1155, 17 1159 (9th Cir. 2015) (quoting Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012)). 18 DISCUSSION2 19 Plaintiff’s counsel, Mr. Clifford Bendau II, requests a total of $14,182.63 in attorney 20 fees and costs, comprising of $7,609.50 in attorney fees at an hourly rate of $445 for 17.1 21 hours of work, $824.60 in out-of-pocket costs, and $5,748.53 in anticipated collection 22 costs. (See Doc. 38). Having reviewed the R&R of the Magistrate Judge, and no Objections 23 having been made by any party thereto, the Court hereby incorporates and modifies the 24 Magistrate Judge’s R&R. (Doc. 40). 25 The Court agrees with the R&R that a modification to Mr. Bendau’s hourly rate is 26 reasonable and aligns with prevailing FLSA action rates in this District. (Id. at 4). The 27 2The factual and procedural history of this case is set forth in the Magistrate Judge=s 28 Report and Recommendation (Doc. 40). 1 Court also agrees that Plaintiff’s requested out-of-pocket costs and anticipated collection 2 costs are not reasonable. (Id. at 8). Because Plaintiff and Defendants Heather Mulligan and 3 John Doe Mulligan stipulated to bearing their own costs and fees, the Court will not award 4 service fees against those Defendants. (See Doc. 32); see also LRCiv 54.1(d). Additionally, 5 as noted in the R&R, there is simply no way for the Court to assess the reasonableness of 6 Plaintiff’s anticipated collection costs. (Doc. 40 at 9). Moreover, the Court finds that Mr. 7 Bendau’s attorney fees are not reasonable or permissible in part. 8 The R&R recommended that the Court reduce Mr. Bendau’s hours billed by 1.9, as 9 several time entries are not recoverable as attorney’s fees. (Id. at 5–6). Mr. Benadu’s 10 timesheet includes 58 task entries, of which the R&R has recommended that 16 of those 11 entries are administrative or pertain to Plaintiff’s Show Cause Orders. (Id. at 4–6); (see 12 also Doc. 38-4 at 2–3). “It simply is not reasonable for a lawyer to bill, at [his] regular 13 hourly rate, for tasks that a non-attorney employed by [him] could perform at a much lower 14 cost.” Davis v. City of San Francisco, 976 F.2d 1536, 1543 (9th Cir. 1992), opinion vacated 15 in part on other grounds on denial of reh’g, 984 F.2d 345 (9th Cir. 1993). When “clerical 16 tasks are billed at hourly rates, the court should reduce the hours requested” as those tasks 17 should be “subsumed in [the] firm[‘s] overhead.” Nadarajah v. Holder, 569 F.3d 906, 921 18 (9th Cir. 2009). “[T]he imposition of attorneys’ fees against a party who abused the judicial 19 process is limited to compensation for the wronged party.” Lu v. United States, 921 F.3d 20 850, 860 (9th Cir. 2019). 21 The Court agrees with the R&R that Mr. Bendau’s administrative tasks and show 22 cause entries should be excluded from his total hours billed. See Nadarajah, 569 F.3d at 23 921; see also Lu, 921 F.3d at 860. The Court further identifies an additional task entry that 24 falls squarely under administrative or clerical tasks; “Draft, file Magistrate Consent Form 25 (0.3 hours)” (Doc. 38-4 at 2). This task requires no legal expertise and consists solely of 26 entering parties’ names and signatures. Therefore, the Court finds that the reasonable 27 attorney’s fees award to be $5,674.00, reflecting 14.9 hours at an hourly rate of $395.00.3

28 3 The Court reminds Mr. Clifford Bendau II of his continuing obligation to comply with Rule 11 of the Federal Rules of Civil Procedure. Should Mr. Bendau persist in seeking 1 CONCLUSION 2 Accordingly, 3 IT IS ORDERED adopting as modified the Report and Recommendation of the 4|| Magistrate Judge. (Doc. 40). 5 IT IS FURTHER ORDERED granting in-part Plaintiff's Motion for Award of || Attorney’s Fees and Costs. (Doc. 38). 7 IT IS FURTHER ORDERED awarding Plaintiff $5,674.00 in attorneys’ fees and 8 || $645.80 in out-of-pocket costs for a total of $6,318.80, for which Defendants are jointly 9|| and severally liable. 10 IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment 11 || accordingly. 12 Dated this 13th day of January, 2026. 13 4 — Lig Vom Stephen M. McNamee 15 Senior United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28], — relief not authorized by law, the Court may impose the appropriate sanctions.