Ungerer & Company v. Alkaline88 LLC

• Court: District Court, D. Arizona
• Decided: February 16, 2024
• Docket: 2:23-cv-01153
• Status: Unknown

Opinion

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

9 Ungerer & Company, No. CV-23-01153-PHX-MTM

10 Plaintiff, ORDER

11 v.

12 Alkaline88 LLC,

13 Defendant. 14 15 This matter was assigned to Magistrate Judge Michael T. Morrissey. (Doc. 3). On 16 January 26, 2024, the Magistrate Judge filed a Report and Recommendation with this 17 Court.1 (Doc. 19). The Magistrate Judge has recommended that Plaintiff’s Motion for 18 Default Judgment, (Doc. 17), be granted. To date, no objections have been filed. 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 STANDARD OF REVIEW 2 The Court “may accept, reject, or modify, in whole or in part, the findings or 3 recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1)(C); see Baxter v. 4 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991). Parties have fourteen days from the 5 service of a copy of the Magistrate’s recommendation within which to file specific 6 written objections to the Court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. Failure to 7 object to a Magistrate Judge’s recommendation relieves the Court of conducting de novo 8 review of the Magistrate Judge’s factual findings and waives all objections to those 9 findings on appeal. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). A failure to 10 object to a Magistrate Judge’s conclusion “is a factor to be weighed in considering the 11 propriety of finding waiver of an issue on appeal.” Id. 12 DISCUSSION 13 Having reviewed the Report and Recommendation of the Magistrate Judge, and no 14 Objections having been made by any party thereto, the Court hereby incorporates and 15 adopts the Magistrate Judge’s Report and Recommendation as to Plaintiff’s request for 16 default judgment. However, the Court finds that Plaintiff is not entitled to attorney fees 17 pursuant to A.R.S. § 12-341.01 and thus modifies the Magistrate Judge’s findings as to 18 this conclusion. 19 Section § 12-341.01 provides that attorney fees may be awarded in “any contested 20 action arising out of a contract, express or implied[.]” A contested action “is one in which 21 the defendant has appeared and generally defends against the claims and demands made 22 by the plaintiff.” Morrison v. Shanwick Intern. Corp., 804 P.2d 768, 775 (Ariz. Ct. App. 23 1990) (considering a request for attorney fees made pursuant to § 12-341.01). Here, 24 Defendant never appeared or defended against the claims brought by Plaintiff. 25 Accordingly, Plaintiff prevailed in an uncontested action. See Larisa F Stokes v. 26 Franzheim, No. CV-21-00638-TUC-JGZ, 2022 WL 3714636, at *1 (D. Ariz. Aug. 29, 27 2022) (finding attorney fees unrecoverable under § 12-341.01 because a default judgment 28 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). 4 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 6 || Court concludes that Plaintiff is not entitled to a fee award. 7 CONCLUSION 8 Accordingly, for the reasons set forth, 9 IT IS ORDERED adopting the Report and Recommendation of the Magistrate || Judge as modified. (Doc. 19). 11 IT IS FURTHER ORDERED granting Plaintiff's Motion for Default Judgment || against Defendant. (Doc. 17). 13 IT IS FURTHER ORDERED awarding Plaintiff $124,477.90 □□□□ □□□□□ || judgment interest at the applicable statutory rate against Defendant. 15 Dated this 16th day of February, 2024. 16 17 — Lil ronan 18 H orable Stephen M. McNamee Senior United States District Judge 19 20 21 22 23 24 25 26 27 28

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