Miles v. Thomas Suites Campus of Care LLC et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Joyce Faye Miles,
Plaintiff,
v.
Thomas Suites Campus of Care LLC, et al.,
Defendants.
No. CV-24-01286-PHX-SMM (JZB)
ORDER
This matter was assigned to Magistrate Judge John Z. Boyle. (Doc. 6). On
November 03, 2025, the Magistrate Judge filed a Report and Recommendation (“R&R”)
with this Court. (Doc. 21).1 The Magistrate Judge has recommended that Plaintiff’s Motion
for Attorneys’ Fees and Costs (Doc. 19) be granted with modifications. (Id.). Plaintiff filed
1 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
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Objections (Doc. 22) to the R&R. After considering the R&R and the arguments raised in
Plaintiff’s Objections thereto, the Court modifies the R&R. (Doc. 21).
STANDARD OF REVIEW
When reviewing a magistrate judge’s report and recommendation, this Court “shall
make a de novo determination of those portions of the report . . . to which objection is
made” and “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); see also
Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991). However, the relevant provision
of the Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any
review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474
U.S. 140, 149 (1985); see also Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005)
(“Of course, de novo review of a R & R is only required when an objection is made to the
R & R.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)
(“Neither the Constitution nor the [Federal Magistrates Act] requires a district judge to
review, de novo, findings and recommendations that the parties themselves accept as
correct.”). Likewise, it is well-settled that “failure to object to a magistrate judge’s factual
findings waives the right to challenge those findings.” Bastidas v. Chappell, 791 F.3d 1155,
1159 (9th Cir. 2015) (quoting Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012)).
DISCUSSION2
Plaintiff’s counsel, Mr. Clifford Bendau II, requests a total of $17,990.71 in attorney
fees and costs, comprising of $9,434.00 in attorney fees at an hourly rate of $445 for 21.2
hours of work, $678.57 in out-of-pocket costs, and $7,878.14 in anticipated collection
costs. (Doc. 19). The Court agrees with the R&R that Mr. Bendau’s hourly rate of $445 is
reasonable and commensurate with Mr. Bendau’s litigation experience. (Doc. 21 at 7).
Further, the Court agrees that Plaintiff’s $687.57 out-of-pocket costs comprising of the
$405.00 filing fee and $273.57 service expenses are both reasonable and recoverable. (Id.
2The factual and procedural history of this case is set forth in the Magistrate Judge=s
Report and Recommendation (Doc. 21).
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at 9-10). However, the Court finds Mr.Bendau’s attorney fees and Plaintiff’s anticipated
collection costs are not reasonable.
The R&R recommended that the Court reduce Mr. Bendau’s hours billed by 2.3, as
several time entries are not recoverable as attorneys’ fees. (Id. at 5-6). Mr. Benadu’s
timesheet includes 72 task entries, of which the R&R has recommended that 16 of those
entries are administrative tasks. (Ibid.); (see Doc. 19-4 at 2–3.) “It simply is not reasonable
for a lawyer to bill, at [his] regular hourly rate, for tasks that a non-attorney employed by
[him] could perform at a much lower cost.” Davis v. City of San Francisco, 976 F.2d 1536,
1543 (9th Cir. 1992), opinion vacated in part on other grounds on denial of reh'g, 984 F.2d
345 (9th Cir. 1993). “Attorneys’ fees should not be given for the performance of
administrative tasks which could and should be performed by secretarial or paralegal staff.”
Gary v. Carbon Cycle Ariz. LLC, 398 F. Supp. 3d 468, 487 (D. Ariz. 2019). The Court
agrees that the administrative task entries should be excised from the total hours billed,
which warrants a reasonable modification to Mr. Bendau’s attorneys’ fees. (Doc. 21 at 5-
8). Further, the Court finds an additional task entry that falls squarely under administrative
or clerical tasks. “Send docket to client (0.3 hours)[.]” (Doc. 19-4 at 2–3). Therefore, the
Court finds a reasonable attorney’s fees award of $8,277.00.
Plaintiff seeks $7,878.14 in “costs to be incurred in potential collection efforts[.]”
(Doc. 19 at 6). Plaintiff states that Plaintiff’s counsel has generally engaged the services of
an outside law firm to assist with collection efforts and pays the outside law firm a $850
retainer and a 25% contingency fee on all amounts recovered. (Id. at 16). In Plaintiff’s
Motion, Plaintiff included Exhibit I, which is the counsel’s Client Representation
Agreement and a $850 retainer check. (See Doc. 19-8); (see also Doc. 19-9). The R&R
recommended that the Court deny the $7,878.14 advance award of anticipated collection
costs because it is inappropriate and speculative, however, the Court should award $850 in
expended collection costs. (Doc. 21 at 9-10). Plaintiff clarifies to the Court that Exhibit I
is exemplary only and no retainer has been paid in this matter. (See Doc. 22).
Having reviewed the legal conclusions of the R&R of the Magistrate Judge, and the
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objections having been made by Plaintiff thereto, the Court finds that the Magistrate Judge
adequately addressed all of Plaintiff’s arguments. Therefore, the Court hereby incorporates
and modifies the Magistrate Judge’s Report and Recommendation. (Doc. 21).
Accordingly,
IT IS ORDERED modifying the Magistrate Judge’s Report and Recommendation.
(Doc. 21).
IT IS ORDERED granting in-part Plaintiff’s Motion for Award of Attorneys’
Fees and Costs Against All Defendants. (Doc. 19).
IT IS FURTHER ORDERED awarding Plaintiff $8,277.00 in attorneys’ fees and
$687.57 in costs for a total of $8,964.57 against all Defendants.
IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment
accordingly.
Dated this 19th day of November, 2025.
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