Culbertson et al v. Mesa, City of

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Before the Court is Defendant City of Mesa’s Motion to Dismiss Plaintiffs’
Amended Complaint (Doc. 18), Plaintiffs’ Response (Doc. 22), and Defendant’s Reply
(Doc. 23). For the following reasons, the Motion will be granted.1
I. BACKGROUND
This action was initiated on July 4, 2025. (Doc. 1). On September 18, 2025,
Plaintiffs Steven Culbertson, Daniel Hammerl, Hunter Hansen, Daniel Knight, Craig
McBride, Jason McVey, James Sell, and Joseph Tuipala filed the Amended Complaint,
which is the operative complaint in this case. (Doc. 12). Plaintiffs are current or former
employees of the Mesa Fire & Medical Department who allege that they were denied
overtime compensation under the Fair Labor Standards Act (“FLSA”) when they worked
shifts as a paramedic or emergency medical technician (“EMT”). (Id. at 3, ¶ 5). Plaintiffs
1 Because it would not assist in resolution of the instant issues, the Court finds the
pending motion is suitable for decision without oral argument. See LRCiv. 7.2(f); Fed. R.
Civ. P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998).
Steven Culbertson, et al.,
Plaintiffs,
vs.
City of Mesa,
Defendant.
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No. CV-25-02341-PHX-SPL
ORDER
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bring the case as a putative FLSA collective action. (See Doc. 12).
Plaintiffs allege that in 2018, Defendant City of Mesa “began providing ambulance
services to the Mesa community through Mesa Fire & Medical Department.” (Doc. 12 at
2, ¶ 1). Though the ambulance service employs 74 civilian paramedics and EMTs,
Plaintiffs allege that Defendant Mesa “has primarily used and relied upon sworn personnel
from the Mesa Fire Department to staff and run” the ambulance service. (Id. at 3, ¶ 4).
Further, the Mesa Fire & Medical Department “operates in a region in which nearly all the
emergency calls they respond to are medical in nature,” so Plaintiffs “rarely, if ever, engage
in fire protection activities.” (Id. at 7, ¶ 21). Plaintiffs allege that when working shifts on
the ambulance service, Plaintiffs “have no responsibility to engage in fire protection
activities.” (Id.).
Plaintiffs’ overtime compensation is structured based on 29 U.S.C. § 207(k), an
exemption under FLSA that “permits public agencies like Mesa to adopt an alternative
work period for employees who are engaged in fire protection activities.” (Id. at 10, ¶ 30).
Under that exemption, Plaintiffs are “ineligible to earn overtime compensation until they
had worked more than 204 hours in a 27-day period. (Id.). Plaintiffs’ claim is that
Defendant Mesa violated FLSA by failing to pay overtime and applying the exemption in
§ 207(k) to Plaintiffs when they were working as a paramedic or EMT. (Id. at 14). Plaintiffs
request monetary damages and liquid damages for back pay and unpaid compensation. (Id.
at 17).
II. LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain “a
short and plain statement of the claim showing that the pleader is entitled to relief” so that
the defendant is given fair notice of the claim and the grounds upon which it rests. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Fed. R. Civ. P. 8(a)(2)). A court may
dismiss a complaint for failure to state a claim under Rule 12(b)(6) for two reasons: (1)
lack of a cognizable legal theory, or (2) insufficient facts alleged under a cognizable legal
theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). When
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deciding a motion to dismiss, “all allegations of material fact” in the complaint “are taken
as true and construed in the light most favorable to the nonmoving party.” Cousins v.
Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009) (citation omitted).
III. DISCUSSION
Defendant Mesa argues that Plaintiffs “fail to allege that they had no fire
suppression responsibilities during the relevant three-year period” and the facts in the
complaint “establish that Plaintiffs are ‘engaged in fire protection’ as defined in Section
203(y) and are therefore partially exempt” under § 207(k). (Doc. 18 at 4). In addition,
Defendants argue that Plaintiffs have not pled sufficient facts “about the length and
frequency” of the alleged unpaid work to plausibly show that they are entitled to overtime
compensation. (Id. at 11).
A. Exemption in Section 207(k)
FLSA provides “for the payment of premium overtime compensation at one and
one-half times the regular rate when an employee works more than forty hours in a seven-
day week.” Cleveland v. City of Los Angeles, 420 F.3d 981, 985 (9th Cir. 2005) (citing 29
U.S.C. § 207(a)). However, section 207(k) provides an exemption to this rule for
“employment by public agency engaged in fire protection or law enforcement activities.”
§ 207(k). “Under this exemption, an employer must compensate fire protection employees
with payment of premium overtime payment only after 204 hours of work within a twenty-
seven-day period.” Cleveland, 420 F.3d at 985 (citing § 207(k)(2)). In 1999, Congress
amended FLSA to define an “employee in fire protection activities” as follows:
[O]ne who: (1) is trained in fire suppression; (2) has the legal
authority and responsibility to engage in fire suppression; (3)
is employed by a fire department of a municipality, county, fire
district, or State; and (4) is either engaged in the prevention,
control, and extinguishment of fires or responds to emergency
situations where life, property, or the environment is at risk.
Cleveland, 420 F.3d at 989 (citing 29 U.S.C. § 203(y) (emphasis added)).
In Cleveland v. City of Los Angeles, the Ninth Circuit considered whether the
plaintiffs, who were sworn firefighters, had the responsibility to engage in fire suppression
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when they were working as paramedics on ambulances within the meaning of FLSA. Id. at
984–89. The parties’ briefing in this matter contemplates the same question. (See Docs. 18,
22, 23). In Cleveland, the Ninth Circuit upheld the district court’s finding that the City did
not show that the firefighters acting as paramedics (“dual function paramedics”) had the
responsibility to engage in fire suppression based on the evidence in the record. Id. at 990–
91. The court’s decision was based on evidence including the kinds of equipment in the
ambulances as well as the type of work performed by the dual function paramedics. Id. at
990. Because it found that the City did not show the plaintiffs were employees engaged in
fire protection, the Ninth Circuit upheld the district court’s finding that the § 207(k)
exemption did not apply to the dual function paramedics.
Here, the parties dispute whether Plaintiffs meet the four requirements of section
203(y)—specifically, whether Plaintiffs have the responsibility to engage in fire protection
activities when working as paramedics or EMTs. However, the Court need not reach that
question in this Order. Even assuming Plaintiffs sufficiently allege that they do not have
the responsibility to engage in fire protection while working on the ambulance service,
their FLSA claim for failure to pay overtime still fails. As will be explained below,
Plaintiffs failed to provide sufficient facts to state a claim for failure to pay overtime wages
under FLSA.
B. Pleading Standard for FLSA claims
The Ninth Circuit first addressed “the degree of specificity required to state a claim
for failure to pay minimum wages or overtime wages under the FLSA” in light of Twombly
and Iqbal in Landers v. Quality Communications, Inc., 771 F.3d 638 (9th Cir. 2014). The
Ninth Circuit held that “in order to survive a motion to dismiss, a plaintiff asserting a claim
to overtime payments must allege that she worked more than forty hours in a given
workweek without being compensated for the overtime hours worked during that
workweek.” Id. at 644–45. It is not necessary for a plaintiff to plead with approximation
the number of overtime hours unpaid. Id. at 645 (“[W]e decline to make the approximation
of overtime hours the sine qua non of plausibility for claims brought under the FLSA.”).
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The court explained that plausibility is “context-specific,” and a plaintiff may establish a
claim “by estimating the length of her average workweek during the applicable period and
the average rate at which she was paid, the amount of overtime wages she believes she is
owed, or any other facts that will permit the court to find plausibility.” Id. In short, a
plaintiff “should be able to allege facts demonstrating there was at least one workweek” in
which they worked over forty hours and were not compensated under FLSA. Id.
In the Amended Complaint, Plaintiffs do not plead facts to show that they worked
in excess of forty hours in any given week without being compensated for the excess time
in that week. Plaintiffs allege that the exemption “was improper and did not apply to
Plaintiffs and the other members of the Mesa [Fire Department] Collective during nearly
every work period from 2022-2024. As a result, from 2022-2024, Plaintiffs and the other
members of the Mesa [Fire Department] Collective are owed overtime compensation for
every work period that did not include time off due to vacation, sick leave, or a holiday.”
(Doc. 12 at 15, ¶ 46).2 This allegation appears to assert that Plaintiffs were improperly
exempted from overtime pay during “nearly every work period from 2022-2024.” Id.
However, the complaint does not allege that Plaintiffs are actually entitled to overtime
compensation during any given workweek because they worked in excess of forty hours in
a given week. See also Salazar v. Driver Provider Phoenix LLC, No. CV-19-05760-PHX-
SMB, 2020 WL 5748129, at *5 (D. Ariz. Sept. 24, 2020) (“Thus, the fact that the Plaintiffs
here are seeking class certification does not excuse them from alleging the named
Plaintiffs’ claims with sufficient factual detail.”).
In the Amended Complaint, Plaintiffs allege that they do not know, precisely, how
much they are owed by Defendant because “the employment and work records for
Plaintiffs and other members of the Mesa [Fire Department] Collective are in the exclusive
possession, custody and control of Defendant[].” (Doc. 12 at 16, ¶ 50). Indeed, the Ninth
2 Plaintiffs allege, for “notice purposes only,” that they are owed overtime
compensation for the weeks of February 26–March 3, 2023, July 30–August 5, 2023, and
November 2024. (Doc. 12 at 11, ¶ 32). However, Plaintiffs do not provide any explanation
behind that assertion. (See id.).
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Circuit has acknowledged that a plaintiff need not allege compensation owed “with
mathematical precision” because “most (if not all) of the detailed information concerning
a plaintiff-employee’s compensation and schedule is in the control of the defendants.”
Landers, 771 F.3d at 645–46 (citations omitted). However, Plaintiffs must still provide
some facts plausibly showing that they worked over forty hours a week but were not
compensated accordingly. Therefore, the Court will deny the amended complaint without
prejudice.
IV. CONCLUSION
Defendant Mesa’s Motion to Dismiss (Doc. 18) will be granted. Plaintiffs’ claims
are based on the overarching allegation that they should not be exempted as employees in
fire protection activities when they are working on the ambulance service, and therefore,
they are entitled to overtime pay. However, Plaintiffs do not allege sufficient facts to state
a claim for overtime payments because they do not allege that they worked in excess of
forty hours in any given workweek. Even assuming Plaintiffs are not exempted, there are
no facts upon which the Court can plausibly infer that Plaintiffs are entitled to overtime
pay under FLSA.
However, Plaintiffs will be granted leave to amend the complaint because additional
facts could cure this defect. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (“[A]
district court should grant leave to amend even if no request to amend the pleading was
made, unless it determines that the pleading could not possibly be cured by the allegation
of other facts.”) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)).
Accordingly,
IT IS ORDERED that Defendant City of Mesa’s Motion to Dismiss Plaintiffs’
Amended Complaint (Doc. 18) is granted.
IT IS FURTHER ORDERED that that Amended Complaint (Doc. 12) is
dismissed without prejudice and with leave to amend.
IT IS FURTHER ORDERED that Plaintiffs are granted leave to file a Second
Amended Complaint in accordance with this Order no later than May 21, 2026.
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IT IS FINALLY ORDERED that if Plaintiffs elect not to file an amended
complaint by May 21, 2026, the Clerk of Court shall enter judgment dismissing this action
without further order of this Court.
Dated this 7th day of May, 2026.
Honorable Steven P. Logan
United States District Judge
Case 2:25-cv-02341-SPL Document 25 Filed 05/08/26 Page 7 of 7