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United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

DON DUNCAN, et al.,

Plaintiffs,

 v.

ALAMEDA COUNTY FIRE DEPARTMENT,

Defendant /

No. C-08-5486 MMC

ORDER GRANTING IN PART AND

DENYING IN PART DEFENDANT’S

MOTION TO DISMISS OR, IN THE

ALTERNATIVE, MOTION TO STRIKE

CLASS ALLEGATIONS; VACATING

MARCH 5, 2010 HEARING

Before the Court is defendant Alameda County Fire Department’s “Motion to Dismiss

(FRCP 12(b)(6)) or, in the Alternative, Motion to Strike Class Allegations in Third Amended

Complaint,” filed January 26, 2010. Plaintiffs Don Duncan, James Nelson, and Andrew

Storck have not filed a response. Having read and considered the papers filed in support

of the motion, the Court deems the matter suitable for decision on the moving papers,

VACATES the hearing scheduled for March 5, 2010, and rules as follows:

1. To the extent the motion seeks an order dismissing the Third Amended Complaint

(“TAC”) for failure to prosecute, the motion is hereby DENIED for the following reasons. 

First, although plaintiffs did not file a motion for class certification by the November 20,

2009 deadline (see Order, filed November 9, 2009), such failure to file does not constitute a

failure to prosecute, but, in effect, a determination by plaintiffs that they will proceed only

with their individual claims. Second, assuming plaintiffs have failed to serve initial

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In its motion, defendant asserts that plaintiffs have failed to “file” initial disclosures. 

(See Def.’s Mem. of P. & A., filed January 26, 2010, at 3:12-14, 4:8-9.) Plaintiffs are not,

however, required to file initial disclosures, but, rather, to serve them on defendant. See

Fed. R. Civ. P. 26(a).

2

Because “the pleadings are closed,” in that defendant has filed an answer to the

TAC, the Court construes this portion of the motion as a motion for judgment on the

pleadings. See Fed. R. Civ. P. 12(c).

2

disclosures,1 any such failure would not, on the showing made, warrant the ultimate

sanction of dismissal. Rather, pursuant to Rule 26(a)(3)(A) of the Federal Rules of Civil

Procedure, defendant may move to compel and for appropriate sanctions in connection

with such motion. See Henderson v. Duncan, 779 F. 2d 1421, 1423 (9th Cir. 1986)

(holding “[d]ismissal is a harsh penalty and is to be imposed only in extreme

circumstances”; directing district court to consider “availability of less drastic sanctions”

before dismissing action for failure to prosecute).

2. To the extent the motion seeks an order dismissing the TAC for failure to state a

cognizable overtime claim, the motion is hereby DENIED.2 Contrary to defendant’s

argument, the TAC alleges each plaintiff has worked overtime for which he was not

compensated. (See TAC ¶¶ 4-6, 18-20.) Further, although defendant asserts that plaintiffs

were “fully compensated” for the “drive time” at issue herein (see Def.’s Mem. of P. & A. at

4:25-26), such assertion is contradicted by the TAC, which is assumed true for purposes of

the instant motion. See Hal Roach Studios v. Richard Feiner & Co., 896 F. 2d 1542, 1550

(9th Cir. 1990) (holding, for purposes of motion for judgment on the pleadings, “allegations

of the non-moving party must be accepted as true”).

3. To the extent the motion seeks an order dismissing the claims made on behalf of

plaintiff James Nelson on the ground the statute of limitations on any such claim had run

before such claim was filed, the motion is hereby DENIED, as the motion is solely based on

material outside the pleadings, specifically, a declaration. See id. (holding “judgment on

the pleadings is improper when the district court goes beyond the pleadings to resolve an

issue”).

//

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4. To the extent the motion seeks an order striking the class action allegations in the

TAC, the motion is hereby GRANTED, for the reason plaintiffs have not filed a motion for

class certification within the time set forth by the Court. As a result, the instant action will

proceed solely on the individual claims of the three named plaintiffs.

IT IS SO ORDERED.

Dated: February 25, 2010 

MAXINE M. CHESNEY

United States District Judge

Case 3:08-cv-05486-MMC Document 65 Filed 02/25/10 Page 3 of 3