Kirsch v LEI Floor and Window Coverings, Inc.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS PLAINTIFF THOMAS P. KIRSCH'S COMPLAINT AGAINST LEI FLOOR AND WINDOW COVERINGS, INC. re 8 - Signed by JUDGE ALAN C. KAY on 1/9/2017. "The C ourt DENIES Defendant's Motion to Dismiss for lack of subject matter jurisdiction, but GRANTS Defendant's Motion to Dismiss for failure to state a claim. The Complaint is DISMISSED WITHOUT PREJUDICE and with leave to amend. The Court DEN IES Defendant's request for attorneys' fees and costs as the request is premature. Plaintiff must file any amended complaint within thirty days of the entry of this Order or else judgment will be entered against him and this action will be closed. Any amended complaint must correct the deficiencies noted in this Order or Plaintiff's claims may be dismissed with prejudice." (emt, )CERTIFICATE OF SERVICEParticipants regis tered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
THOMAS P. KIRSCH,
LEI FLOOR AND WINDOW
) Civ. No. 16-00284 ACK-RLP
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO
DISMISS PLAINTIFF THOMAS P. KIRSCH’S COMPLAINT
AGAINST LEI FLOOR AND WINDOW COVERINGS, INC.
For the reasons set forth below, the Court GRANTS in
part and DENIES in part Defendant’s Motion to Dismiss Plaintiff
Thomas P. Kirsch’s Complaint Against LEI Floor and Window
Coverings, Inc. (“Motion to Dismiss”), ECF No. 8.
Plaintiff Thomas P. Kirsch (“Plaintiff”) was hired by
Defendant LEI Floor and Window Coverings, Inc. (“LEI” or
“Defendant”) in July 2014 as “a Warehouse Personnel.”
¶ 7, ECF No. 1.
On June 24, 2015, Plaintiff suffered a work-
related injury, which resulted in his physical disabilities.
Id. ¶ 8.
The same day he was injured, Plaintiff was informed by
John Burkett (“Burkett”), the owner of LEI, that he was
terminated from his employment.
Id. ¶ 9.
Burkett refused to
give any reasons for Plaintiff’s discharge, despite Plaintiff’s
request for clarification.
Id. ¶ 10.
Plaintiff was qualified for the position for which he
was terminated and was capable of performing his job duties.
Id. ¶¶ 11-12.
Plaintiff was terminated because of his
Id. ¶ 13.
Plaintiff filed his Complaint against Defendant on
June 2, 2016.
Plaintiff raises one claim against Defendant for
disability discrimination pursuant to the American with
Disabilities Act of 1990, based on his allegations that he was
terminated on account of his disability.
Compl. ¶¶ 14-20.
Defendant filed a Motion to Dismiss Plaintiff’s
Complaint on September 15, 2016.
ECF No. 8.
his Opposition on December 19, 2016.
filed its Reply on December 26, 2016.
ECF No. 11.
ECF No. 13.
held a hearing on the Motion to Dismiss on January 9, 2017.
Motion to Dismiss for Lack of Subject Matter Jurisdiction
Pursuant to Federal Rule of Civil Procedure (“Rule”)
12(b)(1), a party may move to dismiss based on a lack of subject
“[T]he party asserting subject matter
jurisdiction has the burden of proving its existence.”
v. United States, 586 F.3d 683, 685 (9th Cir. 2009) (citation
Challenges to the Court’s subject matter jurisdiction
can be facial or factual.
Safe Air for Everyone v. Meyer, 373
F.3d 1035, 1039 (9th Cir. 2004).
“In a facial attack, the
challenger asserts that the allegations contained in a complaint
are insufficient on their face to invoke federal jurisdiction.”
“By contrast, in a factual attack, the challenger disputes
the truth of the allegations that, by themselves, would
otherwise invoke federal jurisdiction.”
Motion to Dismiss for Failure to State a Claim
Rule 12(b)(6) authorizes the Court to dismiss a
complaint that fails “to state a claim upon which relief can be
Fed. R. Civ. P. 12(b)(6).
Rule 12(b)(6) is read in
conjunction with Rule 8(a), which requires only “a short and
plain statement of the claim showing that the pleader is
entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
The Court may
dismiss a complaint either because it lacks a cognizable legal
theory or because it lacks sufficient factual allegations to
support a cognizable legal theory.
Balistreri v. Pacifica
Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
In resolving a Rule 12(b)(6) motion, the Court must
construe the complaint in the light most favorable to the
plaintiff and accept all well-pleaded factual allegations as
Sateriale v. R.J. Reynolds Tobacco Co., 697 F.3d 777, 783
(9th Cir. 2012).
The complaint “must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
“The plausibility standard . . . asks for more than a
sheer possibility that a defendant has acted unlawfully.”
“Where a complaint pleads facts that are ‘merely consistent
with’ a defendant’s liability, it ‘stops short of the line
between possibility and plausibility of entitlement to relief.’”
Id. (quoting Twombly, 550 U.S. at 557).
When the Court dismisses a complaint pursuant to Rule
12(b)(6) it should grant leave to amend unless the pleading
cannot be cured by new factual allegations.
OSU Student All. v.
Ray, 699 F.3d 1053, 1079 (9th Cir. 2012).
Jurisdictional Issues and Failure to Plead that Defendant
Was a “Covered Employer”
Defendant first claims that Plaintiff failed to
properly allege jurisdiction because the Complaint claims the
Court has jurisdiction pursuant to the American with
Disabilities Act of 1990 (“ADA”) as opposed to the American with
Disabilities Act Amendments Act of 2008 (“ADAA”).
Support of Motion to Dismiss (“Mem.”), at 6.
The Court rejects
The ADAAA was passed by Congress in 2008 and amended
The purpose of the ADAAA was “[t]o restore the intent
and protections of the [ADA] of 1990.”
Rohr v. Salt River
Project Agric. Improvement & Power Dist., 555 F.3d 850, 853 (9th
Cir. 2009) (alteration in original) (quoting Pub. L. No. 110325, 122 Stat. 3553 (2008)).
The ADAAA rejected several United
States Supreme Court cases that provided a narrow definition of
the term “disability.”
Id. at 861.
Although the ADAAA applies
to Plaintiff’s case, the Court does not find Plaintiff’s failure
to plead jurisdiction under the ADAAA as destructive to his
Defendant has not cited any support to the contrary.
Defendant further claims that the Court lacks subject
matter jurisdiction over Plaintiff’s claim because Defendant is
not a covered employer as defined under the ADAAA.
Mem., at 6.
On this basis, Defendant argues that the Complaint should be
dismissed pursuant to Rule 12(b)(1).
The ADAAA prohibits a “covered entity” from
“discriminat[ing] against a qualified individual on the basis of
disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation,
job training, and other terms, conditions, and privileges of
42 U.S.C. § 12112(a).
A covered entity is defined
as “an employer, employment agency, labor organization, or joint
42 U.S.C. § 12111(2).
“[t]he term ‘employer’ means a person engaged in an industry
affecting commerce who has 15 or more employees for each working
day in each of 20 or more calendar weeks in the current or
preceding calendar year, and any agent of such person.”
U.S.C. § 12111(5)(A).
Defendant argues that it does not meet the definition
of a covered employer under the statute because it “never
employed” the requisite number of employees.
Mem., at 7.
support of its claim, Defendant attached to its Motion to
Dismiss a Declaration from John Burkett, Defendant’s owner,
stating that at the time Plaintiff was terminated, LEI “did not
have 15 or more employees for each working day in each of 20 or
more calendar weeks in the current or preceding calendar year.”
Burkett Decl. ¶ 3, ECF No. 8-2.
In turn, in his Opposition,
Plaintiff attached Burkett’s Hawaii Civil Rights Commission
(“HCRC”) “Response to a Complaint of Discrimination” in which he
appears to have indicated that LEI employs 15 individuals.
Brower Decl., Ex. 1, ECF No. 11-2.
In its Reply, Defendant
asserts that the latter statement from Burkett indicated the
“total number of different employees employed [by] LEI Floor
during the year” but that LEI never had “a total of 15 or more
[employees] at any one given time.”
Reply, at 3 (emphasis
omitted) (quoting Burkett Decl. ¶¶ 4-5, ECF No. 13-1).
The Court must first consider whether the employee
numerosity requirement in the ADA as amended by the ADAAA is
Defendant has not cited to any authority to
support its claim that the requirement is jurisdictional and
that Plaintiff’s Complaint should be dismissed for lack of
Several courts that have considered this
question, however, have determined that the ADA’s employee
numerosity requirement is nonjurisdictional and is instead a
substantive element of a plaintiff’s claim.
These decisions are
based on the United States Supreme Court’s decision in Arbaugh
v. Y&H Corp., 546 U.S. 500 (2006).
In Arbaugh, the Court was faced with the question of
whether the numerosity requirement in Title VII was
Id. at 503.
As with the ADA, Title VII
“limit[s] the definition of “‘employer’ to include only those
having ‘fifteen or more employees.’”
Id. (quoting 42 U.S.C.
The Court recognized the dangers in “conflat[ing]”
the question of “[s]ubject matter jurisdiction in federalquestion cases” with a “merits-related determination” and
cautioned against “drive-by jurisdictional rulings.”
Id. at 511
Noting that nothing in the text of Title
VII indicated that the employee numerosity requirement was meant
to be jurisdictional, the Court held that “when Congress does
not rank a statutory limitation on coverage as jurisdictional,
courts should treat the restriction as nonjurisdictional in
Id. at 516.
Accordingly, the Court concluded that
“the threshold number of employees for application of Title VII
is an element of a plaintiff’s claim for relief, not a
The reasoning of Arbaugh applies to the ADA and the
As with Title VII, there is no indication in the
ADA that the employee numerosity requirement is jurisdictional.
Moreover, it has been recognized that “courts often look to
Title VII—which defines ‘employer’ in essentially the same way
as the ADA—for guidance on ADA issues.”
Reynolds v. Am. Nat.
Red Cross, 701 F.3d 143, 155 (4th Cir. 2012); see also Pac.
Shores Properties, LLC v. City of Newport Beach, 730 F.3d 1142,
1158 n.19 (9th Cir. 2013) (noting that standards of proof under
Title VII apply to ADA claims).
Based on Arbaugh, several courts have determined that
the employee numerosity requirement in the ADA is
See Reynolds, 701 F.3d at 155 (“Thus,
Arbaugh dictates that the ADA’s employee threshold is not a
limit on jurisdiction but, rather, an element of the claim
itself.”); EEOC v. Pines of Clarkston, No. 13-CV-14076, 2015 WL
1951945, at *3 (E.D. Mich. Apr. 29, 2015) (“Proving the
threshold number of employees to be considered an ‘employer’
within the meaning of the ADA is an element of a plaintiff’s
claim for relief and is not jurisdictional.”); Dalton v. Manor
Care of W. Des Moines IA, LLC, 986 F. Supp. 2d 1044, 1053 (S.D.
Iowa 2013) (finding that “the ‘employer’ requirement in the
ADAAA is nonjurisdictional” and denying Defendants’ motion to
dismiss for lack of subject matter jurisdiction).
agrees with these rulings based on the Supreme Court’s decision
in Arbaugh, and accordingly DENIES Defendant’s Motion to Dismiss
for lack of subject matter jurisdiction. 1
The Court is aware of Fichman v. Media Center, 512 F.3d
1157, 1159-60 (9th Cir. 2008), in which the Ninth Circuit
affirmed the decision of the district court which had granted
summary judgment on plaintiff’s ADA claim for lack of subject
matter jurisdiction because the employer at issue had fewer than
fifteen employees. In Fichman, however, the issue on appeal did
not involve the question of jurisdiction. Rather, the question
on appeal was whether plaintiff “raised a genuine issue of fact
as to whether [plaintiff’s employer] employed a sufficient
number of employees to be an ‘employer’ governed by . . . the
ADA.” Id. at 1159. Moreover, in Fichman, as opposed to the
instant case, the court considered the issue on a summary
Although the language of the case is not entirely clear,
and the Ninth Circuit did not cite to Arbaugh, the court’s
conclusion that “[h]aving granted judgment on the federal
claims, the district court did not abuse its discretion in
declining to exercise supplemental jurisdiction over the state
claims,” id. at 1162-63, appears to indicate that the court was
ruling on the merits of the case as opposed to determining the
district court lacked jurisdiction. Indeed, if the district
court did not have subject matter jurisdiction over the federal
claims at issue, it would have no discretion to retain
jurisdiction over the state law claims. See Herman Family
Revocable Trust v. Teddy Bear, 254 F.3d 802, 806 (9th Cir. 2001)
(continued . . . )
The Court, however, must also consider Defendant’s
argument that the Complaint did not sufficiently plead that
Defendant was a covered employer.
As Defendant notes,
Plaintiff’s Complaint does not include allegations that
Defendant was a covered employer and had the requisite number of
Mem., at 7.
Because the numerosity requirement is
an element of Plaintiff’s claim, the Court finds that Plaintiff
has failed to state a claim under the ADA.
See Gaube v. Day
Kimball Hosp., No. 3:13-CV-01845 VAB, 2015 WL 1347000, at *9 (D.
Conn. Mar. 24, 2015) (finding plaintiff failed to state a claim
under the ADA where complaint did “not allege that either
defendant employed fifteen or more employees at any time”);
Coder v. Medicus Labs., LLC, No. 4:14-CV-7, 2014 WL 2984052, at
*2 (E.D. Tex. July 2, 2014) (recommending that the court grant
defendant’s motion to dismiss an ADA claim pursuant to Rule
12(b)(6) based on plaintiff’s failure to plead the numerosity
requirement); Mohan v. La Rue Distrib.’s Inc., No. 06-CV-621 FB
RLM, 2007 WL 3232225, at *1 (E.D.N.Y. Oct. 31, 2007) (ruling
that “[t]he complaint fail[ed] to state a claim because it [did]
not allege that defendant [was] a ‘covered entity’ under the
( . . . continued)
(“If the district court dismisses all federal claims on the
merits, it has discretion under § 1367(c) to adjudicate the
remaining claims; if the court dismisses for lack of subject
matter jurisdiction, it has no discretion and must dismiss all
ADA” and “fail[ed] to allege that defendant employed . . .
fifteen or more employees to satisfy the requirements of the
The Court grants Plaintiff leave to amend to correct
this deficiency. 2
Failure to Plead Disability
Defendant argues that Plaintiff has failed to plead
sufficient facts to show that she suffered from a disability.
Mem., at 7.
The Court agrees.
Under the ADA, a disability is defined as “a physical
or mental impairment that substantially limits one or more major
life activities of such individual;” “a record of such an
impairment;” or “being regarded as having such an impairment[.]”
The Court notes that if it were to consider the evidence
before it regarding the numerosity requirement, the evidence is
insufficient to make a determination as to whether Defendant is
a covered employer as defined by the ADA. The only evidence
currently before the Court on this issue are self-serving
declarations from Burkett indicating that he did not employ the
requisite number of employees and an apparently contradictory
statement from Burkett in response to an HCRC questionnaire
noting that he did employ the requisite number of employees.
Defendant’s Reply asserts that many of the employees at LEI
“were part time and did not meet the requirements of having
worked on ‘each working day in each of 20 or more calendar weeks
in the current or preceding calendar year.’” Reply, at 3-4.
However, this argument is not supported by evidence other than
the declaration from Burkett. If Defendant wishes to renew its
claim regarding the requisite number of employees (assuming an
appropriate amended complaint is filed), it should provide the
Court with concrete evidence to support its arguments. This
would likely be done in a motion for summary judgment attaching
42 U.S.C. § 12102(1).
Plaintiff has failed to plead which of
these three definitions apply.
In addition, Plaintiff has not
alleged that his disability “substantially limits one or more
major life activities” nor has Plaintiff pled facts supporting
such an allegation.
Indeed, Plaintiff has failed to identify
his disability or provide any facts whatsoever regarding his
Instead, Plaintiff’s Complaint contains the
barebones assertion that “Plaintiff suffered a work-related
injury, which led to his physical disabilities.”
Compl. ¶ 8.
Thus, Plaintiff’s Complaint fails to plead facts
sufficient to state a plausible claim for relief.
556 U.S. at 678.
Courts in the Ninth Circuit, including this
district court, have found similarly vague and conclusory
See, e.g., Jones v. Nat’l R.R.
Passenger Corp., No. 15-CV-02726-MEJ, 2016 WL 4538367, at *2
(N.D. Cal. Aug. 31, 2016) (holding disability claim was not
sufficiently pled where plaintiff merely stated she used a
scooter and was a “qualified individual with a disability”);
Khalid v. Bank of Am., N.A., Civ. No. 15-00182 DKW-KSC, 2015 WL
5768944, at *3 (D. Haw. Sept. 30, 2015) (determining that
plaintiffs’ allegations that “they had ‘medical problems,’”
“medical complications relating to a” heart blockage, and that
one of the plaintiffs “was scheduled for open heart surgery”
were insufficient to demonstrate that they were “disabled” under
the ADA); Gebelien v. Lay Out Etc., Inc., Civ. No. 11-00596 DAE,
2012 WL 12516602, at *3 (D. Haw. Jan. 20, 2012) (dismissing ADA
claim that “merely allege[d]” that plaintiff “‘suffer[ed] from a
medical illness and occasionally need[ed] medical treatment and
medication’ and that he ‘hurt his back’” because complaint did
not provide “details as to the nature of [plaintiff’s] alleged
illness and back injury, nor [did] it contain any facts showing
a substantial impairment of a major life activity”); Drawsand v.
F.F. Properties, L.L.P., 866 F. Supp. 2d 1110, 1119, 1121 (N.D.
Cal. 2011) (holding claim under the ADA was insufficiently pled
where complaint contained “conclusory assertion” that plaintiff
was “a disabled veteran”).
Accordingly, the Court GRANTS
Defendant’s Motion to Dismiss on this basis with leave to amend. 3
Defendant additionally claims that Plaintiff will be
unable “to truthfully plead that he has suffered a limitation of
his major life activities as a result of his forehead laceration
or that he was perceived to suffer a limitation of a major life
activity because of his transitory and minor injury.” Mem., at
9. As noted above, the Complaint does not state the specific
disability suffered by Plaintiff and Defendant’s claim regarding
Plaintiff’s forehead laceration is based on evidence not
appropriately before the Court at this time. Nonetheless, the
Court cautions Plaintiff that any amended Complaint should
comport with the requirements of the ADA as amended by the
Defendant also states in a footnote that Plaintiff failed
to properly plead a timely EEOC filing. Mem., at 9 n.6.
Defendant has not provided further argument on this issue and
the Complaint states that “[t]he administrative prerequisites
for filing this cause of action have been fulfilled.” Compl.
¶ 6. Thus, the Court does not find a reason to dismiss the
Complaint on this basis at this juncture.
For the foregoing reasons, the Court GRANTS in part
and DENIES in part Defendant’s Motion to Dismiss Plaintiff
Thomas P. Kirsch’s Complaint Against LEI Floor and Window
Coverings, Inc., ECF No. 8.
The Court DENIES Defendant’s Motion
to Dismiss for lack of subject matter jurisdiction, but GRANTS
Defendant’s Motion to Dismiss for failure to state a claim.
Complaint is DISMISSED WITHOUT PREJUDICE and with leave to
The Court DENIES Defendant’s request for attorneys’ fees
and costs as the request is premature.
Plaintiff must file any amended complaint within
thirty days of the entry of this Order or else judgment will be
entered against him and this action will be closed.
complaint must correct the deficiencies noted in this Order or
Plaintiff’s claims may be dismissed with prejudice.
IT IS SO ORDERED.
Honolulu, Hawaii, January 9, 2017.
Alan C. Kay
Sr. United States District Judge
Thomas P. Kirsch v. LEI Floor and Window Coverings, Inc., Civ. No. 16-00284
ACK-RLP Order Granting in Part and Denying in Part Defendant’s Motion to
Dismiss Plaintiff Thomas P. Kirsch’s Complaint Against LEI Floor and Window
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