United States District Court, D. Hawaii
THOMAS P. KIRSCH, Plaintiff,
LEI FLOOR AND WINDOW COVERINGS, INC., Defendant.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO DISMISS PLAINTIFF THOMAS P.
KIRSCH'S COMPLAINT AGAINST LEI FLOOR AND WINDOW
C. Kay Sr. United States District Judge
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.
Thomas P. Kirsch (“Plaintiff”) was hired by
Defendant LEI Floor and Window Coverings, Inc.
(“LEI” or “Defendant”) in July 2014
as “a Warehouse Personnel.” Compl. ¶ 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.
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
disability. Id. ¶ 13.
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.
filed a Motion to Dismiss Plaintiff's Complaint on
September 15, 2016. ECF No. 8. Plaintiff filed his Opposition
on December 19, 2016. ECF No. 11. Defendant filed its Reply
on December 26, 2016. ECF No. 13. The Court held a hearing on
the Motion to Dismiss on January 9, 2017.
Motion to Dismiss for Lack of Subject Matter
to Federal Rule of Civil Procedure (“Rule”)
12(b)(1), a party may move to dismiss based on a lack of
subject matter jurisdiction. “[T]he party asserting
subject matter jurisdiction has the burden of proving its
existence.” Robinson v. United
States, 586 F.3d 683, 685 (9th Cir. 2009) (citation
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.” Id. “By contrast, in a
factual attack, the challenger disputes the truth of the
allegations that, by themselves, would otherwise invoke
federal jurisdiction.” Id.
Motion to Dismiss for Failure to State a Claim
12(b)(6) authorizes the Court to dismiss a complaint that
fails “to state a claim upon which relief can be
granted.” 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