United States District Court, D. Hawaii
ORDER DENYING DEFENDANT ISLAND MOVERS INC.'S
MOTION TO DISMISS
Oki Mollway United States District Judge.
Hunter Jamile alleges that, while employed by Defendant
Island Movers, Inc., he suffered disability discrimination.
He sues under the Americans With Disabilities Act, 42 U.S.C.
§§ 12101 et seq.
Movers seeks dismissal, asserting a lack of jurisdiction and
a failure to state a claim. The motion is denied.
Complaint alleges that Island Movers hired Jamile as a
delivery driver on July 5, 2009. Id., Page ID # 2.
At the time, Island Movers was allegedly “fully
aware” of Jamile's disability involving his back,
neck, and right shoulder. Id. In 2013, Jamile
allegedly asked Island Movers to make an electric pallet jack
and/or a helper available as a reasonable accommodation in
light of his disability. Id. According to Jamile,
Island Movers provided the “requested accommodation on
some occasions, ” and, between February and November
2014, allowed Jamile “sporadic use of the electric
pallet jack and/or a helper as requested.”
Id., PageID # 3. Jamile allegedly informed Jared
Byrd, a “Dispatcher/Supervisor, ” that these
accommodations “were in place and had to be
February 11, 2014, Jamile allegedly injured his back while
working without the requested accommodations. Id. In
March 2014, he reportedly complained about Island Movers'
“failure to fully accommodate” his disability to
Shirley Kranz in Island Movers' human resources
department. Id. Jamile says Kranz did not
“address the situation” and “did not follow
up” with him. Id. Jamile alleges that he was
“not offered the same accommodations as other
employees, such as light duty and/or rehabilitation programs
and was suspended and then terminated, which was subsequently
rescinded.” Id., PageID # 3.
December 29, 2014, Jamile filed a disability discrimination
charge with the Equal Employment Opportunity Commission.
Id., PageID # 2. On January 26, 2016, the EEOC
issued a dismissal and right-to-sue letter. Id.,
PageID # 2. Jamile filed his Complaint on April 25, 2016.
STANDARD OF REVIEW.
motion to dismiss for lack of subject matter jurisdiction
under Rule 12(b)(1) may either attack the allegations of the
complaint as insufficient to confer upon the court subject
matter jurisdiction, or attack the existence of subject
matter jurisdiction in fact. Thornhill Publ'g Co. v.
Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th
Cir. 1979). When the motion to dismiss attacks the
allegations of the complaint as insufficient to confer
subject matter jurisdiction, all allegations of material fact
are taken as true and construed in the light most favorable
to the nonmoving party. See Fed'n of African Am.
Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th
Cir. 1996). When the motion to dismiss is a factual attack on
subject matter jurisdiction, however, the plaintiff's
allegations are not presumed true, and the existence of
disputed material facts will not preclude the trial court
from evaluating the existence of subject matter jurisdiction.
Thornhill, 594 F.2d at 733.
Movers brings a factual attack on this court's subject
matter jurisdiction. Island Movers says that Jamile filed his
ADA charge with the EEOC after the limitations period had
run. Island Movers is mistaken in thinking that a limitations
issue implicates this court's subject matter
jurisdiction. The ADA “adopts the procedural
requirements of Title VII.” Santa Maria v. Pacific
Bell, 202 F.3d 1170, 1176 (9th Cir. 2000), overruled
on other grounds by Socop-Gonzalez v. I.N.S., 272 F.3d
1176, 1194-96 (9th Cir. 2001) (en banc). “The Title VII
statute of limitations is not a jurisdictional requirement;
it may be waived, and equitably tolled.” Sloan v.
West, 140 F.3d 1255, 1262 (9th Cir. 1998). Accordingly,
this court does not examine Island Movers' challenge to
the timeliness of Jamile's EEOC filing under Rule
12(b)(1). The court instead considers the timeliness
challenge under Rule 12(b)(6).
Rule 12(b) (6).
12(b)(6) provides for dismissal for “failure to state a
claim upon which relief can be granted.” Under Rule
12(b)(6) of the Federal Rules of Civil Procedure, the
court's review is generally limited to the contents of
the complaint. Sprewell v. Golden State Warriors,
266 F.3d 979, 988 (9th Cir. 2001); Campanelli v.
Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996). If
matters outside the pleadings are considered, the Rule
12(b)(6) motion is treated as one for summary judgment.
See Keams v. Tempe Tech. Inst., Inc., 110 F.3d 44,
46 (9th Cir. 1997); Anderson v. Angelone, 86 F.3d
932, 934 (9th Cir. 1996). However, the court may take
judicial notice of and consider ...