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Kinnebrew v. Western Wholesale Supply, Inc.

United States District Court, D. Idaho

August 1, 2019

BRIAN KINNEBREW, Plaintiffs,
v.
WESTERN WHOLESALE SUPPLY, INC., an Idaho Corporation, and WESTERN WHOLESALE INSTALLED SALES, L.L.C., an Idaho Limited Liability Company, Defendants.

          MEMORANDUM DECISION AND ORDER

          David C. Nye Chief U.S. District Court Judge

         I. INTRODUCTION

         Pending before the Court are Defendants Western Wholesale Supply, Inc. and Western Wholesale Installed Sales, L.L.C.'s Motions to Dismiss. Dkt. 4; Dkt. 5. Also pending before the Court is Plaintiff Brian Kinnebrew's Motion to Strike a supplemental affidavit provided by Defendants in their Reply to their Motions to Dismiss. The Court held oral argument on July 1, 2019. Following discussion in open court, and for the reasons set forth below, the Court DENIES the Defendants' Motions to Dismiss and DENIES Kinnebrew's motion to strike.

         II. BACKGROUND

         Western Wholesale Supply, Inc. ("Wholesale Supply") and Western Wholesale Installed Sales, L.L.C. ("Installed Sales") (collectively, the "Companies") are building supply companies who do business out of the same building in Idaho Falls, Idaho.

         On November 21, 2018, Kinnebrew filed a complaint in the instant suit alleging the Companies discriminatorily fired him on the basis of his disability. In doing so, argued Kinnebrew, the Companies violated both the Americans with Disabilities Act[1]("ADA") and state law for wrongful termination in contravention of public policy.

         On March 4, 2019, prior to filing an answer or any other responsive pleading, the Companies filed separate Motions to Dismiss asking the Court to dismiss all claims for lack of jurisdiction. The Companies argue that the Americans with Disabilities Act only applies to employers with more than 15 employees, and because Installed Sales has less than 15 employees the act does not apply. The Companies also argue that Wholesale Supply and Installed Sales are separate and distinct companies in all relevant aspects and are thus not a "single employer" under the ADA. Thus, the Companies argued, the Court has no jurisdiction over the case.

         Kinnebrew requests that the Court either deny the Motions, or that the Court delay consideration under Federal Rule of Civil Procedure 56(d) until appropriate discovery can be conducted to determine whether the Companies are a "single employer" and/or have the sufficient number of employees to be held liable under the ADA.

         III. ANALYSIS

         A. Motion to Dismiss

         Congress has determined that the definition of "employer" in the context of an ADA claim includes only persons or entities who employ 15 or more employees. 42 U.S.C. § 12111(5)(A). If an employer does not meet this threshold requirement, it is not subject to liability under the ADA. Congress has also explained how to calculate who qualifies as an employee for the 15 person requirement:

(b) The term "employer" means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person.

Id. The Supreme Court has held that the threshold number of employees is not a jurisdictional question but "an element of a plaintiffs claim for relief." Arbaugh v. Y&H Corp., 546 U.S. 500, 516 (2006).

         In their initial Motions to Dismiss, the Companies argued that the Court had no jurisdiction over the case because the Companies are not an "employer" under the ADA. However, at oral argument, the Companies conceded that the Court has jurisdiction because the question of whether they are an employer under the ADA is not a jurisdictional question. Rather, it is a question pertaining to the merits of the case. Because the Companies concede ...


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