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July 14, 1987

Sharon Y. Lyles, Plaintiff,
Executive Club Ltd., Defendant; Lamontia Stafford, Olivia Whitaker, Plaintiffs, v. Executive Club Limited T/A Archibald's, Defendant

The opinion of the court was delivered by: GASCH

 Honorable Oliver Gasch, Senior Judge, United States District Court for the District of Columbia.


 The instant case requires the Court to consider allegations of constitutional injury. The plaintiffs are three women. *fn1" All claim to have been injured by defendant Archibald's nightclub ("Archibald's" or "the nightclub"), a bar located in Washington, D.C. The plaintiffs apparently entered the nightclub, requested service, were refused the same, and were thereafter ordered to leave the premises by agents of the establishment. The plaintiffs contend that they were denied service on the ground that Archibald's discriminates against either single women or single black women. *fn2" The plaintiffs contend that such denial of service in a place of public accommodation is violative of the equal protection clause of the fourteenth amendment to the Constitution and section 1-2519(a)(1) of the District of Columbia Code, prohibiting discriminatory practices in places of public accommodation. To redress the injuries allegedly sustained as a result of Archibald's conduct, the plaintiffs demand judgment in the sum of $ 11 million plus costs, fees, and interest. In response, Archibald's has filed a motion to dismiss on the ground that the plaintiffs have failed to state a claim upon which relief may be granted. The defendant's motion raises two defenses: (1) that reliance on the fourteenth amendment is inappropriate and (2) that Archibald's actions cannot be deemed state action within the meaning of the federal Constitution. For reasons hereafter provided, the Court agrees with the defendant's arguments and, accordingly, dismisses the plaintiffs' complaints.


 A. Fourteenth Amendment

 The fourteenth amendment to the United States Constitution states, in pertinent part, that no state shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV. All of the plaintiffs rely on this provision as the sole basis for proper federal jurisdiction. The plaintiffs concede that the purportedly offending governmental actor in this case is the District of Columbia. However, it is settled law that the fourteenth amendment is not applicable in the District of Columbia. See Neild v. District of Columbia, 71 App. D.C. 306, 110 F.2d 246, 256 (D.C. Cir. 1940). In lieu of the fourteenth amendment, the Supreme Court holds that litigants in the District of Columbia must rely upon the fifth amendment to the Constitution as a ground for claims of discrimination. See Bolling v. Sharpe, 347 U.S. 497, 499, 98 L. Ed. 884, 74 S. Ct. 693 (1954). Without more, this defect in pleading compels the Court to grant the defendant's motion to dismiss for failure of the plaintiffs to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6).

 B. State Action

 Pursuant to Federal Rule of Civil Procedure 15(a), the Court would ordinarily grant the plaintiffs leave to amend their complaints to properly state a claim on the basis of the fifth amendment. *fn3" However, the Court will not grant such leave in this case since assuming, arguendo, that the plaintiffs based their equal protection action on the fifth amendment, it would still fail to state a claim upon which relief can be granted.

 The Court must dismiss the plaintiffs' complaints unless they can demonstrate that the District of Columbia is sufficiently involved in the operation of Archibald's to permit the nightclub's actions to be termed "state action." The plaintiffs do not dispute their obligation to prove state action. However, they maintain that the Supreme Court requires only an allegation of state involvement to defeat a motion to dismiss. See United States v. Guest, 383 U.S. 745, 756, 16 L. Ed. 2d 239, 86 S. Ct. 1170 (1966). Plaintiffs' position is simply incorrect. In Guest, the criminal indictment at issue contained sufficient allegations of state involvement to withstand the defendant's motion to dismiss. Id. Thus, Guest merely stands for the proposition that where a complaint alleges sufficient state involvement, it should not be dismissed. Accordingly, in later cases, the Supreme Court has affirmed district courts' dismissals of constitutional claims which fail to allege state action with the sufficiency necessary to withstand a motion to dismiss. See Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349, 42 L. Ed. 2d 477, 95 S. Ct. 449 (1974). Accordingly, the Court rejects plaintiffs' attempt to block resolution of the defendant's motion to dismiss.

  The Supreme Court has repeatedly held that equal protection only prohibits discriminatory action by the government; private conduct, no matter how discriminatory or wrongful, is not regulated by the Constitution. See Blum v. Yaretsky, 457 U.S. 991, 1002, 73 L. Ed. 2d 534, 102 S. Ct. 2777 (1982). The District of Columbia, although it is a territory, is a governmental entity and, as such, its action may be considered state action for the purposes of constitutional analysis. Cf. Greenya v. George Washington Univ., 167 U.S. App. D.C. 379, 512 F.2d 556, 559 (D.C. Cir.), cert. denied, 423 U.S. 995, 46 L. Ed. 2d 369, 96 S. Ct. 422 (1975). Although the concept of state action has been frequently discussed by the Supreme Court, no precise definition has ever been articulated. The Supreme Court has written that,

to fashion and apply a precise formula for recognition of state responsibility under the Equal Protection Clause is an "impossible task" which "This Court has never attempted." Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.

 Burton v. Wilmington Parking Auth., 365 U.S. 715, 722, 6 L. Ed. 2d 45, 81 S. Ct. 856 (1961) (citations omitted).

 In the instant case, the defendant is a nightclub which offers its services to the general public. The only state action alleged by the plaintiffs is that Archibald's operates pursuant to a liquor license issued by the District of Columbia. Therefore, plaintiffs claim that the defendant is ...

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