United States District Court, District of Columbia
JAMES E. PIETRANGELO, II, Plaintiff,
REFRESH CLUB, INC., et al., Defendants.
L. FRIEDRICH, UNITED STATES DISTRICT JUDGE
James E. Pietrangelo, II, proceeding pro se, filed a
complaint against Refresh Club, Inc. and The Wing DC, LLC
(collectively, The Wing), seeking monetary, injunctive, and
declaratory relief for alleged violations of the D.C. Human
Rights Act of 1977 (DCHRA), D.C. Code §§ 2-1401.01
et seq. Dkt. 1. Before the Court is the
defendants' Motion to Dismiss. Dkt. 11. For the reasons
that follow, the Court will deny the motion.
Wing is an emerging “network of work and community
spaces” that offers its members a forum for meeting and
working, as well as other amenities and programming.
Defs.' Br. at 1, Dkt. 11. The company was founded in
2016. Id. at 3. In addition to physical work and
meeting space, The Wing provides its members with on-site
dining, gym, and shower facilities, plus meditation rooms and
library services. Compl. ¶ 11(1)(h). In this way, The
Wing resembles other co-working networks such as WeWork (one
of The Wing's major investors). Id. ¶
11(1)(c). Yet The Wing differs from more traditional
co-working spaces in that it is specifically designed for and
marketed to women. Defs.' Br. at 1-3. For example, The
Wing offers screenings of female-directed films and
presentations by prominent female politicians. Compl. ¶
11(1)(h); Defs.' Br. at 3. And it sells tickets to public
events such as “Friday Night Feminism.” Compl.
¶ 11(1)(w). The Wing also produces its own print
magazine called No Man's Land. Id.
time this action was filed, The Wing operated facilities in
New York City and Washington, D.C., and had arrangements to
open additional locations in the coming years. Id.
¶ 8. To gain admission to The Wing, aspiring members
were required to answer a few questions in an online
application and pay between $215 and $250 per month.
Id. ¶¶ 11(1)(k), (ll). As of September
2018, more than 26, 000 people had applied to become members.
Gelman Decl. ¶ 4, Dkt. 11-3. As of the filing of the
plaintiff's complaint, The Wing had over 1, 500 members
across all its locations, and at least 349 of those members
used the D.C. location. Compl. ¶¶ 11(1)(hh), (kk).
lives in D.C., where he spends his time writing. Id.
¶ 15. Finding his apartment complex an unsuitable venue
for his work, Pietrangelo applied for membership at The
Wing's D.C. location on June 4, 2018. Id.
¶¶ 16-18. The next day, he spoke over the phone
with two employees of The Wing who informed him that his
application would be permanently deferred because the company
offered membership exclusively to women. Id.
¶¶ 21-23. To this day, Pietrangelo continues to be
constructively denied membership through a permanent deferral
of his application. Id. ¶ 23.
August 20, 2018, Pietrangelo brought this action for unlawful
sex discrimination. Dkt. 1. He argues that The Wing is a
“place of public accommodation” under the DCHRA
and that it unlawfully discriminated against him on account
of his gender. Compl. ¶¶ 9-11(2). Pietrangelo
repeatedly urges that, at the time he submitted his
application, it was both the practice and policy of The Wing
to exclude men from its membership. See, e.g.,
id. ¶¶ 9, 11(2).
Wing denies that its discriminatory practice had any impact
on Pietrangelo. At the time Pietrangelo applied, The Wing
claims it evaluated applicants primarily based on their
ostensible “commitment to The Wing's
mission-i.e., the advancement of women.”
Defs.' Br. at 4. Thus, according to The Wing, Pietrangelo
would have been denied admission regardless of his gender
because of his failure to demonstrate a sufficient commitment
to the company's mission of female community and
empowerment. Id. at 2, 7. As proof, The Wing offers
Pietrangelo's membership application. Martinelli Decl.
Ex. 1, Dkt. 15-2. The Wing argues that because of its
“highly selective” screening process-under which
only eight percent of applicants are granted
membership-Pietrangelo would have been denied admission even
if The Wing had not considered his gender. See
Defs.' Br. at 3-4, 10-14.
Wing concedes that its “practice” when
Pietrangelo applied for membership was to admit “only
women and non-binary individuals.” Id. at 5;
see also Gelman Decl. ¶ 6. But in August 2018,
shortly after this action was filed, The Wing adopted a
formal written policy to govern its admissions practices.
Gelman Decl. ¶ 7. The new policy “provides that
all applicants will be evaluated based on their commitment to
The Wing's mission, regardless of their perceived gender
or gender identity.” Id. The Wing updated its
website to reflect the new policy and made plans to begin
training its employees to implement the policy in October
2018. Id. ¶¶ 8-9. Aside from these two
steps, the extent to which the policy has actually been
implemented or applied remains uncertain.
September 26, 2018, The Wing filed a motion to dismiss
pursuant to Rule 12(b)(1) in which it advances three
arguments related to this Court's jurisdiction.
First, The Wing asserts that Pietrangelo lacks
standing because he failed to draw a causal connection
between his injuries and the defendants' alleged
exclusionary practice. Defs.' Br. at 10. Second,
The Wing argues that Pietrangelo has failed to properly plead
diversity jurisdiction because his claim for monetary damages
does not satisfy the amount in controversy requirement.
Id. at 14. Third, The Wing claims that its
newly formulated membership policy renders Pietrangelo's
claims moot. Id. At 18.
Rule 12(b)(1) of the Federal Rules of Civil Procedure, a
party may move to dismiss an action or claim when the court
lacks subject-matter jurisdiction. Fed.R.Civ.P. 12(b)(1). A
motion for dismissal under Rule 12(b)(1) “presents a
threshold challenge to the court's jurisdiction.”
Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir.
1987). Federal district courts are courts of limited
jurisdiction, and it is “presumed that a cause lies
outside this limited jurisdiction.” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
Thus, “the plaintiff bears the burden of establishing
jurisdiction by a preponderance of the evidence.”
Moran v. U.S. Capitol Police Bd., 820 F.Supp.2d 48,
53 (D.D.C. 2011) (citing Lujan v. Defs. of Wildlife,
504 U.S. 555, 561 (1992)).
ruling on a Rule 12(b)(1) motion, the court must treat the
plaintiff's factual allegations as true and afford the
plaintiff the benefit of all inferences that can be derived
from the facts alleged.” Jeong Seon Han v.
Lynch, 223 F.Supp.3d 95, 103 (D.D.C. 2016) (internal
quotation marks omitted). Those factual allegations, however,
receive “closer scrutiny” than they would if the
court were considering a Rule 12(b)(6) motion for failure to
state a claim. Id. Also, unlike in the Rule 12(b)(6)
context, a court may consider documents outside the pleadings
to evaluate whether it has jurisdiction. See Jerome
Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.
Cir. 2005). If, at any point, the court determines that it
lacks jurisdiction, the court must dismiss the claim or
action. Fed.R.Civ.P. 12(b)(1), 12(h)(3).
establish standing, a plaintiff must demonstrate (1) a
concrete injury-in-fact that is (2) fairly traceable to the
defendant's action and (3) redressable by a favorable
judicial decision. Summers v. Earth Island Inst.,
555 U.S. 488, 493 (2009). A court “has an independent
obligation to assure that standing exists, regardless of
whether it is challenged by any of the parties.”
Id. at 499. If standing does not exist, the court
may not “step where the Constitution forb[ids] it to
tread” by addressing the merits. Hancock v. Urban
Outfitters, Inc., 830 F.3d 511, 513 (D.C. Cir. 2016).
When evaluating whether a plaintiff has standing, a court
“must accept as true all material allegations of the
complaint, and must construe the complaint in favor of the
complaining party.” Warth v. Seldin, 422 U.S.
490, 501 (1975).
Wing contends that Pietrangelo's claim fails at the
second step-traceability- because he has not alleged but-for
causation. In The Wing's words, Pietrangelo “has
not properly pleaded that he would have been admitted [to The
Wing] absent the alleged gender discrimination and thus has
not pleaded that the allegedly discriminatory policy caused
him any injury.” Defs.' Br. at 2. This argument
fails for three reasons.
the Complaint does allege that The Wing refused to
admit Pietrangelo because of- and solely because of-his sex.
Although the complaint does not use the familiar label
“but-for” causation, it alleges that The Wing
denied Pietrangelo access to The Wing “simply
because he is a man, ” Compl. ¶¶ 25, 26
(emphasis added), and that “[t]here was no legitimate,
non-discriminatory reason or basis” for its decision,
id. ¶ 29; see also Id. ¶ 21
(alleging that a representative of The ...