                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA


    JAMES E. PIETRANGELO, II,

                  Plaintiff,

           v.                                              No. 18-cv-1943 (DLF)

    REFRESH CLUB, INC., et al.,

                  Defendants.


                                   MEMORANDUM OPINION

         Plaintiff 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.

I.       BACKGROUND

         The 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 company1 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).2 In this way, The Wing


1
  The parties dispute whether The Wing is a private club or a place of public accommodation, see
Compl. ¶¶ 10–11, but that dispute is irrelevant to the defendants’ motion to dismiss. Any
references to The Wing as a “company” or other entity should not be construed in any way as
resolving that dispute.
2
    The complaint contains two paragraph 11s, which the Court will refer to as 11(1) and 11(2).
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. ¶ 11(1)(x).

       At the 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 application3 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).

       Pietrangelo 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


3
 The Wing’s online application asks prospective members, among other things, “why the
applicant wants to join The Wing, how the applicant has supported women, and what the biggest
challenge facing women today is.” Compl. ¶ 11(ll). The application also asks prospective
members to submit a social-media profile, which the plaintiff alleges is used to discover the
applicant’s sex or gender identify. Id. ¶¶ 11(ll)–(mm).

                                                 2
day, Pietrangelo continues to be constructively denied membership through a permanent deferral

of his application. Id. ¶ 23.

       On 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).

       The 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. 15-2.4 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.

       The 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



4
  In response to the question, “Why do you want to become a member of The Wing?”
Pietrangelo noted that it “[l]ook[ed] like a great place to work and network in a nurturing
environment.” See Martinelli Decl. Ex. 1. When asked “[h]ow [he had] promoted or supported
the advancement of women” he responded that he had “always supported and advocated for
equality for all people.” Id. When asked what he thought was the “biggest challenge facing
women today” he replied: “[t]he same challenges facing men.” Id.

                                                 3
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.

       On 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

18.5




5
  After briefing on the motion to dismiss, Pietrangelo filed four motions asking this Court to take
judicial notice of various news articles, social-media posts, and websites. Dkts. 17, 18, 19, 20.
Because the defendants did not oppose these motions within the time provided in Local Civil
Rule 7(b), the Court will grant them as conceded. See Local R. Civ. P. 7(b) (if a party declines
to file a memorandum in opposition to a motion within fourteen days of service or such other
time as the Court directs, “the Court may treat the motion as conceded”). Ultimately, however,
these materials are not necessary to the Court’s decision, and the Court cites them below only to
the extent they include admissions by a party opponent and only for the limited purpose of
shedding additional light on the likelihood that The Wing might revert to its former practice of
excluding men despite its new policy to the contrary. See infra n.10.
                                                 4
II.    LEGAL STANDARD

       Under 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)).

       “When 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).6




6
  Although the defendants seek dismissal with prejudice, “a Rule 12(b)(1) dismissal for lack of
jurisdiction generally is not a decision on the merits and therefore should be without prejudice.”
Montgomery v. Comey, 752 F. App’x 3, 5 (D.C. Cir. 2019) (per curiam).



                                                  5
III.   ANALYSIS

       A.      Standing

       To 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).

       The 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.

       First, 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 Wing informed Pietrangelo that he “would automatically be denied

membership by The Wing simply because he is a man” (emphases added)).



                                                   6
       The Wing disagrees, arguing that Pietrangelo’s “own description of his application (as

well as his answers to the questions on the application) make clear that he would not have been

admitted regardless of the alleged gender discrimination.” Defs.’ Br. at 11. But the Wing

assumes too much. At this stage, Pietrangelo’s allegations must be presumed true, and all

reasonable inferences from those allegations must be drawn in his favor. Even if it turns out to

be true that Pietrangelo would have been denied membership in the Wing in the absence of a

discriminatory policy, that factual question is not for the Court to resolve on a motion to dismiss.

Although it is true that allegations receive “closer scrutiny” on a Rule 12(b)(1) motion than they

would if the Court were considering a Rule 12(b)(6) motion for failure to state a claim, Jeong

Seon Han, 223 F. Supp. 3d at 103, it is equally true that courts must avoid resolving issues

contested on the merits under the banner of standing, see, e.g., Schnitzler v. United States, 761

F.3d 33, 40 (D.C. Cir. 2014) (“[I]n reviewing the standing question, the court must . . . assume

that on the merits the plaintiffs would be successful in their claims.” (internal quotation marks

omitted)); Safe Food & Fertilizer v. EPA, 350 F.3d 1263, 1267 (D.C. Cir. 2003) (“[W]here

plaintiffs’ merits claim, if correct, would establish causation for standing purposes, that element

of standing is deemed adequately shown[.]” (citation omitted)); Ass’n of Am. R.R.s v. Dep’t of

Transp., 38 F.3d 582, 585 (D.C. Cir. 1994) (to establish standing, a party need only make

“colorable legal arguments that the injury” complained of was “caused by” the defendant’s

conduct); Public Citizen v. FTC, 869 F.2d 1541,1549 (D.C. Cir. 1989) (cautioning that parties

may not “bootstrap standing analysis to issues that are controverted on the merits”). That is

particularly true where, as here, the plaintiff has not yet had the benefit of discovery, and the

factual record remains incomplete. See Kern v. United States, 585 F.3d 187, 193 (4th Cir. 2009)




                                                  7
(“[W]hen the jurisdictional facts are inextricably intertwined with those central to the merits, the

court should resolve the relevant factual disputes only after appropriate discovery[.]”).

       Pietrangelo has adequately alleged that the sole reason for his exclusion from The Wing

was his gender and that no other, non-discriminatory reason justified that exclusion. Naturally,

The Wing disputes this allegation. But even assuming that Pietrangelo’s application failed to

establish a commitment to The Wing’s mission, it is far from clear at this stage that The Wing

would have viewed such a failure as a significant selection criterion at the time Pietrangelo

applied. Indeed, it is not even clear that The Wing applied any criteria other than gender in

evaluating prospective members. Although the complaint alleges that The Wing had many more

applicants than members, see Compl. ¶¶ 11(1)(hh), (kk), it also alleges that the application

process “was not rigorous or (significantly) selective,” id. ¶ 11(1)(ll), and that “there [wa]s little

to no real investigation of applicants before they [we]re granted membership,” id. ¶ 11(1)(yy).

More to the point, the complaint alleges that “The Wing’s only real membership criteria [wa]s

being or identifying as a woman” and that “the membership device” itself “[wa]s simply a

subterfuge to illegally exclude men.” Id. ¶ 11(1)(zz). As a result, the complaint alleges that “all

or virtually all . . . women who appl[ied] for membership in The Wing [we]re either granted

membership or [we]re put on waiting lists due to building capacities and [would be] eventually

granted membership.” Id. ¶ 11(1)(aaa).

       The Wing disputes these allegations and asserts in its motion that at the time Pietrangelo

applied, “the primary criterion for membership was an applicant’s commitment to The Wing’s

mission[.]” Defs.’ Br. at 4. But that assertion cannot be squared with the allegations in the

complaint. Nor is it supported by The Wing’s declarations, which concede that when Pietrangelo

applied, “The Wing’s practice was to admit as members only women and non-binary



                                                   8
individuals” and that The Wing adopted a formal policy of evaluating candidates “based on their

commitment to The Wing’s mission” only after Pietrangelo filed this suit. Gelman Decl. ¶¶ 6–7;

see also id. ¶ 9 (stating that The Wing’s employees would not be trained on this new admissions

policy until October 2018, four months after Pietrangelo was denied admission). In short, the

extent to which The Wing actually evaluated its prospective members’ commitment to women—

as opposed to their status as women—remains a contested issue central to the merits that the

Court cannot resolve at the motion-to-dismiss stage.

       Second, even if Pietrangelo had failed to allege but-for causation, it would not make a

difference because the DCHRA permits recovery where discrimination is merely one factor

among several in denying an individual access to public accommodations. See D.C. Code Ann.

§ 2-1402.31 (prohibiting the denial of public accommodations “wholly or partially for a

discriminatory reason based on” a person’s “actual or perceived[] . . . sex, . . . gender identity or

expression” (emphasis added)). “[U]nder the DCHRA,” a plaintiff “may prevail by proving that

the [defendant’s] action was motivated ‘partially’ by a discriminatory reason, even if it also was

motivated by permissible reasons not, in themselves, pretextual.” Furline v. Morrison, 953 A.2d

344, 353 (D.C. 2008). Thus, to prevail under the DCHRA, Pietrangelo need only show that his

gender was a reason for his exclusion—not that it was the sole or dispositive reason.

       The Wing counters that it is irrelevant that “local law” permits recovery without but-for

causation because the question for standing purposes is what level of causation the Constitution

requires. Defs.’ Reply at 1, Dkt. 15. But the Court is not aware of any authority suggesting that

Article III’s traceability requirement imposes a constitutional floor of “but-for” causation in

every case, regardless of the level of causation required to prevail on the merits. See Nat’l

Treasury Employees Union v. Whipple, 636 F. Supp. 2d 63, 73 (D.D.C. 2009) (“[Article III] does



                                                  9
not require that the challenged action must be the ‘sole’ or ‘proximate’ cause of the harm

suffered, or even that the action must constitute a ‘but-for cause’ of the injury[.]” (internal

quotation marks omitted)). To the contrary, in several contexts, the Supreme Court and D.C.

Circuit have expressly rejected standing challenges to claims premised on causation theories that

fall short of the strict but-for standard The Wing urges here. See, e.g., Massachusetts v. EPA,

549 U.S. 497, 523 (2007) (standing established where an agency’s refusal to act “contribute[d]”

to the plaintiff’s injuries); Cmty. for Creative Non–Violence v. Pierce, 814 F.2d 663, 669 (D.C.

Cir. 1987) (standing established where a defendant’s actions served as “a substantial factor

motivating [a] third part[y’s] actions”); Am. Rivers v. FERC, 895 F.3d 32, 42 (D.C. Cir. 2018)

(explaining that a plaintiff who challenges an agency’s failure to follow a legally mandated

procedure “need demonstrate only that the procedural step was connected to the substantive

result, not that the agency would have reached a different substantive result but for the alleged

procedural error” (internal quotation marks omitted)).7

       Third, The Wing focuses exclusively on Pietrangelo’s denial of admission as the relevant

injury-in-fact but ignores the numerous other injuries alleged in his complaint, including the

“indignity, embarrassment, humiliation, pain, suffering, mental anguish, and/or loss of



7
  Moreover, federal courts have repeatedly applied Title VII’s analogous “mixed-motive” or
“motivating-factor” standard without ever suggesting that they might lack subject-matter
jurisdiction to enforce it. See, e.g., Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 173–74 (2009)
(explaining that Title VII provides relief where “an improper consideration was a motivating
factor for an adverse employment decision” even if “other factors also motivated the practice”
(internal quotation marks omitted)); Ginger v. District of Columbia, 527 F.3d 1340, 1345 (D.C.
Cir. 2008) (explaining that a plaintiff “may bring a mixed-motive case” under Title VII “in
which he does not contest the bona fides of the employer’s justifications but rather argues race
was also a factor motivating the adverse action” (internal quotation marks omitted)). Likewise,
the D.C. Court of Appeals has never suggested that it lacks jurisdiction to enforce the DCHRA’s
“partial” discrimination standard, even though it “look[s] to federal standing jurisprudence” for
guidance in applying its own case-or-controversy requirement. Friends of Tilden Park, Inc. v.
District of Columbia, 806 A.2d 1201, 1206 (D.C. 2002) (internal quotation marks omitted)).
                                                  10
enjoyment of life” he allegedly experienced as “a direct and proximate result of The Wing’s

intentionally discriminatory policies, practices, acts, and conduct.” Compl. ¶ 30; see also id.

¶ 27 (alleging that The Wing’s “policies” and “statements” “demeaned” Pietrangelo and made

him “literally [feel] like a second-class citizen”). These stigmatic injuries do not turn on

Pietrangelo’s exclusion from or admission to The Wing. See, e.g., Heckler v. Mathews, 465 U.S.

728, 738 (1984) (male plaintiff established injury-in-fact based on stigmatic harm inflicted by a

statute that “subject[ed] him to unequal treatment . . . solely because of his gender” even though

he had no hope of obtaining the statutory benefit provided to women). Rather, Pietrangelo’s

emotional and dignitary injuries arise from his subjection to a discriminatory policy that, at the

very least, prevented him from competing for membership in The Wing on a level playing field.

See Lutheran Church-Missouri Synod v. FCC, 154 F.3d 487, 493 (D.C. Cir. 1998) (“[T]he

alleged victim of unequal treatment does not have to prove that the challenged policy was the

‘but for’ cause of his injury; the claim that the litigant was denied equal treatment is sufficient to

constitute Article III ‘injury in-fact.’”); see also Ne. Fla. Chapter of Associated Gen. Contractors

of Am. v. Jacksonville, 508 U.S. 656, 666 (1993) (“When the [defendant] erects a barrier that

makes it more difficult for members of one group to obtain a benefit than it is for members of

another group, a member of the former group seeking to challenge the barrier need not allege

that he would have obtained the benefit but for the barrier in order to establish standing.”).

       The two out-of-circuit cases on which The Wing relies do not require a different result.

See Yeager v. General Motors Corp., 265 F.3d 389 (6th Cir. 2001); Pugsley v. Police Dep’t of

Boston, 472 Mass. 367 (Mass. 2015). Neither case involved mixed-motive or motivating-factor

discrimination. Nor did the plaintiffs seek recovery for emotional injuries separate and apart

from the benefit (employment) ultimately withheld as a result of the challenged selection



                                                  11
process. In any event, the defendants in both cases selected candidates based on rigid, numerical

criteria that conclusively demonstrated that the plaintiffs could not have obtained a position even

on a level playing field. See Yeager, 265 F.3d at 395 (emphasizing that the defendant “hired fifty

apprentices,” and at least “fifty candidates with higher unadjusted [test] scores outranked [the

plaintiff]”); Pugsley, 472 Mass. at 371–72 (emphasizing that the defendant would have had to

hire “eighty-five candidates ranked ahead of the plaintiff on [an] eligibility list” before

considering him for a position). Here, by contrast, the parties dispute whether The Wing actually

applied any non-discriminatory criteria when considering applicants, and the only neutral

criterion The Wing points to (commitment to the advancement of women) is subjective and

potentially correlated with gender, raising factual questions of pretext that cannot be resolved on

a motion to dismiss.

       In short, Pietrangelo did allege but-for causation. But he was not required to under the

DCHRA or Article III. And, at any rate, he seeks to vindicate stigmatic injuries that do not rise

or fall on his admission to or exclusion from The Wing. For any one or all of these reasons, his

claim must proceed.

       B.      Amount in Controversy

       The Wing next argues that “Plaintiff has failed to meet his burden [of establishing the

amount-in-controversy requirement] to support diversity jurisdiction.” Defs.’ Br. at 15. The

Court disagrees.

       To invoke a court’s diversity jurisdiction, the value of a claim must exceed $75,000. 28

U.S.C § 1332(a). Further, “[w]hen a plaintiff invokes federal-court jurisdiction, the

plaintiff’s amount-in-controversy allegation is accepted if made in good faith.” Dart Cherokee

Basin Operating Co., LLC v. Owens, 135 S. Ct. 547, 553 (2014); see also Mt. Healthy City Bd. of

Ed. v. Doyle, 429 U.S. 274, 276 (1977) (“The sum claimed by the plaintiff controls if the claim is
                                                 12
apparently made in good faith.” (alteration adopted and internal quotation marks omitted)). “It

must appear to a legal certainty that the claim is really for less than the jurisdictional amount to

justify dismissal. The inability of plaintiff to recover an amount adequate to give the court

jurisdiction does not show his bad faith or oust the jurisdiction.” St. Paul Mercury Indemnity Co.

v. Red Cab Co., 303 U.S. 283, 289 (1938).

       According to The Wing, Pietrangelo “alleges in conclusory fashion that he is entitled to

$12 million in compensatory and punitive damages[.]” Defs.’ Br. at 15. But Pietrangelo

elsewhere requests relief “in excess of $75,000,” Compl. at 30, and the Court need not accept the

outer boundary of Pietrangelo’s claim for damages to conclude that he has alleged over $75,000

in damages in good faith, see Info. Strategies, Inc. v. Dumosch, 13 F. Supp. 3d 135, 140 (D.D.C.

2014) (“Even a cursory allegation of the amount in controversy, if it exceeds the jurisdictional

requirement, is sufficient to evade dismissal.” (citations and internal quotation marks omitted)).

Therefore, Pietrangelo’s request for monetary damages satisfies the amount-in-controversy

requirement unless it appears “to a legal certainty that the claim is really for less than the

jurisdictional amount[.]” St. Paul, 303 U.S. at 289.

       The Wing suggests that “[n]othing in the Complaint provides any plausible basis for

asserting that the damages from the inability to access The Wing . . . were anything more than de

minimis, let alone in excess of $75,000.” Defs.’ Br. at 15. But, in doing so, The Wing focuses

primarily on a single injury—Pietrangelo’s inability to obtain a suitable co-working space—and

underestimates the potential value of his emotional damages and other relief.

       Another district judge on this Court recently addressed this very issue in a case arising

under the DCHRA and D.C. Family Medical Leave Act, D.C. Code § 32–503(a). See Parker-

Williams v. Charles Tini & Assocs., Inc., 53 F. Supp. 3d 149 (D.D.C. 2014). After the defendant



                                                  13
there sought removal to federal court, the plaintiff filed a motion to remand on the grounds that

she had not satisfied the amount-in-controversy requirement. Id. at 151. The court found the

requirement satisfied despite the fact that the complaint only requested damages “in excess of

$5,000.” Id. The court explained,

       The compensatory damages alone may be sufficient to cross the $75,000 threshold.
       While Plaintiff argues that this is impossible because her monetary losses were limited to
       her annual earnings of $27,000, this ignores the fact that she is also demanding damages
       for emotional pain, suffering, inconvenience, mental anguish, [and] loss of enjoyment of
       life. While recovery under the DCFMLA is limited to monetary damages, the DCHRA
       allows for the award of non-pecuniary damages[.]

Id. at 152 (citations and internal quotation marks omitted). The plaintiff here requests similar

non-pecuniary relief—in an amount “in excess of $75,000”—and The Wing has failed to

demonstrate why he cannot recover that amount, to a legal certainty.

       The Wing suggests that Pietrangelo cannot recover the jurisdictional amount because the

DCHRA empowers the D.C. Human Rights Commission to seek no more than $50,000 in civil

penalties in public enforcement actions for violations of the statute. Defs.’ Br. at 16. But the

statutory provision The Wing cites, D.C. Mun. Regs. Tit. 4 § 212.6, limits only the recovery of

civil penalties in enforcement actions initiated by the D.C. Human Rights Commission—not the

recovery of compensatory and punitive damages by private plaintiffs. Indeed, courts and juries

have awarded damages for DCHRA violations in excess of this $50,000 threshold on numerous

occasions. See, e.g., Martini v. Fed. Nat’l Mortg. Ass’n, 977 F.Supp. 464, 479 (D.D.C. 1997)

(plaintiff in DCHRA gender-discrimination case awarded $100,000 in compensatory damages

for “emotional pain and suffering”), vacated on other grounds, 178 F.3d 1336 (D.C. Cir.

1999); Medina v. District of Columbia, 643 F.3d 323, 325, 328 (D.C. Cir. 2011) (plaintiff in

DCHRA race-discrimination case awarded $90,000 in compensatory damages for “emotional

distress and humiliation”).

                                                14
       Further, even if Pietrangelo’s compensatory damages alone were not enough to establish

jurisdiction, he also seeks punitive damages that could easily push the value of his claims over

the $75,000 threshold. See Kahal v. J. W. Wilson & Assocs., 673 F.2d 547, 549 (D.C. Cir. 1982)

(per curiam) (punitive damages can satisfy the amount-in-controversy requirement if they have

“a colorable basis in law and fact”). Contrary to The Wing’s suggestion, Pietrangelo alleges that

The Wing discriminated against him intentionally, with actual malice and evil intent.8

Pietrangelo could therefore, in theory, be entitled to punitive damages that far exceed any award

for actual damages. Parker-Williams, 53 F. Supp. 3d at 153 (explaining that “punitive damages

are considered a valid and sometimes even integral component of recovery under the DCHRA”

and that they are available “if the defendant acts with evil motive or actual malice” (internal

quotation marks omitted)). Although no precise mathematical formula governs the degree to

which punitive damages must be tethered to compensatory damages, the Supreme Court has

acknowledged the historic and widespread use of double, treble, and quadruple damages in

various legal contexts, and has suggested that single-digit multipliers will ordinarily be viewed

with less suspicion than double-digit multipliers. See State Farm Mut. Auto. Ins. Co. v.

Campbell, 538 U.S. 408, 425 (2003).

       Finally, in addition to compensatory and punitive damages, Pietrangelo seeks injunctive

relief that could require The Wing to incur significant compliance costs—for example, by

modifying its marketing materials, retraining its employees, or potentially making physical

alterations to its facilities to accommodate men. See Smith v. Washington, 593 F.2d 1097, 1099



8
  See, e.g., Compl. ¶ 31 (“The Wing’s illegal discrimination against Plaintiff as described above
was/is egregious: brazen, flagrant, intentional, willful, wanton, actually malicious, motivated by
evil and ill-will, deliberately oppressive, outrageous, and willfully and callously disregardful of
the rights of Plaintiff.”); id. ¶ 36 (same); ¶ 45 (same); ¶ 54 (same).

                                                 15
(D.C. Cir. 1978) (in valuing declaratory and injunctive relief for purposes of the amount-in-

controversy requirement, courts may look “to the cost to the defendants to remedy the alleged

[legal violation]”). The Wing urges the Court not to consider these costs because The Wing

already incurred them when it changed its policy voluntarily in August 2018. Defs.’ Reply at

11–12 n.7. However, it is well settled that the amount-in-controversy requirement is assessed as

of the date the complaint is filed, and “[e]vents occurring subsequent to the institution of suit

which reduce the amount recoverable below the statutory limit do not oust jurisdiction.” St.

Paul, 303 U.S. at 289–90; see also Cuneo Law Grp., P.C. v. Joseph, 920 F. Supp. 2d 145, 150

(D.D.C. 2013) (distinguishing between “subsequent events that change the amount in

controversy and subsequent revelations that, in fact, the required amount was or was not in

controversy at the commencement of the action” (internal quotation marks omitted)).

Accordingly, the prospect of changing The Wing’s practices and policies to conform to the

DCHRA must be considered and valued in assessing Pietrangelo’s claims.

       For all these reasons, it does not appear to a legal certainty that Pietrangelo’s claim for

damages and other relief is for an amount less than the jurisdictional requirement. Thus, he has

properly pled the amount in controversy necessary to establish diversity jurisdiction.

       C.      Mootness.

       Finally, The Wing asserts that Pietrangelo’s claims for injunctive, declaratory, and

monetary relief have become moot in light of The Wing’s newly adopted membership policy.

Defs.’ Br. at 19. The policy “provides that members will be selected based on [their]

demonstrated commitment to The Wing’s mission of the advancement of women, regardless of

[their] perceived gender or gender identity.” Id. at 5–6. The Wing is mistaken.




                                                 16
               1.      Declaratory and Injunctive Relief.

         It is well established that “[u]nder Article III of the Constitution, federal courts may

adjudicate only actual, ongoing cases or controversies.” Lewis v. Cont’l Bank Corp., 494 U.S.

472, 477 (1990). Further, the “actual controversy must be extant at all stages of review, not

merely at the time the complaint is filed.” Arizonans for Official English v. Arizona, 520 U.S.

43, 67 (1997) (internal quotation marks omitted). A claim becomes moot “when the issues

presented are no longer live or the parties lack a legally cognizable interest in the

outcome.” Schmidt v. United States, 749 F.3d 1064, 1068 (D.C. Cir. 2014) (internal quotation

marks omitted).

       An important exception this general rule is the doctrine of voluntary cessation. See

United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953) (“[V]oluntary cessation of allegedly

illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does

not make the case moot.”). Under this exception, intervening acts undertaken by the defendant

will render a case moot only when there is “no ‘reasonable expectation’ that the challenged

practice will resume after the lawsuit is dismissed.” Jews for Jesus, Inc. v. Hillsborough Cty.

Aviation Auth., 162 F.3d 627, 629 (11th Cir. 1998) (quoting County of Los Angeles v. Davis, 440

U.S. 625, 631 (1979)). “The defendant carries the burden of demonstrating that there is no

reasonable expectation that the wrong will be repeated[.]” Am. Bar Ass’n v. FTC, 636 F.3d 641,

648 (D.C. Cir. 2011) (internal quotation marks omitted); see also Friends of the Earth v. Laidlaw

Env’tl Servs., 528 U.S. 167, 190 (2000) (“[A] defendant claiming that its voluntary compliance

moots a case bears the formidable burden of showing that it is absolutely clear the allegedly

wrongful behavior could not reasonably be expected to recur.”).




                                                 17
       The intervening event said to end the live controversy in this case is The Wing’s new

membership admissions policy. Yet, at this stage of the proceeding, whether The Wing’s new

policy has actually cured the alleged discrimination remains in dispute. For example, The

Wing’s website describes the company as “[a] diverse community open to all.” Pl.’s Opp’n at 35

n.21, Dkt. 14. But it contained the same proclamation even before this action was filed—i.e., at

the exact time the company concedes that it admitted only female applicants. Id. The Wing

assures this Court of its recent commitment to equality, citing the “significant time and

resources” it has devoted to the adoption and implementation of the new membership policy.

Defs.’ Reply at 18. However, The Wing has yet to admit any male members or even adapt its

facilities to provide a restroom open to men, without which it can hardly be considered a

“diverse community open to all.” Pl.’s Opp’n at 34–35. Nor does The Wing claim to have

reconsidered Pietrangelo’s application in light of its new policy, making it useless to him as a

practical matter.

       In support of its position, The Wing catalogues several cases in which courts have found

claims moot in the face of a defendant’s voluntary act. See Defs.’ Br. at 20. But these cases

generally concern situations in which a defendant has expended great financial resources to

demonstrate its lasting commitment to the change, see, e.g., Houston v. 7-Eleven, No. 13-cv-

60004, 2014 WL 351970, at *4 (S.D. Fla. Jan. 31, 2014) (structural renovations to business site);

Profil Institut Fur Stoffwechselforschung GbmH v. ProSciento, Inc., No. 16-cv-2762, 2017 WL

3575621, at *1 (S.D. Cal. Feb. 22, 2017) (change in company name), or situations in which the

efficacy of the intervening change is not in dispute, see Guelich v. Mounds View Indep. Pub. Sch.

Dist. No. 621, 334 F. Supp. 1276, 1279 (D. Minn. 1972) (“[A]ll the facts taken together make it

clear that the burden of meeting [the voluntary cessation] requirement has been met. . . . There



                                                18
seems to be no question that plaintiff’s claims for declaratory and injunctive relief have thus

been mooted.”); Nat’l Min. Ass’n v. U.S. Dep’t of Interior, 251 F.3d 1007, 1011 (D.C. Cir. 2001)

(similar); Am. Bankers Ass’n v. Nat’l Credit Union Admin., 271 F.3d 262, 274 (D.C. Cir. 2001)

(similar). Neither situation is the case here. A vague allusion to having spent “significant time

and resources” on the adoption and implementation of the new policy is insufficient to support a

finding of mootness in light of the disputed evidence already discussed. Because it is not

“absolutely clear” that The Wing’s newly inaugurated membership policy will prevent further

gender discrimination, it cannot be said to moot the claims here. See Friends of the Earth, 528

U.S. at 190.9

                2.     Monetary Relief.

       Even if Pietrangelo’s claims for injunctive and declaratory relief were moot, his claim for

damages would remain ripe. It is widely recognized that voluntary cessation of an unlawful act

does not moot a viable claim for damages. See, e.g., Cook v. Colgate Univ., 992 F.2d 17, 19 (2d

Cir. 1993) (“[A] viable claim for damages generally avoids mootness of the action.”). Such

relief is intended to compensate an injured party for past conduct. Accordingly, The Wing’s

reliance on Daskalea v. Washington Human Society, 710 F. Supp. 2d 32 (D.D.C. 2010) and

Flanigan’s Enters. v. City of Sandy Springs, 868 F.3d 1248 (11th Cir. 2017) is misplaced. In

Daskalea, the court found the plaintiff’s sole claim for damages unviable as a matter of law. 710

F. Supp. 2d at 42. And Flanigan analyzed a claim for nominal damages, 868 F.3d at 1264,




9
  The possibility that The Wing might revert to its previous practice of excluding men is
particularly concerning in light of several recent social-media posts by The Wing or its CEO that
suggest to the public that The Wing continues to exclude men even under its new policy. See,
e.g., Second Mot. for Judicial Notice, Ex. 3, Dkt. 18 (promoting an event page that describes the
Wing as “a place for women and people of all marginalized genders” and urges would-be
attendees to “[p]lease note that The Wing is a space for women and nonbinary folks only”).
                                                19
whereas the plaintiff here seeks actual—and significant—damages. Finally, and contrary to The

Wing’s assertion, failure to plead economic injury does not moot Pietrangelo’s claim for

damages. Defs.’ Br. at 21. The DCHRA expressly permits damages for non-pecuniary injuries,

D.C. Mun. Regs. § 4-211.1, such as those allegedly suffered here. Accordingly, Pietrangelo’s

claim for monetary damages is not moot.

                                        CONCLUSION

       For the foregoing reasons, the Court denies the defendants’ Motion to Dismiss. The

plaintiff’s requests for judicial notice are granted as conceded under Local Civil Rule 7(b). A

separate order accompanies this memorandum opinion.




                                                            ________________________
                                                            DABNEY L. FRIEDRICH
                                                            United States District Judge
June 4, 2019




                                                20
