                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA
____________________________________
                                    )
JANE DOE,                           )
                                    )
                      Plaintiff,    )
                                    )
       v.                           )                Civil Action No. 11-1755 (ABJ)
                                    )
DE AMIGOS, LLC                      )
d/b/a Spot Lounge, et al.,          )
                                    )
                      Defendants.   )
____________________________________)


                                 MEMORANDUM OPINION
       Plaintiff Jane Doe brings this action against defendants De Amigos, LLC and Mazin

Saleh arising from bodily and emotional injuries that she allegedly sustained from a sexual

assault that occurred after she had consumed alcohol at Spot Lounge D.C., which is operated by

defendant De Amigos.       Counts I through III of plaintiff’s complaint are asserted against

defendant Saleh and Counts IV through VI are asserted against defendant De Amigos.

Defendant De Amigos has moved for partial summary judgment or, in the alternative, to dismiss

Count VI, which asserts a claim for “reckless and willful disregard.” Def. De Amigos, LLC’s

Mot. for Partial Summ. J. Against Pl. as to Count VI, or in the alternative, Mot. to Dismiss Count

VI (“Def.’s Mot.”) [Dkt. # 44]. Because plaintiff improperly pled a claim for punitive damages,

the Court granted in part defendant’s partial motion to dismiss Count VI at a status conference

held on September 23, 2013. See Minute Entry (Sept. 23, 2013). The Court also granted in part

defendant’s motion for partial summary judgment regarding the availability of punitive damages

in this case because plaintiff has not proffered evidence of the aggravating circumstances

necessary to obtain punitive damages in this jurisdiction. See id.
                                      BACKGROUND

       For the purposes of this motion, the Court accepts the following factual allegations as

true. On October 2, 2010, plaintiff was invited to attend a party at Spot Lounge D.C. (“Spot

Lounge”). Compl. ¶ 7 [Dkt. # 3]. Spot Lounge is operated by defendant De Amigos, LLC.

Resp. to Request for Admission Ex. K to Lebowitz Decl. (“RFA Resp.”) [Dkt # 51-1]. On

October 3, 2010, plaintiff was admitted into Spot Lounge where she was served and consumed

several alcoholic beverages. Doe Dep. 82:1–83:3 Ex. C to Lebowitz Decl. (“Doe Dep.”) [Dkt #

51-1]. At the time, plaintiff was only 18 years old. Doe Dep. 48:8–22, 52:19–21. Plaintiff

became severely intoxicated, a condition described as “black out drunk,” which allegedly caused

her to lose consciousness and parts of her memory from that night. Brownlow Dep. 26:1–28:6

Ex. B to Lebowitz Decl. (“Brownlow Dep.”) [Dkt # 51-1]. Plaintiff alleges that her inebriation

allowed the co-defendant, Mazin Saleh, to carry her to his car where he sexually assaulted her.

Brownlow Dep. 29:8–30:14, 34:2–12.

       On September 30, 2011, plaintiff filed the complaint in this action against defendants De

Amigos, LLC and Mazin Saleh. See Compl. Counts I, II, and III are asserted against defendant

Saleh and respectively state common-law claims for battery, intentional infliction of emotional

distress, and reckless and willful disregard. Id. ¶¶ 52–71. Counts IV, V, and VI are asserted

against defendant De Amigos, LLC and respectively assert common-law claims for negligence,

negligence per se, and reckless and willful disregard. Id. ¶¶ 72–130. On January 18, 2013,

defendant De Amigos LLC filed the instant motion for partial summary judgment or, in the

alternative, motion to dismiss Count VI of the complaint, which alleges reckless and willful

disregard. Def.’s Mot. The motion does not contest Counts I through V of the complaint.




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                                    STANDARD OF REVIEW

         Although defendant De Amigos has styled its motion as a motion for partial summary

judgment or, in the alternative, a motion to dismiss, the Court will treat the alternative motion to

dismiss as a motion for judgment on the pleadings because defendant De Amigos filed an answer

to the complaint on November 7, 2011. Answer of Def. De Amigos [Dkt. # 7]; see Langley v.

Napolitano, 677 F. Supp. 2d 261, 263 (D.D.C. 2010) (“[A]s the standards for review are the

same under either Fed. R. Civ. P. 12(b) or 12(c), courts routinely treat motions to dismiss that are

filed after a responsive pleading has been made as a motion for judgment on the pleadings.”).

    I.      Judgment on the Pleadings

         A motion for judgment on the pleadings pursuant to Rule 12(c) may be granted “only if it

is clear that no relief could be granted under any set of facts that could be proved consistent with

the allegations.” Longwood Vill. Rest., Ltd. v. Ashcroft, 157 F. Supp. 2d 61, 66 (D.D.C. 2001),

citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). Put another way, “[i]f there are

allegations in the complaint which, if proved, would provide a basis for recovery, the Court

cannot grant judgment on the pleadings.” Nat'l Shopmen Pension Fund v. Disa, 583 F. Supp. 2d

95, 99 (D.D.C. 2008) (citation and internal quotation marks omitted).

         “The standard of review for such a motion is essentially the same as the standard for a

motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6).” Longwood, 157

F. Supp. 2d at 66–67. “To survive a [Rule 12(b)(6) ] motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007). In Iqbal, the Supreme Court reiterated the two principles underlying its decision in

Twombly: “First, the tenet that a court must accept as true all of the allegations contained in a



                                                   3
complaint is inapplicable to legal conclusions.” 556 U.S. at 678. And “[s]econd, only a

complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679.

         A claim is facially plausible when the pleaded factual content “allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. “The

plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer

possibility that a defendant has acted unlawfully.” Id., quoting Twombly, 550 U.S. at 556. A

pleading must offer more than “labels and conclusions” or “a formulaic recitation of the elements

of a cause of action,” id., quoting Twombly, 550 U.S. at 555 (internal quotation marks omitted),

and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice,” id. In evaluating a motion for judgment on the pleadings under Rule

12(c), the court may consider facts alleged in the complaint as well as documents attached to or

incorporated by reference in the complaint. Qi v. FDIC, 755 F. Supp. 2d 195, 199–200 (D.D.C.

2010).

   II.      Summary Judgment

         Summary judgment is appropriate “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). The party seeking summary judgment bears the “initial responsibility of informing the

district court of the basis for its motion, and identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if

any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat

summary judgment, the non-moving party must “designate specific facts showing that there is a

genuine issue for trial.” Id. at 324 (internal quotation marks omitted). The existence of a factual



                                                  4
dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 247–48 (1986). A dispute is “genuine” only if a reasonable fact-finder could find for the

non-moving party; a fact is only “material” if it is capable of affecting the outcome of the

litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In

assessing a party’s motion, the court must “view the facts and draw reasonable inferences ‘in the

light most favorable to the party opposing the summary judgment motion.’” Scott v. Harris, 550

U.S. 372, 378 (2007) (alterations omitted), quoting United States v. Diebold, Inc., 369 U.S. 654,

655 (1962) (per curiam).

                                           ANALYSIS

        Because this Court sits in diversity pursuant to 28 U.S.C. § 1332, the Court applies state

substantive law. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). The Court will apply

District of Columbia substantive law since both parties agree that District of Columbia

substantive law governs this matter. In re Korean Air Lines Disaster of Sept. 1, 1983, 932 F.2d

1475, 1495 (D.C. Cir. 1991) (Mikva, C.J., dissenting in part) (explaining that courts need not

address choice of law questions sua sponte).

   I.      The District of Columbia does not recognize a cause of action for “Reckless and
           Willful Disregard.”

        Defendant argues that the Court should dismiss Count VI because reckless and willful

disregard is not a cause of action in the District of Columbia. Since the Court finds that, even

accepting all of the allegations in the complaint as true, Count VI fails to state a claim upon

which relief can be granted, the Court will decide this aspect of defendant’s motion as a motion

for judgment on the pleadings.

        Under Count VI, plaintiff claims defendant “De Amigos acted recklessly and with willful

disregard for the rights and safety of plaintiff in failing to check her identification, providing or

                                                 5
selling alcohol to her at age 18, and continuing to serve alcohol to her when she was visibly

intoxicated.” Compl. ¶ 120 (emphasis added). Defendant contends that it “searched case law” in

the District of Columbia and could not find a “single case in which a plaintiff prevailed on a

cause of action for ‘reckless and willful disregard.’” Mem. in Supp. of Def. De Amigos, LLC’s

Mot. for Partial Summ. J. Against Pl. as to Count VI, or in the alternative, Mot. to Dismiss Count

VI (“Def.’s Mem.”) at 2 [Dkt. # 44]. Defendant also argues that plaintiff fails to provide the

requisite elements or guidance as to how the Court would rule on such a claim even if it did

exist. Id.

          Plaintiff responds that Count VI is a claim for punitive damages. Pl.’s Opp. to Def. De

Amigos LLC’s Mot. for Partial Summ. J. as to Count VI, or in the alternative, Mot. to Dismiss

Count VI (“Pl.’s Opp.”) at 4 [Dkt. # 45]. But punitive damages are a remedy, not a cause of

action. See Gharib v. Wolf, 518 F. Supp. 2d 50, 56 (D.D.C. 2007); see also Int’l Kitchen Exhaust

Cleaning Ass’n v. Power Washers of N. Am., 81 F. Supp. 2d 70, 74 (D.D.C. 2000) (dismissing

freestanding claim for punitive damages). Since “reckless and willful disregard” is not a cause

of action in the District of Columbia and plaintiff has conceded that it asserted Count VI merely

in an attempt to state a claim for punitive damages, the Court finds that Count VI fails to state a

claim upon which relief can be granted and, accordingly, will grant defendant’s motion to

dismiss it.

    II.       As a matter of law, punitive damages are not available to plaintiff.

          Defendant’s motion also raises a separate question of whether plaintiff is barred as a

matter of law from receiving punitive damages. A plaintiff is not automatically barred from

receiving punitive damages just because she improperly pleads punitive damages in her

complaint. Int’l Kitchen Exhaust Cleaning Ass’n, 81 F. Supp. 2d at 74. And here, plaintiff has



                                                 6
properly included punitive damages in her request for relief. Compl. at 18. Accordingly, the

Court will go on to address this second issue, but it finds that, under the summary judgment

standard, plaintiff has not come forward with sufficient evidence to show the requisite

aggravating circumstances that would make punitive damages available.

       “Punitive damages are warranted only when the defendant commits a tortious act

‘accompanied with fraud, ill will, recklessness, wantonness, oppressiveness, willful disregard of

the plaintiff’s rights, or other circumstances tending to aggravate the injury.’” Wash. Med. Ctr.,

Inc. v. Holle, 573 A.2d 1269, 1284 (D.C. 1990), quoting Parker v. Stein, 557 A.2d 1319, 1322

(D.C. 1989). The availability of punitive damages depends on “the intent with which the wrong

was done, and not on the extent of the actual damages.” Dalo v. Kivitz, 596 A.2d 35, 40 (D.C.

1991), quoting Holle, 573 A.2d at 1284. The plaintiff must provide “clear and convincing

evidence” that the defendant’s conduct was accompanied by a “state of mind evincing malice.”

Woodner v. Breeden, 665 A.2d 929, 938 (D.C. 1995).

       In the District of Columbia, punitive damages are generally available only in actions

arising from intentional torts. See Calvetti v. Antcliff, 346 F. Supp. 2d 92, 108 (D.D.C. 2004),

citing Jemison v. Nat’l Baptist Convention, U.S.A., Inc., 720 A.2d 275, 285 n.9 (D.C.

1998) (internal citations omitted). The District of Columbia does not allow recovery for punitive

damages for a showing of mere negligence. Harvey v. Mohammed, 841 F. Supp. 2d 164, 180–81

(D.D.C. 2012); Jackson v. Corr. Corp. of Am., 564 F. Supp. 2d at 29 (D.D.C. 2008), citing

Oliver v. Mustafa, 929 A.2d 873, 878 (D.C. 2007). “Rather, punitive damages are reserved for

only those tortious acts that are ‘replete with malice.’” Harvey, 841 F. Supp. 2d at 181, quoting

Zanville v. Garza, 561 A.2d 1000, 1002 (D.C. 1989).




                                                7
       Plaintiff maintains that her request for punitive damages is justified by (1) De Amigos’s

pattern of serving alcohol to underage minors without any regard for the law or the minors’

wellbeing, and (2) the level of intoxication that plaintiff reached at Spot Lounge. Pl.’s Opp. at

5–7. As evidence, plaintiff submits deposition testimony from Donato Antonio MarcAntonio

who works at the door of the Spot Lounge.              MarcAntonio Dep. Ex. F to Pl.’s Opp.

(“MarcAntonio Dep.”) [Dkt. # 45-3]. MarcAntonio states that the staff that works the door at

Spot Lounge do not do a good job of preventing underage individuals from entering the premises

and frequently do not ask for IDs. MarcAntonio Dep. at 24:18–26:17, 34:21–35:11. He states

that, on the night of the incident out of which this case arises, groups of people were permitted to

enter Spot Lounge without having their IDs checked. Id. 29:14–30:17. And he also states that

individuals often come out of Spot Lounge “highly intoxicated.” Id. 32:15–34:18.

       Plaintiffs have also submitted a D.C. Alcoholic Beverage Regulation Administration

Case Report and answers to interrogatories demonstrating that De Amigos was investigated for

sale of alcohol to minors or intoxicated persons and failing to check identification for the night

that the conduct out of which this case arises occurred, and that it entered into an “Offer in

Compromise” to resolve that case. Ex. J to Pl.’s Opp. [Dkt. # 45-3]; RFA Resp. ¶¶ 97–101. As

part of the offer in compromise, De Amigos served five days of suspension of its alcoholic

beverage license and paid $12,000. RFA Resp. ¶¶ 98, 101. In addition, De Amigos served five

additional days of suspension of its alcoholic beverage license related to a previous case before

the D.C. Alcoholic Beverage Regulation Administration. Id. ¶ 99.

       Plaintiff has also come forward with depositions of several students who state that they

and/or others were permitted to enter Spot Lounge on the night of the events giving rise to this

action, even though they were under twenty-one years of age. See Ex. J to Pl.’s Opp.; see also



                                                 8
Bagchi Dep. Ex. A to Pl.’s Opp., at 19:2–:6, 23:2–:7 [Dkt. # 45-3]; Brownlow Dep. at 20:13–:14;

Hasham Dep. Ex. E to Pl.’s Opp., at 37:1–:4 [Dkt. # 45-3]; Pritchard Dep. Ex. G to Pl.’s Opp., at

59:14–60:9 [Dkt. # 45-3]; First Velander Dep. Ex. H to Pl.’s Opp., at 8:11–10:7 [Dkt. # 45-3].

Plaintiff also presents evidence that her blood alcohol level reached .375% after consuming

alcohol at Spot Lounge that night. Ex. L to Pl.’s Opp. [Dkt. # 45-3].

       Plaintiff maintains that this evidence demonstrates willful or reckless disregard of

plaintiff’s safety. Pl.’s Opp. at 7–9. But while the evidence, construed in the light most

favorable to plaintiff, might show that De Amigos did not have the procedures in place that are

necessary to prevent the entry of individuals under the age of twenty-one and that De Amigos

violated D.C. law by permitting minors to enter the Spot Lounge premises and consume alcohol

on the night of the incident, it does not reveal any of the kind of aggravating circumstances that

are required under D.C. law for plaintiff to be entitled to punitive damages. Plaintiff does not

present evidence of De Amigos’s intent to harm plaintiff by serving her alcohol. Plaintiff does

not even present evidence showing that De Amigos acted in a way that would rise to the level of

reckless indifference to plaintiff’s rights. For example, there is no evidence that De Amigos

made efforts to attract underage individuals, with a reckless indifference to the harm that

consuming alcoholic beverages could cause them.         The evidence merely goes to whether

plaintiff’s injury was caused by De Amigos’s failure to put in place the procedures necessary to

prevent underage drinking.     This is a run-of-the-mill negligence case without any of the

aggravating circumstances that would make punitive damages available. See Nepera Chem., Inc.

v. Sea-Land Serv., Inc., 794 F.2d 688, 698 (D.C. Cir. 1986) (stating that “under the law of the

District of Columbia . . . ‘even gross negligence is insufficient’” for a court to assess punitive

damages); Harvey, 841 F. Supp. 2d at 180 (“[A] showing of negligence, even gross negligence,



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