08-5547-cv
Den Hollander v. Copacabana Nightclub
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_____________________
August Term, 2008
(Argued: August 24, 2009 Decided: September 1, 2010)
Docket No. 08- 5547 - cv
_____________________
Roy Den Hollander
Plaintiff-Appellant,
v. No. 08-5547-cv
Copacabana Nightclub, China Club, Lotus, Sol, Jane Doe Promoters and A.E.R. Lounge,
Defendants-Appellees,
Guest House and A.E.R. Nightclub,
Defendants.
Before: POOLER and WINTER, Circuit Judges, Judge MAUSKOPF*, District Judge.
____________________________________
Plaintiff-appellant Roy Den Hollander, individually and on behalf of a putative class of
similarly situated men, appeals the Rule 12(b)(6) dismissal of his Section 1983 action brought
against several New York City nightclubs for discriminating against men on “Ladies’ Nights.”
See Hollander v. Copacabana Nightclub, 580 F. Supp. 2d 335 (S.D.N.Y. 2008) (Cedarbaum, J.).
Upon review, we agree with the district court that the Nightclubs were not state actors.
*
The Honorable Roslynn R. Mauskopf, United States District Court for the Eastern District
of New York, sitting by designation.
Accordingly, we AFFIRM.
Roy Den Hollander, New York, N.Y., for Plaintiff-Appellant.
Joseph Salvo, Gordon & Rees LLP, New York, N.Y. (Christopher B.
Block, Thomas B. Coppola, on the brief), for Defendants-Appellees
______________________________
Per Curiam:
The facts of the case are straightforward. During “Ladies’ Nights,” several New York
City nightclubs (“Nightclubs”) charge males more for admission than females or give males less
time than females to enter the Nightclubs for a reduced price or for free. Den Hollander, who
was admitted to the Nightclubs under this admission regime, attributes these pernicious “Ladies’
Nights” to “40 years of lobbying and intimidation, [by] the special interest group called
‘Feminism’ [which] has succeed in creating a customary practice . . . of invidious discrimination
of men.” Den Hollander filed suit, on behalf of himself and others like him, alleging violation of
his equal protection rights pursuant to 42 U.S.C. § 1983.
Den Hollander alleges that the Nightclubs engage in state action by selling alcohol on
their premises under an extensive regulatory system. According to the amended complaint, the
Nightclubs operate in New York and are licensed to sell alcohol on their premises. The New
York Alcoholic Beverage Control Law (the “ABC Law”) closely regulates the manufacture, sale,
and distribution of alcoholic beverages in New York, and the New York State Liquor Authority
(the “SLA”) issues licenses in accordance with and oversees the implementation of the ABC
Law.
The district court dismissed Den Hollander’s Section 1983 claim after concluding that the
Nightclubs were not state actors. Without action on our part, Den Hollander paints a picture of a
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bleak future, where “none other than what’s left of the Wall Street Moguls” will be able to afford
to attend Nightclubs. Because, however, we agree with the district court that Den Hollander has
failed to sufficiently allege state action, we must affirm.
I. Discussion
We review de novo a district court’s decision to grant a motion for judgment on the
pleadings pursuant to Federal Rule of Civil Procedure 12(b)(6). Desiano v. Warner-Lambert &
Co., 467 F.3d 85, 89 (2d Cir. 2006). To survive a motion to dismiss, the complaint must set out
only enough facts to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009). This 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 Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “Where a complaint pleads facts that are ‘merely
consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and
plausibility of ‘entitlement to relief.’’” Id. (quoting Twombly, 550 U.S. at 557).
The only question before us is whether Den Hollander has adequately alleged that the
Nightclubs’ admission polices constituted state action. To assert a Section 1983 claim, Den
Hollander must plead that the Nightclubs’ conduct was done under the color of state law.
Sybalski v. Independent Group Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008)
(per curiam). State action “occurs where the challenged action of a private party is ‘fairly
attributable’ to the state,” Logan v. Bennington Coll. Corp., 72 F.3d 1017, 1027 (2d Cir. 1995)
(quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)), which is achieved when a
two-prong test is met:
First, the deprivation must be caused by the exercise of some right or privilege
created by the State or by a rule of conduct imposed by the State or by a person
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for whom the State is responsible. . . . Second, the party charged with the
deprivation must be a person who may fairly be said to be a state actor.
Lugar, 457 U.S. at 937.
1. Standard of Review
Before applying this test to the allegations in the complaint, however, we must address
Den Hollander’s argument that in gender discrimination cases, state action can be established by
a showing of a lesser degree of government involvement than in non-discrimination cases. He
argues that because “constitutional scrutiny for sex discrimination approaches that for color
discrimination,” and “it follows that the state action determination in sex cases should also
require a lesser degree of government involvement.”
We find Den Hollander’s pleadings so lacking that even under a lesser standard, he has
failed to allege state action. Therefore, it is unnecessary for us to decide if a lesser standard is
appropriate for gender discrimination cases. See Weise v. Syracuse University, 522 F.2d 397,
405 (2d Cir. 1975).
2. State Action
We analyze this case under both Lugar prongs, which are related, but not redundant.
Where the defendant’s “official character is such as to lend the weight of the state to his
decisions,” the two prongs collapse into a single inquiry. Lugar, 457 U.S. at 937. But where, as
here, the defendants are “without such apparent authority, i.e., . . . private part[ies],” the prongs
diverge. Id.
To prevail under either prong, Den Hollander must allege that the decision to adopt
discriminatory admission fees and rules is fairly attributed to the state. We have made clear that
a causal link between the harm and the state action is required: “[i]t is not enough . . . for a
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plaintiff to plead state involvement in some activity of the institution alleged to have inflicted
injury upon a plaintiff; rather, the plaintiff must allege that the state was involved with the
activity that caused the injury giving rise to the action.” Syblanski, 546 F.3d at 257-58
(quotation marks omitted). Under both prongs, this requisite link is lacking.
The causal connection is obviously missing under the first prong, which requires that the
deprivation be caused by a privilege or right granted by the state. The alleged deprivation here is
discriminatory admission prices, (“The deprivation is males paying more than females or
investing more of their time to gain admission.”), and the alleged grant by the state is the
privilege to sell alcohol. The link Den Hollander suggests is too attenuated to be causal: he
argues that the Nightclubs may only charge discriminatory prices because they sell alcohol –
without the draw of alcohol, his argument goes, the Nightclubs would not be popular
destinations and accordingly, would not be able to charge for admission. Regardless of the
veracity of this statement, we cannot agree that the state’s liquor licensing laws have caused the
Nightclubs to hold “Ladies’ Nights;” liquor licenses are not directly related to the pricing
scheme.
To plead the second prong, Den Hollander must allege that the Nightclubs are state
actors. The actions of nominally private entities are attributable to the state when those actions
meet one of three tests: 1. The “compulsion test:” “the entity acts pursuant to the ‘coercive
power’ of the state or is ‘controlled’ by the state,” 2. The “public function test:” “the entity ‘has
been delegated a public function by the [s]tate,’” or, 3. The “joint action test”or “close nexus
test:” “the state provides ‘significant encouragement’ to the entity, the entity is a ‘willful
participant in joint activity with the [s]tate,’ or the entity’s functions are ‘entwined’ with state
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policies.” Sybalski, 546 F.3d at 257(emphasis added) (quoting Brentwood Acad. v. Tenn.
Secondary Sch. Ath. Ass’n, 531 U.S. 288, 296 (2001) (citations and internal quotation marks
omitted)).
Den Hollander’s amended complaint fails under all three tests because Moose Lodge No.
107 v. Irvis directly refutes that a liquor license by itself may form a basis for state action. 407
U.S. 163, 177 (1972). It is with great reluctance that we call attention to a case upholding the
constitutionality of discrimination against African Americans, but until the Supreme Court
revisits Moose Lodge, we are required to follow its holding. In Moose Lodge, the Supreme Court
found no state action in race discrimination in the serving of food and beverages at a private club
(i.e. a club only open to its members and their guests). The Supreme Court specifically held that
a liquor license is insufficient to establish state action. Den Hollander alleges no basis for state
action other than the Nightclubs’ liquor licenses, therefore, his complaint is insufficient.
Accordingly we affirm the district court’s dismissal of his Section 1983 action against the
Nightclubs for gender discrimination.
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