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DECROW v. HOTEL SYRACUSE CORP.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK


July 30, 1968

Karen DeCROW, President of the Syracuse Chapter of the National Organization for Women, Joy Osofsky, Vice-President and Joan Gordon Kennedy, Member, Plaintiffs,
v.
HOTEL SYRACUSE CORPORATION, Defendant

The opinion of the court was delivered by: PORT

MEMORANDUM - DECISION AND ORDER

 PORT, District Judge.

 The plaintiffs in this action seek a judgment:

 (1) declaring the defendant's refusal to serve an unescorted woman at a bar in the Rainbow Lounge in the Hotel Syracuse "illegal, discriminatory, and unconstitutional" and,

 (2) permanently enjoining "said defendant corporation from continuing their policy of refusing to serve unescorted women at their bar and * * * [insuring] such services to any women in the same fashion in which men are served."

 The defendant Hotel Corporation has moved to dismiss the complaint against all parties upon the grounds that it fails to state a claim upon which relief can be granted and that the court lacks jurisdiction over the subject matter of the action, and to dismiss against the plaintiffs DeCrow and Osofsky on the ground that they do not have capacity to sue. As alternative relief, the defendant moves to strike out certain paragraphs of the complaint.

 This case turns on the question of whether a privately owned hotel may refuse to serve an unescorted woman at the bar in one of its restaurants without running afoul of the Equal Protection Clause of the 14th Amendment, the Civil Rights Act (42 U.S.C.A. §§ 1983 & 1985), or section 704(b) of the Civil Rights Act of 1964 (42 U.S.C.A. § 2000e-3(b)).

 The plaintiffs are described in the title of the action as the president, vice president, and a member of the Syracuse Chapter of the National Organization for Women (N O W). The complaint may be briefly summarized as follows:

 On December 20, 1967, the defendant hotel refused to serve the plaintiff Joan Gordon Kennedy at its bar in the Rainbow Lounge, a restaurant in the Hotel Syracuse, in keeping with its established policy of not serving unescorted women at its bar "[although] she was sitting quietly and in no way disturbing any other patrons * * *." *fn1"

 The complaint fails to contain the "short and plain statement of the grounds upon which the court's jurisdiction depends" required by Rule 8(a), F.R.Civ.P. *fn2" It does charge that the defendant's conduct was unconstitutionally discriminatory, citing section 704(b) of the Civil Rights Act of 1964 (42 U.S.C.A. § 2000e-3(b)). *fn3"

 The plaintiffs recognize that the latter section deals with unlawful employment practices but analogize (in the complaint) that if preferences by reason of sex are limited in relation to employment practices, then "any discriminatory practice based solely on sex must be unconstitutional."

 Even a hasty examination of the Civil Rights Act of 1964 makes the fallacy of such analogy apparent. The conduct of hotels and restaurants is governed by section 201(a) of said Act (42 U.S.C.A. § 2000a(a)). *fn4" The full and equal enjoyment of public accommodations without discrimination on account of " race, color, religion, or national origin ", including the right to be served at a bar, has been guaranteed by Congress. No such guarantee has been made on account of sex. This court should not gratuitously do what Congress has not seen fit to do. Mrs. Kennedy's complaint should be addressed to Congress.

 Plaintiffs contend in their briefs that their complaint states a claim under 42 U.S.C.A. §§ 1983 & 1985 *fn5" and that 28 U.S.C.A. § 1343(3), (4) *fn6" affords a jurisdictional base. The short answer, so well established as not to require citation of authorities, is that these sections, like the Equal Protection Clause of the 14th Amendment, are only directed at state action, which is nowhere alleged in the complaint.

 The complaint should be dismissed for lack of jurisdiction over the subject matter. If jurisdiction existed, dismissal for failure to state a claim would be in order.

 In view of this disposition, the other questions raised by the parties require no discussion.

 For the reasons herein, it is

 Ordered that the defendant's motion to dismiss the complaint be and the same hereby is granted upon the following grounds:

 1. The court lacks jurisdiction over the subject matter of the action, and

 2. The complaint fails to state a claim upon which relief can be granted.


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