Brown v. Loudoun Golf & Country Club, Inc.

Decision Date17 October 1983
Docket NumberCiv. A. No. 83-0603-A.
Citation573 F. Supp. 399
CourtU.S. District Court — Eastern District of Virginia
PartiesArthur BROWN, et al., Plaintiffs, v. LOUDOUN GOLF AND COUNTRY CLUB, INC., et al., Defendants.

Jaclyn Leonard, Hall, Surovell, Jackson & Colten, P.C., Fairfax, Va., for plaintiffs.

Robert W. Ahrens (local counsel), Leesburg, Va., Pamela S. Horowitz, Steven E. Vagle, Morgan Associates, Chartered, Washington, D.C., for defendants Loudoun/Bogle.


RICHARD L. WILLIAMS, District Judge.

In June of 1982 James Bogle, the golf professional at defendants' golf club, ejected a foursome from defendant's golf course because one of the four, plaintiff Arthur Brown, is black. Brown was playing on the course as a guest of plaintiff Norman Green, a member of the Club. As a result of this incident, plaintiffs filed suit against the Club and James Bogle, alleging racial discrimination in violation of Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a, interference with contract, and intentional infliction of emotional harm. The matter is now before the Court on defendants' motions for dismissal or, in the alternative, for summary judgment.


Defendant Loudoun Golf and Country Club, Inc. operates a golf club in Purcellville, Virginia. Except when special tournaments are held, only members and their guests may use the course. The basic requirements for membership are payment of a $750.00 initiation fee,1 the signature of two members on a written application form, and the approval of the application by the Club's board of directors. Although the Club's bylaws require "good moral character", plaintiffs contend that the Club does nothing to enforce this provision apart from requiring the signatures of two current members on the application. The Club has adopted a membership ceiling of 450 members, a figure it claims to have attained in the past few months.

Fifteen years ago, possibly in response to a Department of Justice investigation into the Club's compliance with civil rights laws, the Club ended its former policy of permitting "registered guests" to use its facilities, replacing it with the current system. In 1980, the Club, which then numbered approximately 275, began a campaign to increase its membership, evidently by encouraging existing members to seek out new applicants.

It is unclear how many white applicants the Club has rejected for membership. John Rand, the Club manager, stated in his deposition that no one has been rejected since he started with the Club in March 1982. A.D. Bogle, the Club's secretary-treasurer, states in his reply affidavit that four whites were recently denied membership.

The Club, a non-profit organization, is controlled by shareholders who elect a board of directors that decides Club policy and approves membership applications. All shareholders are members. Although nonshareholder members may participate in the planning of day-to-day activities, they may not participate in the election of the board of directors.

Three times a year the Club's golf course is used for special golf tournaments. The Club donates its course to the Special Olympics and the Loudoun Memorial Hospital Golf & Tennis Classic, Inc. each once a year for a fund-raising golf tournament. The Club also holds the Middle Atlantic PGA Pro-Am Tournament, a yearly tournament in which out-of-state professionals and club members play.

The Club operates a restaurant, open only to members and their guests, and a pro shop, patronized by members, their guests and friends of the pro shop operator.


Defendants have moved for dismissal and/or for summary judgment on several grounds. As to plaintiffs' claims under Title II of the Civil Rights Act, defendants argue that the claims are time barred, that the Club is not within Title II's coverage, and that, alternatively, the Club is a "private club" exempt from Title II's provisions. As to plaintiffs' state claims, defendants urge the Court to refuse to assume pendent jurisdiction over them and, alternatively, contend that the claims should be dismissed on substantive grounds.

I. Statute of Limitations

The parties agree that because Title II does not specify a time limit for bringing an action, the most analogous state statute of limitation applies. The parties disagree about which Virginia limitation is most appropriate. While defendants argue that Virginia's one year catch-all limitation for "personal actions" applies, plaintiffs maintain that the two year limitation for "personal injury" actions applies. Va.Code §§ 8.01-243, 248.

Defendants' argument is based on an amendment to Virginia's limitation provisions that became effective in 1977. Both the amended and unamended provisions distinguish between actions for "personal injuries" and "personal actions". Unlike the amended version, however, the pre-1977 provisions further divided "personal actions" into survivable actions, for which the limitation period was five years, and non-survivable actions, for which the applicable period was one year. The limitation period for actions for "personal injuries" has always been two years. A long line of cases, construing the pre-amendment provisions, have held that civil rights actions fall into the "personal injury" category. See, e.g., Allen v. Gifford, 462 F.2d 615 (4th Cir. 1972); Hampton v. Roberts, 386 F.Supp. 609 (W.D.Va.1974). For example, in Almond v. Kent, 459 F.2d 200 (4th Cir.1972), the leading pre-amendment case applying Virginia's two year "personal injury" limit to civil rights claims, the court stated:

The right of recovery in a § 1983 suit depends upon federal considerations, and it is not one which is concerned with the archaic concepts of survivability of the common law.

459 F.2d at 204. Defendants concede that plaintiffs' action would have been timely under the pre-amendment provisions. But they contend that the 1977 amendment's abolition of the survivability distinction means that civil rights actions are now appropriately deemed "personal actions." They equate "personal injury" with physical injury to the body.2

The caselaw undercuts defendants' position. First, although Almond v. Kent, supra, rests in part on the survivability distinction contained in the pre-amendment provisions, its reasoning sweeps more broadly. The Almond court stated that even if a civil rights suit cannot be considered a "personal injury" action as defined by Virginia courts, such a suit is:

More important than those transitory torts for which a one year period is prescribed .... Accordingly, we think that it more properly belongs at the two-year step in Virginia's statute of limitation values.

459 F.2d at 204. This aspect of Almond's reasoning survived the 1977 amendment.

Second, post-amendment cases have continued to apply Virginia's two year "personal injury" limitation provision in civil rights actions, regardless of whether bodily injury was involved. See Howard v. Aluminum Workers International Union, 589 F.2d 771 (4th Cir.1978) (free speech claims); Cramer v. Crutchfield, 648 F.2d 943 (4th Cir.1981) (Fourth Amendment claims); United Steelworkers v. Dalton, 544 F.Supp. 291 (E.D.Va.1982).

II. Coverage under Title II

Title II prohibits "any place of public accommodation" from discriminating on the basis of race. 42 U.S.C. § 2000a(a). Defendants argue that the Club is not a place of public accommodation covered by Title II.

The Act defines a place of public accommodation as, inter alia, "any ... place of exhibition or entertainment" whose "operations affect commerce ...." 42 U.S.C. § 2000a(b)(3). The Club is clearly a "place of entertainment." In Daniel v. Paul, 395 U.S. 298, 89 S.Ct. 1697, 23 L.Ed.2d 318 (1969), the Supreme Court held that a recreational facility offering swimming, boating, and miniature golf qualified as a place of entertainment under Title II. The Court reasoned that "entertainment" encompasses direct participation in a sport as well as the viewing of sports activities as a spectator. Under Daniel's reasoning, the Club is a place of entertainment because its members directly participate in a sport.

A place of entertainment affects commerce "if it customarily presents ... athletic teams, ... or other sources of entertainment which move in commerce ...." 42 U.S.C. § 2000a(c). Plaintiffs argue that the three golf tournaments held on the Club's premises bring it within this language. Defendants respond that the Club does not "present" the tournaments held once each year on behalf of Loudoun Memorial Hospital Golf and Tennis Classic, Inc. and the Special Olympics respectively because it merely donates its facilities to these groups.

The Court need not decide the validity of defendants' interpretation of the statute because even assuming that the Club does not "present" these two tournaments, it does annually present a tournament in which out-of-state professionals and club members play. In Evans v. Laurel Links, Inc., 261 F.Supp. 474, 477 (E.D.Va.1966), the court held that a Virginia golf course "customarily presented" "athletic teams which moved in commerce" where a golf team from the District of Columbia played on the course once a year. The Court finds Evans indistinguishable from the case at bar.3

The Court accordingly holds that the Club is a place of public accommodation within the purview of Title II.4

III. Private Club Exemption

The defendants contend that even if the Club is a place of public accommodation within §§ 2000a(a), (b)(3), it is exempt as a "private club ... not in fact open to the public" under § 2000a(e). Defendants bear the burden of proving that the Club qualifies for the exemption. E.g., Nesmith v. YMCA, 397 F.2d 96 (4th Cir.1968).

In determining whether an establishment is a truly private club, courts have examined a variety of factors, including whether the club is truly selective about its members, whether the club made insubstantial changes in its prior...

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