PATRICK J. DUGGAN, District Judge.
On March 11, 2010, Plaintiff American University of Antigua College of Medicine ("AUA") filed this lawsuit against Defendant Steven L. Woodward ("Woodward"), seeking to quiet his complaints about AUA
Presently before the Court is AUA's motion for summary judgment with respect to Counts I, II, and IV of its Complaint, filed pursuant to Federal Rule of Civil Procedure 56 on April 29, 2011.
AUA is a medical school located in Antigua which caters, in part, to students from the United States. AUA maintains a website with the domain name: www.auamed.org. Woodward is a former student of the medical school who was discharged without completion of his degree. Woodward filed a lawsuit against AUA and others regarding his discharge in Michigan state court, but was unsuccessful. See Woodward v. Trinity Health-Michigan, et al., No. 292172, 2011 WL 118812 (Mich.Ct.App. Jan. 13, 2011) (unpublished opinion) (Pl.'s Mot. Ex. A). He started the aua-med.com website apparently to express his dissatisfaction with AUA and his belief that AUA engages in various forms of wrongful conduct and misrepresents the safety of the island on which it is located and its students' passage rates on the United States Medical Licensing Examination ("USMLE").
Contending that Woodward's website threatens injury to its reputation, AUA filed the instant lawsuit along with a motion for preliminary injunction. That motion was resolved by agreement at a hearing on April 19, 2010, in light of Woodward's impending departure from the country due to an employment opportunity. This agreement required Woodward to inter alia modify his website to reflect on the main page that it is "under maintenance" or "under construction" and to rename the index file to prevent anyone from automatically going into the directory and bringing up its contents. Woodward also agreed to mark videos about AUA that he posted on YouTube "private" so they would not be accessible to anyone but himself.
According to AUA, in mid-July 2010, after Woodward returned to the country, he republished the contents of his website without first seeking and obtaining leave of the Court. AUA therefore filed a renewed motion for preliminary injunction on November 1, 2010. AUA sought injunctive
The Court did not make a finding with regard to AUA's likelihood of success on its defamation claim, but denied injunctive relief based on that claim due to "the First Amendment's `heavy presumption' against prior restraints" and "`nearly two centuries of widespread acceptance at common law ... that equity will not enjoin a defamation.'" (Doc. 72 at 6 (citing Kramer v. Thompson, 947 F.2d 666, 677-78 (3d Cir. 1991))); see also Lothschuetz v. Carpenter, 898 F.2d 1200, 1206 (6th Cir.1990) (quoting Cmty. for Creative Non-Violence v. Pierce, 814 F.2d 663, 672 (D.C.Cir.1987) ("`The usual rule is that equity does not enjoin a libel or slander and that the only remedy for defamation is an action for damages.'")) Although recognizing an exception prohibiting a defendant "`from continuing and reiterating the same libelous and defamatory charges' found to be false and libelous," the Court concluded that the exception is inapplicable where there has been no final determination that the statements to be enjoined are false and libelous. (Doc. 72 at 6.)
On November 8, 2010, shortly after filing its renewed motion for preliminary injunction, AUA sent Woodward requests for admissions. (Pl.'s Mot. Ex. D.) Pursuant to Federal Rule of Civil Procedure 36(a)(3), Woodward was required to answer the admissions within thirty (30) days or by December 8, 2010, or the matters would be deemed admitted. Woodward did not timely answer; however, he apparently served late responses to AUA's requests "at his reconvened deposition" which the Court gleans to have been in March 2011. (See id. at 3 and n. 2.) Neither party has provided the Court with a copy of Woodward's responses.
On December 27, 2010, Woodward filed a motion seeking the appointment of a pro bono attorney to assist him in defending against AUA's lawsuit. This Court referred the motion to Magistrate Judge Michael Hluchaniuk. On January 5, 2011, Magistrate Judge Hluchaniuk conditionally granted the motion based on the ability to obtain counsel willing to represent Woodward within ninety days.
While that search ensued, AUA filed its pending motion for summary judgment, relying in large part on Woodward's failure to timely answer its request for admissions. Woodward filed a response to the motion on May 19, 2011; AUA filed a reply brief on June 3, 2011. This Court delayed addressing AUA's motion for summary judgment, however, while the search for an attorney to represent Woodward was pending. The Court eventually identified and appointed counsel to represent Woodward on July 14, 2011; however, for reasons not relevant to the pending motion, Woodward asked the Court to withdraw the assignment. Woodward therefore is proceeding pro se in this matter.
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 central inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). After adequate time for discovery and upon motion, Rule 56(c) mandates summary judgment against a party who fails to establish the existence of an element essential to that party's case and on which that party bears the burden of proof at trial. Celotex
The movant has an initial burden of showing "the absence of a genuine issue of material fact." Id. at 323, 106 S.Ct. at 2553. Once the movant meets this burden, the "nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)). To demonstrate a genuine issue, the nonmoving party must present sufficient evidence upon which a jury could reasonably find for that party; a "scintilla of evidence" is insufficient. See Liberty Lobby, 477 U.S. at 252, 106 S.Ct. at 2512. The court must accept as true the non-movant's evidence and draw "all justifiable inferences" in the non-movant's favor. See id. at 255, 106 S.Ct. at 2513.
The Sixth Circuit has indicated that special or preferential treatment should not be granted to pro se parties, including when reviewing their responses to summary judgment motions. West v. Adecco Employment Agency, 124 Fed.Appx. 991, 992 (6th Cir.2005) (citing Brock v. Hendershott, 840 F.2d 339, 343 (6th Cir.1988)). Nevertheless, the Sixth Circuit recognized in West that courts have utilized a less stringent standard in construing the pleadings of a pro se litigant and indicated that "[t]his approach is consistent with [Federal Rule of Civil Procedure] 8(f), which provides that `[a]ll pleadings shall be so construed as to do substantial justice.'" Id. at 992-93.
Plaintiff seeks summary judgment based on its defamation, Lanham Act, and Anticybersquatting Consumer Protection Act claims.
The Lanham Act imposes liability for infringement of trademarks on:
15 U.S.C. § 1114. As the plain reading of the statute indicates, the Lanham Act only regulates the use of an infringing mark "in connection with the sale, offering for sale, distribution, or advertising of any goods or services." Id. Without this limitation on the breadth of activity covered, the statute would be unconstitutional. Taubman Co. v. Webfeats, 319 F.3d 770, 774 (6th Cir. 2003).
As the Sixth Circuit stated in Taubman: "The Lanham Act is constitutional because it only regulates commercial speech, which is entitled to reduced protections under the First Amendment." Id. (citing Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of New York, 447 U.S. 557, 563, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980)). The Tenth, First, and Ninth Circuits have commented that "... trademark rights cannot be used `to quash an unauthorized use of the mark by another who is communicating ideas or expressing points of view.'" Utah Lighthouse Ministry v.
AUA states in its brief in support of its motion for summary judgment:
(Pl.'s Br. in Supp. of Mot. at 9.) Taubman instructs, however, that Woodward's use does not fall under the Lanham Act's jurisdiction unless his use is commercial. Woodward is not selling, distributing, or advertising any goods or services on his website and the website does not contain links to any commercial sites.
AUA accordingly is not entitled to summary judgment based on its Lanham Act claim (Count I). Furthermore, the Court concludes that summary judgment for Woodward pursuant to Federal Rule of Civil Procedure 56(f) is appropriate with respect to this claim.
The ACPA provides, in pertinent part:
15 U.S.C. § 1125(d) (emphasis added). "Congress enacted [the ACPA] ... to address `a new form of piracy on the Internet caused by acts of `cybersquatting,' which refers to the deliberate, bad-faith, and abusive registration of Internet domain names in violation of the rights of trademark owners.'" Utah Lighthouse Ministry, 527 F.3d at 1057 (quoting S.Rep. No. 106-140, at 4 (1999)). As courts have further described, "`cybersquatting' occurs when a person other than the trademark holder registers the domain name of a well known
To prevail on a claim under the ACPA, a plaintiff must demonstrate the following:
Id. (citing Ford Motor Co. v. Catalanotte, 342 F.3d 543, 546 (6th Cir.2003)). The last element does not simply require a finding of bad faith, as AUA postures in its pending motion, but "a bad faith intent to profit."
The ACPA identifies nine factors a court may consider in determining whether the defendant has a bad faith intent to profit:
15 U.S.C. § 1125(d)(1)(B). "These factors are not considered exclusive or mandatory." Mayflower Transit, LLC v. Prince, 314 F.Supp.2d 362, 369 (D.N.J.2004) (citing Morrison & Foerster LLP v. Wick, 94 F.Supp.2d 1125, 1131 (D.Colo.2000) and Sporty's Farm LLC, 202 F.3d at 498).
359 F.3d 806, 811 (6th Cir.2004).
Similar to the present case, the defendant in Lucas Nursery registered the domain name "lucasnursery.com" to complain about the plaintiff's company, which the defendant believed provided her unsatisfactory services. Despite the fact that several factors weighed against the defendant, the Sixth Circuit held that the ACPA is not violated when a defendant creates a website, using the plaintiff's trademark as the domain name, solely to critique the plaintiff's goods or services. Lucas Nursery, 359 F.3d at 809-11. The court reasoned that "[t]he paradigmatic harm that the ACPA was enacted to eradicate the practice of cybersquatters registering several hundred domain names in an effort to sell them to the legitimate owners of the mark — [was] simply not present in any of [the defendant's] actions." Id. at 810. The court continued:
Id. at 811. Other courts have reached the identical conclusion: that registering a website with a domain name identical to or confusingly similar to the plaintiff's for the sole purpose of "cyber-griping" is not the type of activity made illegal by the ACPA. See Mayflower Transit, 314 F.Supp.2d at 369 (cases cited therein); Utah Lighthouse Ministry, 527 F.3d at 1058 (cases cited therein).
In the present matter, Woodward, according to AUA, is a disgruntled former medical student seeking revenge for his discharge from AUA's medical program. There is no evidence that he is seeking to profit from his use of the aua-med.com website, specifically that he ever attempted to sell the domain name to AUA or anyone else or that his website advertises or provides links to any goods or services. Instead, the evidence indicates that Woodward created the website exclusively as a means of expressing his anger and dissatisfaction with AUA and its medical program. Therefore, there is no evidence supporting a finding that Woodward's conduct violates the ACPA.
AUA accordingly is not entitled to summary judgment based on its ACPA claim (Count II). Furthermore, the Court concludes that summary judgment for Woodward pursuant to Federal Rule of Civil Procedure 56(f) is appropriate with respect to this claim.
To establish a claim for defamation under Michigan law, a plaintiff must show the following: "(1) a false and defamatory statement concerning [the] plaintiff; (2) an unprivileged publication to a third
The burden of proving falsity varies depending on the status of the plaintiff and the subject-matter of the statement. "Where the alleged defamation concerns both a private figure and a matter of private concern, the burden of proving that the statement was not false rests with the defendant. However, where the statements are of public concern, the private-figure plaintiff bears the burden of proving falsity."
The Supreme Court has provided an overview of the development of defamation law from a strict liability offense to one with certain exceptions due to First Amendment concerns:
Milkovich v. Lorain Journal Co., 497 U.S. 1, 12-14, 110 S.Ct. 2695, 2702-2703, 111 L.Ed.2d 1 (1990) (citations and quotation marks omitted). Over the years, protection of free expression has led the Court to expand on the categories of speech not actionable under state defamation law. Id. at 14, 110 S.Ct. at 2703 (citation omitted).
In Greenbelt Cooperative Publishing Association, Inc. v. Bresler, the Court held that, under the circumstances, a newspaper's reporting that some people had characterized a developer's negotiating position with the city as "blackmail" was not slander or libel.
Based on this same reasoning, the Supreme Court has found parodies, political cartoons, and satires generally entitled to First Amendment protection and non-actionable. See Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988). And in Ireland, the Michigan Court of Appeals concluded that the statement that Ireland "never" spent time with her child, although patently false, was an obvious expression of disapproval of the amount of time she did spend with the child. 230 Mich.App. at 618-19, 584 N.W.2d at 638. The Ireland court provided another example of a non-actionable statement:
Id. at 620, 584 N.W.2d at 639.
The Supreme Court, however, has rejected "a wholesale defamation exemption for anything that might be labeled `opinion.'" Milkovich, 497 U.S. at 18, 110 S.Ct. at 2705. Instead, the Court advised, the determination of whether a statement is actionable rests upon whether it is "provable as false." Id. at 18-19, 110 S.Ct. at 2705-06. "By way of example, the Court suggested that the statement `In my opinion Mayor Jones is a liar' would be potentially actionable, while the statement `In my opinion Mayor Jones shows his abysmal ignorance by accepting the teachings of Marx and Lenin' would not be actionable." Ireland, 230 Mich.App. at 616, 584 N.W.2d at 637 (citing Milkovich, 497 U.S. at 20, 110 S.Ct. at 2706). "[T]hese examples illustrate the difference between an objectively verifiable event, such as lying, and a subjective assertion, like "shows his abysmal ignorance ..."" Id. (citing Milkovich, 497 U.S. at 21-22, 110 S.Ct. at 2707).
Finally, the Michigan courts have held that "[l]anguage that accuses or strongly implies that someone is involved in illegal conduct crosses the line dividing strongly worded opinion from accusation of a crime," and such an accusation is "defamatory per se, meaning that special harm need not be proved." Kevorkian, 237 Mich.App. at 8, 602 N.W.2d at 237 (citations omitted). Under the circumstances in Kevorkian, however, the court indicated that "[a] statement that [the] plaintiff is a murderer" falls into the category of statements that may be necessarily subjective and also objectively verifiable and therefore not actionable. Id. at 6, 602 N.W.2d at 236. Thus the Michigan court "decline[d]... to hold as a matter of law that all accusations of criminal activity are automatically defamatory ..." Id. at 13, 602 N.W.2d at 239.
The Court now will analyze Woodward's purported defamatory statements based on the above precedent. The Court first will analyze whether the statements are actionable. Only as to any actionable statement will the Court determine whether AUA establishes the necessary elements of its defamation claim.
AUA provides the following examples of Woodward's alleged defamatory statements on his website, and relies on these statements in its pending motion to prove its defamation claim:
(Pl.'s Mot. Ex. D [Requests for Admission].)
In the request for admissions that AUA directed to Woodward on November 8, 2010, AUA asked Woodward to admit that (1) he published the above statements; (2) they are intended to be factual; (3) they are false; and (4) he knew they were false when they were published. (Id.) Because Woodward failed to timely answer AUA's request for admissions, AUA contends that the requests are deemed admitted and it, therefore has satisfied the corresponding elements of its defamation claim. To the extent any statement requires a showing of damages, AUA further provides an affidavit from its president stating: "AUA has suffered damages stemming from the Defendant's publication of his website www.aua-med.com." (Pl.'s Mot. Ex. H; Doc. 171 ¶ 10.)
As briefly mentioned earlier, under the Federal Rules of Civil Procedure, a request for admissions that is not responded to within the applicable time period "is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission." Fed.R.Civ.P. 36(b). Woodward has not filed a motion asking the Court to withdraw his admissions. Pursuant to Rule 36(b), "the court may permit withdrawal or amendment if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits." Id. Although Woodward has not filed a motion asking the Court to withdraw or amend his admissions, he has attempted to demonstrate in his pleadings and at hearings before the Court that his alleged defamatory statements are not false. Moreover, at hearings before the Court, he also has argued that the matters should not be deemed admitted because he eventually did respond to the request for admissions.
"A `district court has considerable discretion over whether to permit withdrawal or amendment of admissions.'" Id. at 154 (quoting Am. Auto. Ass'n v. AAA Legal Clinic of Jefferson Crooke, P.C., 930 F.2d 1117, 1119 (5th Cir.1991)). In exercising its discretion, however, the Court must follow Rule 36(b)'s instruction that withdrawal or amendment if proper only if (1) "it would promote the presentation of the
This Court believes that allowing Woodward to withdraw his admissions would not promote the presentation of the merits of the action and would prejudice AUA. As indicated below, many of the statements that AUA seeks to enjoin are not actionable. As to those statements that are actionable, Woodward is barred by the doctrine of collateral estoppel or res judicata from challenging whether they are false and/or his evidence fails to demonstrate that the statements are true.
The Court finds that the following alleged defamatory statements constitute subjective assertions that, under the circumstances, could not reasonably be interpreted as stating actual facts about AUA:
Woodward no longer states on his website that "AUA students are sexually assaulted" (see Request for Admissions No. 22 (emphasis added)); instead, he asserts: "AUA student sexually assaulted." See http://aua-med.com. Woodward presents evidence to show that this is a true statement. Similarly, Woodward no longer states that "AUA's student pass rate for USMLE medical board exams is only 22.9%." (Request for Admissions No. 28.) Instead Woodward states that "Antigua only has a 22.9% USMLE Pass Rate!" See id. (emphasis added). "A preliminary injunction is proper only to prevent an ongoing violation."
Woodward's statement that "Antigua is full of `rape, murder, fraud, and government corruption' and that therefore AUA is an unsafe place" (Request for Admission
This leaves the following alleged defamatory statements:
These statements concern AUA. It matters not whether these statements relate to matters of "public concern," as AUA demonstrates that they are false based upon Woodward's admissions and/or the Michigan Court of Appeals' decision in the case Woodward filed in state court. (See Pl.'s Mot. Ex. D.) As a further result of Woodward's admissions, AUA demonstrates that Woodward made an unprivileged publication of the statements. (See id.; see also Pl.'s Mot. Ex. A.) AUA, however, still must show "actionability of the statement[s] irrespective of special harm... or the existence of special harm caused by the publication ..." Kevorkian, supra.
The statements numbered 24, 25, and 33 constitute accusations of criminal activity and, as such, are "defamatory per se, meaning that special harm need not be proved." See Kevorkian, supra. AUA, therefore, must demonstrate the existence of special harm caused by the remaining statements. AUA satisfies its burden through the affidavit of its president, Neil Simon. (See Doc. 171 ¶ 10.)
As such, the Court concludes that AUA demonstrates that it is entitled to summary judgment with respect to its defamation claim concerning the following statements:
Otherwise, AUA fails to demonstrate that Woodward engaged in defamation.
AUA seeks an injunction preventing Woodward from publishing any defamatory content, whether on his website or by any other means. The Supreme Court
In Lothschuetz, however, the Sixth Circuit recognized that "First Amendment rights are not absolute ... [and] injunctive relief is appropriate if there is no adequate remedy at law." Id. at 1208-09 (Wellford, J., for the court, concurring in part, dissenting in part). The court granted "a narrow and limited injunction" as an exception to this rule, prohibiting the defendant "from continuing and reiterating the same libelous and defamatory charges" found to be "false and libelous." Id. The injunction must "be clearly and narrowly drawn so as not to prohibit protected expression." Lassiter v. Lassiter, 456 F.Supp.2d 876, 884 (E.D.Ky.2006), aff'd, 280 Fed.Appx. 503 (6th Cir.2008).
At this stage of the proceedings, AUA's only proof with respect to damages is its president's statement that "AUA has suffered damages stemming from the Defendant's publication of his website ..." (Doc. 171 ¶ 10.) Considering the sophistication (or lack thereof) of Woodward's website and the content of the website, this Court cannot conclude based on President Simon's affidavit, alone, that any damages could be significant. Any individual who views Woodward's website is immediately alerted to the fact that it is not the official website of AUA and would quickly discern that it is the website of a disgruntled and somewhat irrational former student. Nevertheless, in its motion for summary judgment, AUA asks the Court for the opportunity (if the Court grants its motion) to present proof of damages.
For the reasons set forth above, the Court concludes that AUA fails to demonstrate that it is entitled to summary judgment with respect to the claims alleged in its Complaint, except its claim that Woodward engaged in defamation. AUA's claims under the Lanham Act, Anticybersquatting Consumer Protection Act, and Family Educational Rights and Privacy Act of 1974 (Counts I-III, respectively) fail as a matter of law. Thus the Court is granting summary judgment to Woodward with respect to those claims pursuant to Federal Rule of Civil Procedure 56(f).
While the Court concludes that AUA is entitled to summary judgment with respect to its defamation claim (Count IV), the Court concludes that AUA prevails with respect to the following statements by Woodward, only:
The Court therefore is entering a permanent injunction, enjoining Woodward from continuing to publish these seven statements. The Court is scheduling a hearing on the issue of damages.
An Order consistent with this Opinion will issue.
Snyder v. Phelps, ___ U.S. ___, 131 S.Ct. 1207, 1211, 179 L.Ed.2d 172 (2011) (internal quotation marks and citations omitted).
