American University of Antigua College of Medicine v. Woodward

Filing 184

OPINION and ORDER re 143 MOTION for Summary Judgment (Partial) Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
AMERICAN UNIVERSITY OF ANTIGUA
COLLEGE OF MEDICINE,
Plaintiff,
v.

Case No. 10-10978
Honorable Patrick J. Duggan

STEVEN L. WOODWARD,
Defendant.
____________________________/
OPINION
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 and shut down his internet website with the
domain name www.aua-med.com where many of his complaints are being published.
AUA alleges the following claims against Woodward in its Complaint: (I) trademark
infringement in violation of the Lanham Act, 15 U.S.C. § 1114; (II) infringement under
the Anticybersquatting Consumer Protection Act of 1999 (“ACPA”), 15 U.S.C.
§ 1125(d); (III) violation of the Family Educational Rights and Privacy Act of 1974, 20
U.S.C. § 1232g; and (IV) defamation in violation of Michigan law. AUA seeks a
permanent injunction prohibiting Woodward from publishing, on his website or by any
other means or medium, defamatory content or AUA proprietary information (including
student academic records other than his own). AUA also asks the Court to order
Woodward to forfeit the domain names he has registered using “AUA” and to award

damages.
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, 2011.1 The motion has been fully briefed and the Court held a motion
hearing on September 20, 2011.
Factual and Procedural Background
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(unpublished opinion) (Pl.’s Mot.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

1

AUA does not seek summary judgment based on Count III of its Complaint,
alleging a violation of the Family Educational Rights & Privacy Act of 1974. As this
Court indicated to AUA’s counsel at the hearing on AUA’s first preliminary injunction
motion, the Court does not believe that the statute creates a private cause of action. See
Gonzaga Univ. v. Doe, 536 U.S. 273, 287, 122 S. Ct. 2268 (2002). The Court therefore is
entering summary judgment for Woodward pursuant to Federal Rule of Civil Procedure
56(f) with respect to this claim.
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(“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 relief based on its defamation claim, only. In an opinion
and order issued December 16, 2010, this Court denied AUA’s motion.
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
3

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,
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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.
Standard for 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 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 (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 Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986).
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
5

issue for trial.’” Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587,
106 S. Ct. 1348, 1356 (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. App’x 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.

6

Applicable Law and Analysis
Plaintiff seeks summary judgment based on its defamation, Lanham Act, and AntiCybersquatting Consumer Protection Act claims.
Lanham Act
The Lanham Act imposes liability for infringement of trademarks on:
(1) Any person who shall, without the consent of the registrant–
(a) use in commerce any reproduction, counterfeit, copy, or colorable
imitation of a registered mark in connection with the sale, offering for sale,
distribution, or advertising of any goods or services on or in connection
with which such use is likely to cause confusion, or to cause mistake, or to
deceive; or
(b) reproduce, counterfeit, copy, or colorably imitate a registered mark and
apply such reproduction, counterfeit, copy, or colorable imitation to labels,
signs, prints, packages, wrappers, receptacles or advertisements intended to
be used in commerce upon or in connection with the sale, offering for sale,
distribution, or advertising of goods or services on or in connection with
which such use is likely to cause confusion, or to cause mistake, or to
deceive, . . .
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
7

Serv. Comm’n of New York, 447 U.S. 557, 563, 100 S. Ct. 2343 (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. Found. for Apologetic Info. and
Research, 527 F.3d 1045, 1052-53 (10th Cir. 2008) (quoting Bosley Med. Inst. v. Kremer,
403 F.3d 672, 675 (9th Cir. 2005) and L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d
26, 29 (1st Cir. 1987)). Thus the threshold question in evaluating AUA’s trademark
infringement claim is whether Woodward’s use of its mark is commercial. This is a
question that AUA has not satisfactorily addressed.
AUA states in its brief in support of its motion for summary judgment:
Here Plaintiff is indisputably involved in commerce by virtue of its
providing medical education services. As such, the trademark statute
applies since Defendant’s actions are “in connection with . . . services” in
that he seeks to curtail the services that Plaintiff provides.
(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.2 The Lanham Act therefore

2

Moreover, the Lanham Act is violated only if Woodward’s use of AUA’s mark
also creates a likelihood of confusion. Bird v. Parsons, 289 F.3d 865, 877 (6th Cir. 2002)
(citing Daddy’s Junky Music Stores, Inc. v. Big Daddy’s Family Music Ctr., 109 F.3d
275, 280 (6th Cir. 1997) (“Generally speaking, the key question in cases where a plaintiff
alleges trademark infringement . . . is whether the defendant’s action creates a likelihood
of confusion as to the origin of the parties’ goods or services.”)) The homepage of
(continued...)
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cannot be properly invoked in this case.
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.
AntiCybersquatting Consumer Protection Act (“ACPA”)
The ACPA provides, in pertinent part:
A person shall be liable in a civil action by the owner of a mark . . . if,
without regard to the goods or services of the parties, that person
(i) has a bad faith intent to profit from that mark . . . and
(ii) registers, traffics in, or uses a domain name that–
(I) in the case of a mark that is distinctive at the time of registration of the
domain name, is identical or confusingly similar to that mark;
(II) in the case of a famous mark that is famous at the time of registration of
the domain name, is identical or confusingly similar to or dilutive of that
mark; or
(III) is a trademark, word, or name protected by reason of section 706 of
Title 18 or section 220506 of Title 36.
15 U.S.C. § 1125(d) (emphasis added). “Congress enacted [the ACPA] . . . to address ‘a

2

(...continued)
Woodward’s website includes a disclaimer that it is not the official website of AUA.
Further, the website is unmistakably a forum for Woodward to criticize AUA. Under
these circumstances, there could be no confusion. See Taubman, 319 F.3d at 776-78; see
also Holiday Inns, Inc. v. 800 Reservation, Inc., 86 F.3d 619 (6th Cir. 1996) (finding the
existence of a disclaimer informative when finding no likelihood of confusion).
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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.2d 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 trademark and then attempts to profit from this by either ransoming the domain
name back to the trademark holder or by using the domain name to divert business from
the trademark holder to the domain name holder.” DaimlerChrysler v. The Net Inc., 388
F.3d 201, 204 (6th Cir. 2004) (citing Sporty’s Farm L.L.C. v. Sportsman’s Market, Inc.,
202 F.3d 489 493 (2d Cir. 2000)).
To prevail on a claim under the ACPA, a plaintiff must demonstrate the following:
(1) it has a valid trademark entitled to protection; (2) its mark is distinctive
or famous; (3) the defendant’s domain name is identical or confusingly
similar to, or in the case of famous marks, dilutive of, the owner’s mark;
and (4) the defendant used, registered, or trafficked in the domain name (5)
with a bad faith intent to profit.
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:
(I) the trademark or other intellectual property rights of the person, if any,
in the domain name;

10

(II) the extent to which the domain name consists of the legal name of the
person or a name that is otherwise commonly used to identify that person;
(III) the person’s prior use, if any, of the domain name in connection with
the bona fide offering of any goods or services;
(IV) the person’s bona fide noncommercial or fair use of the mark in a site
accessible under the domain name;
(V) the person’s intent to divert consumers from the mark owner’s online
location to a site accessible under the domain name that could harm the
goodwill represented by the mark, either for commercial gain or with the
intent to tarnish or disparage the mark, by creating a likelihood of confusion
as to the source, sponsorship, affiliation, or endorsement of the site;
(VI) the person’s offer to transfer, sell, or otherwise assign the domain
name to the mark owner or any third party for financial gain without having
used, or having an intent to use, the domain name in the bona fide offering
of any goods or services, or the person’s prior conduct indicating a pattern
of such conduct;
(VII) the person’s provision of material and misleading false contact
information when applying for the registration of the domain name, the
person’s intentional failure to maintain accurate contact information, or the
person’s prior conduct indicating a pattern of such conduct;
(VIII) the person’s registration or acquisition of multiple domain names
which the person knows are identical or confusingly similar to marks of
others that are distinctive at the time of registration of such domain names,
or dilutive of famous marks of others that are famous at the time of
registration of such domain names, without regard to the goods or services
of the parties; and
(IX) the extent to which the mark incorporated in the person’s domain name
registration is or is not distinctive and famous within the meaning of
subsection (c) of this section.
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

11

Morrison & Foerster LLP v. Wick, 94 F. Supp. 2d 1125, 1131 (D. Colo. 2000) and
Sporty’s Farm LLC, 202 F.3d at 498). Moreover, as the Sixth Circuit warned in Lucas
Nursery and Landscaping, Inc. v. Grosse, a reviewing court must evaluate the relevance
of these factors in light of the statute’s intended purpose:
The role of the reviewing court is not simply to add factors and place them
in particular categories, without making some sense of what motivates the
conduct at issue. The factors are given to courts as a guide, not as a
substitute for careful thinking about whether the conduct at issue is
motivated by a bad faith intent to profit.
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:
Perhaps most important to our conclusion are, [the defendant’s] actions,
which seem to have been undertaken in the spirit of informing fellow
consumers about the practices of a landscaping company that she believed
had performed inferior work on her yard. One of the ACPA’s main
objectives is the protection of consumers from slick internet peddlers who
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trade on the names and reputations of established brands. The practice of
informing fellow consumers of one’s experience with a particular service
provider is surely not inconsistent with this ideal.
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.
Defamation
Establishing Defamation
To establish a claim for defamation under Michigan law, a plaintiff must show the
13

following: “(1) a false and defamatory statement concerning [the] plaintiff; (2) an
unprivileged publication to a third party; (3) fault amounting at least to negligence on the
part of the publisher; and (4) either actionability of the statement irrespective of special
harm (defamation per se) or the existence of special harm caused by the publication
(defamation per quod).” DeCoe v. Gen. Motors Corp., 32 F.3d 212, 217 (6th Cir. 1994)
(quoting New Franklin Enters. v. Sabo, 192 Mich. App. 219, 221, 480 N.W.2d 326, 328
(1991)). Under Michigan law, “[a] communication is defamatory if, considering all the
circumstances, it tends to so harm the reputation of an individual as to lower that
individual’s reputation in the community or deter third persons from association or
dealing with that individual.” Kevorkian v. Am. Medical Ass’n, 237 Mich. App. 1, 5, 602
N.W.2d 233, 236 (1999) (citing Ireland v. Edwards, 230 Mich. App. 607, 614, 584
N.W.2d 632, 636 (1998)).
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.”3 J & J Constr. Co. v.

3

As to when speech involves a matter of public concern, the Supreme Court
recently provided:
Although the boundaries of what constitutes speech on matters of public
concern are not well defined, this Court has said that speech is of public
(continued...)
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Bricklayers & Allied Craftsmen, Local 1, 468 Mich. 722, 732 n.11, 664 N.W.2d 728, 734
n.11 (2003) (citing Rouch v. Enquirer & News of Battle Creek, 427 Mich. 157, 181, 398
N.W.2d 245 (1986), citing Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S.
Ct. 1558 (1986)). The plaintiff’s status has some implication with respect to the element
of fault, as well. A private party plaintiff, regardless of whether the statement is one of
public or private concern, need only show negligence and is “not required to show malice
on the part of the defendant.” Rouch, 427 Mich. at 202-03, 398 N.W.2d at 265. Whereas
for public figures4, the plaintiff must prove that the defendant acted with “actual malice,”
which requires knowledge or reckless disregard for the falsity of the statement. New York
Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct. 710, 726 (1964).
Protection of Free Expression
The Supreme Court has provided an overview of the development of defamation

3

(...continued)
concern when it can be fairly considered as relating to any matter of
political, social, or other concern to the community, . . . or when it is a
subject of general interest and of value and concern to the public . . .. A
statement’s arguably inappropriate or controversial character . . . is
irrelevant to the question whether it deals with a matter of public concern.

Snyder v. Phelps, – U.S. – , 131 S. Ct. 1207, 1211 (2011) (internal quotation marks and
citations omitted).
4

Pursuant to Supreme Court precedent, public figures include “[t]hose who, by
reason of the notoriety of their achievements or the vigor and success with which they
seek the public’s attention, are properly classed as public figures and those who hold
governmental office.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S. Ct. 2997,
3008 (1974).
15

law from a strict liability offense to one with certain exceptions due to First Amendment
concerns:
As the common law developed in this country, apart from the issue of
damages, one usually needed only allege an unprivileged publication of
false and defamatory matter to state a cause of action for defamation . . .
However, due to concerns that unduly burdensome defamation laws could
stifle valuable public debate, the privilege of “fair comment” was
incorporated into the common law as an affirmative defense to an action for
defamation. The principle of “fair comment” afforded legal immunity for
the honest expression of opinion on matters of legitimate public interest
when based upon a true or privileged statement of fact. . . . [C]omment was
generally privileged when it concerned a matter of public concern, was
upon true or privileged facts, represented the actual opinion of the speaker,
and was not made solely for the purpose of causing harm.
Milkovich v. Lorain Journal Co., 497 U.S. 1, 12-14, 110 S. Ct. 2695, 2702-2703 (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.5
398 U.S. 6, 90 S. Ct. 1537 (1970). The Court reasoned that “even the most careless
reader must have perceived that the word was no more than rhetorical hyperbole, a

5

In Bresler, a real estate developer engaged in negotiations with a local city council for a
zoning variance on certain of his land, while simultaneously negotiating with the city on other
land the city wished to purchase from him. A local newspaper published articles stating that
some people had characterized the developer’s negotiating position as “blackmail,” and the
developer sued for libel.

16

vigorous epithet used by those who considered [the developer’s] negotiating position
extremely unreasonable.” Id. at 13-14, 90 S. Ct. at 1541-42. The Michigan Court of
Appeals subsequently described such non-actionable statements, “certain statements,
although factual on their face, and provable as false, could not be interpreted by a
reasonable listener or reader as stating actual facts about the plaintiff.” Ireland, 230
Mich. App. at 617, 584 N.W.2d at 638. The Michigan court has noted further that
“exaggerated language used to express opinion, such as ‘blackmailer, ‘traitor’ or ‘crook,’
does not become actionable merely because it could be taken out of context as accusing
someone of a crime.” Kevorkian, 237 Mich. App. at 8, 602 N.W.2d at 237 (citing
Hodgins v. Times Herald Co., 169 Mich. App. 245, 254, 425 N.W.2d 522 (1988)).
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 (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 61819, 584 N.W.2d at 638. The Ireland court provided another example of a non-actionable
statement:
There is no dispute that Maranda [Ireland’s child] suffered a fractured arm
or wrist while under [Ireland’s] supervision at the playground. Thus, the
falsity of the statement that “Maranda suffered a fractured arm because of
Ireland’s neglect” is disputed only with regard to whether the fall was due
to neglect. However this question, like the question of whether someone is
17

a fit mother, or whether someone is abysmally ignorant, can only be
answered subjectively. We conclude that this portion of the statement is not
provable as false and, thus, that it is protected opinion.
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
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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.
Analyzing the Statements at Issue
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:6
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
28.

AUA routinely commits fraud upon its students;
AUA falsifies its students’ grades;
AUA breaches contracts;
AUA disregards student civil rights;
AUA conspires against its students;
AUA engages in unethical practices;
AUA has “malicious intensions” [sic];
AUA administration and academic advisors are of a “heinous
nature”;
AUA students are sexually assaulted;
AUA professors teach students wrong information;
AUA conspires to commit fraud and violations of civil rights;
AUA commits criminal activities reportable to the FBI;
AUA’s student pass rate for USMLE medical board exams is only

6

The Court is numbering the statements to correspond with the numbers in AUA’s
request for admissions, where Woodward is asked to admit that he published the
statements. (See Pl.’s Mot. Ex. D.)
19

29.
30.
31.
32.
33.
34.
35.
36.

22.9%;
AUA contrives false evidence in student disciplinary proceedings;
AUA colluded with St. Joseph Hospital to maliciously end
[Woodward’s] career;
AUA’s agents and employees engaged in a conspiracy;
AUA abused its power;
AUA committed perjury;
AUA is otherwise immoral and unethical;
AUA’s agents are liars; and
Antigua is full of “rape, murder, fraud, and government corruption”
and that therefore AUA is an unsafe place.

(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
20

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.7 The Sixth Circuit Court of Appeals has upheld a district court’s
determination that “statements made by defense counsel at oral argument were equivalent
to a motion to withdraw or amend.” Kerry Steel, Inc. v. Paragon Indus., 106 F.3d 147,
154 (6th Cir. 1997). The court expressed a “reluctan[ce] to assign talismanic significance
to the attorney’s failure to use the phrase ‘I move.’” Id.
“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 merits of the action” and (2) it
would not cause prejudice to the party who requested the admissions “in maintaining or

7

To the Court’s recollection, AUA has never argued that Woodward’s untimely
responses were inadequate. As the Court has never been presented with a copy of his
responses, it cannot say that they were insufficient.
21

defending the action on the merits.” Fed. R. Civ. P. 36(b). “Prejudice under Rule
36(b) . . . ‘relates to special difficulties a party may face caused by a sudden need to
obtain evidence upon withdrawal or amendment of an admission.’” Kerry Steel, 106 F.3d
at 154 (quoting AAA Legal Clinic of Jefferson Crooke, 930 F.2d at 1120).
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:
17.
18.
19.
20.
21.
23.
29.

AUA disregards student civil rights.
AUA conspires against its students.
AUA engages in unethical practices.
AUA has “malicious intensions [sic].”
AUA administration and academic advisors are of a “heinous
nature.”
AUA professors teach students wrong information.8
AUA contrives false evidence in student disciplinary proceedings.

8

This statement on one hand is verifiable because the word “wrong” implies that
the information that should be taught could be determined. The term, however, also is
used to express disapproval or inappropriateness of the information taught, which is an
expression of personal opinion that is not capable of objective verification.
22

31.
32.
34.
35.

AUA’s agents and employees engaged in a conspiracy.9
AUA abused its power.
AUA is otherwise immoral or unethical.
AUA’s agents are liars.10

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 on-going violation.”11 Taubman Co., 319 F.3d at 775 (citing Hecht Co. v.
Bowles, 321 U.S. 321, 329-30, 64 S. Ct. 587 (1944)).
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 No. 36), constitutes an objectively verifiable (the first clause) and subjective
(the second clause) assertion.12 Woodward’s statement about the level of crime on
9

As the statement is vague as to what AUA conspired to achieve, it is not
objectively verifiable.
10

Unlike the example in Milkovich, Woodward’s statement does not refer to any
specific AUA agent and thus the Court does not find the statement objectively verifiable.
11

Moreover, neither statement as now published is “concerning the plaintiff.”

12

The Court believes, however, that the inclusion of “full of” may convert the first
(continued...)
23

Antigua, however, is not “concerning the plaintiff.” Moreover, Woodward presents
evidence indicating that there is significant rape, murder, fraud, and government
corruption on Antigua.13
This leaves the following alleged defamatory statements:
14.
15.
16.
24.
25.
30.
33.

AUA routinely commits fraud upon its students.
AUA falsifies its students’ grades.
AUA breaches contracts.
AUA conspires to commit fraud and violations of civil rights.
AUA commits criminal activities reportable to the FBI.
AUA colluded with St. Joseph Hospital to maliciously end
[Woodward’s] career.
AUA committed perjury.

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

12

(...continued)
portion of the statement also to a subjective assertion.
13

The Michigan courts have held that substantial truth is an absolute defense to a
defamation claim. Collins v. Detroit Free Press, Inc., 245 Mich. App. 27, 33, 627
N.W.2d 5 (2001). “To avoid liability, it is not necessary for ‘[the] defendants to prove
that publication is literally and absolutely accurate in every minute detail.” Id. (quoting
Rouch, 440 Mich. at 258).
24

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:
14.
15.
16.
24.
25.
30.
33.

AUA routinely commits fraud upon its students.
AUA falsifies its students’ grades.
AUA breaches contracts.
AUA conspires to commit fraud and violations of civil rights.
AUA commits criminal activities reportable to the FBI.
AUA colluded with St. Joseph Hospital to maliciously end
[Woodward’s] career.
AUA committed perjury.

Otherwise, AUA fails to demonstrate that Woodward engaged in defamation.
Relief Requested
AUA seeks an injunction preventing Woodward from publishing any defamatory
content, whether on his website or by any other means. The Supreme Court repeatedly
has recognized that an “injunction, so far as it imposes prior restraint on speech and
publication, constitutes an impermissible restraint on First Amendment rights.” Org. for
a Better Austin v. Keefe, 402 U.S. 415, 418-19, 91 S. Ct. 1575, 1577-78 (1971) (citing
Near v. Minnesota ex rel Olsen, 283 U.S. 697, 51 S. Ct. 625 (1931)). “‘The usual rule is

25

that equity does not enjoin a libel or slander and that the only remedy for defamation is an
action for damages.’” Lothschuetz, 898 F.2d at 1206 (quoting Cmty. for Creative NonViolence, 814 F.2d at 672).
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 F. App’x 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.
26

Conclusion
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).14
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:
•
•
•
•
•
•
•

AUA routinely commits fraud upon its students.
AUA falsifies its students’ grades.
AUA breaches contracts.
AUA conspires to commit fraud and violations of civil rights.
AUA commits criminal activities reportable to the FBI.
AUA colluded with St. Joseph Hospital to maliciously end
[Woodward’s] career.
AUA committed perjury.

The Court therefore is entering a permanent injunction, enjoining Woodward from

14

Rule 56(f) allows a court to grant summary judgment for a nonmovant “[a]fter
giving notice and a reasonable time to respond . . .” On prior occasions in this litigation,
the Court has shared with the parties its reasons for concluding that AUA’s claims under
the Lanham Act, ACPA, and Family Educational Rights and Privacy Act of 1974 fail to
state a claim for relief as a matter of law. AUA has failed to respond in a reasonable time
with arguments suggesting that the Court’s analysis is incorrect.
27

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.

DATE: December 5, 2011

s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE

Copies to:
Eric A. Buikema, Esq.
Steven Woodward
7211 Brittwood Lane
Flint, MI 48507

28