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Huizenga v. Gwynn

United States District Court, E.D. Michigan, Southern Division

December 21, 2016

JOELLE GWYNN et al., Defendants.



         In 2016, the New York Post (the “Post”), a New York-based daily newspaper, published three articles about The Biggest Loser, a reality-television program on which contestants compete to lose weight. The articles included statements about Plaintiff Robert Huizenga, M.D. (“Dr. Huizenga”), a medical consultant to the show. In this action, Dr. Huizenga brings libel and business interference claims against the Post based upon the statements it published about him. (See Compl., ECF #1.)

         The Post has filed a motion to dismiss for lack of personal jurisdiction (the “Motion to Dismiss”). (See ECF #14.) Because the assertion of personal jurisdiction over the Post would be unreasonable - and would “offend traditional notions of fair play and substantial justice, ” Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) - the Court GRANTS the Motion to Dismiss and DISMISSES the claims against the Post without prejudice.



         Dr. Huizenga is a licensed physician who lives in Los Angeles, California. (See Compl. at ¶1, ECF #1 at 3, Pg. ID 3.) For many years, he has practiced medicine and acted as a medical consultant in southern California. He is the former team physician for the Los Angeles Raiders professional football team; has served as a “writer, correspondent, advisor, and doctor on numerous TV shows and movies, ” including shows produced in southern California[1]; and he “runs The Clinic by Dr. H, a state of the art, multi-disciplinary fat loss facility in [s]outhern California.” (Id. at ¶¶13, 16, 18, ECF #1 at 5-7, Pg. ID 5-7.)

         Defendant N.Y.P. Holdings, Inc. publishes and does business as the Post. (See Id. at ¶3, ECF #1 at 3, Pg. ID 3.) The Post has its primary newsroom in New York and is published there. (See Declaration of Michael Racano (“Racano”) at ¶4, ECF #14-2 at 3, Pg. ID 119.)

         The Post “covers a mix of local (i.e., New-York focused) and national stories, including general news, business, culture, and sports stories that appeal to the Post's primarily New York-based readership.” (Id. at ¶7, ECF #14-2 at 3, Pg. ID 119.) The Post's New-York focused coverage includes articles about, among other things,

the city, county and state governments of New York. Coverage of crime in the Post focuses almost entirely on crime in the New York City area, including a page called ‘NYPD Daily Blotter.' Culture reviews in the Post typically cover New York cultural offerings (such as restaurants, theater, or concerts). Coverage of real estate (both commercial and residential) focuses on the New York metropolitan area. The weather coverage in the Post (including the daily temperature and weather forecast on the ‘ear' of the front page of the paper) focuses on New York-area weather. The TV listings in the Post list the New York affiliates of the various broadcast networks. The sports section of the Post (for which the motto is ‘The Best Sports In Town') focuses in particular on New York metropolitan area sports teams, including professional, college and high school teams.

(Id. at ¶7, ECF #14-2 at 2-3, Pg. ID 119-20.)


         The Post publishes a daily print edition and a digital edition. (See Id. at ¶3, ECF #14-2 at 2, Pg. ID 118.) Readers may purchase the print edition in one of three ways. First, readers in certain limited geographic areas such as New York, Los Angeles, and Washington D.C., may purchase the print edition at retail locations. (See Id. at ¶9, ECF #14-2 at 4-5, Pg. ID 120-21.) Second, readers who live in an area where the print edition is sold at retail locations may sign-up for daily home delivery. (See Id. at ¶¶ 9, 11, ECF #14-2 at 4-5, Pg. ID 120-21.) Finally, readers anywhere in the United States may obtain the print edition through mail delivery. (See Id. at ¶¶ 14-15, ECF #14-2 at 5-6, Pg. ID 121-22.) “Unlike ordinary home delivery, U.S. Mail subscribers do not receive the paper the same day it is published on newsstands, but rather receive the paper days later in the U.S. Mail.” (Id. at ¶14, ECF #14-2 at 5, Pg. ID 121.) “U.S. Mail subscriptions [to the Post] may not be purchased directly through the [Post]. Instead, individuals must contact [a] third party fulfillment agent with whom the [Post] contracts for that purpose via [a] telephone number provided on the Post's website (and in the newspaper itself).” (Id. at ¶14, ECF #14-2 at 5-6, Pg. ID 121-22.)

         The Post's digital edition is available on “several tablet computer and e-reader platforms, ” including the Apple iPad and the Amazon Kindle Fire. (Id. at ¶22, ECF 14-2 at 7, Pg. ID 123.) Readers who subscribe to the digital edition do not subscribe through the Post. Instead, “customers place orders to and directly pay” third party vendors, “who then remit a portion of those fees to [the Post].” (Id. at ¶23, ECF #14-2 at 7, Pg. ID 123.) “For example, a customer would order the Apple iPad Digital Replica edition of the Post through the Apple App Store and directly pay Apple by providing a valid credit card number and billing zip code to Apple. Apple would [then] remit a portion of that fee to [the Post].” (Id. at ¶23, ECF #14-2 at 7-8, Pg. ID 123-24.) “Customers may also purchase Digital Subscriptions through a service called PressReader … which offers subscriptions to digital replicas of many publications, including the Post, which may be then viewed through PressReader's ‘app' on various platforms or printed out on paper.” (Id.)

         The Post also operates a website. The content of that site “heavily overlaps with, but is not always identical to, what is included in the Post newspaper.” (Id. at ¶43, ECF #14-2 at 14, Pg. ID 130.) The website content “is available free of charge to any Internet user, without any requirement of the creation of a profile or payment of a subscription fee.” (Id. at ¶41, ECF #14-2 at 13, Pg. ID 129.) The content can also be accessed “through a smartphone app” which offers “identical” content to the Post's website. (Id. at ¶42, ECF #14-2 at 13, Pg. ID 129.)

         The Post's website contains a link that allows visitors to subscribe to home delivery of the paper (where such delivery is available). (See Id. at ¶12, ECF #14-2 at 5, Pg. ID 121.) The website also contains a link to the “NYP Store” where readers can purchase “merchandise related to the Post, ” such as t-shirts and coffee mugs with the Post's logo. (Id. at ¶46, ECF #14-2 at 15, Pg. ID 131.) Finally, visitors to the website may sign up “to receive one of four different email newsletters” that the Post publishes and makes available free of charge. (Id. at ¶47, ECF #14-2 at 15, Pg. ID 131.) The only information the Post requires from readers who sign up for an email newsletter is a valid email address. (See id.) The Post “does not collect information about the residence of readers who sign up for email newsletters.” (Id.)


         The print edition of the Post is not distributed for sale at retail locations in the State of Michigan. (See Id. at ¶10, ECF #14-2 at 5, Pg. ID 121.) Nor can readers in Michigan subscribe to home delivery of the print edition. (See Id. at ¶13, ECF #14-2 at 5, Pg. ID 121.) Because the Post does not offer home delivery of its print edition in Michigan, “[i]f a reader in Michigan attempted to order home delivery through the Post's website, the site would state that ‘Paper delivery is not available in your area.'” (Id.)

         Michigan residents who wish to subscribe to the Post have only two options: they may sign up for mail delivery of the print edition or purchase the digital edition through a third party vendor. Only ten Michigan residents subscribe to mail delivery of the Post's print edition, and the Post estimates that 227 Michigan residents subscribe to the digital edition (through various third-party vendors). (See Id. at ¶¶ 20, 38, ECF #14-2 at 7, 12, Pg. ID 123, 128.)

         Readers of the Post in Michigan may also visit the Post's website. The Post approximates that for the months of April, May, and June 2016 (the time period relevant here), about 2.9% (or 771, 400) of the visitors to its website were from the State of Michigan, and these visitors accounted for 1.8% (or 2, 700, 000) of its total page views during that time period. (See ECF #18-9 at 3, Pg. ID 253.) And while, as noted above, visitors to the website may purchase Post-related products, “there has only ever been one sale of an item through the [NYP Store] to a Michigan resident, which took place in 2013.” (Racano Decl. at ¶46, ECF #14-2 at 15, Pg. ID 131; emphasis removed.) Finally, approximately 1.6-percent of the people who “open[]” the Post's email newsletters are located in Michigan. (ECF #18-9 at 3, Pg. ID 253.)


         The Biggest Loser is a reality-television show on which contestants compete to lose weight under the supervision of various doctors and celebrity trainers. The show is “produced and filmed in California, and ... contestants [on the show] live on a ‘ranch' in California during production of the show.” (Maureen Callahan Decl. at ¶11, ECF #14-3 at 4-5, Pg. ID 138-39.) Dr. Huizenga acts as a medical consultant on the program. (See Compl. at ¶16, ECF #1 at 6, Pg. ID 6.)

         In 2016, the Post began investigating the The Biggest Loser. As part of the investigation, Post reporter Maureen Callahan (“Callahan”) contacted six former Biggest Loser contestants from across the country, including Michigan resident Defendant Joelle Gywnn (“Gwynn”). (See Callahan Decl. at ¶¶ 7, 9, ECF #14-3 at 3-4, Pg. ID 137-38; see also Compl. at ¶2, ECF #1 at 3, Pg. ID 3). A second reporter at the Post, Danika Fears (“Fears”), also spoke with Gwynn. (See Fears Decl. at ¶5, ECF #14-4 at 3, Pg. ID 154.) The Post reporters asked Gwynn a series of questions via telephone, e-mail, and text message, and in response Gwynn provided information about her experience as a Biggest Loser contestant. (See id.; see also Callahan Decl. at ¶¶ 8-9, ECF #14-3 at 4, Pg. ID 138). Gwynn supposedly told the reporters that an employee of the show gave her and other contestants “an illicit yellow and black pill” that made her feel “jittery and hyper.” (Compl. at ¶24(f), ECF #1 at 9, Pg. ID 9.) Gwynn said that she then told Dr. Huizenga about the pills, and he offered “some lame explanation of why they got added to our regimen and [said] that it was ‘up to us to take [the pills].'” (Id.) According to Gwynn, her experience with the pills made her “feel” as if she had been “raped.” (Id.)

         Other former contestants apparently made similar statements to the Post's reporters. They told the reporters that contestants had “passed out” in Dr. Huizenga's office before scheduled weigh-ins, that Dr. Huizenga knew contestants were using “illegal drugs to lose weight rapidly” and “never tried to stop it, ” and that Dr. Huizenga refused to help former contestants who re-gained weight after leaving the show. (Id. at ¶20, ECF #1 at 7-8, Pg. ID 7-8.)

         On May 19, 2016, Callahan contacted a representative for Dr. Huizenga and sought a response to the statements made about him. (See Compl. at ¶20, ECF #1 at 7, Pg. ID 7.) On May 20, 2016, an attorney for Dr. Huizenga informed Callahan that all of the statements made about Dr. Huizenga were false. (See Id. at ¶21, ECF #1 at 8, Pg. ID 8.) Dr. Huizenga's counsel told Callahan that the statements “constituted defamation” and, if published, would cause Dr. Huizenga “substantial damages.” (Id.)

         On May 22 and 23, 2016, the Post published three separate articles about The Biggest Loser. (See Callahan Decl. at ¶¶ 3-5, ECF #14-3 at 2-3, Pg. ID 137-38.) The stories were available in both the print and digital editions of the Post and were also posted on the Post's website. (See id.) The stories focused on the treatment of the contestants both during and after their appearances on The Biggest Loser.

         The first article, published on May 22, “was by far the longest and most involved of the [a]rticles.” (Id. at ¶6, ECF #14-3 at 3, Pg. ID 137.) It appeared on the front page of the Post under the headline “‘Biggest Loser Drugged Me[:]' New shock revelations behind show.” (See ECF #18-4.) Gwynn was also pictured on the front page wearing a Biggest Loser shirt. (See id.) All three articles generally contended that show staffers provided drugs to contestants and ...

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