Huizenga v. Gwynn

225 F. Supp. 3d 647, 2016 U.S. Dist. LEXIS 176437, 2016 WL 7385730
CourtDistrict Court, E.D. Michigan
DecidedDecember 21, 2016
DocketCase No. 16-cv-12001
StatusPublished
Cited by2 cases

This text of 225 F. Supp. 3d 647 (Huizenga v. Gwynn) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Huizenga v. Gwynn, 225 F. Supp. 3d 647, 2016 U.S. Dist. LEXIS 176437, 2016 WL 7385730 (E.D. Mich. 2016).

Opinion

OPINION AND ORDER GRANTING DEFENDANT N.Y.P. HOLDINGS’ MOTION TO DISMISS (ECF #14)

MATTHEW F. LEITMAN, UNITED STATES DISTRICT JUDGE

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, 66 S.Ct. 154, 90 L.Ed. 95 (1945)—the Court GRANTS the Motion to Dismiss and DISMISSES the claims against the Post without prejudice.

I

A

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,” includ[651]*651ing shows produced in southern California1; 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 (ie., 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.)

B

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 An-geles, 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 sub[652]*652scribe 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 Press-Reader’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.)

C

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.

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Cite This Page — Counsel Stack

Bluebook (online)
225 F. Supp. 3d 647, 2016 U.S. Dist. LEXIS 176437, 2016 WL 7385730, Counsel Stack Legal Research, https://law.counselstack.com/opinion/huizenga-v-gwynn-mied-2016.