ROMERO v. BUHIMSCHI

tific community as to the origin of the research. In the complaint, this claim was titled "Reverse Palming Off," yet it did not cite any specific provision of the Lanham Act. In evaluating the defendants' motion to dismiss, both the magistrate judge and the district court held that Count I failed to state a claim under Dastar, without evaluating whether Romero stated a claim under § 43(a)(1)(B) of the Lanham Act. Romero v. Buhimschi 2:06-cv-10859 at 4, 2007 WL 2902896 (E.D.Mich. Sept. 28, 2007); Romero v. Buhimschi 2:06-cv-10859 at 7-11 (E.D.Mich. May 22, 2007).

To the extent that Romero's claim relies on § 43(a)(1)(A)'s "origin of goods" prong, the claim clearly falls within the scope of Dastar. Aside from the fact that Dastar involved a video and this case involves a manuscript, the cases are nearly identical because both plaintiffs alleged that the defendants used portions of the plaintiffs' work but failed to attribute the work to the plaintiffs. And the Court in Dastar made clear that origin did not refer to the person originating the idea and could not be read to apply to communicative products. 539 U.S. at 32, 35, 123 S.Ct. 2041. Thus, Romero's Lanham Act claim fails in as much as it alleges that Buhimschi and Yale failed to credit Romero's work in the manuscript. However, at least one Circuit has left open the possibility that a claim can be made for misrepresenting authorship in promotional material or advertisements under § 43(a)(1)(B). See Zyla, 360 F.3d at 252 n. 8. And at least a portion of Romero's pleadings allege that Yale violated the Lanham Act through its press release.

Assuming that a portion of Romero's pleadings could fall under § 43(a)(1)(B)'s advertising prong, the misconduct alleged in the pleadings would have to relate to the "nature, characteristics, qualities, or geographic origin" of the manuscript. 15 U.S.C.A. § 1125(a). The Federal Circuit's decision in Baden Sports provides guidance on this issue because that court held that false advertising materials, which claimed that basketball technology was a "Molten innovation," did not go to the nature, characteristics, or qualities of basketballs, but instead related to authorship of the technology. 556 F.3d at 1305. Similarly, any advertising or promotional claim by Yale or Buhimschi that attributed the research to a `Tale team" or `Tale researchers" appears to be related to authorship, rather than the nature, characteristics, or qualities of the research. Further, Romero's claim in this case does not fit within the Supreme Court's dicta in Dastar, which left open the possibility for claims to be brought under § 43(a)(1)(B). Instead, comparing Romero's pleadings with the allegations in Dastar, Romero's claim closely tracks the claims made in that case. We therefore hold that the district court properly dismissed the Lanham Act claim.

IV.

We now turn to Romero's state-law claims, alleging breach of contract and defamation. This court reviews a district court's grant of summary judgment de novo. Travelers Prop. Cos. Co. of Am. v. Hillerich Bradsby Co., 598 F.3d 257, 264 (6th Cir. 2010). "Summary judgment is appropriate when `the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact' regarding any essential element of the non-moving party's case and the moving party is entitled to judgment as a matter of law." Id. (quoting Fed.R.Civ.P. 56(c)). A claim lacks a genuine issue of material fact if no reasonable jury could return a verdict in favor of the nonmoving party. Id. Michigan substantive law applies to both the contract claim and the defamation claim. See Gass v. Marriott Hotel Servs., 558 F.3d 419, 425 (6th Cir. 2009); Uhl v. Komatsu Forklift Co., 512 F.3d 294, 302 (6th Cir. 2008).

A.

Under Michigan law, consideration is an essential element of any contract. Yerkovich v. AAA, 461 Mich. 732, 610 N.W.2d 542, 546 (2000). The preexisting duty rule states that a contract fails for lack of consideration where the party promises something that he is already legally bound to do. 46th Circuit Trial Court v. County of Crawford, 476 Mich. 131, 719 N.W.2d 553, 568 (2006). This rule applies whether the preexisting duty is based on statute or contract and whether the promise at issue is a modification to an existing agreement or whether it is a new agreement. Kassab v. Dennis, No. 283394, 2009 WL 763433 at *1 (Mich.Ct. App. Mar.24, 2009). Michigan courts have applied this rule to nullify contracts in a variety of contexts. See, e.g., A6th Circuit Trial Court, 719 N.W.2d at 568 (finding no contract for county to provide a certain amount of funding to a court where the constitution required the county to provide "reasonable and necessary funds"); Yerkovich, 610 N.W.2d at 546 (finding subrogation agreement between insured and insurance company lacked consideration because the insurance company had a preexisting duty under the policy to pay plaintiffs medical expenses); Pawlak v. Redox Corp., 182 Mich.App. 758, 453 N.W.2d 304, 307 (1990) (per curiam) (finding no contract between city and decedent to transport decedent to hospital because the city had a statutorily imposed preexisting duty to provide service); Freiburger v. State of Mich. Dep't of Mental Health, 161 Mich.App. 316, 409 N.W.2d 821, 822 (1987) (finding no contract between decedent and state-run medical clinic to provide appropriate care because medical clinic had a' statutorily imposed duty to provide services).

In this case, Romero alleges that an implied-in-fact contract existed between himself and Buhimschi whereby Buhimschi would list Romero as a co-author in exchange for collaboration on the research. Romero further asserts that Buhimschi breached this contract by publishing the manuscript in BJOG without including him as a co-author. In granting summary judgment in favor of Buhimschi, the district court determined that Romero's "entire collaboration with Buhimschi was within the scope of his [federal] employment." Romero v. Buhimschi No. 2:06-cv-10859, 2009 WL 92226 at *6 (E.D.Mich. Jan. 14, 2009). Therefore, any contract failed for lack of consideration because Romero had a preexisting duty to collaborate with Buhimschi. Id. at 13. In deposition statements, Romero described his federal job duties as requiring him to mentor faculty and fellows, provide technical direction, review performance, provide advice, develop scientific projects, and draft manuscripts. Romero also explicitly stated that his federal job duties required him to collaborate with Buhimschi. Thus, the district court's conclusion is supported by the record.

Romero nonetheless argues that the district court erred for the following reasons: (1) under Michigan law the preexisting duty must be owed to the promisor and not a third party; (2) the National Institute of Child Health and Human Development expected Romero to enter into an authorship agreement with Buhimschi; and (3) even if no implied-in-fact contract existed, Romero is entitled to specific performance under equity principles. Beginning with Romero's first argument, his contention that the duty must be owed to the promisor is not supported by case law. Romero cites Yerkovich, 610 N.W.2d at 546, yet nothing in Yerkovich discusses whether the preexisting duty rule applies solely in the context of a promisor-promisee relationship. Romero also cites the Re-statement (Second) of Contracts § 73, which notes in the comments that "the tendency of the law has been simply to hold that performance of contractual duty can be consideration if the duty is not owed to the promisor." While this section might provide support for Romero's argument, there is no indication that Michigan courts have adopted it. Further, Romero's preexisting duty existed within the context of his federal employment. And both Michigan courts and the Restatement recognize that the performance of a preexisting duty is not consideration when the legal duty is owed by a public official. See, e.g., 16th Circuit Trial Court, 719 N.W.2d at 568 (finding no contract for county to provide a certain amount of funding to court where constitution required county to provide "reasonable and necessary funds"); Restatement (Second) Contracts § 73, cmt. b (stating that public duties cannot form legal consideration).

Romero also argues that National Institute of Child Health and Human Development expected him to enter into an authorship agreement with Buhimschi. To support his argument, Romero cites the NIH's Guidelines for the Conduct of Research, which highlights the importance of publishing scientific research and recommends open discussions on authorship. Romero attempts to elevate these guidelines into explicit authority to enter into a contract. However, this argument is unavailing because the document which Romero cites plainly states in the introduction that it "is not meant to codify a set of rules, but rather to elucidate, increase awareness and stimulate discussion. . . ." The advice in these guidelines, recommending that "authorship issues[] be discussed openly," simply does not form a legal basis on which to enforce an implied contract between Romero and Buhimschi, given that Romero had a preexisting duty to collaborate with Buhimschi.

Finally, Romero claims that he is entitled to specific performance under principles of equity or unjust enrichment. Romero did not include this equity theory in his pleadings. Instead, in his response to Buhimschi's motion for summary judgment, Romero requested leave to amend his pleadings to include this theory. Romero then formally filed a motion to amend, which the district court denied in its order granting summary judgment in favor of Buhimschi and Yale. Thus, this issue is technically before us on review from the district court's denial of Romero's motion to amend his complaint. This court reviews a district court's denial of a motion for leave to amend a complaint for an abuse of discretion. Total Benefits Planning Agency v. Anthem, Blue Cross Blue Shield, 552 F.3d 430, 437 (6th Cir. 2008). "A motion to amend a complaint should be denied if the amendment is brought in bad faith, for dilatory purposes, results in undue delay or prejudice to the opposing party, or would be futile." Colvin v. Caruso, 605 F.3d 282, 294 (6th Cir. 2010) (quoting Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995)). When the district court denies the motion on the basis of futility, we review the decision de novo. Riverview Health Inst. v. Med. Mut. of Ohio, 601 F.3d 505, 512 (6th Cir. 2010).

Romero vaguely labels his claim as one for quasi-contract, without citing any specific Michigan case law. Under Michigan law, claims for implied-in-law contracts are labeled "quantum meruit" or "unjust enrichment." Daimler-Chrysler Servs. N. Am. v. Summit Nat'l Inc., 289 Fed.Appx. 916, 924-25 (6th Cir. 2008).

In denying Romero's motion, the district court simply stated that "[b]ecause the Court concludes that there was no consideration to support any contract between the parties, it will not consider . . . Romero's motion." Romero, 2009 WL 92226 at *4. The exact basis of this denial is not entirely clear to us. However, it appears to be based on futility, so we review the decision de novo. See Riverview Health Inst, 601 F.3d at 512. To make a case for unjust enrichment, the plaintiff must not only show that the defendant received a benefit but that "the circumstances of its receipt or retention are such that, as between the two persons, it is unjust for [the defendant] to retain it." Dumas v. Auto Club Ins. Ass'n, 437 Mich. 521, 473 N.W.2d 652, 663 (1991) (quoting Restatement Restitution § 1, cmt. c). Romero's brief does not contend that it would be unjust for Buhimschi to retain the benefit of his collaboration, rather he simply urges the court to allow the amended complaint based on general equity principles. Because Romero has not provided a proper legal basis to reverse the district court's denial, we affirm the district court's decision.

B.

Finally, we review the district court's grant of summary judgment in favor of the defendants on the defamation claim. To establish a claim for defamation under Michigan law, a plaintiff must show "(1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged communication 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 the special harm (defamation per se) or the existence of special harm caused by the publication." Milan v. Campbell, 474 Mich. 21, 706 N.W.2d 420, 421 (2005) (per curiam), Michigan courts have repeatedly recognized that a publication is absolutely privileged if the defamed party invited or consented to the publication. See, e.g., Heike v. Guevara, No. 09-10427-BC, 2010 WL 538300 at *5 (E.D.Mich. Feb.9, 2010); Ramsey v. Speedway SuperAmerica LLC, No. 279034, 2008 WL 3541206 at *4-5 (Mich.Ct.App. Aug.14, 2008); Leftwich v. Lula Belle Stewart Ctrs., No. 270089, 2006 WL 3304190 at *2 (Mich.Ct.App. Nov.14, 2006) (per curiam); Jaafar v. Sabon, No. 229992, 2002 WL 1482605 at *1 (Mich.Ct. App. July 9, 2002) (per curiam); Med. Planning Consulting v. St. Mary's Med. Ctr., No. 214018, 2000 WL 33418859 at *5 (Mich.Ct.App. June 13, 2000) (per curiam); Hollowell v. Career Decisions, Inc., 100 Mich.App. 561, 298 N.W.2d 915, 922 (1980); Merritt v. Detroit Mem. Hosp., 81 Mich. App. 279, 265 N.W.2d 124, 127 (1978); Schechet v. Kesten, 3 Mich.App. 126, 141 N.W.2d 641, 644 (1966). The privilege can be both express or implied. Ramsey, 2008 WL 3541206 at *4 (quoting 50 Am.Jur.2d Libel Slander § 254). An absolutely privileged communication is not subject to a defamation claim even if the statement was false or malicious. Oesterle v. Wallace, 272 Mich.App. 260, 725 N.W.2d 470, 474 (2006).

A Michigan appellate court has recognized the absolute privilege of consent in a case where the plaintiffs attorney sent a letter to the defendant threatening to file suit for breach of contract and requesting a response. Med. Planning Consulting, 2000 WL 33418859 at *2. The Michigan Court of Appeals determined that the plaintiff had invited the defamatory statements by sending the letter. Id. at *4-5. Both Michigan and federal courts have also applied the privilege of consent where defamatory publications were sent as part of a review or investigatory process. See Heike, 2010 WL 538300 at *5 (holding that plaintiff impliedly consented to defamation where defendant made statements to a school's appeals committee as part of an investigation into whether the defendant-coach harassed the plaintiff-player); Schechet, 141 N.W.2d at 644 (holding that the privilege of consent applied to letters sent to a credentials committee at a hospital where the letters were sent as part of the hospital's review process for staff privileges).

In this case, Romero bases his defamation claim on three publications: (1) Buhimschi's republication to BJOG and Yale of her appeal letter originally sent to the Wayne State University investigative committee; (2) Buhimschi's republication to a deputy general counsel at Yale of Carl Weiner's emails to BJOG urging the journal to publish Buhimschi's manuscript; and (3) Lawrence Cohen's letter to members of the Yale ad hoc committee outlining the committee's duties. The district court determined that Romero invited, and thus consented to, the defamations by invoking Wayne State's investigative proceedings, by prompting Wayne State to notify BJOG of the authorship dispute, and by having a role in Yale forming its ad hoc committee to investigate the Wayne State findings.

A reading of the allegedly defamatory publications shows that the privilege of consent applies to Romero's defamation claim. Beginning with the first publication, consisting of Buhimschi's republication of her appeal letter to BJOG and Yale, Romero's own deposition testimony indicates that he urged Wayne State officials to contact BJOG about the authorship dispute. By prompting this contact with BJOG, Romero impliedly consented to Buhimschi's defense of her manuscript. See Schechet, 141 N.W.2d at 644. Moving to the second and third publications, both of these were sent in the context of Yale's investigation, after that school learned of the findings by the Wayne State committee. In his brief, Romero admits that Wayne State officials notified Yale of its scientific misconduct findings, as was required by Wayne State policy, and that Yale appointed its own investigative committee after the investigation at Wayne State was complete. Further, Romero's own deposition testimony indicates that he initiated the investigatory proceedings at Wayne State University, which culminated in the findings being reported to Yale. Romero therefore impliedly consented to Buhimschi's response to Yale officials. See Schechet, 141 N.W.2d at 644.

Romero nevertheless argues that the publications were not absolutely privileged under Michigan law because the Michigan Supreme Court has not recognized consent as an absolute privilege. He relies on Smurthwaite v. News Pub. Co., 124 Mich. 377, 83 N.W. 116 (1900), to support his position. In Smurthwaite, the Michigan Supreme Court specifically recognized a privilege of "self-defense," which arises when a defendant answers charges against him. 83 N.W. at 119. The court found error in the trial court's jury instructions on this issue because the instruction did not limit the privilege based on malice and did not limit the privilege based on whether the statement was related to the charges. Id. While Smurthwaite might appear at first blush to provide support for Romero's position, a careful reading of the case shows that it does not.

To begin with, Smurthwaite does not appear to be addressing the same privilege asserted by Buhimschi and Yale in this case. While the trial court's instructions in Smurthwaite used the term "consent," the Michigan Supreme Court's decision discusses the privilege as being one of "self defense." 83 N.W. at 119. It also describes the privilege as applying where "the occasion is one which justifies such publication," and states that defendants have a "qualified privilege" to respond to accusations. Id. Given that the case was published in 1900, the exact privilege at issue is difficult to ascertain. However, a careful reading of the opinion leads us to conclude that the Smurthwaite court addressed a qualified occasional privilege, rather than the privilege of consent.

Under the section on conditional privileges, the Restatement of Torts lists "occasions making a publication conditionally privileged" and further lists "protection of the publisher's interest" as a conditional privilege. Restatement (Second) of Torts § 594. A communication falls under this qualified occasional privilege if the circumstances surrounding the communication are such that a reasonable belief exists that the communication "affects a sufficiently important interest of the publisher" and "the recipient's knowledge of the defamatory matter will be of service in the lawful protection of this interest." Id. This occasional privilege is separate and distinct from the privilege of consent. Because the Smurthwaite court described the privilege as being one of "self defense" and used the words "occasion" and "qualified" in its analysis, we believe that the case addresses the qualified occasional privilege of protecting the publisher's interest, rather than the privilege of consent. Our reading of Smurthwaite is bolstered by the Michigan appellate courts' treatment of the privilege of consent.

While it is admittedly unclear whether the Michigan Supreme Court has addressed the privilege of consent, Michigan appellate courts have clearly and consistently recognized that an invited or consented to communication is privileged. Though the precedential value of these cases is somewhat weakened by their age or unpublished status, we find these cases difficult to ignore given their numbers. We also find it difficult to ignore these cases' explicit description of the privilege as being "absolute." See, e.g., Heike, 2010 WL 538300 at *5 (citing Restatement (Second) of Torts § 583); Leftwich, 2006 WL 3304190 at *2 ("A communication regarding a person is absolutely privileged if the person consents to the communication."); Jaafar, 2002 WL 1482605 at *1 ("A communication regarding a person is absolutely privileged if the person who is the subject of the communication consented to it."); Med. Planning Consulting, 2000 WL 33418859 at *5 ("A communication regarding a person is absolutely privileged if the person consents to the communication."); Hollowell, 298 N.W.2d at 922 ("A communication regarding a person is absolutely privileged if it is consented to."); Merritt, 265 N.W.2d at 127 ("A communication regarding a person is absolutely privileged if he consents to it."); Schechet, 141 N.W.2d at 644 ("[T]he publication of false and defamatory matter of another is absolutely privileged if the other consents thereto."). Finally, we find it difficult to ignore the factual similarities between these cases and Romero's case. Because this is the body of case law on which Yale and Buhimschi rely, we find it controlling.

See, e.g., Heike, 2010 WL 538300 at *5; Ramsey, 2008 WL 3541206 at *4-5; Leftwich, 2006 WL 3304190 at *2; Jaafar, 2002 WL 1482605 at *1; Med. Planning Consulting, 2000 WL 33418859 at *5; Hollowell, 298 N.W.2d at 922; Merritt, 265 N.W.2d at 127; Schechet, 141 N.W.2d at 644.

Moreover, none of the Michigan appellate court decisions listed above cites Smurthwaite, which further supports our conclusion that Smurthwaite did not address the privilege of consent but instead addressed a qualified occasional privilege. And if we were to reverse the district court under the auspices of Smurthwaite, we would be ignoring this large body of Michigan case law that recognizes an absolute privilege of consent. We would further be implying that all of these Michigan appellate cases were wrongly decided under Smurthwaite. Notwithstanding this large body of Michigan appellate court decisions, Romero makes persuasive arguments as to how he believes the Michigan Supreme Court would evaluate the privilege of consent. However, his arguments are nothing more than his own speculations. And we should look to the decisions of the intermediate appellate courts unless we are convinced that the state supreme court would decide the issue differently. Mike's Train House, Inc. v. Lionel, LLC, 472 F.3d 398, 413 (6th Cir. 2006). We therefore find the decisions of the Michigan appellate courts, recognizing an absolute privilege of consent, controlling in this case.

In Merritt, the Michigan appellate court applied a qualified occasional privilege to some of the defendants' defamatory publications and applied an absolute consent privilege to other publications. 265 N.W.2d at 127. This opinion, therefore, indicates that these are in fact separate privileges under Michigan law.

Additionally, we believe that it would be problematic to rely on Smurthwaite given its age and developments that have occurred in defamation law since the decision. Smurthwaite involved defamatory statements published in a newspaper in the context of an election. 83 N.W. at 117. The case was decided long before the Supreme Court's seminal decision in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). While Smurthwaite's analysis on common-law privileges might remain good law, the holding is questionable under Sullivan. Its precedential value is therefore dubious. Further, we note that Smurthwaite has only been cited five times in its 110-year history, four of which occurred prior to 1916. We therefore do not believe that it controls the outcome of this case.

Romero offers one final argument in support of his position. He argues that even if the privilege of consent is absolute under Michigan law, the defendants in the present case exceeded the scope of any consent. Michigan courts have noted that the consent privilege applies to those statements relevant to the purpose for which consent was given and to those persons with a legitimate interest in their content. Ramsey, 2008 WL 3541206 at *4 (quoting 50 Am.Jur.2d Libel Slander § 254). It is clear that Buhimschi, as well as the parties to which she published the statements, had a legitimate interest in the content of the statements. Further, it is also clear from Romero's pleadings and a reading of the statements themselves that all of the allegedly defamatory statements were relevant to the purpose for which the consent was given. Specifically, all of the statements concerned Buhimschi's reasons for originally including Romero as a coauthor, her reasons for removing Romero as a co-author, her views on Wayne State's investigatory process, and her version of Romero's contributions to the research. While Romero might dispute the veracity of these statements, absolute privileges apply regardless of whether the statements are false or malicious. Oesterle, 725 N.W.2d at 474. We therefore hold that defamatory statements are privileged under Michigan law.

V.

For the foregoing reasons, we AFFIRM the district court's dismissal of the Lanham Act claim and grant of summary judgment in favor of the defendants on the contract and defamation claims. We also DENY Romero's motion to expand the record on appeal.