                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0514n.06

                                       Nos. 11-1092; 11-1699                                FILED
                                                                                       May 18, 2012
                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT                           LEONARD GREEN, Clerk



KRISTY J. DOWNING,                                        )
                                                          )
          Plaintiff-Appellant,                            )    On Appeal from the United States
                                                          )    District Court for the Eastern
v.                                                        )    District of Michigan
                                                          )
LIFE TIME FITNESS,                                        )            AMENDED
                                                          )
          Defendant-Appellee.                             )



Before:          BOGGS, SUHRHEINRICH, and COOK, Circuit Judges.

                 PER CURIAM

                 Kristy J. Downing appeals the district court’s orders denying her motion for a

preliminary injunction, rejecting her objections to a protective order, and denying her motion to stay,

as well as its summary judgment in favor of Life Time Fitness, Inc. (LTF). For the reasons set forth

below, we affirm.

                                                  I.

                 LTF operates health clubs. In August 2008, Downing, an attorney who is representing

herself in this action, became a member of LTF and began using its facilities in Canton and Novi,

Michigan. In November 2009, Downing underwent fitness assessments at LTF. Shortly thereafter,

Downing filed a complaint in small claims court against LTF, claiming harassment. Downing

specifically alleged that LTF provided her with fraudulent fitness advice and directed its employees
Nos. 11-1092; 11-1699
Downing v. Life Time Fitness, Inc.

to stalk her while she worked out and to aggressively greet her so as to intimidate her. Downing

removed her lawsuit to the Wayne County Circuit Court and amended her complaint to allege race

and gender discrimination under state and federal law. LTF removed the case to the district court.

In the meantime, LTF terminated Downing’s membership. Downing continued to come onto LTF’s

premises and refused to leave, resulting in her arrest by the Canton Police Department for trespass.

               Downing’s third amended complaint asserted nine claims against LTF: (1) race and

gender discrimination in provision of services, facilities, and accommodations; (2) false arrest, false

imprisonment, and malicious prosecution; (3) intentional and reckless infliction of emotional

distress; (4) negligence; (5) defamation and invasion of privacy; (6) breach of contract; (7) fraud;

(8) due-process and First Amendment violations; and (9) civil stalking. She sought injunctive and

declaratory relief, damages in the amount of $631,550, attorney’s fees, and costs.

               The district court denied Downing’s motion for a preliminary injunction, and she

appealed (No. 11-1092). The district court subsequently rejected Downing’s objections to a

protective order with respect to the deposition of a witness and denied as moot her motion to stay

the proceedings pending resolution of her objections. After granting LTF’s motion for summary

judgment, the district court entered a judgment dismissing Downing’s claims, and she appealed (No.

11-1699). We consolidated Downing’s cases for submission.

                                                  II.

A.     Protective Order

               Downing sought to take the deposition of Sandy Schmidt, the general manager of

LTF’s club in Novi. LTF moved for a protective order, asserting that Schmidt would not be

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Nos. 11-1092; 11-1699
Downing v. Life Time Fitness, Inc.

available at any time in the near future due to a serious medical condition, and submitted a letter

from Schmidt’s doctor to the magistrate judge for in camera review. After reviewing the doctor’s

letter and conducting a hearing, the magistrate judge granted the protective order, but provided that

LTF could not use Schmidt’s testimony at trial until she was made available for a deposition.

Downing objected to the protective order and moved to stay the proceedings pending resolution of

her objections. After reviewing the doctor’s letter and hearing oral argument, the district court

rejected Downing’s objections, finding that Schmidt was unable to testify and that the condition on

the use of her testimony at trial represented a fair balancing of Downing’s discovery needs against

the burden such discovery would impose. The district court denied as moot Downing’s motion to

stay.

                “The decision to grant a protective order will be disturbed on appeal only upon a

finding of an abuse of discretion.” Samad v. Jenkins, 845 F.2d 660, 663 (6th Cir. 1988). Downing

argues that in camera review of the doctor’s letter was inappropriate under HIPAA regulations, but

the regulation that she cites has no bearing on this issue. Downing does not cite any authority

entitling her to the specifics of Schmidt’s medical condition. Downing also contends that Schmidt

has personal knowledge of information relevant to her claims, but fails to show any prejudice at this

stage in the litigation. The summary-judgment rules required that the district court view the facts

in the light most favorable to Downing, who did not file a Rule 56(d) affidavit asserting that facts

necessary to oppose LTF’s summary judgment motion were unavailable to her. We can find no

abuse of discretion, particularly in light of the protective order’s condition on the use of Schmidt’s

testimony at trial.

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Nos. 11-1092; 11-1699
Downing v. Life Time Fitness, Inc.

B.        Summary Judgment

               We review de novo the district court’s decision to grant summary judgment in favor

of LTF. Lefevers v. GAF Fiberglass Corp., 667 F.3d 721, 723 (6th Cir. 2012). 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 court must view the

evidence and draw all reasonable inferences in favor of the non-movant and determine “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 (1986); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986).

               1.      Negligence and Defamation

               As an initial matter, Downing’s opening brief does not address the dismissal of her

negligence and defamation claims. We consider those claims abandoned. See Hills v. Kentucky, 457

F.3d 583, 588 (6th Cir. 2006); Turner v. City of Taylor, 412 F.3d 629, 639 (6th Cir. 2005).

               2.      Discrimination and Retaliation

               Downing claimed race and gender discrimination in violation of the Elliott-Larsen

Civil Rights Act, Mich. Comp. Laws §§ 37.2101–.2804, the Civil Rights Act, 42 U.S.C. §§ 1981 and

2000a, and Michigan common law. Because Downing presented no direct evidence of race or

gender discrimination, the district court properly analyzed her claims under the burden-shifting

framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). To

demonstrate a prima facie case under that framework, Downing must show that: (1) she belongs to

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Downing v. Life Time Fitness, Inc.

a protected class; (2) she “sought to make a contract for services ordinarily provided by the

defendant”; and (3) she was “denied the right to enter into a contract for such services while similarly

situated persons outside the protected class were not” or she was “treated in such a hostile manner

that a reasonable person would find it objectively discriminatory.” Keck v. Graham Hotel Sys., Inc.,

566 F.3d 634, 639 (6th Cir. 2009).

                At the hearing on LTF’s summary judgment motion, Downing conceded that she

could not name any non-protected person who was treated differently. Downing also failed to

demonstrate “markedly hostile” conduct on the part of LTF—conduct that “is (1) so profoundly

contrary to the manifest financial interests of the merchant and/or [its] employees; (2) so far outside

of widely-accepted business norms; and (3) so arbitrary on its face, that the conduct supports a

rational inference of discrimination.” Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 871 (6th Cir.

2001) (quoting Callwood v. Dave & Buster’s, Inc., 98 F. Supp. 2d 694, 708 (D. Md. 2000)). As

evidence of LTF’s discriminatory harassment, Downing asserted that: LTF’s employees frequently

asked how she was doing in a “sarcastic” manner and made “degrading” remarks about her going

through a lot or “hanging in by a thin thread,” giving her “negative energy”; employees laughed or

looked at her when she passed by; employees positioned themselves so as to place themselves in her

line of sight or to force an interaction with her; a male African-American employee in plainclothes

watched her swim; a male African-American employee texted her late at night to invite her to play

basketball; a male African-American employee told her that he was an assassin; and when she

purchased a fitness assessment, LTF provided her with “illegitimate” results and advice,

undermining her efforts to lose weight. We agree with the district court that, viewing the facts in

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Downing v. Life Time Fitness, Inc.

the light most favorable to Downing, LTF’s alleged conduct could not support a rational inference

of race or gender discrimination. While Downing herself disliked interacting with LTF’s employees

and disagreed with their fitness recommendations, a reasonable person would not find their conduct

so contrary to LTF’s financial interests, so outside of business norms, or so arbitrary that it was

objectively discriminatory.

                Downing also claimed that LTF terminated her membership in retaliation for filing

this lawsuit and reporting race discrimination. To maintain such a claim under Michigan’s

Elliott-Larsen Civil Rights Act, Downing must show: “(1) that [s]he engaged in a protected activity;

(2) that this was known by the defendant; (3) that the defendant took an . . . action adverse to [her];

and (4) that there was a causal connection between the protected activity and the adverse . . . action.”

Garg v. Macomb Cty. Cmty. Mental Health Servs., 696 N.W.2d 646, 653 (Mich. 2005). “The

conduct of [a plaintiff] cannot be opposed to a violation of the CRA unless it refers to some action

of the [defendant] that the [plaintiff] reasonably believes is unlawful.” Gray v. Mich. Minority Bus.

Dev. Counsel, No. 276693, 2008 WL 4276618, at *1 (Mich. Ct. App. Sept. 18, 2008); see also

Burkhardt v. Blue Cross Blue Shield of Mich., No. 197988, 1999 WL 33455100, at *1 (Mich. Ct.

App. Jan. 22, 1999). Likewise, under Title VII, “[a] plaintiff must demonstrate that her opposition

was reasonable and based on a good-faith belief that the [defendant] was acting in violation of [the

federal civil rights statute,] Title VII.” Barrett v. Whirlpool Corp., 556 F.3d 502, 516 (6th Cir.

2009); see also McGrath v. Clinton, 666 F.3d 1377, 1380 (D.C. Cir. 2012) (Garland, J.); Johnson

v. Univ. of Cincinnati, 215 F.3d 561, 580 (6th Cir. 2000) (“In short, the only qualification that is



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Downing v. Life Time Fitness, Inc.

placed upon [a plaintiff’s] invocation of protection from retaliation under Title VII’s opposition

clause is that the manner of his opposition must be reasonable.”).

               This limiting principle dooms Downing’s retaliation claim. As we observed earlier,

the record is devoid of evidence that could lead a rational person to believe that race or gender

discrimination occurred. Downing, therefore, cannot establish a prima facie case of retaliation. Our

analysis is not precisely the same as the district court’s, but we must affirm if the lower court’s

decision was “correct for any reason, including a reason not considered by the lower court.” Russ’

Kwik Car Wash, Inc. v. Marathon Petroleum Co ., 772 F.2d 214, 216 (6th Cir. 1985).

               3.        False Arrest, False Imprisonment, and Malicious Prosecution

               In support of her false-arrest, false-imprisonment, and malicious-prosecution claims,

Downing alleged that LTF caused her to be arrested for “unmerited claims of trespass.” Under

Michigan law, to prevail on any of these claims, Downing must show a lack of probable cause. See

Matthews v. Blue Cross & Blue Shield of Mich., 572 N.W.2d 603, 610 (Mich. 1998); Peterson

Novelties, Inc. v. City of Berkley, 672 N.W.2d 351, 362 (Mich. Ct. App. 2003). “[T]he question of

probable cause is an objective test that involves only the conduct of a reasonable man under the

circumstances” and requires “such reasonable ground of suspicion, supported by circumstances

sufficiently strong in themselves to warrant an ordinarily cautious man in the belief that the person

arrested is guilty of the offense charged.” Matthews, 572 N.W.2d at 614 (internal quotation marks

and footnote omitted).

               We agree with the district court that the facts, viewed in the light most favorable to

Downing, establish that LTF’s employees had probable cause to believe that Downing was

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Downing v. Life Time Fitness, Inc.

trespassing. After LTF informed Downing that her membership had been terminated and that she

was no longer permitted to enter LTF’s premises, she attempted to use the facilities. Under these

circumstances, a reasonable person would have believed that Downing was trespassing. Summary

judgment on Downing’s false-arrest, false-imprisonment, and malicious-prosecution claims was

appropriate.

               Downing alleged that LTF pursued the trespassing claims against her in retaliation

for this lawsuit. According to the Michigan courts, however, “[i]f probable cause is found, the actual

motive behind the complaint may not be relevant,” as “[w]ant of probable cause may not be inferred

from malice.” Id. at 610 n.14 (internal quotation marks omitted).

               According to Downing, the trespass ordinance’s prohibition on entering or remaining

on the premises of another “without lawful authority” is unconstitutionally vague. Downing did not

make this argument below, and we therefore deem it forfeited. Downing instead argued that, under

Bouie v. City of Columbia, 378 U.S. 347 (1964), criminal trespass requires a breach of the peace.

The district court correctly rejected this argument because Bouie held that a state could not change

its longstanding interpretation of its criminal trespass law—an interpretation requiring a breach of

the peace—without violating due process. See id. at 354–55 (“When a[n] . . . unforeseeable

state-court construction of a criminal statute is applied retroactively to subject a person to criminal

liability for past conduct, the effect is to deprive him of due process of law in the sense of fair

warning that his contemplated conduct constitutes a crime.”). In assessing the state’s evolving

definition of criminal trespass, the Bouie Court noted the traditional, common-law distinction



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Downing v. Life Time Fitness, Inc.

between criminal and civil trespass: a breach of the peace. See id. at 357–58. It did not hold that

states’ criminal trespass laws must always require a breach of the peace.

               4.      Intentional or Reckless Infliction of Emotional Distress

               To establish a claim for intentional or reckless infliction of emotional distress under

Michigan law, Downing must demonstrate four elements: (1) extreme and outrageous conduct;

(2) intent or recklessness; (3) causation; and (4) severe emotional distress. Roberts v. Auto-Owners

Ins. Co., 374 N.W.2d 905, 908 (Mich. 1985). Downing’s allegations amount to “mere insults,

indignities, threats, annoyances, petty oppressions, or other trivialities” to which liability does not

extend. Id. at 909 (quoting Restatement (Second) of Torts § 46 cmt. d). In addition, Downing’s

embarrassment does not rise to the level of severe emotional distress necessary to support a claim

for intentional or reckless infliction of emotional distress. See id. at 912. Summary judgment on this

claim was appropriate.

               5.      Invasion of Privacy

               To state a claim for invasion of privacy based on an intrusion upon her seclusion,

Downing must show: “(1) an intrusion by defendant; (2) into a matter which plaintiff has a right to

keep private; (3) by the use of a method which is objectionable to the reasonable person.” Lewis v.

Dayton Hudson Corp., 339 N.W.2d 857, 859 (Mich. Ct. App. 1983). Downing alleged in her

complaint that LTF “used devices to surveillance [sic] Plaintiff while at their centers without

Plaintiff’s knowledge or permission,” but failed to present any evidence calling into question LTF’s

representation that no audio or video recording devices were used at the Canton club while Downing

was a member. In her appellate brief, Downing asserts that LTF’s employees took her cell phone

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Downing v. Life Time Fitness, Inc.

from her locker and deleted text messages while she was working out. Downing offers no evidence,

only speculation, in support of this allegation. Accordingly, the district court properly granted

summary judgment in favor of LTF on Downing’s invasion-of-privacy claim.

               6.      Breach of Contract

               Downing alleged that LTF breached the Member Usage Agreement by terminating

her membership in bad faith. The agreement stated: “Life Time Fitness may terminate my

membership or any member at any time for failure to comply with any of the rules and regulations

adopted by Life Time Fitness or for conduct Life Time Fitness determines to be improper or contrary

to the best interests of Life Time Fitness.” Downing conceded that this language could be interpreted

to give LTF “unbridled discretion” in terminating her membership, but asserted that LTF was

required to do so in good faith. Although Michigan law does not recognize an independent cause

of action for breach of the implied duty of good faith, see Belle Isle Grill Corp. v. City of Detroit,

666 N.W.2d 271, 279 (Mich. Ct. App. 2003), a party can breach its contractual obligations by

performing in bad faith, see Lowe’s Home Ctrs., Inc. v. LL & 127, LLC, 147 F. App’x 516, 523-24

(6th Cir. 2005) (collecting Michigan authority recognizing an implied duty of good faith in the

performance of a contract, despite the absence of an independent cause of action). Given Downing’s

documented hostile relationship with LTF and the absence of evidence indicating that LTF acted in

bad faith when it terminated her membership, we agree with the district court that she has not

presented a genuine issue of fact of LTF’s bad faith.

               Downing also alleged that LTF breached an oral agreement to provide fitness

assessments by giving her inaccurate results and advice. In support of her allegations, Downing

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Downing v. Life Time Fitness, Inc.

submitted “Plaintiff’s Memorandum on Defendant’s Fitness Exams,” which set forth her own

analysis of the fitness assessment reports provided by LTF and her own conclusions that LTF

provided incredible information and advice with respect to those assessments. The district court

sustained LTF’s objection to Downing’s memorandum, noting that Downing, as a lay witness, could

not give an opinion “based on scientific, technical, or other specialized knowledge,” Fed. R. Evid.

701(c), and that she failed to show that she possessed expertise in performing or analyzing the fitness

assessments at issue to qualify as an expert, see Fed. R. Evid. 702.

               We review the district court’s decision to exclude Downing’s memorandum for an

abuse of discretion. Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 668 (6th Cir. 2010). Federal Rule

of Evidence 702 provides that “[a] witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of an opinion.” At the hearing on LTF’s

summary-judgment motion, Downing pointed to her college mathematics courses and mechanical

engineering degree, but failed to present any evidence of her specialized knowledge with respect to

fitness assessments. Accordingly, the district court did not abuse its discretion in excluding

Downing’s memorandum. And with no other evidence that the results of Downing’s fitness

assessments were inaccurate, summary judgment in favor of LTF on this breach-of-contract claim

was appropriate.

               7.      Fraud

               Downing alleged in support of her fraud claim that LTF “purposefully provided

inaccurate results and advice” with respect to the fitness assessments. Like her breach-of-contract

claim, Downing’s fraud claim fails because she provides no admissible evidence that LTF’s results

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Nos. 11-1092; 11-1699
Downing v. Life Time Fitness, Inc.

and advice were false. See Zaremba Equip., Inc. v. Harco Nat’l Ins. Co., 761 N.W.2d 151, 165

(Mich. Ct. App. 2008) (holding that fraud claim requires proof that the defendant made a material

representation that was false).

               8.      Freedom of Association and Due Process

               In support of her constitutional claims, Downing asserted that LTF terminated her

membership and caused her to be arrested for trespass in violation of her right to freedom of

association under the First Amendment, and that LTF failed to provide her with a hearing before

terminating her membership, in violation of her right to due process under the Fifth and Fourteenth

Amendments. To state a constitutional claim under 42 U.S.C. § 1983, “a plaintiff must allege the

violation of a right secured by the Constitution and laws of the United States, and must show that

the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins,

487 U.S. 42, 48 (1988). “A private party’s actions constitute state action under section 1983 where

those actions may be ‘fairly attributable to the state.’” Chapman v. Higbee Co., 319 F.3d 825, 833

(6th Cir. 2003) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 947 (1982)).

               Downing alleged that LTF used the Canton Police Department to arrest her for

trespass. Reporting a crime to the police does not expose a private party to liability under § 1983.

Moldowan v. City of Warren, 578 F.3d 351, 399 (6th Cir. 2009); Benavidez v. Gunnell, 722 F.2d

615, 618 (10th Cir. 1983). In her appellate brief, Downing contends that LTF also acted with the

Canton Police Department in refusing to document her concerns about Jeff Morton, an LTF

employee.    Downing, however, points to no evidence of LTF’s involvement in the police

department’s documentation of her complaint. Because there are no facts indicating that LTF acted

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Downing v. Life Time Fitness, Inc.

“under color of state law,” the district court properly granted summary judgment in favor of LTF on

Downing’s constitutional claims.

               9.      Civil Stalking

               Michigan Compiled Laws § 600.2954(1) provides a civil action for stalking.

“Stalking” is defined as “a willful course of conduct involving repeated or continuing harassment

of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated,

threatened, harassed, or molested and that actually causes the victim to feel terrorized, frightened,

intimidated, threatened, harassed, or molested.” Mich. Comp. Laws § 750.411h(1)(d).

               In support of her civil-stalking claim, Downing alleged that LTF’s employees went

out of their way to follow her around the facilities and appear in her line of sight. We agree with the

district court that a reasonable person would not feel terrorized or intimidated by this conduct.

C.     Preliminary Injunction

               Downing moved for a preliminary injunction to prevent LTF from cancelling or

denying her membership, refusing to contract with her, pursuing criminal-trespass complaints against

her, and harassing her. The district court balanced the four traditional preliminary-injunction factors

in denying Downing’s motion: “(1) whether the movant has a strong likelihood of success on the

merits; (2) whether the movant would suffer irreparable injury absent the injunction; (3) whether the

injunction would cause substantial harm to others; and (4) whether the public interest would be

served by the issuance of an injunction.” Bays v. City of Fairborn, 668 F.3d 814, 818-19 (6th Cir.

2012). We review the district court’s balancing of those factors and its ultimate determination for



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Downing v. Life Time Fitness, Inc.

an abuse of discretion. Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511

F.3d 535, 541 (6th Cir. 2007).

               The district court concluded that Downing failed to demonstrate a strong likelihood

of success on her breach-of-contract and retaliation claims. We review that conclusion de novo. Id.

As discussed above, Downing did not show a strong likelihood of success on her claims. We turn

to the remaining three factors. “A plaintiff’s harm from the denial of a preliminary injunction is

irreparable if it is not fully compensable by monetary damages.” Overstreet v. Lexington-Fayette

Urban Cnty. Gov’t, 305 F.3d 566, 578 (6th Cir. 2002). While a plaintiff can demonstrate irreparable

harm if the plaintiff’s claim is based on a constitutional violation, see id., Downing’s constitutional

claims fail because LTF is not a state actor. Downing, who has since joined another fitness club,

failed to demonstrate that her alleged harm cannot be compensated by monetary damages. The

district court found that the risk of harm weighed in LTF’s favor. Given Downing’s extreme views

about what conduct constitutes harassment, LTF’s employees would be unable to do their jobs in her

presence. Finally, we agree with the district court that the public interest would not be served by a

preliminary injunction in this case. Consideration of these factors leads us to conclude that the

district court did not abuse its discretion in denying a preliminary injunction.

                                                 III.

               For the foregoing reasons, we AFFIRM the district court’s orders in full.




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