Jones v. Plow and Hearth Corporation
Filing
17
OPINION and ORDER Denying Defendant's 5 Motion to Dismiss Plaintiff's Michigan Consumer Protection Act Claim and 7 Motion to Transfer Venue. Signed by District Judge Judith E. Levy. (FMos)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Timothy Jones,
Plaintiff,
v.
Case No. 14-cv-13129
Hon. Judith E. Levy
Mag. Judge Paul J. Komives
Plow & Hearth Corporation,
Defendant.
________________________________/
OPINION AND ORDER DENYING DEFENDANT’S MOTION TO
DISMISS PLAINTIFF’S MICHIGAN CONSUMER PROTECTION
ACT CLAIM [5] AND MOTION TO TRANSFER VENUE [7]
This is a patent case. Defendant Plow & Hearth Corporation
seeks to have the Court transfer venue in the matter to the Western
District of Virginia. If the Court does not do so, defendant also seeks
dismissal of plaintiff’s Michigan Consumer Protection Act (“MCPA”)
claim. Pursuant to Local R. 7.1(f)(2), the Court will decide this motion
without oral argument.1
Defendant contends in its reply that plaintiff should not be allowed to
present arguments to the Court if oral argument were held, because
plaintiff’s response was untimely filed. (Dkt. 15 at 2-3.) Plaintiff,
1
I.
Background
Plaintiff, an inventor and attorney, is the holder of U.S. Patent
No. 6,893,138, entitled “Illuminated Windmill for Virtual Color
Generation.” The patent covers a windmill that uses light emitting
diodes (LEDs) powered by wind energy. Defendant, as a part of its
business selling ornamental yard and garden accessories, is alleged to
sell a product listed as an “LED Garden Windmill With Decorative
Metal Scrollwork Base.”
Plaintiff filed suit on August 14, 2014 in this district, claiming
patent infringement, violation of the Lanham Act, and violation of the
MCPA by defendant. On September 11, 2014, defendant filed both of
the instant motions. (Dkts. 5 and 7.)
II.
Standard
When deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6),
the Court must “construe the complaint in the light most favorable to
however, filed a motion for an extension of time on October 21, 2014,
which asked the Court to excuse the untimely filing. (Dkt. 16.) The
Court granted the motion on October 22, 2014. Accordingly, the Court
will treat plaintiff’s response as timely filed, irrespective of its decision
on whether to hold oral argument.
2
the plaintiff and accept all allegations as true.” Keys v. Humana, Inc.,
684 F.3d 605, 608 (6th Cir.2012). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). A plausible claim need not contain “detailed
factual allegations,” but it must contain more than “labels and
conclusions” or “a formulaic recitation of the elements of a cause of
action[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
III.
Analysis
A. Motion to Transfer Venue
Defendant seeks to change venue to the Western District of
Virginia, where it is located. Motions to transfer venue arise under 28
U.S.C. § 1404(a), which states that: “[f]or the convenience of parties and
witnesses, in the interest of justice, a district court may transfer any
civil action to any other district or division where it might have been
brought or to any district or division to which all parties have
consented.”
“Generally, a plaintiff's choice of forum will be given deference
unless the defendant makes an appropriate showing . . . . A transfer is
3
not appropriate if the result is simply to shift the inconvenience from
one party to another.” Audi AG & Volkswagen of Am., Inc. v. Izumi, 204
F. Supp. 2d 1014, 1023 (E.D. Mich. 2002) (internal citations omitted).
In determining whether to grant a motion to transfer venue, the
Court considers the following factors: “(1) the convenience of the parties;
(2) the convenience of the witnesses; (3) the relative ease of access to
sources of proof; (4) the availability of process to compel attendance of
unwilling witnesses; (5) the cost of obtaining unwilling witnesses; (6)
the
practical
problems
associated
with
trying
the
case
expeditiously and inexpensively; and (7) the interest of justice.”
most
Id.
(further citations omitted).
Defendant’s argument consists almost entirely of the fact that it is
based in the Western District of Virginia, and any of its employees who
would be witnesses in this matter are located there.
Defendant
provides no compelling evidence that litigating in the Eastern District
of Michigan would result in any significant inconvenience to it that
would overcome the Court’s general deference to plaintiff’s choice of
venue.
4
A transfer of venue would simply shift whatever inconvenience
exists for defendant onto plaintiff. Regardless of where this proceeds,
plaintiff will likely have to travel to Virginia to conduct depositions,
interviews, and non-electronic discovery.
A transfer would simply
require plaintiff to make an increased number of trips to Virginia for
court proceedings, while defendant may have its Michigan counsel
appear at proceedings in this Court.
The Court determines that it is not in the interests of justice to
transfer this case, and will decline to do so.
B. Motion to Dismiss the MCPA Claim
Count III of plaintiff’s complaint alleges violation of the Michigan
Consumer Protection Act (“MCPA”).
M.C.L. § 445.901 et seq.
Specifically, plaintiff alleges a violation of § 445.903(1)(a), which deems
as unfair, unconscionable, or deceptive any method, act, or practice that
“caus[es] a probability of confusion or misunderstanding as to the
source, sponsorship, approval, or certification of goods or services.” (See
Dkt. 1 at ¶¶ 29-30.) The MCPA applies only to “goods, property, or
service[s] [used] primarily for personal, family, or household purposes.”
M.C.L. § 445.902(g).
5
Defendant argues that plaintiff fails to allege a plausible claim
under the MCPA for two reasons.
First, defendant argues, plaintiff
failed to state that defendant’s windmills were goods used primarily for
personal, family, or household purposes. Second, defendant contends
that the MCPA count consists only of the language of the relevant
section of the statute without further factual allegations giving rise to a
cause of action.
Reading plaintiff’s complaint in the light most favorable to him,
the Court finds that he has successfully pled a plausible claim for relief.
Plaintiff attempts to rely on evidence not contained in his complaint in
his response, which the Court will disregard. Instead, the Court will
rely on paragraphs 10 and 11 of plaintiff’s complaint. Plaintiff alleges
that “defendant is a company that sells ornamental yard and garden
accessories[.]” (Dkt. 1 at ¶ 10.) Plaintiff then alleges that the product is
an “LED Garden Windmill With Decorative Metal Scrollwork Base.”
(Id. at ¶ 11.)
Defendant cites no case where a court has dismissed an MCPA
claim for failure to allege that a product is used primarily for personal,
family, or household purposes, and the Court can find none. Instead,
6
courts that have dismissed MCPA claims on purpose grounds have
generally done so when the plaintiff alleges a purpose for the products
that is clearly outside of the scope of the MCPA. See, e.g., German Free
State of Bavaria v. Toyobo Co., Ltd., 480 F.Supp.2d 958, 968-69 (W.D.
Mich. 2007) (granting motion to dismiss where a police department
purchased bulletproof vests for department use, but argued the vests
were for the “personal” use of the officers).
Based on plaintiff’s description of the product in question and the
defendant as seller of the product, the Court finds that plaintiff has
presented sufficient factual assertions to make a plausible claim that
these goods were used primarily for personal, family, or household
purposes.
Defendant’s second argument consists of a single paragraph in its
motion in which it argues that plaintiff failed to assert facts giving rise
to the MCPA cause of action.
However, plaintiff has alleged that
defendant is selling a product that substantially infringes on his patent.
The portions of the complaint that defendant cites allege that the sale of
the
infringing
product
causes
a
probability
of
confusion
or
misunderstanding in the marketplace in violation of M.C.L. §
7
445.903(1)(a). It is unclear from defendant’s motion what other facts it
believes plaintiff should have asserted. That a complaint is sparse in
detail is not fatal to its survival at the motion to dismiss stage, as long
as its contents are sufficient to state a plausible claim for relief.
Accordingly, the Court denies the motion to dismiss plaintiff’s
MCPA claim.
IV.
Conclusion
For the reasons stated above, it is hereby ordered that:
Defendant’s motion to transfer venue (Dkt. 7) is DENIED; and
Defendant’s motion to dismiss plaintiff’s MCPA claim is DENIED.
IT IS SO ORDERED.
Dated: November 13, 2014
Ann Arbor, Michigan
s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on November 13, 2014.
8
s/Felicia M. Moses
FELICIA M. MOSES
Case Manager
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?