UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

Timothy Jones, 

Plaintiff, 

v. 

Plow & Hearth Corporation, 

Defendant. 

________________________________/

Case No. 14-cv-13129 

Hon. Judith E. Levy 

Mag. Judge Paul J. Komives 

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 

                                                            

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, 

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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. 

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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 

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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 most 

expeditiously and inexpensively; and (7) the interest of justice.” 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. 

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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). 

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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, 

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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. § 

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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 s/Judith E. Levy 

Ann Arbor, Michigan 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. 

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s/Felicia M. Moses 

FELICIA M. MOSES 

Case Manager 

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