United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING MOTION TO DISMISS
H. CLELAND, UNITED STATES DISTRICT JUDGE
an action for breach of a settlement agreement, trademark
infringement under the Lanham Act, 15 U.S.C. § 1114, and
patent infringement under 35 U.S.C. § 271 et seq.
Plaintiffs Wesley Corporation and David Hanson have
previously brought a patent infringement lawsuit against
Defendant Zoom TV Products, LLC in this district. See
Wesley Corp. v. Zoom TV Products, Case No. 15-12449
(E.D. Mich. filed August 9, 2015) (Cleland, J.). The parties
settled, and the court dismissed this earlier action with
prejudice in an order entered August 28, 2016. See
id., Dkt. # 29. In the instant complaint, Plaintiffs
allege that Defendants Zoom TV and Idea Village Products
Corporation, along with ten John Doe Defendants, have
infringed on Plaintiffs' federally registered trademark
and patent since the effective date of the settlement
agreement. (See Dkt. # 1.)
the court is a motion to dismiss or, in the alternative, for
a more definite statement filed by Defendants. (Dkt. # 16.)
In their motion, Defendants argue that the complaint fails to
state a claim upon which relief may be granted under Federal
Rule of Civil Procedure 12(b)(6) and is too vague to allow an
effective response, requiring clarification under Federal
Rule of Civil Procedure 12(e). (Id.) The motion is
fully briefed and a hearing is unnecessary. See E.D.
Mich. LR 7.1(f)(2). After reviewing the complaint, motion,
and briefs, the court concludes that the pleadings are
sufficient, and denies the motion.
claim for relief must contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Erickson v. Pardus, 551 U.S. 89,
93 (2007) (quoting Fed.R.Civ.P. 8(a)(2)). “Specific
facts are not necessary; the statement need only ‘give
the defendant fair notice of what the . . . claim is and the
grounds upon which it rests'” Id. (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
Rule of Civil Procedure 12(b)(6) provides for dismissal for
failure to state a claim upon which relief may be granted.
Under the Rule, the court construes the complaint in the
light most favorable to the plaintiff and accepts all
well-pleaded factual allegations as true. Ashcroft
v. Iqbal, 556 U.S. 662, 678-79 (2009). However, the
court “does not apply this presumption of truth to
conclusory or legal assertions.” Binno v. American
Bar Association, 826 F.3d 338, 345-46 (6th Cir. 2016)
(citing Iqbal, 556 U.S. at 678-79). To survive a
motion to dismiss, a complaint must provide sufficient facts
to “state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570. “The
plausibility standard is not akin to a “probability
requirement, ' but it asks for more than a sheer
possibility that defendant has acted unlawfully.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 556). Additionally, on a motion to dismiss, the court
is usually limited to the complaint and attached exhibits,
but it may also consider “public records, items
appearing in the record of the case, and exhibits attached to
the defendant's motion to dismiss so long as they are
referred to in the complaint and are central to the claims
contained therein.” Erie County v. Morton
Salt, Inc., 702 F.3d 860, 863 (6th Cir. 2012)
(quoting Bassett v. Nat'l Coll. Athletic
Ass'n., 528 F.3d 426, 430 (6th Cir. 2008)).
primarily take issue with how the complaint “lumped all
the Defendants together” rather than pleading with
specificity as to each Defendants' allegedly wrongful
conduct. (Dkt. # 11, Pg. ID 68-69.) Defendants argue that
this “lumping” is automatically improper even
under a notice pleading standard. In support, Defendants
point to Atuahene v. City of Hartford, 10 Fed.Appx.
33, 34 (2d Cir. 2001) and Marcilis v. Twp. of
Redford, 693 F.3d 589, 596 (6th Cir. 2012). (Dkt. # 11,
Pg. ID 68-69.) But both Atuahene and
Marcilis deal with the particularized pleading
standard required to allege constitutional torts against
federal officers under Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Indeed, in the Sixth Circuit, “damages claims against
government officials arising from alleged violations of
constitutional rights must allege, with particularity, facts
that demonstrate what each defendant did to violate
the asserted constitutional right.” Marcillis,
693 F.3d at 596 (quoting Lanman v. Hinson, 529 F.3d
673, 684 (6th Cir. 2008) (emphasis in original).
herein are not government officers, and Plaintiffs do not
allege violations of their constitutional rights; the court
concludes that an ordinary notice pleading standard, not any
heightened or more particularized standard, applies.
light, where the complaint states that
“Defendants” did this or “Defendants”
did that, the plain allegation is that each Defendant did
each act. This does not present such a vague statement that
Defendants are rendered unable to respond. In fact, in this
court's experience, it is a common practice.
then list, with little or no developed argument, a series of
perceived deficiencies in the complaint. In the Sixth
Circuit, “issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived.” Meridia Prod. Liab. Litig. v.
Abbott Laboratories, 447 F.3d 861, 868 (6th Cir. 2006)
(“It is not sufficient for a party to mention a
possible argument in the most skeletal way, leaving the court
to put flesh on its bones.”) (quoting McPherson v.
Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997). The court
need not, and will not, discuss each of Defendants'
contentions-they are insufficiently developed and deemed
forfeited for the purposes of this motion. However, the court
will briefly address two.
Defendants' statement that there is no allegation what
relief Plaintiff David Hanson is seeking separate from
Plaintiff Wesley is plainly incorrect, as the “prayer
for relief” section explicitly requests that “the
court award each Plaintiff compensatory damages and
their attorney fees for Defendants' breach of the
Settlement Agreement.” (Dkt. # 1, Pg. ID 8-9 (emphasis
added).) Second, Defendants' contention that the
complaint “is also unclear as to the basis of [subject
matter] jurisdiction[, ]” (Dkt. # 11, Pg. ID 71), is
similarly incorrect. Defendants acknowledge that the
complaint explicitly alleges federal question jurisdiction
under 15 U.S.C. § 1121, which provides jurisdiction for
Lanham Act claims; 28 U.S.C. § 1338(a), which provides
jurisdiction for patent claims; and 28 U.S.C. § 1331,
which provides jurisdiction for all claims “arising
under” federal law. (Dkt. # 11, Pg. ID 71.) The
reference to § 1331 may be redundant, but this sort of
“belt and suspenders” approach is unproblematic.
While the complaint does not set forth an amount in
controversy or indicate the jurisdictional basis for its
breach of contract claim, Defendants tacitly acknowledge that
the court has, at least, supplemental jurisdiction under 28
U.S.C. § 1367 over this claim. (Dkt. # 11, Pg. ID 71
(“If the patent and trademark counts are
dismissed . . . then it appears clear that will [sic] be
no subject matter jurisdiction in this Court; however, that
is an argument for another day.”) (emphasis added)).
The court finds these arguments unpersuasive.
Defendants complain that the patent and trademark
infringement counts are “merely formulaic recitations
of the causes, without factual support whatsoever[.]”
(Dkt. # 11, Pg. ID 70.) The complaint alleges that Plaintiff
Wesley owns a valid, federally-registered trademark on the
“STUFZ” brand, registration number 4, 164, 164,
as well as U.S. Patent No. 8, 701, 552. The complaint further
claims that Defendants advertised, manufactured, distributed,
offered to sell, and sold products and services that infringe
on the trademark, patent, or both, since July 22, 2016. (Dkt.
# 1, Pg. ID 7-8.) The trademark registration and patent are
attached to the complaint, as are pictures of what appear to
be coupons for and an internet sales page for the accused
products. (Dkt. ## 1-2, 1-3, 1-4.) In short, Plaintiffs say
that Defendants are selling their stuff. The court has no
difficulty finding that the complaint states a plausible
claim for relief as required by Rule 12(b)(6) and Rule 8.
Accordingly, IT IS ORDERED that Defendants' motion to
dismiss or for a more definitive statement (Dkt. # 11) is
hereby certify that a copy of the foregoing document was
mailed to counsel of record on this date, April 7, 2017, ...