Leon v. The Kroger Co.

Filing 62

RULING AND ORDER: Granted in part and Denied in Part 35 Motion to Dismiss. The Motion to Dismiss is DENIED as to personal jurisdiction and improper venue and GRANTED as to transfer of venue pursuant to 28 U.S.C. § 1404(a). Pursuant to 28 U.S.C. Section 1404(a), this case is hereby Transferred to the United States District Court for the Eastern District of Tennessee, Knoxville Division. Signed by Judge John W. deGravelles on 1/27/2025. (EDC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
LAGOBERTO LEON

CIVIL ACTION

VERSUS

NO. 23-722-JWD-SDJ

THE KROGER CO., ET AL.

RULING AND ORDER
This matter comes before the Court on the Motion to Dismiss (Doc. 35) filed by Defendant
Kroger Limited Partnership I (“Kroger I”). Plaintiff Lagoberto Leon (“Leon” or “Plaintiff”)
opposes the motion (Doc. 40). Kroger I filed a reply (Doc. 41) and a supplemental reply (Doc. 48).
Plaintiff filed a supplemental memorandum in opposition of the motion (Doc. 52). Oral argument
is not necessary. The Court has carefully considered the law, the facts in the record, and the
arguments and submissions of the parties and is prepared to rule. For the following reasons, the
Motion to Dismiss is granted in part and denied in part.
I.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

On January 2, 2023, Plaintiff, a domiciliary of St. Tammany Parish, Louisiana, was in a
Kroger grocery store in Harriman, Tennessee, where he was injured after a slip and fall. (Doc. 32
at ¶¶ 5–16.) Plaintiff filed suit in this Court on August 13, 2023. (Doc. 1.) Plaintiff initially filed
suit against The Kroger Company (“TKC”), who remains a defendant in this case but did not join
in this motion. (Doc. 1.) In its Answer to the original Complaint, TKC admitted that this Court had
personal jurisdiction over it. (Doc. 6 at ¶ 3.) TKC also argued that it was not the proper defendant
because Kroger I is the owner of the store in Harriman, Tennessee. (Id. at ¶ 2.)
TKC filed a motion to transfer the case based on forum non conveniens, asserting that the
Eastern District of Tennessee would be a more proper venue because the injury occurred there.

(Doc. 23.) Plaintiff filed the First Supplemental and Amending Complaint on November 16, 2023,
adding Kroger I as an additional defendant. (Doc. 32.) The Court denied TKC’s motion to transfer
(Doc. 23) without prejudice to raising the arguments in the Motion to Dismiss or in response to
Plaintiff’s First Supplemental and Amending Complaint. (Doc. 54).
II.

RELEVANT STANDARD

“Upon objection to venue, the burden is on the plaintiff to establish that venue is proper,
but the Court must accept as true all allegations in the complaint and resolve all conflicts in favor
of the plaintiff.” Walters v. T.H. Hill Assocs., Inc., No. 12-723, 2013 WL 5375488, at *1 (M.D. La.
Sept. 19, 2013) (citing Ginter ex rel. Ballard v. Belcher, Predergast & Laporte, 536 F.3d 439, 448–
49 (5th Cir. 2008)). “When venue is challenged, the court must determine whether the case falls
within one of the three categories set out in 28 U.S.C. § 1391(b). If it does, venue is proper; if it
does not, venue is improper, and the case must be dismissed or transferred under 28 U.S.C. §
1406(a).” Atl. Marine Constr. Co., Inc. v. U.S. Dist. Ct. W. Dist. Tex., 571 U.S. 49, 56 (2013). Put
another way, 28 U.S.C. § 1406(a) allows a court to dismiss or transfer an action only if that action
has been originally brought in an improper venue.
Intended to do more than codify existing law on forum non conveniens, § 1404(a) allows a
defendant to transfer an action to a generally more convenient forum. 28 U.S.C. § 1404(a);
Norwood v. Kirkpatrick, 349 U.S. 29, 30 (1955); Excelsior Designs, Inc. v. Sheres, 291 F. Supp.
2d 181, 184 (E.D.N.Y. 2003). It reads: “For the convenience of the 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.”
28 U.S.C. § 1404(a). Transfer under 28 U.S.C. § 1404(a) is only authorized if the movant
establishes that: “(1) venue is proper in the transferor district; (2) venue is proper in the transferee

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district; and (3) the transfer will serve the convenience of the parties, the convenience of witnesses,
and the interests of justice.” O’Quin v. Fin. Servs. Online, Inc., No. 18-36, 2018 WL 5316360, at
*10 (M.D. La. Oct. 26, 2018) (deGravelles, J.) (citations omitted); see 14D Charles A. Wright &
Arthur R. Miller, Federal Practice and Procedure, § 3827 (4th ed. 2023) (explaining that Section
1404(a) “refers to a civil action in which venue is properly laid in the district where the case was
filed[,]” whereas “Section 1406(a) pertains to transfer of a case laying venue in the ‘wrong district.’
”). If it is established that venue is proper in both the transferor district and the transferee district,
then the movant must lastly show “that the transferee venue is clearly more convenient.” White
Hat v. Landry, 475 F. Supp. 3d 532, 553 (M.D. La. 2020) (deGravelles, J.) (quoting In re
Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008)). To determine “whether a § 1404(a)
venue transfer is for the convenience of parties and witnesses and in the interest of justice[,]” courts
within the Fifth Circuit apply the public and private interest factors established by the Supreme
Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947). Volkswagen, 545 F.3d at 315 (citation
omitted).
III.

DISCUSSION
a. Parties’ Arguments
i. Motion to Dismiss (Doc. 35)

Kroger I moves to dismiss Plaintiff’s claims because (1) this Court lacks personal
jurisdiction over it, (2) this Court is not the proper venue for this case, and (3) in the alternative,
the Eastern District of Tennessee would be a more convenient venue. (Doc. 35-1.) First, it argues
that the Court lacks personal jurisdiction because Kroger I “does no business in Louisiana and has
no contacts with the forum.” (Id. at 2.) Further, asserting jurisdiction over Kroger I would not
comply with due process and traditional notions of fair play and substantial justice. (Id.)

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Kroger I’s main argument is that the Middle District of Louisiana is an improper venue.
(Id.) It says that under 28 U.S.C. § 1391(A), venue is improper because the facts giving rise to
Plaintiff’s claim, the property that is the subject of the suit, all witnesses of the injury, the injury
itself, and some medical treatment were all in Tennessee. (Id. at 3.) “No such acts or omissions
occurred in Louisiana, and venue is not proper.” (Id.)
Alternatively, Kroger I requests that the Court transfer this case to the Eastern District of
Tennessee, pursuant to 28 U.S.C. § 1404(A). (Id.)
ii. Opposition (Docs. 40, 52)
Plaintiff argues that Kroger I is the alter ego of TKC, and the Court’s personal jurisdiction
over TKC may be imputed to Kroger I. (Doc. 52 at 1.) He asserts that Kroger I is a wholly owned
subsidiary of TKC because “The Kroger Company owns a 99% interest in Kroger I, and [T]he
Kroger Company owns a 100% interest in KRGP, which in turn owns a 1% general partnership
interest in Kroger I.” (Id. at 2 (citing Bradley deposition, Doc. 42-7).) All three entities share tax,
legal, and finance departments. (Id.) The paperwork the three entities have filed in Louisiana was
completed by the same person, listing the same registered agent. (Id. at 3–4.) Several of TKC’s
executives have been involved in KRGP and Kroger I. (Id. at 4–5.)
Plaintiff contends that Kroger I is a wholly owned subsidiary of TKC, which allows the
Court to pierce the corporate veil and treat the two as a single entity for jurisdictional purposes.
(Id. at 7–8.) He argues that Tennessee law should control here and that “the actions of a parent
corporation may be attributable to a subsidiary corporation (1) when one corporation is acting as
an agent for the other or (2) when the two corporations are essentially alter egos of each other.”
(Id. at 8–9 (citing Harris Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122,

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1134 (9th Cir. 2003); Robert C. Casad & William M. Richman, Jurisdiction in Civil Actions § 43[5] (3d ed. 2004)).)
Plaintiff maintains that this Court has personal jurisdiction over Kroger I because,
“[f]ederal courts have consistently acknowledged that it is compatible with due
process for a court to exercise personal jurisdiction over an individual . . . that would
not ordinarily be subject to personal jurisdiction in that court when the individual .
. . is an alter [ego] . . . of a corporation that would be subject to personal jurisdiction
in that court.” The jurisdictional contacts of one serve as the jurisdictional contacts
for the other for purposes of due process.
(Id. at 9 (quoting Newport News Holdings Corp. v. Virtual City Vision, Inc., 650 F.3d 423, 433 (4th
Cir. 2011) (quoting Patin v. Thoroughbred Power Boats Inc., 294 F.3d 640, 653 n.18 (5th Cir.
2002) (collecting cases))).) He argues that to rebut the presumption of separateness, he must show
that Kroger I is a sham or dummy company, that the two entities are indistinguishable, or that the
subsidiary “is merely an instrumentality, agent, conduit, or adjunct of the parent corporation.” (Id.
at 9–10 (citing Gordon v. Greenview Hosp., Inc., 300 S.W.3d 635, 653 (Tenn. 2009)).)
Courts are permitted to disregard the corporation’s separate identity, a theory also
known as “piercing the corporate veil.” This theory permits a court to disregard a
corporate entity in order to impose liability against a related entity, such as a parent
corporation or a controlling shareholder, where the two entities are in fact identical
or indistinguishable and where necessary to accomplish justice. If the court imposes
liability against the related entity under this theory, the evidence must show that
one entity is the alter ego of the other.
(Id. at 10 (citing Stigall v. Wickes Mach., 801 S.W.2d 507, 510–11 (Tenn. 1990); Scandlyn v. McDill
Columbus Corp., 895 S.W.2d 342, 346–47 (Tenn. Ct. App. 1994); Continental Bankers Life Ins.
Co. v. Bank of Alamo, 578 S.W.2d 625, 632 n.1 (Tenn. 1979); Mfrs. Consolidation Serv., Inc. v.
Rodell, 42 S.W.3d 846, 866 (Tenn. Ct. App. 2000)).) Plaintiff looks to a decision by this Court that
used 18 factors to determine whether multiple entities were essentially a single enterprise. (Id. at
10–11 (citing Blackmon v. Bracken Constr. Co., No. 18-142, 2018 WL 4387633, at *3 (M.D. La.

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Sept. 14, 2018) (Jackson, J.)).) He addresses these factors in turn, arguing that they indicate that
Kroger I and TKC are alter egos of each other. (Id. at 11–21.)
In the alternative, Plaintiff asserts that there is an agency relationship between the
companies. (Id. at 21–22.) He maintains that under Tennessee law and based on the information
available through preliminary discovery, “Kroger Limited Partnership I is completely controlled
by The Kroger Company” because the two partners are essentially The Kroger Company. (Id. at
22.)
iii. Replies (Docs. 41, 48)
Kroger I replies that (1) it is not a corporation, (2) TKC is not the sole owner of Kroger I,
and (3) Kroger I is not an alter ego of TKC. (Doc. 48 at 1.) It asserts that Joseph Bradley, the
corporate representative in the 30(b)(6) deposition, verified that Kroger I has no contacts with
Louisiana and that TKC is a separate entity from Kroger I. (Id. at 2.)
Kroger I argues that Plaintiff has not shown that it is subject to personal jurisdiction here
because Kroger I is not a wholly owned subsidiary of TKC. (Id.) It says that simply because TKC
has an ownership interest in another business does not mean that the two are the same company.
(Id. at 2–3.) Finally, Kroger I asserts that there is no evidence that Kroger I is a sham or dummy
corporation, as it is a fully functioning limited partnership. (Id. at 3.) Kroger I makes essentially
the same argument in its other pleading. (Doc. 41.)
b. Law and Analysis
In sum, the Court need not directly address the jurisdictional issue because even if the Court
has jurisdiction and venue is proper in this Court, the suit could have been brought in the Eastern
District of Tennessee and that court is a more convenient forum. Therefore, the suit will be
transferred pursuant to § 1404(a).

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While a court must typically rule on jurisdictional questions before ruling on other
threshold issues,
Supreme Court and Fifth Circuit precedent “recognize that, in some limited
instances, ‘a federal court has leeway to choose among threshold grounds for
denying audience to a case on the merits.’ ” . . . As examples of threshold issues,
the Supreme Court has approved of courts dismissing suits for lack of personal
jurisdiction without first addressing subject-matter jurisdiction, or granting forum
non conveniens dismissals before addressing other jurisdictional issues.
Hines v. Stamos, 111 F.4th 551, 564 (5th Cir. 2024) (internal footnotes omitted). Thus, although
Defendant moved for dismissal for lack of personal jurisdiction and improper venue, the Court
will only address the § 1404(a) argument, including the issue of personal jurisdiction as it bears
on the § 1404(a) issue, as the case should be transferred on those grounds.
A case may be transferred under § 1404(a) when, “(1) venue is proper in the transferor
district; (2) venue is proper in the transferee district; and (3) the transfer will serve the convenience
of the parties, the convenience of witnesses, and the interests of justice.” O’Quin, 2018 WL
5316360, at *10 (citations omitted).
This case should be transferred to the Eastern District of Tennessee whether venue is proper
in the Middle District of Louisiana or not. Under 28 U.S.C. § 1391(b), venue is proper when:
(1) a judicial district in which any defendant resides, if all defendants are residents
of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving
rise to the claim occurred, or a substantial part of property that is the subject of the
action is situated; or
(3) if there is no district in which an action may otherwise be brought as provided
in this section, any judicial district in which any defendant is subject to the court’s
personal jurisdiction with respect to such action.
For purposes of venue, the rule for residency for a juridical person is:
An entity with the capacity to sue and be sued in its common name under applicable
law, whether or not incorporated, shall be deemed to reside, if a defendant, in any
judicial district in which such defendant is subject to the court’s personal

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jurisdiction with respect to the civil action in question and, if a plaintiff, only in the
judicial district in which it maintains its principle place of business.
28 U.S.C. § 1391(c)(2).
The question of whether Kroger I resides in the Middle District of Louisiana, and thus
whether venue is proper here, turns on whether Kroger I is an alter ego of TKC, which is a complex
question involving conflicts of law and the law governing corporations. The question of what law
applies to the alter ego analysis for jurisdictional purposes is a “complicated choice of law
question” that remains an open question in the Fifth Circuit. See Jackson v. Tanfoglio Guiseppe,
S.R.L., 615 F.3d 579, 587 (5th Cir. 2010). But, the Court need not resolve that question because,
regardless of whether venue is proper in this Court, transfer would be appropriate because, on
either framework, the Eastern District of Tennessee is a more convenient and appropriate forum.
If Kroger I is not an alter ego of TKC, it would not be subject to this Court’s jurisdiction,
would not be deemed to reside in this district, and venue would not be proper under § 1391(1) or
(3). The incident that is the subject of this lawsuit happened in Harriman, Tennessee. (Doc. 32 at
¶¶ 5–16.) There is no allegation that a substantial part of the events giving rise to the claim took
place in this district. Thus, venue would not be proper under § 1391(b)(2). “The district court of a
district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it
be in the interest of justice, transfer such case to any district or division in which it could have
been brought.” 28 U.S.C. § 1406(a). As will be discussed below, the interests of justice weigh in
favor of transferring this case.
If, on the other hand, Kroger I is an alter ego of TKC, thus subjecting it to this Court’s
personal jurisdiction and making venue proper, the Eastern District of Tennessee would be a more
convenient forum.

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Venue would be proper in the Eastern District of Tennessee. 28 U.S.C. § 1391(b)(2)
provides that venue is proper in the district in which a substantial part of the events giving rise to
the claim occurred. The Kroger grocery store where Plaintiff fell is located in Harriman, Tennessee,
within the Eastern District of Tennessee, Knoxville Division. (Doc. 32 at ¶¶ 5–16.); US Courts
Connections, https://connections.tned.uscourts.gov/locations.html (last visited 1/27/25). Because
a substantial part of the events took place there, venue is proper in that district.
Finally, transfer to the Eastern District of Tennessee would be more convenient for the
parties, the witnesses, and would serve the interests of justice. O’Quin, 2018 WL 5316360, at *10.
Mined from § 1404's plain text, the Fifth Circuit employs a two-part test—justice and
convenience—to determine whether a transfer of venue is warranted. Volkswagen, 545 F.3d at 314.
Crucial to this analysis is the apparent purpose animating § 1404(a): To “prevent plaintiffs from
abusing their privilege under § 1391 by subjecting defendants to venues that are inconvenient
under the terms of § 1404(a).” Id. at 313. As the Court explained, “Congress, by the term ‘for the
convenience of parties and witnesses, in the interest of justice,’ intended to permit courts to grant
transfers upon a lesser showing of inconvenience.” Norwood, 349 U.S. at 32. With modern
precedent having relaxed the standard for a venue's transfer, courts continue to weigh the public
and private interest factors (“Gilbert Factors”) originally set forth in Gulf Oil Corp. v. Gilbert, 330
U.S. 501. Advance Prods. & Sys. Inc. v. CCI Piping Sys., LLC, No. 2:14-CV-02456, 2015 U.S.
Dist. LEXIS 26583, at *3–4, 2015 WL 920673, at *1–2 (W.D. La. Mar. 3, 2015) (summarizing the
jurisprudence); see also, e.g., In re Radmax, Ltd., 720 F.3d 285, 288 (5th Cir. 2013) (citing
Volkswagen, 545 F.3d at 315).
Generally, the factors total eight: (1) “the relative ease of access to sources of proof”; (2)
“the availability of compulsory process to secure the attendance of witnesses”; (3) “the cost of

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attendance for willing witnesses”; (4) “all other practical problems that make trial of a case easy,
expeditious and inexpensive”; (5) “the administrative difficulties flowing from court congestion”;
(6) “the local interest in having localized interests decided at home”; (7) “the familiarity of the
forum with the law that will govern the case”; and (8) “the avoidance of unnecessary problems of
conflict of laws [or in] the application of foreign law.” Volkswagen, 545 F.3d at 315. “These factors
are not exhaustive or exclusive, and no single factor is dispositive.” Oxysure Sys., Inc. v. Castaldo,
No. 4:15-cv-00324, 2016 U.S. Dist. LEXIS 32905, at *5, 2016 WL 1031172, at *2 (E.D. Tex. Mar.
15, 2016); accord Action Indus., Inc. v. U.S. Fidelity & Guar. Co., 358 F.3d 337, 340 (5th Cir.
2004).
These factors support the transfer of this case. Any negligence by Defendants took place in
Harriman, and any evidence or witnesses regarding the condition of the store at the time of the
incident are all likely to be in Harriman. This case has no connection to the Middle District of
Louisiana other than its possible personal jurisdiction over Defendants. Tennessee substantive law
is likely to be applied in this case, giving Tennessee courts an interest in the outcome in the case.
A federal district court located in Tennessee is more familiar with that law. This Court has a heavier
than usual docket. The Court takes judicial notice of the fact that the Middle District of Louisiana is
one of the busiest districts in the country. For the period ending March 31, 2024, the Middle District
has three (3) total judgeships with 683 total weighted filings per authorized judgeship. United States
Courts, U.S. District Courts – Weighted and Unweighted Filings per Authorized Judgeship,
https://www.uscourts.gov/statistics-reports/caseload-statistics-data-tables (last accessed 1/27/25). The
Eastern District of Tennessee, on the other hand, has five (5) total judgeships with 376 total weighted
filings per authorized judgeship. Id. Thus, the Gilbert factors weigh in favor of transfer. The Court

will transfer this lawsuit to the Eastern District of Tennessee.

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IV.

CONCLUSION

Accordingly,
IT IS ORDERED that Kroger Limited Partnership I’s Motion to Dismiss (Doc. 35) is
GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that the Motion to Dismiss is DENIED as to personal
jurisdiction and improper venue and GRANTED as to transfer of venue pursuant to 28 U.S.C. §
1404(a).
IT IS FURTHER ORDERED that pursuant to 28 U.S.C. § 1404(a), this case is hereby
TRANSFERRED to the United States District Court for the Eastern District of Tennessee,
Knoxville Division.
Signed in Baton Rouge, Louisiana, on January 27, 2025.

S
JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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