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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

NICOLETA GAINARIU, 

Plaintiff, 

v. 

THE KROGER CO., 

Defendant. 

Case No. 14-14953 

SENIOR U.S. DISTRICT JUDGE 

ARTHUR J. TARNOW

U.S. MAGISTRATE JUDGE 

MICHAEL J. HLUCHANIUK

 / 

ORDER DENYING WITHOUT PREJUDICE DEFENDANT’S MOTION FOR TRANSFER OF 

VENUE [3] 

 Plaintiff has brought a negligence claim against Defendant for injuries 

sustained when she slipped and fell in a South Carolina store owned by Defendant. 

On February 4, 2015, Defendant filed a Motion for Transfer of Venue [3]. Defendant 

asked the Court to hold that venue is improper in this district and accordingly transfer 

the case, under 28 U.S.C. § 1406(a), to the United States District Court for the 

District of South Carolina, Florence Division. Plaintiff filed a Response [5] on 

February 17, 2015. The Court held a conference with the parties on March 10, 2015. 

On April 7, 2015, Defendant filed a Reply [7]. Defendant does not argue in its Reply 

that the Court should transfer the case under 28 U.S.C. § 1406(a) on the grounds of 

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improper venue. Instead, Defendant asks the Court to transfer the case under 28 

U.S.C. § 1404(a), to serve the convenience of the parties and witnesses and otherwise 

promote the interests of justice. Plaintiff filed a Supplemental Response [8] on April 

20, 2015. 

 For the reasons stated below, Defendant’s Motion for Transfer of Venue [3] is 

DENIED WITHOUT PREJUDICE. 

FACTUAL BACKGROUND

 Defendant owns a retail store in North Myrtle Beach, South Carolina. Plaintiff, 

a Michigan resident, visited the store on July 3, 2013, while on vacation. While in 

the store, Plaintiff slipped and fell on some water that had accumulated on the floor. 

She claims that the store’s manager told her that the water had accumulated due to a 

leak in the roof, which had been reported to the store’s landlord multiple times but 

never fixed. She claims that she suffered a fractured arm and dislocated shoulder that 

required extensive physical therapy and outpatient surgery. 

ANALYSIS

I. Transfer on the Grounds of Improper Venue 

 If a case is filed in an improper venue, the court “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). Venue is proper in “a judicial district in which 

any defendant resides, if all defendants are residents of the State in which the district 

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is located.” Id. § 1391(b)(1). A corporate defendant is “deemed to reside ... in any 

judicial district in which such defendant is subject to the court's personal jurisdiction 

with respect to the civil action in question.” Id. § 1391(c)(2). 

 In its initial brief in support of its Motion for Transfer [3], Defendant asks the 

Court to transfer the case under § 1406(a) on the grounds that the Eastern District of 

Michigan is an improper venue for this action. Defendant argues that it does not 

“reside” in the Eastern District of Michigan within the meaning of § 1391(b)(1) 

because “it is an Ohio corporation that transacts business as part of its Atlanta 

Division within North Myrtle Beach, South Carolina.” Defendant does not 

acknowledge § 1391(c)(2)’s personal jurisdiction standard for assessing a corporate 

defendant’s “residence.” In its Reply [7], Defendant states that it does not contest the 

Court’s personal jurisdiction over it and concedes that it owns and operates a store in 

Michigan. It therefore appears likely that Defendant “resides” in this District and that 

venue is proper under § 1391(b)(1). In any event, Defendant has forfeited any 

argument to the contrary, since it has not developed any such argument under the 

governing statutory standard. The Court therefore denies Defendant’s request to 

transfer the case under § 1406(a) on the grounds of improper venue. 

II. Transfer for Convenience, in the Interest of Justice 

 “For 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 

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might have been brought.” 28 U.S.C. § 1404(a). A court must “give some weight to 

the plaintiff’s choice of forum” but balance it against various private and public 

interests that may favor the movant’s preferred forum. Atlantic Marine Const. Co., 

Inc. v. U.S. Dist. Court for Western Dist. of Tex., 134 S. Ct. 568, 581 & n.6 (2013). 

The private interests include practical considerations such as access to evidence, the 

court’s ability to compel witnesses’ attendance, the cost of obtaining witnesses’ 

attendance, and, where relevant, the possibility of viewing premises. Id. 581 n.6 

(citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 & n.6 (1981)). Consideration 

of public interests may entail comparing the competing forums’ connection to the 

controversy, docket congestion, and familiarity with applicable state law. See id.

(citing Piper Aircraft, 454 U.S. at 241 & n.6). 

 The parties do not dispute that this action “might have been brought” in the 

District of South Carolina. Unfortunately, they say little about the § 1404 factors. 

Plaintiff addresses the § 1404 factors only by arguing that her choice of forum should 

be respected and by asserting there are an equal number of non-medical witnesses in 

Michigan and in South Carolina. Though Plaintiff states that there are three nonmedical witnesses in Michigan, she does not identify them or explain why their 

physical presence in the forum state will be required. Defendant suggests that 

Plaintiff is the only “key fact witness” residing in Michigan and that more numerous 

key witnesses reside in South Carolina. 

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 Defendant does little, however, to identify the South Carolina witnesses or 

explain why their physical presence in the forum state will be required. Defendant 

implies that store employees who witnessed the accident or its immediate aftermath 

will need to travel to Michigan to testify. However, Defendant has submitted 

incident reports prepared by such employees, and these reports indicate that the 

accident was captured on video. Such written and video evidence may alleviate or 

negate the need for employee testimony. Defendant also points out that the store’s 

landlord is located in South Carolina. Defendant has implied that the landlord is 

responsible for the leak that caused Plaintiff’s accident, and that Defendant will, at 

some unspecified time, seek to join the landlord as a party. Defendant does not, 

however, identify any witnesses in South Carolina whose testimony will be needed to 

assess the landlord’s responsibility for the accident. Indeed, Plaintiff argued in her 

Response that the landlord is irrelevant to the transfer analysis; Defendant simply 

ignored her argument in its Reply. Finally, Defendant notes that Plaintiff sought 

medical care in South Carolina after the accident. However, Defendant does not 

identify any witnesses who will need to testify regarding that care, and does not 

dispute that the majority of Plaintiff’s medical care has occurred in Michigan. 

 Defendant says nothing about the public interest factors. In diversity actions, 

one public interest factor concerns which forum is more familiar with governing state 

law. Atlantic Marine, 134 S. Ct. at 581 n.6 (citing Piper Aircraft, 454 U.S. at 241 & 

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n.6). Here, the Court must apply Michigan choice-of-law rules to determine whether 

Michigan law or South Carolina law will govern Plaintiff’s negligence claim. See id.

at 582 (“A federal court sitting in diversity ordinarily must follow the choice-of-law 

rules of the State in which it sits.”) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 

U.S. 487, 494–496 (1941)). In tort actions, Michigan courts apply a presumption in 

favor of applying Michigan law. Standard Fire Ins. Co. v. Ford Motor Co., 723 F.3d 

690, 693 (6th Cir. 2013) (citing Sutherland v. Kennington Truck Serv., Ltd., 562 

N.W.2d 466, 471 (Mich. 1997)). To determine whether this presumption is 

overcome, the Court must decide whether South Carolina has an interest in its law 

being applied and, if so, whether Michigan’s interests nevertheless mandate that 

Michigan law be applied. See id. If this analysis compels the application of 

Michigan law in this Court, it would also compel the application of Michigan law in 

the District of South Carolina after transfer. Atlantic Marine, 134 S. Ct. at 582 

(reiterating that, generally, “the state law applicable in the original court [must] also 

apply in the transferee court”) (citing Van Dusen v. Barrack, 376 U.S. 612, 639 

(1964)). Such a result would weigh against transfer, since this Court is more familiar 

with Michigan law than the District Court for the District of South Carolina. 

Nevertheless, Defendant has made no attempt to rebut the presumption in favor of 

applying Michigan law. 

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 Defendant’s argument concerning the § 1404 factors is simply too cursory to 

overcome Plaintiff’s interest in choosing her forum. The Court will therefore deny 

Defendant’s Motion for Transfer of Venue [3] without prejudice. Defendant may 

present a properly developed argument for § 1404 transfer in a renewed motion, if it 

chooses. 

CONCLUSION

 For the reasons stated above, 

IT IS ORDERED that Defendant’s Motion for Change of Venue [3] is 

DENIED WITHOUT PREJUDICE.

SO ORDERED. 

s/Arthur J. Tarnow 

 Arthur J. Tarnow 

Dated: July 16, 2015 Senior United States District Judge 

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