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Case 1:17-cv-00538-JMS-DML Document 1-1 Filed 02/21/17 of 228 PageID #: 12

CSCCORPOBATIOH SERVICE C 0 M P A N IT

null/ALLTransmittal Number: 16131965

Date Processed; 01/20/2017Notice of Service of ProcessVenessa C. Wickline Gribble The Kroger Co.1014 Vine Street Cincinnati, OH 45202-1100

Primary Contact:

The Kroger Co,Entity ID Number 2171751

The Kroger Co.The State of Indiana vs. The Kroger Co

Summons/Complaint

Labor / EmploymentMarion County Superior Court, Indiana

49D05-1405-PL-16895

Indiana01/19/2017

23 Days

Entity:

Entity Served:

Title of Action;Document(s) Type:

Nature of Action: Court/Agency: Case/Reference No: Jurisdiction Served:

Date Served on CSC: Answer or Appearance Due: Originally Served On:

How Served:

Sender Information:

CSCCertified MailMichael D. Harmeyer 260-423-4565

To avoid potential delay, please do not send your response to CSC Centerville Road Wilmington, DE 19808 (888)690-2882 | [email protected]


mailto:[email protected]

SUMMONSIn ihe Marion Superior Court, Room No,THE STATE OF INDIANA, ex rel. HARMEYER

Plaintiff

Cause 49D05-1405-PL-016895-vs— No.THE KROGER CO., et al.

Defendant

The Kroger Co., do Corporation Service CompaMy, its Registered AgentTO DEFENDANT; (Name)

251 East Ohio Street, Ste. 500(Additjss),

Indiapapoli-s, IN 46204the Court indicatedYou are hereby notified that you have been sued by the person named as plaintiff and in

above,The nature of the suit against you is stated in the complaint which is attached to this Summons, It also states

the relief sought or the demand made against you be the plaintiff.An answer or other appropriate response in writing to the complaint must be filed either by you or your attorney

receive this Summons, (or twenty-three (23). days ifwithin twenty (20) days, commencing the day after you , . ^ jthis Summons was received by mail), or a judgment by default may be rendered against you for the relief demandedby plaintiff.

If you have a claim for relief against the plaintiff arising from the same transaction or occurrence, you must assert it in your written answer.

contact the Indianapolis Bar Association Lawyer Referral Service (269*2222),If you need the name of an attorney, you may the Marion Blr^isg^jf ion Uwycr Referra! Service (634-3950).Of

(Seal)M 11-Dated

(The following manner of service of summons Is hereby designated.)

Registered or certified mail.

Service at place of employment, to-wib

Service on Individual

Service on agent (Specify)------ -

Other service. (Specify)--------- -

Michael D. Harmeyer, #14258-02 Attorney for PlainUff

200 E. Main St., Ste, 630, Fort Wayne, IN 46802-1900

✓

(Personal or copy) al above address.

Marion County Superior Court 200 East Washington Street Indianapolis, IN 46204Address

(317) 327-3939(260) 423-4565TelephoneTelephone

Form »509


*

SHERIFF'S RETURN ON SERVICE OF SUMMONS

day of _,20,i hereby certify that I have served this summons on the (1) By delivering a copy of the Summons and a copy of the complaint to the defendant.

(2) By leaving a copy of the Summons and a copy of the complaint at —-

which is the dwelling place or usual place of abode of------------------ ----------and by mailing a copy of said summons to said defendant at the above address.

(3) Other Service or Remarks: ------------------------------------—“

SheriffSheriff's CostsBy:

IDepoty

CLERK’S CERTIFICATE OF MAIUNG

__ day of ,, I mailed a copy of this Summons and a copy of the.,20.1 hereby certify that on the_-------

complaint to the defendant, -------------at the address furnished by the plaintiff.

mail, requesting a neturn receipt,by

Clerk, Marion Superior Court

By;.20.Dated: Deputy

return on SERVICE OF SUMMONS BY MAILI hereby certify that the attached return receipt was received by me showing that the Summons and a copy of the complaint mailed to

defendant__________ • _______ Was accepted by the defendant on the ,1 hereby certify that the attached return receipt was received by me showing that the Summons and a copy of the complaint was retumc

TteS «Sfy that the al2.2 return receipt was received by me showing that the Summons and a copy of the complaint mailed toon behalf of said

.20day of

20

was accepted bydefendant -------defendant on the ,20.day of Clerk, Marion Superior Court

By:Deputy

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CSC 1

CORPORATION SERVICE COMPANY'null / ALL

Transmittal Number: 16132176 Date Processed: 01/20/2017Notice of Service of Process

Venessa C. Wickline Gribble The Kroger Co.1014 Vine Street Cincinnati, OH 45202-1100

Primary Contact:

Kroger Limited Partnership I Entity ID Number 2171999

Kroger Limited Partnership I

The State of Indiana, ex rel. Harmeyer vs. The Kroger Co

Summons

Violation of State/Federal Act

Marion County Superior Court, Indiana

49D05-1405-PL-016895

Indiana

01/19/201723 Days

Entity:

Entity Served:

Title of Action:

Document(s) Type:


Date Served on CSC: Answer or Appearance Due: Originaily Served On:

How Served:

Sender Information:

CSC

Certified Mail

Michael D, Harmeyer 260-423-4565

Information contained on this transmittal form is for record keeping, notification and forwarding the attached document(s). it does not constitute a legai opinion. The recipient is responsible for interpreting the documents and taking appropriate action.

To avoid potentiai deiay, please do not send your response to CSC 2711 Centerville Road Wilmington, DE 19808 (888)690-2882 1 [email protected]



SUMMONSIn the Marion Superior Court, Room No.THE STATE OF INDIANA, ex rel. HARMEYER

Plaintiff

Cause 49D05-1405-PL-016895•vs— No.THE KROGER CO., et al.

Defendant

Kroger Limited Partnerhsip L do Corporation Service Company, its Registered AgentTO DEFENDANT: (Name)

251 East Ohio Street, Ste. 500(Address),

Indianapolis, IN 46204

You are hereby notified that you have been sued by the peraon named as plaintiff and in the Court indicatedabove.

The nature of the suit against you is stated in the complaint which is attached to this Summons. It also states the relief sought or the demand made against you be the plaintiff.

An answer or other appropriate response in writing to the complaint must be filed either by you or your attorney within twenty (20) days, commencing the day after you receive this Summons, (or twenty-three (23). days if this Summons was received by mail), or a judgment by default may be rendered against you for the relief demanded by plaintiff, ,


If you need the name of an attorney, you may contact the Indianapolis Bar Association Lawyer Referral Service (269-2222), the Marion County BarAssociation Lawyer Referral Service (634-:^0). ^ «

CUorJAN 1 7 2017 (Seal)Dated Clerk, Marion Superior Court



Service at place of employment, to-wir, --------------------------------------

Service on individual

Service on agent (Specify)

Other service. (Specify) —

✓

(Personal or copy) at above address.

Michael D, Harmeyer, #14258-02Attorney for Plaintiff

200 E. Main St., Ste. 630, Fort Wayne, IN 46802-1900Marion County Superior Court 2CX) East Washington Street Indianapolis, IN 46204Address


Fo^m U209


/I/

SHERIFF'S RETURN ON SERVICE OF SUMMONSday of .20,I hereby certify that 1 have served this summons on the

(1) By delivering a copy of the Summons and a copy of the complaint to the defendant,

(2) By leaving a copy of the Summons and a copy of the complaint at-----

which is the dwelling place or usual place of abode of ---------------------------and by mailing a copy of said summons to said defendant at the above address.

(3) Other Service or Remarks: ---------——------- ——— -------------------


Deputy

CLERK’S CERTIFICATE OF MAIUNG__day of „ I mailed a copy of this Summons and a copy of the

_______________ mail, requesting a return receipt,20.1 hereby certify (hat on the---------

complaint to the defendant,------------at the address furnished by the plaintiff.

. by


By;,20.Dated: Deputy

RETURN ON SERVICE OF SUMMONS BY MAILi hereby certify that the attached return receipt was received by me showing that the Summons and a copy of the complaint mailed to

defendant ____________________________ - accepted by the defendant on theI hereby certify that the attached return receipt was received by me showing that the Summons and a copy of the complaint was returned

\ hereby certify that the attached return receipt was received by me showing that the Summons and a copy of the complaint mailed to

was accepted by

,20_day of

on behalf of saiddefendant--------

defendant on the. .20.day ofClerk, Marion Superior Coun

By;Deputy

n05 -tM > s CJXGr. c

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CSCCORPORATIOH SERVICE COMPANY'

null / ALLTransmittal Number: 16131995

Date Processed: 01/20/2017Notice of Service of ProcessVenessa C. Wickline Gribble The Kroger Co.1014 Vine Street Cincinnati, OH 45202-1100

Primary Contact:

KRGP Inc,Entity ID Number 2171759 KRGP Inc.

The State of Indiana vs. The Kroger Co

Summons/Complaint

Labor/Employment

Marion County Superior Court, Indiana

49D05-1405-PL-016895

Indiana

01/19/201723 Days

Entity:

Entity Served:

Title of Action:

Document(s) Type:

Nature of Action; Court/Agency: Case/Reference No: Jurisdiction Served:

Date Served on CSC: Answer or Appearance Due: Originally Served On;

How Served:

Sender Information:

CSC

Certified Mail

Michael D. Harmeyer 260-423-4565

Information contained on this transmittal form is for record keeping, notification ^nd forwarding the at^^^^^ It does notconstitute a legal opinion. The recipient is responsible for interpreting the documents and taking appropriate action.

To avoid potential delay, please do not send your response to CSC 2711 Centerville Road Wilmington, DE 19808 (888)690-2882 | [email protected]



SUMMONSIn the Marion Superior Court, Room No.THE STATE OF INDIANA, ex rel. HARMEYER

Plaintiff

Cause 49D05-1405-PL-016895■vs— No.THE KROGER CO., et al.

Defendant

KRGP INC., do Corporation Service Company, its Registered AgentTO DEFENDANT; (Nanic),

251 East Ohio Street, Ste. 500(Address)

_________ Indianapolis, IN 46204 ________________

You arc hereby notified that you have been sued by the person named as plaintiff and in the Court indicated

The nature of the suit against you Is stated in the complaint which is attached to this Summons, It also states the relief sought or the demand made against you be Uie plaintiff.

An answer or other appropriate response in writing to the complaint must be filed either by you or your attorney within twenty (20) days, commencing the day after you receive this Summons, (or twenty-three (23). days if this Summons was received by mail), or a judgment by default may be tendered against you for the relief demandedby plaintiff.


above.

If you need the name of an attorney, you may contact the IndianapolijU^ajAs^iatiM Laww^fcrral Service (269-2222), or the Marion County D ar Association Lawyer Referral Service (634-3950). ^

(Seal)Dated “ Clerk, Marion Superior Court

(The following manner of service of summons is hereby designated.)


Service at place of employment, to-wit------------ ------------------- ——


Service on agent. (Specify)

Other service. (Specify)

✓


Michael D, Harraeyer, #14258-02Attorney for Piaintlff

200 E, Main St., Ste. 630, Fort Wayne, IN 46802-1900Marion County Superior Court 200 East Washington Street Indianapolis. IN 46204. Address


Form «209


SHERIFF'S RETURN ON SERVICE OF SUMMONSday of .,20.I hereby certify that I have served this summons on the


(2) By leaving a copy of the Summons and a copy of the complaint at-----

which is the dwelling place or usual place of abode of---------------------- -—and by mailing a copy of said summons to said defendant at the above address,

(3) Other Service or Remarks;,!------------- -------------------------------------

SheriffSheriffs CostsBy;

Deputy

CLERK>S CERTIFICATE OF MAIUNG__day of I mailed a copy of this Summons and a copy of the, 20.1 hereby certify that on the---------

complaint to the defendant, —---------at the address furnished by the plaintiff.

mail, requesting a return receipt,. by


By:,20.Dated: Deputy

RETURN ON SERVICE OF SUMMONS BY MAIL1 hereby certify tl,at the attached telum receipt was received by me showing that the Summons and a copy of the complaint mailed to

d fendant ....... accepted by the defendant on lhe__—— day of--------------------- ----- 20-------- ■I hereby certify that the attached return receipt was received by me showing that the Summons and a copy of the complaint was returned

Wrtfy that the attached return receipt was received by me showing that the Summons and a copy of the complaint mailed towas accepted by on behalf of said

defendant_____

defendant on the. ,20.day of Clerk, Marion Superior Court

By;Deputy

n3CrtM >s tto >g i:

t;a X cn mmoCOPS 2;Hm sto >Otn HQU O mC/5o mX o3 8nsO) -“nCO oQr- p a y*<p CP >H z Tcn > Csw Oo s(0oo8 X kATl TOCD

O Xs CfilO 5I C/D 13tCD (jy S cna m2 -<m7)COoM


CSCCORPORATION SERVICE C 0 Nl P A N V



Primary Contact:

Pay Less Super Markets, Inc,Entity ID Number 2171774

Pay Less Super Markets, Inc.The State of Indiana vs. The Kroger Co

Summons/Complaint

Violation of State/Federal ActMarion County Superior Court, Indiana

49D05-1405-PL-16895

Indiana01/19/2017

20 Days

Entity:

Entity Served:Title of Action:Document(s) Type:

Nature of Action: Court/Agency: Case/Reference No: Jurisdiction Served:Date Served on CSC: Answer or Appearance Due: Originally Served On:How Served:Sender Information:

CSCCertified Mail

Paul B. Martins 513-421-2400

Information contained on this transmittal form is for record keeping, notiflcatio^constitute s legal opinion. The recipient is responsible for interpreting the documents and taking appropriate actio ,

To avoid potential delay, please do not send your response to CSC Centerville Road Wilmington, DE 19808 (888)690-2882 | [email protected]



SUMMONSIn the Marion Superior Court Room No,THE STATE OF INDIANA, ex rel. HARMEYER

Plaintiff

Cause 49D05-1405-PL-016895•vs— No.THE KROGER CO., et aL

Defendant

Pay Less Super Markets Inc., c/o Corporation Service Company, its Registered AgentTO DEFENDANT: (Name)

251 East Ohio Street, Ste. 500(Address).


You arc hereby notified that you have been sued by the person named as plaintiff and in the Court indicatedabove.

The nature of the suit against you is .stated in the complaint which is attached to this Summons. It also states the relief sought or the demand made against you be the plaintiff.

An answer or other appropriate response in writing to the complaint must be . filed either by you or your attorney within twenty (20) days, commencing the day after you receive this Summons, (or twenty-three (23). days if this Summons was received by mail), or a judgment by default may be rendered against you for the relief demanded by plaintiff.

If you have a claim for relief agrunst the plaintiff arising from the same transaction or occurrence, you must assert it in your written answer.

If you need the name of an attorney, you may contact the Indianapolis Bar Association Lawyer Referral Service (269-2222),Marionor the

(Seal)Dated ~ Clerk, Marion Superior Court



Service at place of,employment, lo-wit —.— ------------------------- —


Service on agent. (Specify),

Other service, (Specify) __

✓


Michael D. Hameyer, #14258-02Attorney for Plaintiff

200 E. Main St., Ste. 630, Fort Wayne, IN 46802-1900Marion County Superior Court 200 East Washington Street Indianapolis, IN 46264Address


F0mi(t209


SHERIFF'S RETURN ON SERVICE OF SUMMONSday of ,20.I hereby certify that I have served this surranons on the


(2) By leaving a copy of the Summons and a copy of the complaint at ---- --------------

which is the dwelling place or usual place of abode of------------------ —.—-and by mailing a copy of said summons to said defendant at the above address.

(3) Other Service or Remarks; 1------- ——--------------------------- ----------


Deputy

CLERK’S CERTIFICATE OF MAIUNG___day of I mailed a copy of this Summons and a copy of the

___________ mail, requesting a return receipt,,, 20.1 hereby certify that on the..--------

complaint to the defendant, —--------at the address furnished by the plaintiff.

. by


By;___20.Dated: Deputy

RETURN ON SERVICE OF SUMMONS BY MAIL

I hereby certify that the attached return receipt was received by mo showing that the Summons and a copy of the complaint mailed todefendant_______ _________ _ was accepted by the defendant on the

I hereby certify that the attached return receipt was received by me showing that the Summons and a copy of the complaint was returned

TSby° c^fy that the attached return receipt was received by me showing that the Summons and a copy of the complaint mailed toon behalf of said

20_day of

.20

was accepted bydefendant______

defendant on the.= .20.day of Clerk, Marion Superior Court

By:Deputy

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CSCCORPORATIOH SERVICE COMPANY'



Primary Contact:

Ralphs Grocery Company Entity ID Number 2220131

Ralphs Grocery CompanyThe State of Indiana vs. The Kroger Co

Summons/Complaint

Labor / EmploymentMarion County Superior Court, Indiana

49D05-1405-PL-16895

Indiana

01/19/201723 Days

Entity;

Entity Served:

Title of Action:Document(s) Type:


Date Served on CSC: Answer or Appearance Due: Originally Served On:

How Served:

Sender Information:

CSC

Certified Mail

Michael D. Harmeyer 260-423-4565

Information contained on this transmittal form is for record keeping, notification and foiwarding attached docu^ It does not constitute a legal opinion. The recipient is responsible for interpreting the documents and taking appropriate action.

To avoid potential delay, please do not send your response to CSC 2711 Centerville Road Wilmington, DE 19808 (888)690-2882 | [email protected]



SUMMONSIn the Marion Superior Court, Room No.THE STATE OE INDIANA, ex rel. HARMEYER

PlaintilT

Cause 49D05-1405-PL-016895-vs— No.THE KROGER CO.» et al.

Defendant

Ralphs Grocery Company, c/o Corporation Service Company, its Registered AgentTO DEFENDANT: (Name)

251 East Ohio Street, Ste. 500(Address).

Indianapolis, IN 46204have been sued by the person named as plaintiff and in the Coun indicatedYou are hereby notified that you

The nature of the suit against you is stated in the complaint which is attached to this Summons. It also states the relief sought or the demand made against you be the plaintiff.

An answer or other appropriate response in writing to the complaint mmt be filed either by you or your atto^y within twenty (20) days, commencing the day after you receive this Summons, (or twenty-toee (23) days ff thiT Summons v/as received by mail), or a judgment by default may be rendered agamst you for tiie relief demandedby plaintiff.

If you have a claim for relief agmnsi the plaintiff arising from the same transaction or occurrence, you must assert it in your written answer.

If you need the name of an attorney, you may contact the Indianapolis Bar Association Lawyer Referral Service (269-2222), or the Marion CouoOt.Ba|^o»^n Lawyer Referral Service (634-3

above.

(Seal)Dated Clerk, Marion Superior Court


Registered or eertifieid mail,

Service at place of employment, to-wic


Service on agent. (Specify)-------

Other service. (Specify) ---------

Michael D. Harmeyer, #14258-02 Attorney for Plaintiff

200 E. Main St, Ste. 630, Fort Wayne, IN 46802-1900

✓


Marlon County Superior Court 200 Bast Washington Street Indianapolis. IN 46204Address


Fofm»a09


SHERIFF'S RETURN ON SERVICE OF SUMMONSday of 201 hereby certify that 1 have served this summons on the


(2) By leaving a copy of the Summons and a copy of the complaint at-------------------

which is the dwelling place m usual place of abode of--------- ----------- —--------------------and by mailing a copy of said summons to said defendant at the above address.

(3) Other Service or Remarks;....................... .............................................................

SheriffSheriff’s CostsBy:

Deputy

CLERK'S CERTIFICATE OF MAIUNG__ day of „ 1 mailed a copy of this Summons and a copy of the,,20.1 hereby certify that on the---------

complaint to the defendant,------------at the address furnished by the plaintiff.

mall, requesting a return receipt.. by

Cleric, Marion Superior Court

By:20Dated: Deputy

RETURN ON SERVICE OF SUMMONS BY MAIL

I hereby certify that the attached return receipt was received by me showing that the Summons and a copy of the complaint mailed to

rtefrnaant________________________ was accepted by the defendant on theI hereby certify that the attached return receipt was received by me showing that the Summons and a copy of the complami was returned

"“^Tteeby wrtfy that theTtmeUd return receipt was received by me showing that the Summons and a copy of the complaint mailed towas accepted by

70day of

_ on behalf of saiddefendant___ _

defendant on the ,20.day ofClerk. Marion Superior Court

By:Deputy

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CONFIDENTIAL

NOT FOR PUBLIC ACCESS

Marion Superior Court, Case No. 49D05-1405-PL-16895


IN THE SUPERIOR COURT OF MARION COUNTY, I^^N^^^ ^ ^ ^016

Case No. 49D05:fl||^

FILED IN CAMERA AND UNDER SEAL in accord with Ind. Code 5-1 l-5.5-4(c) ....

THE STATE OF INDIANA, ex rel. HARMEYER,

Plaintiffs and Qui Tam Relator,

V,

Judge John M.T. Chavis, IITHE KROGER CO.,KROGER LIMITED PARTNERSHIP I, KRGP, INC.,PAY LESS SUPER MARKETS, INC. and RALPHS GROCERY COMPANY,

Civil Division 5, W-507

DO NOT PUT IN PRESS BASKET DO NOT SERVE WHILE SEALED

Defendants.

RELATOR’S MOTION FOR LEAVE TO FILE SIXTH AMENDED COMPLAINTAND

MOTION TO UNSEAL CIVIL ACTION

COMES NOW the Qui Tam Relator Michael D. Harmeyer, on behalf of and in the name

of the State of Indiana, hereby moves this Court for leave to file the attached Sixth Amended

Complaint in accord with Trial Rule 15(A).

Further, the State Attorney General and the State Inspector General have now concluded

their respective investigations of Relator’s allegations. The Attorney General and the Inspector

General have elected to not intervene in this False Claims Act action and instead have allowed

tlie Relator to proceed with the prosecution of this action on behalf of the State in accord with IC

§ 5-1 l-5.5-4(e)(2). Therefore, pursuant to IC § 5-11-5.54(0, Relator moves this Court to unseal

this False Claims Act action and direct the Clerk to serve the attached Sixth Amended Complaint

and Summons upon the Defendants.


A memorandum in support of this motion is attached.

Respectfully submitted,

James B. Helmer, Jr. #5164-95-TA Paul B. Martins #5165-95-TA Julie W. Popham #5166-95-TA James A. Tate #5l67-95-TA HELMER, MARTINS, RICE

& POPHAM CO., L.P.A. 600 Vine Street, Suite 2704 Cincinnati, Ohio 45202support@fcalawfirm .comTel; (513) 421-2400 Fax;(513)421-7902

Michael Harmdyer #14258-02 HARMEYER LAW FIRM LLC 200 East Main Street, Suite 630 Fort Wayne, hidiana 46802-1900 [email protected] Tel; (260)423-4565 Fax: (260) 423-6331

Relator and Local Counsel

Counsel for Relator



MEMORANDUM IN SUPPORT OFRELATOR’S MOTION FOR LEAVE TO FILE SIXTH AMENDED COMPLAINT

ANDMOTION TO UNSEAL CIVIL ACTION

Introduction

TfflnFSracfi'dnlSHer 'tEelndiaHa'FilseT^l^ ICl 5-11-5.5-1, eiseq., to recover

I.

damages and civil penalties on behalf of the State of Indiana arising from false and fraudulent

statements, records, claims, and omissions made by the Kroger Defendants while transacting

business in the State of Indiana. Relator Harmeyer’s claims against Defendants are based upon

their knowing failure to collect and remit sales tax due to the State on sales of certain taxable

“candy,” “soft drinks,” “prepared food,” and other taxable items sold at Defendants’ grocery

stores throughout the State.

As required by IC § 5-1 l-5.54(c), on May 21, 2014, Relator served on the Indiana

Attorney General a copy of the sealed Complaint along with a written disclosure describing

substantially all relevant material evidence and information he possessed. Pmsuant to the

Indiana False Claims Act, the Complaint is required to remain sealed and must not be served

upon the Defendants until the Attorney General and the Inspector General have completed their

investigations of the allegations and decided either: to intervene in the action and thereby

assume primary responsibility for the prosecution of the action; or, to not intervene in the action

and thereby delegate to the Relator “the right to prosecute the action.” IC § 5-11-5.5-5.

The Attorney General conducted his investigation of Relator’s False Claims Act

allegations over the next two years. During that time, Relator amended his complaint five times,

adding examples of Kroger’s repeated failure to properly classify numerous taxable “candy,”


‘prepared foods,” and other taxable items resulting in Kroger’s “knowing”' failuret“soft drinks,

to remit sales taxes to the State.

On August 16, 2016, the Attorney General completed his investigation and certified his

election not to intervene in this sealed action to the Inspector General for her consideration in

accdffWlCT'5Gl-3:5:3te)(;5):iHspeadrGeftefal 11722720^^^

On November 22, 2016, after completing her investigation of this sealed False Claims

Act action, the Inspector General likewise declined to intervene in this sealed action at this time.

Id

II, Sixth Amended Complaint

Over the past 2 ’/z years, Relator Harmeyer has continued investigating this False Claims

Act action. Relator has amassed approximately 1,400 unique examples of items that the Kroger

Defendants have failed to properly classify as statutorily defined taxable “candy,” “soft drinks,”

“prepared foods,” and other taxable items, resulting in the Defendants’ failure to remit millions

of dollars in sales taxes to the State. The attached Sixth Amended Complaint comprehensively

incorporates these examples in establishing Kroger’s “knowing” violation of the Indiana sales tax

code as well as the Indiana False Claims Act.

Trial Rule 15(A) provides that a party “may amend his pleading once as a matter of

if within a certain time firame. “Otherwise a party may amend his pleading only by leave

of court or by written consent of the adverse party; and leave shall be given when justice so

T.R. 15(A).

course

reqmres.

' IC § 5~1 l-5.5-l(4) defines the False Claims Act term “Knowing” to mean that a person,with regard to information:

(A) has actual knowledge of the information;(B) acts in deliberate ignorance of the truth or falsity of the information; or(C) acts in reckless disregard of the tmth or falsity of the information.

-2-


Amendments to pleadings are to be liberally allowed in order to bring all matters at issue

before the court. Rusnakv. Brent Wagner Architects, 55 N.E.3d 834, 843 (Ind, App, 2016)

(citing Kreilein v. Common Council of City of Jasper, 980 N,E.2d 352, 358 (Ind. Ct. App.. 2012)

(“The stated policy of this court and our Supreme Court is to fireely allow such amendments in

order To bring all Wattera at issue'before

Leave to amend should be granted unless the amendment will result in prejudice to the

opposing party. Id. The attached Sixth Amended Complaint alleges the same fraudulent scheme

by the same Defendants who failed to properly pay sales taxes to the State. The Sixth Amended

Complaint simply adds to and organizes these numerous tax violations identified in the earlier

complaints. The information collected by Relator Haimeyer, which is the subject of this

amended complaint, has previously been shared with both the Attorney General and the Inspector

General.

Since this False Claims Act action is presently under seal and has yet to be served on the

Defendants, there is no prejudice in allowing Relator to file the attached Amended Complaint.

No discovery has been conducted. No scheduling deadlines have elapsed or even been

established at this stage of the litigation. All that has happened to date is that the State has

concluded its investigation of Relator’s sealed False Claims Act allegations and has elected to

delegate to the Relator “the right to prosecute the action” on behalf of the State. IC, §5-11-

5.5(e) (“If the attorney general or the inspector general elects not to intervene in the action, the

person who initially filed the complaint has the right to prosecute the action.”).

Therefore, there is no prejudice to the Kroger Defendants in allowing Relator to file the

attached Sixth Amended Complaint. In fact, such an up-to-date and detailed amended complaint

-3-


will advance the interest of this Court and all parties in fully establishing that these 1,400

of Indiana sale tax statutes could only be made “knowingly” for purposesexamples of violations

of the False Claims Act. See fin. 1, supra

The Attorney General has no objection to the filing of this Sixth Amended Complaint.

.......... AccoTdin^y; this C6W shbuFd en^^^ OBer gfahhh'g Relator leave to file the

attached Sixth Amended Complaint.

Unsealing this False Claims Act Action

The False Claims Act expressly provides that the sealed “complaint shall not be served on

the defendant until the court orders the complaint served on the defendant following the

intervention or the election not to intervene of the attorney general or the inspector general.”

IC § 5-1 l-5.5-4(c). The requisite intervention decisions have now been made by the Attorney

General and the Inspector General. Therefore, it is now appropriate for this Court to unseal this

and order the attached Sixth Amended Complaint to be served on the Defendants so that

III.

action

this action may proceed on this Court’s civil docket.

The Attorney General has no objection to this action being unsealed or the service of the

Sixth Amended Complaint upon the Defendants.

Accordingly, a proposed Order imsealing this action and directing service of the attached

Sixth Amended Complaint and accompanying Summons upon the Defendants is attached. Also,

in accord with TR 72(D), attached with this proposed Order is a Proof of Notice of Service for

the Clerk along with postage paid envelopes addressed to the Defendants, through their

Registered Agent for service.

-4.


Respectfolly submitted,

James B. Helmer, Jr. #5164-95-TA Paul B. Martins #5l65-95-TA Julie W. Popham #5166-95-TA

James A. Tate #5167-95-TA HELMER, MARTINS, RICE

& POPHAM CO., L.P.A. 600 Vine Street, Suite 2704 Cincinnati, Ohio 45202 [email protected] Tel: (513)421-2400 Fax:(513)421-7902

Michael Harraeyer .#1425 8-02 ITARMEYER LAW FIRM LLC 200 East Main Street, Suite 630 Fort Wayne, Indiana 46802-1900 [email protected] Tel: (260)4234565 Fax: (260) 423-6331


Counsel for Relator

-5-




Certificate of Service

I hereby certify that on this4?^ay of December, 2016, a copy of the foregoing RELATOR’S MOTION FOR LEAVE TO FILE SIXTH AMENDED COMPLAINT AND MOTION TO UNSEAL CIVIL ACTION and supporting memorandum was served by the undersigned by maU, first-class, postage prepaid, to the following counsel for the Attorney General and Inspector General of the State of Indiana;

Tiffany MulliganChief Legal CounselIndiana Office of the Inspector General315 West Ohio Street, Room 104Indianapolis, IN 46202

Deputy Attorney General Evan Bartel Deputy Attorney General Winston Lin Indiana Attorney General’s Office Indiana Government Center South 302 W. Washington St., 5th Floor Indianapolis, IN 46204

Paul B. Martins Counsel for Relator

-6-


INDIANAOFFICE OF INSPECTOR GENERAL31S WEST OHIO STUEET, ROOM 104, INDIANAPOLIS, IN 46202 317.232.3850

November 22,2016

James TateHelmer, Martins, Rice & Popham Co., L. P. A.600 Vine Street, Suite 2704 Cincinnati, OH 45202

CONFIDENTIAL CASE, UNDER SEAL State of Indiana ex rel Michael Harmeyer v. The Kroger Co., et al Marion Superior Court, Case No. 49D05-1405-PL-16895

DEC 02 2016HtoaB)

W™S,RICE4P0mMjC0,LPA

Re:

Dear Mr. Tate,

In accordance with Indiana Code § 5-ll-5.5-3(e)(5), the Indiana Office of Attorney General (OAG) submitted its Certification of Election Not to Intervene to the Office of Inspector General (OIG) on August 16, 2016. Pursuant to Indiana Code § 5-1 l-5.5-3(f)(2), the OIG may intervene after tiie OAG has provided the above-mentioned catification. Accordin^y, our office h^ thoroughly .reviewed this matter and determined that the OIG will also decline to intervene in this case ^ this time.

We ^ecike the time and effort tiiat you and your fern has put into informing us about this and would appreciate if you would continue to send copies of any case filings to our officecase

for our review.

Please feel fi:ee to contact me if you have questions.

Sincerely,

Tiffany Mulligan Chief Legal Counsel


IN THE SUPERIOR COURT OF MARION COUNTY, INDIANA

Case No. 49D05-1405-PL-16895THE STATE OF INDIANA, ex rel. HARMEYER,

Judge John M.T. Chavis, IIPlaintiffs and Qui Tam Relator,

Civil Division 5, W-507V.

THE KROGER CO.,KROGER LIMITED PARTNERSHIP I, KRGP, INC.,PAY LESS SUPER MARKETS, INC. and RALPHS GROCERY COMPANY,

Defendants.

ORDERGRANTING LEAVE FOR RELATOR TO FILE SIXTH AMENDED COMPLAINT

ANDORDERING THIS ACTION UNSEALED

In accord with Trial Rule 15(A) and in response to Relator’s motion, and the Attorney

General having no objection, it is hereby ORDERED that Relator be GRANTED LEAVE to file

under seal his proffered Sixth Amended Complaint in this action.

FURTHER, being advised that both the Attorney General and the Inspector General

having elected to decline to intervene in this action and, by operation of law, the Relator having

the right to prosecute this action on behalf of the State ofindiana in accord with IC § 5-11-5.5(e),

IT IS HEREBY ORDERED that the Relator’s Sixth Amended Complaint be unsealed and served

upon the Defendants.

IT IS FURTHER ORDERED that all other contents of the Court’s file in this action,

including the Chronological Case Summary, remain under seal and not be made public or served


for this Order and the Relator’s Sixth Amended Complaint.on the Defendants, except

All Orders of this Court shall be sent to the Attorney General and to the Inspector

General, and the parties are further ordered to serve all pleadings and motions in this action,

including supporting memoranda, upon the Attorney General and the Inspector General

provided for by 1C § 5-1 l-5.5-5(e). The Attorney General and the Inspector General may order

any deposition transcripts and are entitled to intervene in this action at any time for good cause in

accord with IC § 5-1 l-5.5-5(f).

accord with IC §§ 5-1 l-5.5-4(b), 5-ll-5.5-5(b), (c), and (h), should the Relator or the

Defendants propose that this action be dismissed, settled, or otherwise discontinued, the Court

will solicit the written comment of the Attorney General and the Inspector General before ruling

, as

In

or granting its approval.

BY THE COURT:

John M. T, Chavis, IIJUDGE, MARION SUPERIOR COURT #5

Date

-2-


NOTICE IS TO BE GIVEN BY:

OTHERPARTYCOURT X CLERK

PROOF OF NOTICE UNDER TRIAL RULE 72(D):

A copy of this entry was served either by mail to the address of record, depositeddistribution box, distributed personally upon the persons and/or filed as listedCourt’s attorney’s

below;

THE KROGER COMPANYc/o Corporation Service Company Registered Agent 251 East Ohio Street, Suite 500 Indianapolis, Indiana 46204

KROGER LIMITED PARTNERSHIP Ic/o Corporation Service Company Registered Agent 251 East Ohio Street, Suite 500 Indianapolis, Indiana 46204

KRGP, INC.c/o Corporation Service Company Registered Agent 251 East Ohio Street, Suite 500 Indianapolis, Indiana 46204

PAY LESS SUPER MARKETS, INC.c/o Corporation Service Company Registered Agent 251 East Ohio Street, Suite 500 Indianapolis, Indiana 46204

RALPHS GROCERY COMPANYc/o Coiporation Service Company Registered Agent 251 East Ohio Street, Suite 500 Indianapolis, Indiana 46204

-3-


INDIANA ATTORNEY GENEIT\Ldo Deputy Attorney General Evan Bartel c/o Deputy Attorney General Winston Lin Indiana Government Center South 302 W. Washington St., 5th Floor Indianapolis, IN 46204

INDIANA INSPECTOR GENERALc/o Tiffany Mulligan, Chief Legal Counsel 315 West Ohio Street, Room 104 Indianapolis, IN 46202

RELATOR AND LOCAL COUNSELMichael Harmeyer HARMERYER LAW FIRM LLC 200 East Main Street, Suite 630 Fort Wayne, Indiana 46802-1900

COUNSEL FOR RELATORJames B. Helmer, Jr.Paul B. Martins Julie W. Popham James A. TateHELMER, MARTINS, RICE & POPHAM CO., L.P.A. 600 Vine Street, Suite 2704 Cincinnati, Ohio 45202

DATE OF NOTICE:

INITIALS OF PERSON WHO NOTIFIED PARTIES; ___ _ OTHERPARTYCLERKCOURT

4


STATE OF INDIANA ) MARION COUNTY SUPERIOR COURT

)SS:

COUNTY OF MARION ) CAUSE NO. 49D05-1405-PL-16895

THE STATE OF INDIANA, ex rel. )

HARMEYER, )

)

Plaintiffs and Qui Tam Realtor, )

)

Vs )

)

THE KROGER CO., )

KROGER LIMITED PARTNERSHIP I, )

KRGP, INC., )

PAY LESS SUPER MARKETS, INC., )

And RALPHS GROCERY COMPANY, )

)

Defendants. )

APPEARANCE FORM (CIVIL)

Responding Party

Responding party name(s): The Kroger Co., Kroger Limited Partnership I, KRGP, Inc.,

Pay Less Super Markets, Inc., and Ralphs Grocery

Company

Attorney information (as applicable for service of process):

Kimberly E. Howard Attorney Number: 16075-49

Christina M. Kamelhair Attorney Number: 32457-49

SMITH FISHER MAAS HOWARD & LLOYD, P.C.

7209 North Shadeland Avenue

Indianapolis, Indiana 46250

Telephone No.: (317) 578-1900

Facsimile No.: (317) 578-1330

e-mail address: [email protected]

[email protected]

[email protected]

Will responding party accept FAX service: No.

Additional information required by state or local rule: None.

Filed: 2/7/2017 1:50:47 PMMyla A. Eldridge

ClerkMarion County, Indiana





Respectfully submitted,

/s/ Kimberly E. Howard

/s/ Christina Kamelhair

Kimberly E. Howard, #16075-49

Christina M. Kamelhair, #32457-49

SMITH FISHER MAAS HOWARD & LLOYD, P.C.

7209 N. Shadeland Avenue


317/578-1900

CERTIFICATE OF SERVICE

I certify that on February 7, 2017, I electronically filed the foregoing document

using the Indiana E-Filing System (IEFS) and served the same upon the following

person(s) via IEFS:

Michael Harmeyer, #14258-02

HARMEYER LAW FIRM LLC

200 East Main Street, #630

Ft. Wayne, IN 46802-1900

[email protected]

James B. Helmer, Jr. #5164-95-TA

Paul B. Martins, #5165-95-TA

Julie W. Popham, #5166-95-TA

James A. Tate, #5167-95-TA

HELMER MARTINS RICE & POPHAM CO., L.P.A.

600 Vine Street #2704

Cincinnati, OH 45202

[email protected]

I hereby certify that a true copy of the foregoing has been served upon the following, by

First Class, U.S. Mail, postage pre-paid, this 7th day of February, 2017.

Indiana Attorney General

c/o Deputy Attorney General Evan Bartel

c/o Deputy Attorney General Winston Lin

Indiana Government Center South

302 W. Washington Street 5th Floor





Indiana Inspector General

c/o Tiffany Mulligan, Chief Legal Counsel

315 West Ohio Street #104


/s/ Kimberly E. Howard

Kimberly E. Howard, #16075-49


FORM 86-1

STATE OF INDIANA ) IN THE MARION COUNTY SUPERIOR COURT

) SS:

COUNTY OF MARION ) Case Number: 49D05-1405-PL-16895

THE STATE OF INDIANA ex rel. :

MICHAEL D. HARMEYER, :

:

Plaintiffs and Qui Tam Relator, :

:

vs. :

:

THE KROGER CO., :

KROGER LIMITED PARTNERSHIP I, :

KRGP, INC., :

PAY LESS SUPER MARKETS, INC. :

and RALPHS GROCERY COMPANY, :

Defendants. :

E-FILING APPEARANCE BY ATTORNEY IN CIVIL CASE

This Appearance Form must be filed on behalf of every party in a civil case.

1. The party on whose behalf this form is being filed is:

Initiating X Responding ____ Intervening ____ ; and

the undersigned attorney and all attorneys listed on this form now appear in this case for

the following parties:

Name of party Michael D. Harmeyer

Address of party (see Question # 5 below if this case involves a protection from abuse

order, a workplace violence restraining order, or a no-contact order)

200 East Main Street, Suite 630

Fort Wayne, Indiana 46802-1900

Telephone # of party (260) 423-4565

(List on a continuation page additional parties this attorney represents in this case.)

2. Attorney information for service as required by Trial Rule 5(B)(2)

Name: James B. Helmer, Jr. Atty Number: 5164-95-TA




2

Address: HELMER, MARTINS, RICE & POPHAM CO., L.P.A.

600 Vine Street, Suite 2704 Cincinnati, Ohio 45202

Phone: (513) 421-2400

FAX: (513) 421-7902

Email Address: [email protected]

IMPORTANT: Each attorney specified on this appearance:

(a) certifies that the contact information listed for him/her on the Indiana Supreme

Court Roll of Attorneys is current and accurate as of the date of this

Appearance;

(b) acknowledges that all orders, opinions, and notices from the court in this

matter that are served under Trial Rule 86(G) will be sent to the attorney at

the email address(es) specified by the attorney on the Roll of Attorneys

regardless of the contact information listed above for the attorney; and

(c) understands that he/she is solely responsible for keeping his/her Roll of

Attorneys contact information current and accurate, see Ind. Admis. Disc. R.

2(A).

Attorneys can review and update their Roll of Attorneys contact information on the

Courts Portal at http://portal.courts.in.gov.

3. This is a PL case type as defined in administrative Rule 8(B)(3).

4. This case involves child support issues. Yes ____ No X (If yes, supply social security

numbers for all family members on a separately attached document filed as confidential

information on light green paper. Use Form TCM-TR3.1-4.)

5. This case involves a protection from abuse order, a workplace violence restraining order,

or a no – contact order. Yes ____ No X (If Yes, the initiating party must provide an

address for the purpose of legal service but that address should not be one that exposes

the whereabouts of a petitioner.) The party shall use the following address for purposes

of legal service:

________ Attorney’s address

________ The Attorney General Confidentiality program address

(contact the Attorney General at 1-800-321-1907 or e-mail address is

[email protected]).

________ Another address (provide)

__________________________________________________________

This case involves a petition for involuntary commitment. Yes ____ No X


http://portal.courts.in.gov/

3

6. If Yes above, provide the following regarding the individual subject to the petition for

involuntary commitment:

a. Name of the individual subject to the petition for involuntary commitment if it is

not already provided in #1 above:

____________________________________________

b. State of Residence of person subject to petition: _______________

c. At least one of the following pieces of identifying information:

(i) Date of Birth ___________

(ii) Driver’s License Number ______________________

State where issued _____________ Expiration date __________

(iii) State ID number ____________________________

State where issued _____________ Expiration date ___________

(iv) FBI number __________________________

(v) Indiana Department of Corrections Number _______________________

(vi) Social Security Number is available and is being provided in an attached

confidential document Yes ____ No ____

7. There are related cases: Yes ____ No X (If yes, list on continuation page.)

8. Additional information required by local rule:

_____________________________________________________________________

9. There are other party members: Yes ____ No X (If yes, list on continuation page.)

10. This form has been served on all other parties and Certificate of Service is attached:

Yes X No___

/s/James B. Helmer, Jr.

Attorney-at-Law

(Attorney information shown above.)

/s/ Michael Harmeyer

Michael Harmeyer #14258-02



[email protected]

Tel: (260) 423-4565

Fax: (260) 423-6331




I certify that on February 15, 2017, I electronically filed the foregoing document using

the Indiana E-Filing System (IEFS) and served the same upon the following person(s) Via IEFS:

Kimberly E. Howard

Christina M. Kamelhair

SMITH FISHER MAAS HOWARD

& LLOYD, RC.















/s/ James B. Helmer, Jr.

James B. Helmer, Jr., #5164-95-TA


FORM 86-1


) SS:




:


:

vs. :

:

THE KROGER CO., :


KRGP, INC., :



Defendants. :















Name: Paul B. Martins Atty Number: 5165-95-TA




2



Phone: (513) 421-2400

FAX: (513) 421-7902





Appearance;







2(A).











of legal service:




[email protected]).


__________________________________________________________




3





____________________________________________








(iv) FBI number __________________________






_____________________________________________________________________



Yes X No___

/s/ Paul B. Martins

Attorney-at-Law






[email protected]

Tel: (260) 423-4565

Fax: (260) 423-6331






Kimberly E. Howard



& LLOYD, RC.















/s/ Paul B. Martins

Paul B. Martins, #5165-95-TA


FORM 86-1


) SS:




:


:

vs. :

:

THE KROGER CO., :


KRGP, INC., :



Defendants. :















Name: Julie W. Popham Atty Number: 5166-95-TA




2



Phone: (513) 421-2400

FAX: (513) 421-7902





Appearance;







2(A).











of legal service:




[email protected]).


__________________________________________________________




3





____________________________________________








(iv) FBI number __________________________






_____________________________________________________________________



Yes X No___

/s/ Julie W. Popham

Attorney-at-Law






[email protected]

Tel: (260) 423-4565

Fax: (260) 423-6331






Kimberly E. Howard



& LLOYD, RC.















/s/ Julie W. Popham

Julie W. Popham, #5166-95-TA


FORM 86-1


) SS:




:


:

vs. :

:

THE KROGER CO., :


KRGP, INC., :



Defendants. :















Name: James A. Tate Atty Number: 5167-95-TA




2



Phone: (513) 421-2400

FAX: (513) 421-7902





Appearance;







2(A).











of legal service:




[email protected]).


__________________________________________________________




3





____________________________________________








(iv) FBI number __________________________






_____________________________________________________________________



Yes X No___

/s/ James A. Tate

Attorney-at-Law






[email protected]

Tel: (260) 423-4565

Fax: (260) 423-6331






Kimberly E. Howard



& LLOYD, RC.















/s/ James A. Tate

James A. Tate, #5167-95-TA


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