*1 Before the Court are defendant Kroger Limited Partnership I's (“Kroger”) motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(5) and (6) (Dkt. No. 4) and motion to compel discovery responses and motion for sanctions (Dkt. No. 11). The Court denies Kroger's motion to dismiss (Dkt. No. 4), and at this time the Court denies as moot Kroger's motion to compel (Dkt. No. 11).

I. Factual Background

Plaintiff Tawanna Harris filed this action in Pulaski County Circuit Court under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.; for sex discrimination and retaliation under the Arkansas Civil Rights Act of 1993 (“ACRA”), Ark. Code Ann. § 16-123-101 et seq.; for retaliation for opposition to an unlawful activity under the laws of the State of Arkansas; and for promissory estoppel against defendants Kroger and Jerry Elerby[1] (Dkt. No. 2). Separate defendant Kroger removed the action to this Court (Dkt. No. 1).

Ms. Harris alleges the following facts (Dkt. No. 2). Ms. Harris is a female who was employed as a produce worker by Kroger beginning on or about June 23, 2016 (Id., ¶ 3). Kroger maintains several stores in the Pulaski County area (Id., ¶ 4). Ms. Harris alleges that, at all times relevant, Ms. Harris performed all jobs assigned to her to the satisfaction of Kroger (Id., ¶ 5). Ms. Harris's duties included preparing produce for display and sale (Id., ¶ 6). Ms. Harris alleges that, shortly after she began working for Kroger, she was subjected to lewd comments by Mr. Elerby (Id., ¶ 7). Ms. Harris further alleges that she was exposed to comments in which Mr. Elerby informed her that her lips were so sexy that they made his dick hard (Id., ¶ 8). She alleges that she was also subjected to unwanted touching to include having him brush up against her buttocks when she was bent over placing produce on her cart (Id.). Ms. Harris contends that, in November 2016, Mr. Elerby cornered her in the freezer and forced his lips upon hers; she asserts this was the final straw for her (Id.).

According to Ms. Harris, she made repeated complaints to management, but her complaints were ignored (Id., ¶ 9). She maintains that other women also experienced similar actions by Mr. Elerby but were too afraid to come forward (Id.). She asserts that, after the incident where Mr. Elerby cornered her in the freezer and forced his lips upon hers, she asked that either she or Mr. Elerby be transferred (Id.). She claims that eventually, she was transferred to a store that was substantially farther from her home (Id.). Ms. Harris alleges that she initially worked at the Kroger on Markham Street in Little Rock, Arkansas, which was close to her home and allowed her and her husband, who shared a car, the convenience of being able to car pool and maintain their respective employments (Id., ¶ 10). Ms. Harris asserts that the move from the Markham Street store to the one on Chenal Parkway created financial issues for her and her husband (Id., ¶ 11).

*2 According to Ms. Harris, no action was taken against Mr. Elerby, and he is allowed to go to the Chenal Parkway store (Id., ¶¶ 12, 13). Ms. Harris contends that, on those occasions, she tries to hide herself from him (Id., ¶ 13). She asserts that she timely filed a charge of discrimination with the EEOC (Id., ¶ 14).

II. Defendant Kroger Limited Partnership I's Motion To Dismiss Pursuant To Federal Rules of Civil Procedure 12(b)(5) And 12(b)(6)

On March 2, 2018, Kroger filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6) (Dkt. No. 4). In the motion, Kroger argues that the Court should dismiss Ms. Harris's claims pursuant to Rule 12(b)(5) due to the failure of proper service of process and that the Court should dismiss Ms. Harris's claims for promissory estoppel pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted (Id., ¶ 5). Ms. Harris did not respond to the motion.

In the motion, Kroger represents that Ms. Harris filed a charge of discrimination with the United States Equal Employment Opportunity Commission (“EEOC”) on February 9, 2017, naming her employer as “Kroger” and listing her work address in Little Rock, Arkansas, as the address of her employer (Dkt. No. 4, ¶ 1). Kroger represents that Ms. Harris's employer-in-fact, Kroger Limited Partnership I, received notice of the charge and filed a statement of position with the EEOC on March 13, 2017 (Id.). Kroger asserts that Ms. Harris received a copy of that statement and that, on July 19, 2017, the EEOC issued a notice of right to sue letter giving Ms. Harris 90 days in which to file a lawsuit against her employer related to the alleged discrimination asserted in the charge (Id.). According to Kroger, Ms. Harris waited exactly 90 days, or until October 17, 2017, to file her complaint in Pulaski County Court,[2] and she named as defendant “The Kroger Co. d/b/a Kroger Food Store, Kroger Market Place” (Id., ¶ 2). Pursuant to Arkansas Rule of Civil Procedure 4, Ms. Harris had 120 days, or until February 14, 2018, to effectuate proper service (Id.). Kroger represents that Ms. Harris delayed attempting to effectuate process for another 98 days, or until January 23, 2018, when counsel for Ms. Harris attempted to serve process on “The Kroger Co. d/b/a Kroger Food Store, Kroger Market Place” by certified mail (Id., ¶ 3). Kroger avers that its registered agent received a copy of the lawsuit on or about January 26, 2018 (Id.). Kroger states that it removed the case from Pulaski County Circuit Court to this Court on February 23, 2018 (Id., ¶ 4).

Kroger moves to dismiss Ms. Harris's claims pursuant to Federal Rule of Civil Procedure 12(b)(5). Kroger argues that Ms. Harris identified “The Kroger Co. d/b/a Kroger Food Store, Kroger Market Place” as the defendant in her complaint and attempted to serve “The Kroger Co. d/b/a Kroger Food Store, Kroger Market Place” by certified mail (Dkt. No. 4, ¶ 12). Kroger argues that it is clearly indicated in the statement of position issued in response to Ms. Harris's charge of discrimination that Ms. Harris's employer and the proper defendant to this matter is Kroger Limited Partnership I (Id.). According to Kroger, one can only presume that Ms. Harris intentionally and knowingly named “The Kroger Co. d/b/a Kroger Food Store, Kroger Market Place” rather than “Kroger Limited Partnership I” and went so far as to serve the wrong party (Id.). Kroger argues this misnomer is fatal because it was material and substantial enough to indicate a different entity or to produce doubts as to the corporation intended to be sued (Id.).

*3 Kroger further asserts that Arkansas Rule of Civil Procedure 4(b) requires that the summons be “directed to the defendant” and that, in that regard, Ms. Harris's service is further flawed and fails to comply strictly with Arkansas Rule of Civil Procedure 4(b) (Id., ¶ 13). Ms. Harris did not respond to the motion.

The Eighth Circuit Court of Appeals has determined that the sufficiency of service must be assessed according to state law where service of process occurred prior to removal. Marshall v. Warwick, 155 F.3d 1027, 1033 (8th Cir. 1998). In Arkansas, service of valid process is necessary to give a court jurisdiction over a defendant. Smith v. Sidney Moncrief Pontiac, Buick, GMC, Co., 120 S.W. 3d 525, 530 (2003). The statutory service requirements must be strictly construed, and compliance with them must be exact. Id. Under Arkansas Rule of Civil Procedure 4(b), the summons shall be styled in the name of the court and issued under its seal, dated and signed by the clerk or a deputy clerk, and directed from the State of Arkansas to the defendant to be served. It shall contain: (1) in its caption, the names of the plaintiff and defendant, or, if there are multiple parties, the names of the plaintiff and defendant listed first in the complaint; (2) the address of the defendant to be served, if known; (3) the name and address of the plaintiff's attorney, if any, otherwise the address of the plaintiff; (4) the time within which these rules require that the defendant to be served must appear, file a responsive pleading or motion, and defend; and (5) notice that the defendant's failure to appear, respond, and defend within the time allowed may result in entry of judgment by default against the defendant for the relief demanded in the complaint. Ark. R. Civ. P. 4(b).

Kroger relies primarily on Shotzman v. Berumen, 213 S.W. 3d 13 (Ark. 2005), to argue that naming “The Kroger Co. d/b/a Kroger Food Store, Kroger Market Place” rather than “Kroger Limited Partnership I” is a misnomer material and substantial enough to indicate a different entity or to produce doubts as to the corporation intended to be sued. In Shotzman, the plaintiffs named the defendant as “Sisters of Mercy of the St. Louis Regional Community, Inc. d/b/a St. Edward Mercy Medical Center.” See Shotzman, 213 S.W. 3d at 17. The complaint indicated that “Sisters of Mercy of the St. Louis Regional Community is a foreign corporation authorized to do business in Arkansas; its registered agent for service is the Corporation Company in Little Rock,” whereas St. Edward Mercy Medical Center “is an Arkansas corporation located in Fort Smith, and its agent for service is also located in Fort Smith.” Id. at 18 The Arkansas Supreme Court determined that, because Sisters of Mercy of the St. Louis Regional Community and St. Edward Mercy Medical Center “are entirely separate corporate entities,” the misnomer in that case was fatal because it was material and substantial enough to indicate a different entity or to produce doubts as to the corporation intended to be sued. Id.

Here, by contrast, Ms. Harris identifies “The Kroger Co. d/b/a Kroger Food Store, Kroger Market Place” as the defendant in her complaint rather than Kroger's correct legal name “Kroger Limited Partnership I” (Dkt. No. 2). The Court determines that the instant facts appear more similar to the facts in May v. Bob Hankins Distributing Co., 785 S.W. 2d 23 (Ark. 1990). In that case, the writ of garnishment used the name “Bob Hankins Distributing Company” rather than the correct legal name “Bob Hankins Distribution Company, Inc.” Id. at 27. The Arkansas Supreme Court concluded that “when there is some slight elaboration of the party's exact corporation name, such an error is immaterial when no separate party is actually involved.” Id. (citing Meek v. U.S. Rubber Tire Co., 425 S.W. 2d 323 (1968).

*4 In Kroger's notice of filing of notice of removal, a footnote indicates that “Kroger Limited Partnership I is incorrectly named in [p]laintiff's [c]omplaint as ‘The Kroger Co. d/b/a Kroger Food Store, Kroger Market Place.’ The correct legal entity is Kroger Limited Partnership I. There is no such legal entity as ‘Kroger Marketplace’ ” (Dkt. No. 1, n.1). Ms. Harris addressed the summons and complaint to “The Kroger Co., C/O Corporation Service Company, 300 S. Spring Street, Suite 900, Little Rock, Arkansas 72201” and attempted to serve process on “The Kroger Co. d/b/a Kroger Food Store, Kroger Market Place” by certified mail on January 23, 2018 (Dkt. Nos. 4-1, at 3-4; 4, ¶ 3). Kroger admits that its registered agent received a copy of the lawsuit on or about January 26, 2018, which is within the 120-day deadline of February 14, 2018 (Dkt. No. 4, ¶¶ 2, 3). In this case and under these circumstances, the Court concludes that “The Kroger Co. d/b/a Kroger Food Store, Kroger Market Place” is a “slight elaboration of the party's exact corporation name “Kroger Limited Partnership I,” and “no separate party is actually involved.” May, 785 S.W. 2d at 27.

Kroger also argues that service is further flawed and fails to comply strictly with Arkansas Rule of Civil Procedure 4(b) requiring the summons be “directed to the defendant” because the summons issued in this case “conspicuously does not list any defendant after the statement ‘THE STATE OF ARKANSAS TO DEFENDANT:’ much less the correct defendant” (Dkt. No. 4, ¶ 13) (emphasis in original). Kroger relies on Shotzman to support this argument. In Shotzman, the plaintiff-appellants included St. Edward Mercy Medical Center under the heading “Defendant's address” in the summons and argued that “no rule requires that the name of the defendant follow that language or even that the explicit language appears in the summons at all.” 213 S.W. 3d at 19. After determining that the trial court had never acquired jurisdiction over St. Edward Mercy Medical Center because it was a separate corporate entity from Sisters of Mercy of the St. Louis Regional Community, the Arkansas Supreme Court rejected that argument. The summons in Shotzman only included St. Edward Mercy Medical under the heading “Defendant's address,” along with two other defendants. Brief of Appellees with Supplemental Addendum at 3, Shotzman v. Berumen, 213 S.W. 3d 13 (Ark. 2005) (No. 04-1180). The phrase “ ‘The State of Arkansas to Defendant(s)’ appeared at the bottom of the [s]ummons just above the name and address of the Circuit Clerk. The [d]efendant for whom this [s]ummons was intended is simply not identified.” Id.

The facts of the instant case are distinguishable from the facts in Shotzman. Ms. Harris's summons includes in the caption as defendants “The Kroger Co., d/b/a Kroger Food Stores, Kroger Market Place” and “Jerry Elderly”[3] (Dkt. No. 4-1, at 4). The summons is addressed to “The Kroger Co., C/O Corporation Service Company, 300 S. Spring Street, Suite 900, Little Rock, Arkansas 72201,” and this information is listed right above “THE STATE OF ARKANSAS TO DEFENDANT” (Id.). The Court concludes that the summons is sufficiently “directed to” Kroger so as to comply with Arkansas Rule of Civil Procedure 4(b).

“The purpose of the summons is to apprise a defendant that a suit is pending against him and afford him an opportunity to be heard.” Shotzman, 213 S.W. 3d at 19 (citing Southern Transit Co. v. Collums, 966 S.W. 2d 906 (1998)). In this case and under these circumstances, the difference between “The Kroger Co. d/b/a Kroger Food Store, Kroger Market Place” and “Kroger Limited Partnership I,” is “immaterial,” and the Court will not dismiss Ms. Harris's complaint on the basis of insufficient service of process. May, 785 S.W. 2d at 27.

Kroger also moves to dismiss Ms. Harris's claim for promissory estoppel pursuant to Federal Rule of Civil Procedure 12(b)(6). “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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “While a complaint attacked by a [Federal] Rule [of Civil Procedure] 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (alteration in original) (citations omitted). “When ruling on a motion to dismiss, the district court must accept the allegations contained in the complaint as true and all reasonable inferences from the complaint must be drawn in favor of the nonmoving party.” Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001). A complaint should be dismissed for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) if “it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.” In re K-tel Int'l Sec. Litig., 300 F.3d 881, 904 (8th Cir. 2002) (citations omitted).

*5 Kroger argues that Ms. Harris's claim for promissory estoppel amounts to a claim that Kroger promised to abide by Title VII and the ACRA but failed to do so (Dkt. No. 4, ¶ 17). Kroger argues that this claim for common law promissory estoppel is nothing more than repackaged Title VII and ACRA discrimination claims (Id.). According to Kroger, liability under this particularized claim for promissory estoppel is expressly predicated on a violation of Title VII and/or the ACRA (Id.). Kroger asserts that Ms. Harris must first prove that Kroger violated Title VII and the ACRA in order to prove that Kroger did not fulfill its promise to abide by Title VII and the ACRA (Id.). According to Kroger, these claims are one and the same (Id.). Ms. Harris did not respond to the motion.

At this stage of the litigation, the Court rejects Kroger's argument. Based on the plain language of Title VII, the Eighth Circuit Court of Appeals has concluded that Title VII does not preempt a state-law contract claim. Lucas v. Brown & Root, Inc., 736 F.2d 1202, 1206 (8th Cir. 1984) (distinguished on other grounds by Drake v. Scott, 812 F.2d 395, 400 (8th Cir. 1987)) (quoting 42 U.S.C. § 2000e-7) (“Title VII does not ... ‘exempt or relieve any person from any liability, duty, penalty, or punishment provided by any present or future law of any State or political subdivision of a State, other than any such law which purports to require or permit the doing of any act which would be an unlawful employment practice under this title.’ ”). See also Black v. Mid-Missouri Ambulance Dist., 1997 WL 34626704, at *2-3 (W.D. Mo. Aug. 13, 1997).

As to whether the ACRA preempts Ms. Harris's claim for promissory estoppel, the Court must look to how the Arkansas Supreme Court would decide the issue. See Blankenship v. USA Truck, Inc., 601 F.3d 852 (8th Cir. 2010) (citing Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)). The Court finds no indication from the Arkansas Supreme Court that the ACRA preempts common law claims, nor that the ACRA specifically preempts common law claims of promissory estoppel. The Court declines to dismiss Ms. Harris's promissory estoppel claim at this time.

III. Defendant Kroger Limited Partnership I's Motion To Compel Discovery Responses And Motion For Sanctions

On August 24, 2018, Kroger filed a motion to compel discovery responses and motion for sanctions (Dkt. No. 11). Ms. Harris did not respond to the motion.

In the motion, Kroger represents that it served Ms. Harris with its first set of interrogatories and first set of requests for production on May 24, 2018 (Id., at 1). According to Kroger, on June 8, 2018, at the request of Ms. Harris's counsel, Kroger provided Ms. Harris with discovery in Word format as an accommodation to “save time” (Id.). Kroger represents that Ms. Harris failed to provide responses or any document production within 30 days of the requests (Id.). Kroger further represents that, on July 20, 2018, it sent a letter to counsel for Ms. Harris explaining that the relevant discovery was overdue (Id.). Kroger asserts that, on August 6, 2018, counsel for Kroger followed up with opposing counsel via telephone to confer regarding the outstanding discovery, and counsel for Ms. Harris indicted that she was aware the discovery was overdue and that the responses and document production would be forthcoming (Id., 1-2). Kroger represents that, after receiving no discovery responses, counsel for Kroger sent another letter to counsel for Ms. Harris on August 15, 2018, again explaining that the discovery was overdue and establishing a deadline for Ms. Harris to respond before Kroger would resort to seeking judicial intervention (Id., at 2). Kroger asserts that Ms. Harris did not respond to the letter and that no discovery responses had been received at the time of filing (Id.). Ms. Harris did not respond to the motion to compel discovery responses and motion for sanctions, and the time to file a response has passed.

*6 Under Federal Rule of Civil Procedure 33(b)(2), the responding party must serve its answers and any objections within 30 days after being served with interrogatories, and under Rule and 34(b)(2)(a), the party to whom a request is directed must respond in writing within 30 days after being served or within 30 days after the parties' first Rule 26(f) conference. If a party fails to respond within the 30-day timeframe, Rule 37(a)(3)(B)(iii) and 37(a)(3)(B)(iv) allows the opposing party to move to compel responses to interrogatories and requests for production. If a Court grants a motion to compel, under Rule 37(a)(5), the Court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both, to pay the movant's reasonable expenses.

The Court acknowledges that it has been several months since Kroger filed its motion to compel discovery responses and motions for sanctions. However, the parties have filed more recently a joint motion to continue trial date and deadlines that does not mention whether Ms. Harris has produced the requested discovery (Dkt. No. 13). At this time, the Court denies as moot Kroger's motion to compel discovery responses and motion for sanctions (Dkt. No. 11). Kroger may refile the motion to compel discovery responses and motion for sanctions, if these issues remain outstanding.

IV. Conclusion

For the foregoing reasons, the Court denies Kroger's motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6) (Dkt. No. 4). The Court denies as moot Kroger's motion to compel discovery responses and motion for sanctions (Dkt. No. 11).

It is so ordered this 25th day of March, 2019.