United States District Court, D. Arizona
Norma O. McCauley, Plaintiff,
Fry's Marketplace, Joe Harriss, Unknown Party, and Unknown Party, Defendants.
Dominic W. Lanza, United States District Judge
before the Court is pro se Plaintiff Norma O. McCauley's
Motion (Doc. 15), in which she asserts that Kroger is a
defendant in this action and requests a service packet for
Second Amended Complaint (“SAC”) (Doc.
named four Defendants: three individual persons and one
corporate entity, named by Plaintiff as “Fry's
Marketplace/Kroger also known as Smith's Food & Drug
Centers, Inc.” (Doc. 9 at 1.) However, on the next page
of the SAC, Plaintiff listed “Fry's
Marketplace/Kroger” as “Defendant No. 1”
and then listed the phrase “Also known as Smith's
Food & Drug Center, Ince [sic]” as “Defendant
No. 2.” (Id. at 2.) At any rate,
Plaintiff's SAC seems to equate Fry's Marketplace and
Kroger as one entity, and despite the separate listing of
Smith's Food & Drug as “Defendant No. 2,
” the phrase “also known as” indicates that
the SAC asserts that all three of these corporations are one
entity. To the extent that Plaintiff asserts that Kroger is a
distinct entity and a separate defendant upon which service
must be effected, she must seek leave to amend her SAC to
name Kroger as a separate defendant in this action.
Court will construe this Motion as a motion for leave to
amend and will deny it because the proposed amendment is
futile. Ascon Properties, Inc. v. Mobil Oil Co., 866
F.2d 1149, 1160 (9th Cir. 1989) (“Leave need not be
granted where the amendment . . . constitutes an exercise in
futility . . . . The district court's discretion to deny
leave to amend is particularly broad where plaintiff has
previously amended the complaint.”).
Court takes judicial notice of the fact that Fry's Food
& Drug Stores, Inc., which also operates under the banner
of Fry's Marketplace, is a subsidiary of The Kroger
Company (“Kroger”)-Smith's Food & Drug
Centers, Inc. being a separate subsidiary of Kroger.
See Fed. R. Evid. 201. Thus, Fry's Marketplace,
Kroger, and Smith's Food & Drug Centers are separate
corporate entities. All of the allegations in the complaint
involve interactions between Plaintiff and her former
supervisors while she worked at the Fry's Marketplace at
1815 W. Glendale in Phoenix, Arizona. (Doc. 9 at 3, 5-7.)
entity may be liable for another entity's discriminatory
employment practices when (1) the entities can be considered
a single employer or integrated enterprise, (2) the entities
can be considered joint employers, or (3) the discriminating
entity is the agent of the other entity.” Stock v.
NV Energy, Inc., 670 Fed.Appx. 596, 597 (9th Cir. 2016)
(internal quotation marks omitted). However, the SAC does not
include facts implicating any of these factors, and in her
Motion, Plaintiff “does not point to any evidence
establishing these factors.” Id. She rests her
argument that Kroger is a proper Defendant on the assertion
that “Kroger for over ten years put Kroger [sic] name
on the Plaintiff's pay check with all W-2's.”
(Doc. 15 at 1.) But “a parent corporation is not liable
as an employer for the acts of a subsidiary where it
exercised ‘no more control . . . than that typically
exercised by the parent corporation in a parent/subsidiary
corporate relationship.'” Stock, 670
Fed.Appx. at 597 (quoting Allen v. Pac. Bell, 212
F.Supp.2d 1180, 1200 (C.D. Cal. 2002), aff'd in
part, 348 F.3d 1113 (9th Cir. 2003)).
the SAC does not allege facts that enable Kroger to be held
liable for the harm alleged, nor has Plaintiff proposed any
such facts in her Motion, Plaintiff shall not be permitted to
amend the SAC to name Kroger as a defendant in this action.
Moreover, because the caption reflects that only one
corporate defendant is named-but this sole corporate
defendant is currently identified by a confusing misnomer-the
Court will order that the Clerk of Court amend the caption to
clarify the parties to this action. See Paatalo v. First
Am. Title Co. of Montana, 2014 WL 858999, *2 (D. Mont.
2014) (“This Court has recognized that there is a
difference between correcting a misnomer and changing a party
and has found that a mere misnomer may be corrected under the
amendment power expressed in Rule 15.” (internal
quotation marks omitted)).
IT IS ORDERED that Plaintiffs Motion (Doc.
15) is construed as a motion for leave to amend the Second
Amended Complaint to add Kroger as a defendant.
IS FURTHER ORDERED that Plaintiffs Motion (Doc. 15)
IS FURTHER ORDERED that, for the sake of clarity,
the Clerk of Court shall amend the caption in this action to
reflect that the only corporate Defendant is “Fry's
Food & Drug Stores, Inc., d/b/a Fry's
 Plaintiff did not seek leave to amend
the complaint, but the Court overlooked the improper filing
and allowed Plaintiff to serve the Second Amended ...