Tirrell v. the Stop Shop Supermarket, No. Cv-96-0109618 (Jan. 18, 2000)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISIONDEFENDANT THE STOP SHOP SUPERMARKET COMPANY a/k/a THE STOP SHOP COMPANIES, INC.'S MOTION TO DISMISS WITH PREJUDICE [118]DEFENDANT UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 919'S MOTION TO DISMISS [126] CT Page 792Defendant Stop Shop sets forth eight grounds for dismissal of the two counts against Stop Shop in the Revised Amended Complaint, September 3, 1998. [115] The first two grounds (¶¶ 1 and 2) are predicated on preemption by federal labor law. The remaining six grounds (¶¶ 3-8) are based upon Stop Shop's apparent claim that plaintiff had to "commence" an entirely new action in this court after the United States District Court's March 31, 1997 judgment dismissing several counts of plaintiff's action and closing its file.

These latter grounds (¶¶ 3-8) are now without merit given that the United States District Court corrected its judgment and remanded the case to this court. See Corrected Judgment, March 24, 1999.

Stop Shop's federal preemption grounds were considered and rejected by the United States Magistrate Judge. The Magistrate Judge held that plaintiff's negligent infliction of emotional distress and invasion of privacy claims against Stop Shop were not preempted by federal labor law. See Recommended Ruling On Defendants' Motion To Dismiss, March 11, 1997, pp. 15-21.

The Magistrate Judge's Recommended Ruling was accepted by Stop Shop. Stop Shop did not seek to have it reviewed as was permitted by federal practice. Id. @ 31. That Recommended Ruling was the basis for the judgments of the United States District Court. Stop Shop did not appeal the judgments rendered by the United States District Court. Stop Shop does not get a second bite at the apple here.

Stop Shop has not shown that the result reached in the federal court on the preemption issue was erroneous. Stop Shop filed a 29-page brief in support of its motion to dismiss. Memorandum In Support of Defendant The Stop Shop Supermarket Company a/k/s The Stop Shop Companies, Inc.'s Motion To Dismiss With Prejudice, September 17, 1998. [119] Stop Shop does not even mention the Magistrate Judge's discussion, analysis, and conclusion in its memorandum urging this court to hold federal preemption bars plaintiff's claims for negligent infliction of emotional distress and invasion of privacy. Why was this immediate precedent ignored? If the Magistrate Judge was wrong, a critical analysis should have been presented to this court of the Magistrate Judge's reasoning, etc., demonstrating the flaws which lead to the conclusion(s) which Stop Shop implicitly claims CT Page 793 were in error. Stop Shop did not undertake such an analysis. This suggests that Stop Shop could not demonstrate any such flaws. Neither can this court. This court agrees with the Magistrate Judge.

The defendant Stop Shop's Motion To Dismiss With Prejudice, September 17, 1999, [118] is denied.

Union Local 919 has also moved to dismiss. Defendant United Food And Commercial Workers Union, Local 919'S Motion to Dismiss, October 26, 1998. [126] Although stated more concisely, Local 919 invokes the same reasons for dismissal as had Stop and Shop. For the same reasons expressed regarding Stop and Shop, Local 919's motion to dismiss must fail.

The defendant Local 919's Motion To Dismiss, October 26, 1999, [126] is denied.

PARKER, J.