Working through IBM’s 11 objections.

This is a post on the project, for those who have been following me on it. As you know, I had a situation with one job in Japan where I had negotiated “sei sha’in” status. Additionally, or maybe alternatively, I didn’t get paid overtime for work that was outside the contract.

IBM has never been able to explain what they did (either IBM Japan or the parent company in Westchester County, New York). They have been dodging me and the particular issue as if I am some debt collector. Maybe I am.

The eleven objections to the complaint (eleven!) are these:

For IBM USA:

1) a FRCP Rule 12(b)(6), that foreign affiliates of U.S. multinational companies are not obligated to follow Title VII of the Civil Rights Act of 1964, nor the 1967 act that covers people over the age of 40. This is so, even though Congress specifically added that protection in the 1991 amendments to the Civil Rights Act, in the George H. W. Bush administration. These are pretty famous, and the particular statute was the result of Congress legislatively overturning EEOC v. Arabian American Oil Company. The Supreme Court had said that Title VII did not apply “extraterritorally”, and Congress said, “yes, it does.”

2) IBM USA is not a party to a contract made by IBM Japan. This is a red herring, as I never asserted that.

3) IBM USA is not the tortfeasor for an intentional interference with contract claim. Right now, the tortfeasor is “John Doe”, but it is unlikely that it is the whole of IBM. It’s probably somebody in Japan who is connected to management in America.

4) IBM USA cannot be held liable for violations of Japanese Labor Law. Another red herring.

5) A general 12(b)(6) objection, separate from the one listed in #1. I think the IBM attorney is trying to confuse the fact that what used to be objected to as “jurisdiction” is, since the U.S. Supreme Court’s Arbaugh case, seen to be a 12(b)(6) issue. I never got my e-mails returned, but I’m certain that’s what’s going on.

6) Forum non conveniens, which is fancy Latin for inconvenient forum. It’s hard to see how a defendant corporation that is headquartered in Westchester County, New York would object to the U.S. District Court that is located right in Westchester County, New York, (not Pennsylvania), but I guess this objection is par for the course. As a general rule, you file where the defendant “resides”, so it would be expected that a case grounded in Title VII would be heard in the district where the company has its headquarters.

As you may know, I went to law school, so I know that the other side generally makes objections. But these, to me, seem to be a little silly. I know that the standard for pleading as been tightened a bit through two cases, Twombley and Iqbal, casually referred to together as “Twiqbal”, but the plausibility requirement simply means that a judge may ask for more detail in the pleading. It’s hard to know this ahead of time.

That is the Title VII / ADEA claim. Then, there is a violation of Japanese labor law / breach of contract claim. Before I get to the next set, though, there is a little background information.

The judge’s chambers’ rules modify the traditional motion practice in federal courts. Generally, when you want the judge (the Court) to do something, you “move” the court (make a motion). However, to expedite matters, what some judges do is have a pre-motion conference before you move. If you seek pre-motion conference, then the deadlines for answering or moving will be postponed. So the above six objections are on pre-motion.

When they were submitted on April 14, it was said that these were IBM USA’s objections–as I tell you above. But, on April 19, another pre-motion letter was submitted to the judge. It repeated the six objections, and then implied that IBM Japan had made these.

Then, on April 20, there was yet another turn, with counsel for IBM USA saying that they also represented IBM Japan, “withdrawing” the April 19 pre-motion letter, and submitting another pre-motion letter, solely for IBM Japan, but which repeats at least one objection word-for-word.

As a pro se attorney who reads a lot but files very rarely, this all was a bit confusing, because it looks like IBM Japan was able to make an appearance ahead of their objections, and then argue “jurisdiction” as one of the objections, below. Is a pre-motion letter to a judge an appearance? Yes, right? So the earliest IBM Japan appeared before the judge was April 14. (Lawyers reading me might point out the question might be when the attorney had filed Notice of Appearance that week. When the notice of appearance was filed is useless here–that was filed May 5. In some courts, your corporate client doesn’t officially appear at all until you file your notice of appearance. I don’t know how the judge handles that in New York.)

So the five objections coming from IBM Japan were:

1) A 12(b)(2) – “in personam jurisdiction”

2) A 12(b)(5) – ineffective service of process

3) An uncaptioned 12(b)(6), making the same Title VII argument that appears as IBM USA’s #1, above.

4) A general 12(b)(6), making the same Twiqbal argument that appears as IBM USA’s #5, above.

5) forum non conveniens, making the same inconvenient forum argument that appears as IBM USA’s #6, above.

It’s hard to believe that IBM Japan wouldn’t have minimum contacts with a particular U.S. state, and even harder that it wouldn’t have with the United States as a whole (FRCP Rule 4(k)(2)), especially with the amount of business done, and patents filed, with America. (This is even, if they didn’t waive jurisdiction through one of those pre-motion letters.)

The 12(b)(5) has been discussed a bit already. It sounds like Japan trying to burn both ends of the candle on the Hague Treaty. (Agreeing to 10(a) service-by-mail, but then holding something back.)

The final three, which appeared also in the first, April 14 letter–the one later characterized as IBM Japan’s–don’t have any more merit either. Title VII applies extraterritorially to IBM USA as corporate parent. The Twiqbal 12(b)(6) objection is routine from the law firm, looking at other case dockets. Finally, the forum can’t be split. There is no way to pursue a Title VII in one court, and a violation of J-labor law in another. So they are brought together through the Gibbs test (“single nucleus of operative fact”), which in the code is 28 U.S.C. section 1367(a).

As I described above, all of this is on pre-motion. So I have also pre-moved for summary judgment. More about that some other time!