So, I have been busy the past several days making amendments to the case I spoke about earlier in the month. As you recall, I went up to White Plains to discuss a pre-motion letter by IBM USA and its Japan affiliate, IBM Japan, Ltd., who had, together, raised 11 pre-motion objections.
The U.S. District Court judge had emphasized two of the 11, and directed me to tighten up the complaint to reflect the concerns that she saw. Particularly, I had to add more pleading on the Title VII claims–let’s shorthand this as “plausibly plead” because I think it was sufficient under the pre-Iqbal practice. I also had to plead more jurisdiction over IBM Japan. This was the material about New York Civil Law and Practice Rules, Rule 301; and Federal Rule of Civil Procedure, Rule 4(k)(2).
I mentioned to you folks about pro se litigating (litigating without a lawyer); and particularly, pro se lawyer litigating (a lawyer litigating without using another lawyer). The court system cannot ban the first, because you have right–in federal court, it’s in a statute–to bring your own case. But chances are really good that you won’t know something you needed to, and you won’t win. I think that judges find that pro se lawyers are trickier to handle, because lawyers know some things, and quite often a lot. So the focus will tend to go on the weak areas. As a result, you have to be very methodical, and double check everything.
The last thing the U.S. (federal) court system wants is a lot of pro se lawyers, because the U.S. system handles a ton of cases. They don’t want more. Twenty years ago, the judges were giving out the message implicitly. The more things change . . .
However, the flip-side is: how many Title VII extraterritoriality claims are there? Even after so many years, there really are a number of matters that need to be fleshed out. Hundreds of thousands of Americans work overseas, and many for American-controlled employers. To you reading me in Japan, how many of you knew about EEOC protections before you read about it on Debito.org, or here? If you care about civil rights, and lawyers should, people should know what their rights are. Call me a hippie, or a DFH, as the online progressives shorthand it. I’m a pretty conservative one then, with a short haircut.
Maybe my LEXIS and Westlaw is broken, but equally, there aren’t very many cases stateside interpreting our labor employment rights in Japan, in the context of employment arrangements we have with American-controlled companies in Japan. You can find them for Germany, France, the U.K—but why not Japan? Judges on the bench stateside should breathe some life into whatever it is that we think we are negotiating on the other side of the Pacific.
Equal protection doesn’t exist for non-Japanese in Japan. That’s a given. What some people confuse for equal protection is really just a tolerance, and it’s a tolerance that is granted only so far as the non-Japanese person is useful to whatever end is, well, the end of the relationship in Japan. But let’s be clear: having a nice set up for yourself is not the same as equal protection. Equal protection is that you get, as a matter of enforceable right, the same thing the Japanese in the situation are getting. “I got my nice thing going, so nobody rock the boat!” is not equal protection under the law.
August 5 is my deadline according to the docket, although I recall the judge making that August 15. I don’t really need the extra time either way, but it means that the inevitable preliminaries wouldn’t be done until sometime in early 2012 at the earliest. Considering that these events go back to early 2008, it shows you that things do take their time. Mmmmn.