As I mentioned in my earlier post, I was served with various objections from IBM Japan, Limited, as a separate defendant in my Title VII case.
The attorney for the both IBM USA and IBM Japan doesn’t like to label things when it’s to his advantage, so I was left to guess which 12(b) motions were being put forth. I concluded they were:
12(b)(2) – lack of personal jurisdiction;
12(b)(4) – insufficient process;
12(b)(5) – insufficient service of process;
12(b)(6) – failure to state a claim upon which relief can be granted
and an affirmative defense of forum non conveniens.
Now, what is interesting here is that we had a pre-motion conference in Judge’s Courtroom back in July. You know, I don’t do this for a living; but what I understood “pre-motion conference” to mean was that the Judge was whittling down for us what the serious motions might be. I thought the practice of “pre-motion” was meant to cast aside all those legal theories that really wouldn’t work as initial objections, so that the dismissal motion and objection memoranda would not have to be as thick. Maybe I’m thick, but that’s what it seemed to me.
So imagine my surprise two weeks ago, when I get served with the various listed objections, and things like service of process appear–when they weren’t even mentioned in July. If something were deficient about service, I’m sure it would have been the first thing the Judge would have remarked about. “Hey, Plaintiff, your case can’t go forward because you didn’t properly serve the Defendant! Don’t waste my time!”
But nothing about that. My guess as to why? Because the Second Circuit is an Ackerman circuit where “send” under Article 10(a) of the Hague Convention–which Japan ratified in 1970–is interpreted to include service of process. Ackerman is the rule, and has been the rule for a quarter century now. Many courts outside of the Second Circuit, even, recognize this.
So if something like that doesn’t come up in pre-motion, I don’t expect to see it as a motion later. But there it was. So I had to take five pages to answer it.
Another problem was that 12(b)(6). As regular readers know, Japan does not have “at will” employment. (This does not stop employers from trying to pull things anyhow, but in the end, it’s the rule.) In order to have a term-limited contract, the employer needs to have a valid contract with a term limit in it. I am pointing out that Cognos K.K. and IBM Japan had substantial deficiencies in the contracts they drafted. And even, to my analysis, no contract that covers a job I did beginning March 7, 2008.
What this got twisted into, is saying that if Mr. Gundlach says there’s no valid —-> written <—– contract, then there is no cause of action! (There need not be a written contract, in which case the status is regular employment.) This was made into a 12(b)(6). So another four or five pages to restate Japanese labor law.
I specifically [cited] NY CPLR Section 301 ("doing business") as the jurisdictional rule for IBM Japan (what brings IBM Japan into a New York court). The Defendant's attorney went on-and-on about Section 302 ("transacting business"), which I didn't argue and wasn't relevant. So bang, bang, bang goes the head. I needed to address the irrelevant cases, and then talk about Section 301. More paper.
When I was done, it was 32 pages–which is above the Judge's Individual Practice rules. I submitted the memorandum to the pro se office in any event, and noting that I am over the limit. The whole reason I’m over the limit is because the Defendant moved to object for items that weren’t part of the pre-motion conference at all. Why have a pre-motion conference, if it isn’t to cut down on the number of specific items to be addressed on motion?
So I do get some stink letter coming to me from Defendant’s attorney this past afternoon, mentioning about the 32 pages, which they see as an issue.
Again, I am an inactive attorney and I don’t do this everyday. But if I didn’t know better, I’d think I had the kitchen sink thrown at me, with the full knowledge that no way does it all get responded to in 25 pages PLUS add the legal points that are critical. (So do the Section 301 discussion AND show why Hague 10(a) is valid in the Circuit AND why Japanese labor law does not require a writing for there to be employment. That, BUT also explain why the Section 302 red herring cases don’t belong in the jurisdictional analysis.
Like this, people:
Plaintiff: I say IBM Japan is under New York jurisdiction per Section 301.
Defendant: No, this Court does not have jurisdiction over IBM Japan under Section 302.
So, of course, I faxed the Judge about this new issue. If I have to cut back seven pages, I do it. But it doesn’t seem fair to me, that the other side gets to throw in extraneous material and arguments (like the service of process one) that, if they were coming from pro se parties, would be dismissed as frivolous–and not nicely.
It sounds like if you have “LLC” somewhere in your identification, you get to say and argue things that ordinarily you do not get to.