In the Southern District of New York, you have to request oral argument for your motion. (I believe this is Local Rule 6.1(c), but don’t hold me to that cite.)
I don’t need oral argument for the points I have made. Let me give you the mile-high overview:
1) America’s main anti-discrimination law, Title VII of the Civil Rights Act, applies extraterritorially per the 1991 amendments to that act. This means that a company “controlled” by an American or by an American corporation may be liable for the actions of its foreign subsidiary. There is no issue of disrespecting sovereignty here, which a number of the Tepido crowd were insinuating sometime late last year. This is a coverage granted by Congress, to Americans, no matter where they are in the world, versus an employer that is, in the “single employer” analysis, really an American employer doing business in that other place.
A jury determines whether a company is a “single employer” for purposes of the act.
2) As regular readers know, IBM and the American Equal Employment Opportunity Commission (EEOC) had communications in late 2008/early 2009 over these kind of “jurisdictional” matters, and the EEOC finally determined that IBM would have to respond to my administrative charge. The EEOC has its own department of highly sophisticated labor lawyers. I am just a pro se lawyer. But it seems to me, that if I read the law and conclude that Congress meant for Americans to be covered in, say, Japan; and then, EEOC’s lawyers do, too, then that is not a position out of the thin air. And it’s really “yes or no”. It isn’t worth oral argument.
3) I am comfortable that New York civil procedure law claims jurisdiction on any foreign corporation that has a connection to New York state via either the Tauza or the Frummer doctrines. It does not matter whether the parent is the New York company, or the sub is the New York company, and the parent is elsewhere. So IBM Japan is under the jurisdiction of a New York court, because it is the IBM USA presence in Japan, and other reasons the law requires.
Strangely, though, the IBM parties’ law firm, Paul Hastings LLP, is requesting oral argument. Why? So each side can re-read our briefs to the judge?
Much of this is not very easy law–if you haven’t read the cases over the last three or four years–but the questions end up being very easy “yes or no” types.
I objected to the oral argument request because I believe my last brief was very good. It was so good, in fact, that Paul Hastings totally ignored Arbaugh v. Y & H Holdings, a U.S. Supreme Court case which is the main case on Title VII employer definitions as “an element of the claim” (for a jury), and not “jurisdictional”. They don’t discuss it in the reply.
I hope the judge denies the motion(s). But I can lose, of course. I lost ones 20 years ago, on religious society issues, where now—twenty years later!–judges are beginning to see that their previous models about non-Roman Catholic denominations were, well, wrong. And I did have my other case get an honorable mention in former U.S. Justice John Paul Stevens’ dissent in Gonzaga v. Doe. Oh! And I was the researcher behind the victory that the Hillsborough, New Jersey charter reform group had, in 2005, when the municipal government challenged their right to submit petitions to vote for a Faulkner Act charter.
But mostly, you know, it’s hard to win in court. Lincoln, Charles Dickens, and a few others had a few things to say about how bad it can be.
I would like my summary judgment, though; and I wonder why, if my claim is so bad, IBM’s Paul Hastings people take so long to make their filings . . .