IBM Japan update: bumps along the way.

I haven’t written about the case in a while. What’s going on is that the Second Amended Complaint (SAC) was filed some time ago. The defendants, the IBM parties, requested “pre motion conference” in February, to raise similar 12(b), and other, objections that they had done in 2011. We met in Court conference in White Plains in February. The motion was exchanged in April; an opposition was sent in June, and a reply was delivered on July 17. All these papers were then docketed, under some new case management quirk, together on July 17.

(It isn’t clear why having everything wait to be docketed at once was a “time saver”, but that’s small beans . . .)

As I’ve been at this for a while, I see the pattern on how to “win” in Judge Seibel’s court, if you’re the defendant:

1) Make legal arguments that are a hodge-podge of different rules coming out of different, distinctly-defined objections; so, for example, if you don’t want to reply to what the opposition (me) has said about Japanese Labor Law on your own 12(b)(6) motion, you argue that a 12(b)(2) (personal jurisdiction) argument should prevail–and therefore, dismiss anything against your uncaptioned 12(b)(6) as “mere legal conclusions”.

New York tort law is pretty specific that the New York court will either apply the New York rule, or, on occasion, the foreign rule, as it rules on the case in its own courts (no matter where the tort actually happened). The seminal case on this rule is famous: Babcock v. Jackson, a tort case involving an auto accident in Ontario. Apparently, if you want to throw an uncaptioned forum non conveniens argument into whether New York law should apply, you can do this.

2) Make up stuff out of nowhere. Since your reply brief will be the last batter up, plaintiff–as I am told is Judge Seibel’s policy—won’t get surreply.

So see how this works: the IBM Japan case is in federal court under diversity jurisdiction. This means there is “diversity of citizenship” between me and the two remaining defendants (IBM Japan, successor to Cognos K.K.), and Kuniya Tsubota, HR head in Japan who now resides in New York. An alternate jurisdiction, that I don’t presently have, is federal question subject matter jurisdiction, with something called supplemental jurisdiction that can be applied.

In a subject matter jurisdiction case, if the federal questions are resolved, and all that remains are state matters, the Court can dismiss the case “without prejudice”, and the plaintiff is required to bring the action in state court. However, in diversity of citizenship jurisdiction, the state law matter stays in federal court. Often, a diversity case ONLY contains state matters.

Yet Paul Hastings’ Allan Bloom is allowed to get away with saying this, on a diversity of citizenship case:

bloom reply memo.bmp

Great. So if the main claim is turned down on jurisdiction, and the tort remains, I’m going to get told that I can’t maintain a diversity of citizenship case in New York courts, because Schlenger (a federal question case that he represented) could not, either?

Longtime readers, please remember back to the 30-day rule nonsense. If you are Japan-side, you know that “30 days’ notice” is a rule that every regular employee gets, as a matter of the 1947 Japan Labor Standards Law. In fact, if you have a fixed-term contract, instead of regular employment, you can’t have a valid 30-day notice provision: your notice is the end of the contract, and that contract can only end for “unforeseen circumstances”.

But now there is one decision in my case, on the Title VII matter, that says I couldn’t continue that claim because I had a 30-day notice provision, that supposedly none of the other regular employees had! All that, because defendants never really argued actual Japanese Labor Law, but rather, things that former IBM attorney Julie London made up out of thin air!

So God only knows what kind of Japanese Labor Law comes out in the decision of the Court, if I even overcome the Section 301 jurisdictional objections—which are their own little chestnut involving how many of the employees moving between Japan and New York should be considered. I know I may not make it over that hurdle, and, again, it will be because of the Paul Hastings’ attorney’s copious use of unpublished cases only tangentially related to the complaint. A pick-and-choose out of the squibs to the various cases.

As I wrote two autumns ago, I’ve always suspected I was going to end up in Second Circuit with all this, and, of course, this would, for the most part, be de novo review. Not to pre-judge the district judge, but each notice I get on Google Scholar of decided cases almost always has the big government or the big corporation winning . . .

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