In the slow-moving civil case, I was up in U.S. District Court for the Southern District this past Thursday for a pre-motion conference. IBM Japan, through its attorney Allan Bloom ( * ), is objecting to New York jurisdiction under NY CPLR 301.
I always learn a lot when I go to District Court, since I get there early. Thursday, there were two criminal court cases ahead of mine. One involved someone either knifing or shooting someone, and the second was about a Jamaican who keeps sneaking back into America and getting involved in felony crimes. The lawyers kept saying about “life on the installment plan”. What happens is the man, maybe now in his early 40′s, comes back in, gets convicted, and then has to spend time in an American jail. When he’s released, he goes back to his home country. Soon enough, he’s back in America (that’s the part I don’t understand—how he gets let back in) and the whole process starts anew.
It sounded like Judge Seibel was throwing the book at him, by sentencing him to five years (something having to do with stealing a $7 chicken bumping him up so many points to a category five, or something); but then, the defense counsel and judge kept saying about “if it happens again, he’ll get the book thrown at him”. I guess what they meant was that if he does this next five years—or however many he would have to do out of the sentence—and then gets shipped back to Jamaica, and THEN shows up in America, they won’t let him out period.
In a way, it sounds like what the man really wants, out of the choices he has available to him. Very sad, because drugs and pimping sound like they were implicated. A rough childhood, abusive parent, things like that. And he had grown up partly in America as undocumented, and no one had ever given him the opportunity to be legal—as if that might have been a good thing or a life changer. Hard to tell from the audience seat.
When I got up to respond in the conference, I was my usual shaky self.
Mr. Bloom recited the same tired tripe about Volkswagenwerk, but this time added how it shouldn’t matter that a “few” executives, out of the several hundred thousand employees of IBM worldwide, are shuttled between Japan and America—apparently including Mr. Tsubota.
I pointed out that, where I did get discovery responses, the background about each of the 35 executives was always cut off at the IBM Japan level (no information about how they got there or who they report to if it involves a home-based boss). So, for example, the current head of IBM Japan reports to no one—even though the JMIU-IBM union and Nikkei Business News are being fed an entirely different story about the cost-cutter sent from America.
When you’re being gaslighted, it’s the small changes that you look for. One is that Judge Seibel wants the jurisdiction issue briefed again BEFORE the renewal motion is moved by IBM Japan. Usually it’s simultaneous (motion with supporting brief). If I lose jurisdiction, especially in a post-Wiwa environment, of course I will go to the Second Circuit. So I thought that was an interesting development.
The other thing is I got to discuss a bit about mandatory relation back under Krupski. Once I determined that Kuniya Tsubota was indeed the John Doe I needed, and–because he was aware of the legal issue in October 2008–that he had actual knowledge that he could be sued, then he should, by Rule 15(c), be added. (There is also constructive notice of the suit because his attorney, the same Allan Bloom ( * ), knew about the tort claim in February 2011.) Judge Seibel accepted that Krupski may factor in this, without saying one way or the other. (That is, I did not get a flat-out “no”, which I should not have. But when it’s David and Goliath, I count that as a plus, because I’ve found—like with the 30-day notice law—Goliath gets to spin it however it wants.)
Finally, there is a question of whether hearsay is acceptable to determine jurisdiction. I believe it’s a “yes”, and this would be good in bringing in what’s been going on with the JMIU union. This did not get batted down by the judge, and so, a plus. She said that hearsay is still hearsay, which of course it is. But it is still some eyebrow-arching hearsay.
For readers following me on the case, don’t expect much more until about mid-April, when the Paul Hastings’ brief is due.
( * ) – The Allan Bloom here is not the author of the 1987 classic “Closing the American Mind”–he’s a Paul Hastings guy that IBM picked up after their former IBM Japan attorney in New York, Howard Weber, passed away.)
[Update: I am aware that there is a question whether "actual notice" to a defendant is notice that the person may be involved in a matter where he/she could be sued or whether it is notice that there is litigation involving the claim. Either way, Mr. Tsubota should have known that there was the John Doe tort claim, as he was also a torishimariyaku (director) of IBM Japan in February 2011, when IBM Japan was first served. He was moved to New York in April 2011, to begin a role there.]