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Frederick W. Gundlach v. International Business Machines Corporation

May 1, 2012


The opinion of the court was delivered by: Seibel, J.


Before the Court are the Motions to Dismiss of Defendants International Business Machines Corporation ("IBM US"), (Doc. 33), and IBM Japan, Ltd. ("IBM Japan"), (Doc. 31), (collectively, "IBM"). IBM US seeks dismissal of Plaintiff Frederick Gundlach's discrimination claims under Federal Rule of Civil Procedure 12(b)(6) and on forum non conveniens grounds. IBM Japan seeks dismissal of Plaintiff's breach of contract and Japanese Labor Law claims under Federal Rules of Civil Procedure 12(b)(2), (4), (5), and (6), and on forum non conveniens grounds. For the following reasons, IBM US's Motion is GRANTED and IBM Japan's Motion is DENIED without prejudice to renewal.


All of Plaintiff's factual allegations are accepted as true for the purposes of these Motions and construed in the light most favorable to Plaintiff.

A. Plaintiff's Employment with Cognos K.K.

In February 2008, Plaintiff commenced employment as a financial consultant in Japan with Cognos K.K. ("Cognos"), a Japanese company. (FAC ¶ 20 at 6; IBM US's Mem. 1.)*fn1

Plaintiff and Cognos signed an employment contract, dated February 25, 2008, which laid out the conditions of his employment and included the following terms: (1) his job as a contracted employee would begin on February 25, 2008 and end on July 11, 2008, with the possibility of renewal if both parties consented; (2) he would perform accounting work as a financial consultant; (3) he would be based in Tokyo, Japan; and (4) Cognos could terminate him at any time with thirty days' advance notice. (FAC Ex. C.)*fn2 Plaintiff asserts that this contract contained a number of "irregularities" and "flaws," (id. ¶¶ 22, 26 at 6), and that it was not ultimately honored by Cognos because, as an example, Cognos failed to pay him overtime, (id. ¶ 25 at 6).

Shortly thereafter, Cognos's Finance Manager for Japan left the company, and on March 7, 2008, Plaintiff took over that role. (Id. Ex. Q at 1; id. ¶ 27 at 6.) Plaintiff asserts that this switch in positions did not come with a written contract. To memorialize the change in employment duties and status, specific terms were deleted from the February 25th contract.

The monthly salary remained the same; the exchange was for 'regular' or what is also called permanent employment in Japan. (In Japanese: kikan no sadame no nai, "without end date", or sei sha'in status.) (Id. ¶ 28 at 6.) Plaintiff does not state who memorialized the changes. The copy of the contract attached as Exhibit C to the FAC has two provisions crossed out: the one providing for a fixed term of employment and the one specifying Plaintiff's supervisor. The provision allowing termination on thirty days' notice was not crossed out. The cross-outs are accompanied by a round red stamp, the significance of which is unexplained. Plaintiff does not say who crossed those provisions out or who supposedly agreed to permanent employment. On March 17, 2008, Plaintiff emailed two superiors at Cognos, Steve Gazzard and Representative Director Rohan Persaud, requesting that those two provisions be removed. (See id. Ex. D.) Gazzard emailed Persaud stating that he was "comfortable that we remove the end date -- it has no real meaning given that there is a notice period in the contract." (Id.) There is no allegation that Persaud agreed or that a new contract was ever concluded. According to Plaintiff, however, the March 2008 events converted him from a term-limited employee to a sei sha'in, or permanent, employee. (Id. ¶¶ 28--34 at 6--7.)

B. Plaintiff's Employment with IBM Japan

IBM Japan is a "100% wholly-ow[n]ed subsidiary of defendant [IBM US]" and does business in Japan. (Id. ¶¶ 1, 10 at 3--4.) Plaintiff asserts that IBM acquired Cognos and that May 1, 2008 was set as the date for Cognos employees to transfer to IBM Japan, (id. ¶¶ 19, 33 at 6--7), but that the "management of IBM Japan, and in particular a John Doe or John Does, insisted that plaintiff not be transferred to IBM Japan," (id. ¶ 35 at 7). Plaintiff attributes this sentiment to discrimination based on national origin. (Id.)

Plaintiff was not transferred to IBM Japan as an employee but was given an employment contract. (Id. ¶¶ 35, 43 at 7--8.) According to Plaintiff, his contract with IBM Japan "did not honor the terms of the Cognos employment," (id. ¶ 38 at 7), in that it was term-limited, (id. ¶¶ 42--44 at 8). Plaintiff construed this action as a "threat" by IBM Japan, intended to "cause a breach of plaintiff's employment agreement with Cognos" and induce Plaintiff to "accept unequal terms and conditions as were offered to the remaining Cognos employees, the overwhelming number of whom . . . were Japanese." (Id. ¶ 39 at 8.)

On April 22, 2008, Plaintiff signed a fixed-term employment contract with IBM Japan for the period May 1, 2008 through January 31, 2009. (Id. ¶ 69 at 11; IBM Japan's Mem. 2;*fn3 Bloom Aff. Ex. A.) Sometime before January 31, 2009, Plaintiff was notified that his employment with IBM Japan would end on January 31, 2009, and he was subsequently terminated on that date. (FAC ¶¶ 79--80 at 12.) Plaintiff claims that after his termination, his "work was divided and given to employees, one or all of whom were at least 10 years younger than plaintiff," (id. ¶ 82 at 12), and attributes this action to age discrimination, (id. ¶ 84 at 12). Plaintiff's permission to work in Japan expired on November 17, 2010, and he returned to the United States on December 20, 2010. (Id. ¶ 96 at 14.) He currently resides in Pennsylvania.

C. Procedural History

On October 8, 2008, Plaintiff contacted the EEOC via its website and notified them of his national origin and/or age discrimination claims. (Id. ¶ 76 at 12.) He informed the Human Resources departments of IBM US and IBM Japan of the same. (Id. ¶ 75 at 12.) On November 12, 2008, Plaintiff filed a formal charge with the EEOC alleging that he faced discrimination when IBM Japan accepted "all the other employees in the [Cognos] transfer as 'sei sha'in,'" or permanent employees, but made him "'keiyaku sha'in,'"-a contract employee with limited terms and conditions of employment. (Id. Ex. B at 1.) IBM US responded to the charge on February 23, 2009, contending that it could not be held responsible for the actions of IBM Japan because it did not "control" IBM Japan within the meaning of the relevant employment discrimination statutes. (Id. ¶ 86 at 13; P's IBM US Opp'n Mem. Attachment 1.) The EEOC sought a substantive response from IBM US, and on September 13, 2010, IBM US responded again, maintaining its initial defense and asserting that no discrimination had taken place. (FAC ¶¶ 88--89 at 13.) By letter dated November 2, 2010, the EEOC notified Plaintiff of its determination that no violation of federal law had been established and provided Plaintiff with a right to sue letter. (Id. Ex. A.) Plaintiff commenced this lawsuit by filing a complaint on February 7, 2011, (Doc. 1); he amended his complaint on July 29, 2011, (Doc. 28).

II. Discussion

A. Motion to Dismiss Standard "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal citations and quotation marks omitted). While Federal Rule of Civil Procedure 8 "marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, . . . it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Iqbal, 556 U.S. at 678--79.

In considering whether a complaint states a claim upon which relief can be granted, the court "begin[s] by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth," and then determines whether the remaining well-pleaded factual allegations, accepted as true, "plausibly give rise to an entitlement to relief." Id. at 679. Deciding whether a complaint states a plausible claim for relief is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not 'shown' -- 'that the pleader is entitled to relief.'" Id. (quoting Fed. R. Civ. P. 8(a)(2)).

"While pro se complaints must contain sufficient factual allegations to meet the plausibility standard, [courts] read them with 'special solicitude' and interpret them 'to raise the strongest arguments that they suggest.'" Roman v. Donelli, 347 F. App'x 662, 663 (2d Cir. 2009) (summary order) (emphasis in original) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474--75 (2d Cir. 2006)).*fn4 Where, however, the plaintiff is an attorney, as Plaintiff is here, he or she is not entitled to the same liberality afforded other pro se plaintiffs. See Cohen v. Cnty. of Nassau, No. 10-CV-5836, 2011 WL 2604345, at *1 n.1 (E.D.N.Y. June 29, 2011) ("Given that plaintiff is an attorney, his pleadings are not entitled to the degree of liberality ordinarily given to pro se plaintiffs."); Fenner v. City of N.Y., No. 08-CV-2355, 2009 WL 5066810, at *3 (E.D.N.Y. Dec. 21, 2009) ("Although pro se litigants are generally entitled to a broad reading of their submissions because of their lack of familiarity with the law, that is not the case with ...

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