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Gundlach v. IBM Japan, Ltd.

United States District Court, S.D. New York

November 21, 2013


Page 390

Frederick W. Gundlach, Plaintiff, Pro se, Denver Borough, Pennsylvania.

For Defendants: Allan S. Bloom, Erin E. LaRuffa, Paul Hastings LLP, New York, New York.


Page 391


Seibel, J.

Before the Court is the Motion to Dismiss of Defendants IBM Japan, Ltd. (" IBM Japan" ) and Kuniya Tsubota (collectively, " Defendants" ). (Doc. 75.) IBM Japan seeks dismissal of Plaintiff's Japanese Labor Law claims under Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction, or in the alternative, under Rule 12(b)(6) for failure to state a claim.[1] Mr. Tsubota seeks dismissal of Plaintiff's state-law tortious interference claim under Rule 12(b)(6) and on the ground that he was improperly added as a Defendant under Rule 15(a)(2) and this Court's prior Order. For the following reasons, Defendants' Motion is GRANTED.

I. Background

All of Plaintiff's factual allegations are accepted as true for purposes of Rule 12(b)(6) and construed in the light most favorable to Plaintiff.

In February 2008, Plaintiff commenced employment as a financial consultant in Japan with Cognos, a Japanese company. (SAC ¶ 26.) Plaintiff signed an employment contract, dated February 25, 2008, which laid out the conditions of his employment and included, among other things, the following terms: (1) Plaintiff's job would begin on February 25, 2008 and end on July 11, 2008, with the possibility of renewal if both parties consented; (2) Plaintiff would perform accounting work as a financial consultant; (3) Plaintiff would be based in Tokyo, Japan; and (4) Cognos could terminate Plaintiff at any time with thirty days' advance notice. ( Id. Ex. C, at 1-3.) Plaintiff asserts that this contract contained a number of " irregularities" and " flaws" such that the contract was " invalid," ( id. ¶ 29), and that ultimately Cognos did not honor it, ( id. ¶ 35).

On March 7, 2008, Plaintiff took over the role of Financial Controller. ( Id. ¶ 37.) Plaintiff alleges that this new position did not come with a written contract, ( id. ¶ 38); rather, terms were deleted from Plaintiff's February 25, 2008 contract, ( id ). Specifically, the provision concerning the limited duration of employment was crossed out, making the contract into one for " regular" or permanent employment under Japanese law. ( Id., id . Ex. C, at 1.) The deletions are accompanied by a round stamp, which functions as the seal of the corporation. ( Id. ¶ ¶ 40-41.) Plaintiff affixed the seal himself, but alleges that Steve Gazzard, a

Page 392

Cognos manager in Australia, authorized the modifications. ( Id. ¶ 41.) Plaintiff contends that these contractual changes converted him from a term-limited employee to a sei sha'in, or permanent, employee. ( Id. ¶ 38.)

In early 2008 IBM Japan acquired Cognos, and all Cognos employees were transferred to IBM Japan effective May 1, 2008. ( See id . ¶ ¶ 25, 45.) IBM Japan and John Doe(s) allegedly insisted that Plaintiff not be transferred. ( Id. ¶ 47.) Plaintiff contends that these same John Doe(s) " interfered" with his employment relationship with Cognos by saying that Cognos could no longer pay Plaintiff and that to continue to be paid he would have to accept a contract with IBM Japan. ( Id. ¶ ¶ 48-50.) Plaintiff signed the IBM Japan contract -- which was term-limited -- on April 22, 2008. ( Id.¶ ¶ 55-56.)

In October 2008, Plaintiff notified the Human Resources (" HR" ) department at both IBM Japan and International Business Machines Corporation (" IBM US" ) of his concerns regarding the new contractual provisions. (SAC ¶ 66.) Specifically, Plaintiff e-mailed Mr. Tsubota, who Plaintiff alleges was responsible for employment modifications at IBM Japan, ( id. ¶ 82), and who " did nothing to insure that plaintiff's employment would continue within Cognos and successor corporation IBM Japan," ( id. ¶ 85). Plaintiff's employment with IBM Japan terminated on January 31, 2009, although he contends that his " permanent" employment with Cognos still exists under Japanese law. ( Id. ¶ 72.)

Plaintiff commenced this lawsuit on February 7, 2011 by filing a Complaint, (Doc. 1), which he amended for the first time on July 29, 2011, (Doc. 28). On May 1, 2012, I dismissed all claims against IBM US, but permitted the parties to engage in jurisdictional discovery to determine whether personal jurisdiction could be asserted over IBM Japan (the " May 1 Order" ). (Doc. 53.) Plaintiff filed his SAC on May 23, 2012, naming Mr. Tsubota as a Defendant for the first time. (Doc. 57.) Defendants subsequently submitted this Motion to Dismiss. (Doc. 75.)

II. Legal Standards

A. Personal Jurisdiction

At the motion to dismiss stage, the plaintiff generally must make a prima facie showing by his pleadings and affidavits that the court has jurisdiction over each of the defendants. See CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 364-65 (2d Cir. 1986) (at evidentiary hearing or trial, plaintiff must demonstrate personal jurisdiction by preponderance of the evidence). A federal court sitting in diversity looks to the law of the state in which it sits to ascertain whether it may exercise personal jurisdiction over a foreign defendant. See Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 124 (2d Cir. 2002). In such cases, the court must first determine if the forum's law would ...

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