FUNAYAMA v. NICHIA AMERICA CORPORATION

Filing 23

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 9/4/14. 9/5/14 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED.(mbh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
TOMOKO FUNAYAMA,
Plaintiff
vs.
NICHIA AMERICA CORP,
Defendant

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CIVIL ACTION

NO. 12-5406

MEMORANDUM
STENGEL, J.

September 4, 2014

This case is “déjà vu, all over again.”1 It is the second action brought by Tomoko
Funayama against Nichia America Corporation, alleging discrimination. See Funayama
vs. Nichia Am. Corp., 482 F.App’x 723 (3d Cir. 2012). In Ms. Funayama’s 2008 action,
I granted summary judgment on behalf of the defendants. Id. In the present case, I
granted the defendant’s motion to dismiss and declined to exercise supplemental
jurisdiction over the plaintiff’s state law claims. See Funayama vs. Nichia America
Corp., 12-cv-5406, 2014 U.S. Dist. LEXIS 34072 (E.D. Pa. March 14, 2014).
Additionally, I found “that amending the complaint would be futile” because the
plaintiff’s claim was barred by the doctrine of res judicata, the relevant statutes of
limitations, and for failure to establish a prima facie case of discrimination. Id. at *2.
Undaunted, Ms. Funayama filed a motion for reconsideration, which I denied. She
appealed that decision to the United States Court of Appeals for the Third Circuit. See
Document #18.

1

Yogi Berra, The Yogi Book 9 (Workman Publishing Company, Inc., 1998).

Undeterred by my findings and rulings, and apparently unwilling to wait for the
Court of Appeals, Ms. Funayama filed the current motion for leave to amend her
complaint. Specifically, she seeks to allege “additional facts that are not newly
developed[,] but are of [a] more explanatory nature.” See Document #20. These facts
come in the form of employment documents and deposition excerpts from Ms.
Funayama’s 2008 action against the defendant. For the following reasons, I will deny the
plaintiff’s motion for leave to amend the complaint.
I. BACKGROUND2
The plaintiff’s complaint alleges sex discrimination in compensation and “pay
disparity stemming from her hidden employment status.” See Compl. at ¶ 3. Ms.
Funayama alleges that Nichia “maliciously concealed” her employment status as an
expatriate. Id. at ¶ 14. Nichia defines expatriate employees as employees hired in Japan
then dispatched from head offices to work in foreign countries for a period of time.
Expatriate employees are compensated significantly more than locally hired employees.
Expatriates receive additional fringe benefits and a salary in both Japan and their current
country of employment. Ms. Funayama alleges that the concealment of her “true
employment status” was the result of an intentional effort to “set her apart from other
male3 employees.” Id. at ¶ 18. The plaintiff’s complaint alleges three separate counts

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As both parties are intimately familiar with the facts of this case, I have included only the
background information relevant to deciding the Plaintiff’s Motion for Leave to File an
Amended Complaint. A complete accounting of the facts of this case can be found at Funayama
vs. Nichia America Corp., 12-cv-5406, 2014 U.S. Dist. LEXIS 34072 (E.D. Pa. March 14, 2014).
3

I assume Ms. Funayama means “other employees, who are male.”
2

against the defendant. In her first count, the plaintiff seeks a myriad of damages under
the Lilly Ledbetter Fair Pay Act of 2009 “as amended by [the] Equal Pay Act.” Id. at ¶
16-18. The other two counts are grounded entirely in state common law. Id. at ¶ 19-24.
Ms. Funayama alleges that the defendant’s Japanese headquarters hired her in
1995 with the intention of dispatching her to Nichia America. See Document #4. The
defendant secured a work visa for Ms. Funayama stating her job description and annual
salary of $35,000 plus $10,000 in allowances and benefits. See Compl. at ¶ 11.
According to Ms. Funayama’s complaint, all other expatriates hired in Japan and
dispatched to Nichia America were Japanese males who were compensated in accordance
with the previously mentioned expatriate dual salary and fringe benefits. Id. at ¶12. As
the only female expatriate, Ms. Funayama alleges that she was under the “fraudulent
belief perpetrated upon her” by the defendant that she was a locally-hired employee, and
therefore, not entitled to the same benefits as her male counterparts. Id. at ¶ 13.
The plaintiff alleges that the defendant’s fraudulent representation is evidenced by
the defendant’s practice of handing empty bonus check envelopes to the male Japanese
employees in order to prevent the American employees from discovering that there were
two separate employment statuses. Id. In addition, the plaintiff refers to a deposition of
Nichia America’s President, Mr. Kuboniwa, from the 2008 action as further evidence of
the defendant’s fraudulent representations. Id. at ¶ 14. In the deposition, Mr. Kuboniwa
answered “I think so” in response to the question, “[w]as the [p]laintiff an expatriate?” In
a later deposition, Mr. Kuboniwa clarified that he was mistaken in the earlier interview,
and that Ms. Funayama was in fact a locally-hired employee. See Document #10-1. The
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complaint alleges that Ms. Funayama discovered this concealment of her “true expatriate
status” in early November 2010 when she “received internal Nichia Japan
employment/personnel documents that had been concealed from her since there [sic]
production in 1995.” See Compl. at ¶ 14.
The plaintiff insists that she was continuously denied her rightful compensation
and expatriate benefits that were afforded to the male Japanese expatriates. She has now
moved to amend her original complaint to add “explanatory” facts. See Document #20.
These facts come in the form of handwritten notes translating the previously provided
organizational chart issued by Nichia.4 Id. at 10. In addition to the organizational chart,
Ms. Funayama seeks to add excerpts from the second deposition of Mr. Kuboniwa that
had been absent from her original complaint, as well as, a number of immigration
documents relating to her work visa. Id. Ms. Funayama alleges that the addition of these
explanatory facts show that she did not discover the alleged “malicious concealment” of
her employment status until early November 2010.
II. STANDARD FOR POST-VERDICT MOTIONS FOR LEAVE5
Whether to grant a motion for leave to amend under Rule 15(a) of the Federal
Rules of Civil Procedure is left to the sound discretion of the trial judge. Gay v. Petsock,
917 F.2d 768, 772 (3d Cir.1990). However, when the motion to amend is filed after the
The handwritten “re-notations in English” are purported to be a translation of the Japanese
characters contained in Nichia America’s organizational chart; however, the translation appears
to have been written by Ms. Funayama leaving the court, yet again, without an official
translation of the organizational structure. In addition, the notes appear to be photocopied
incorrectly with a few words either missing or cut off on the edge of the document.
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The timing of this motion is unconventional because I have already dismissed Ms. Funayama’s
complaint and denied her subsequent motion for reconsideration. See Documents #13, 14, 21.
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district court has entered a judgment, “the liberality” of Rule 15 no longer applies.
Ahmed v. Dragovich, 297 F.3d 201, 207 (3d Cir. 2002). In keeping with the judicial
“philosophy favoring the finality of judgments and expeditious termination of
litigation[,]” any post-verdict motion to amend must be evaluated under Rule 59(e) or
Rule 60(b) which governs the opening of final judgments. Id. at 208. While in this case
the motion to amend was filed under Rule 15(a), not Rule 59(e) or Rule 60(b), a court
may “re-characterize the motion to amend to match the substance of the relief
requested.”6 Id. Upon such re-characterization, the court may “conjoin the Rule 60(b)
and Rule 15(a) motions to decide them simultaneously, as it ‘would be a needless
formality for the court to grant the motion to reopen the judgment only to deny the
motion for leave to amend.’” Id. at 209 (quoting 6 Wright et al., Federal Practice &
Procedure § 1489, at 695). “Thus, the fact that the amended pleading offered by the
movant will not cure the defects in the original pleading that resulted in the judgment of
dismissal may be a valid reason both for denying a motion to amend under Rule 15(a)
and for refusing to reopen the judgment under Rule 60(b).” Id.
Under Rule 15, “leave to amend shall be freely given, in the absence of
circumstances such as undue delay, bad faith or dilatory motive, undue prejudice to the
opposing party, or futility of amendment.” Jablonski v. Pan Am. World Airways, Inc.,
863 F.2d 289, 292 (3d Cir. 1988) (citing Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227

Ms. Funayama is a pro se plaintiff, and I must liberally construe her pleadings and “apply the
applicable law, irrespective of whether [the] litigant has mentioned it by name.” Higgins v.
Beyer, 293 F.3d 683, 688 (3d Cir. 2002). Because the plaintiff filed the motion outside of the ten
days provided by Rule 59(e), I will review the motion under Rule 60(b).
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(1962)). Delay is undue where a plaintiff attempts to re-plead facts which could have
earlier been pleaded. See Cureton v. Nat’l Collegiate Athletic Ass’n, 252 F.3d 267, 273
(3d Cir. 2001) (citing Rolo v. City Investing Co. Liquidating Trust, 155 F.3d 644, 654-55
(3d Cir. 1998)). “A finding of dilatory motive is justified where the plaintiff acts ‘in an
effort to prolong litigation.’” Breyer v. Meissner, 23 F. Supp. 2d 540, 542 (E.D. Pa.
1998). Such efforts are apparent when the motion attempts to plead additional
information that was previously available, and the plaintiff fails to provide an explanation
as to why the information was not included in the original complaint. Id. at 243 (citing
Scattergood v. Pearlman, 945 F.2d 618, 627 (3d Cir. 1991)). Amendment of the
complaint is futile if the amendment will not cure the deficiency in the original complaint
or if the amended complaint cannot withstand a renewed motion to dismiss. Jablonski,
863 F.2d at 292.
III. DISCUSSION
In light of the relevant standard and the ensuing analysis, I find that Ms.
Funayama’s post-dismissal motion for leave to amend is futile because her complaint is
barred by the doctrine of res judicata and the relevant statute of limitations, and for
failure to establish a prima facie case of discrimination. In addition, I find that the
motion is based on dilatory motive and will create undue delay.
A. Amendment is Futile
Ms. Funayama argues that she should be granted leave to amend her complaint
because the supporting documents she intends to submit will show that her claim is not
barred by the doctrine of res judicata, the relevant statute of limitations, or for failure to
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establish a claim upon which relief may be granted. See Document #20. Essentially, it is
the plaintiff’s position that the supporting documentation is sufficient to overcome the
court’s dismissal of her complaint. However, as I found in the memorandum granting the
defendant’s motion to dismiss, “amending the complaint would be futile.” Funayama vs.
Nichia America Corp., 2014 U.S. Dist. LEXIS 34072, *2. Further, the plaintiff’s
proposed amendments to her complaint would be futile for the same three reasons her
complaint had been dismissed in the first place. Id. None of the factual allegations Ms.
Funayama seeks to add to her complaint will cure its flaws.
1. Res judicata
I dismissed the complaint Ms. Funayama seeks to amend because the defendant
adequately demonstrated the three elements necessary to prevail on a defense of res
judicata. Id. at *12. Once again, the three elements required to invoke the defense of res
judicata are: (1) a final judgment on the merits in a prior suit; (2) involving the same
parties or their privies; and (3) a subsequent suit based on the same cause of action.
Lubrizol Corp. v. Exxon Corp., 929 F.2d 960, 963 (3d Cir. 1991). Ms. Funayama’s 2008
action against defendant Nichia was based on the same employment relationship and
alleged discrimination as the current complaint Ms. Funayama seeks to amend.7 See
Funayama v. Nichia Am. Corp., 482 F.App’x 723, 724 (3d Cir. 2012).
To be clear, the parties are the same and the claims are the same. In fact, Ms.
Funayama seems to understand this not so subtle point. She admits in her brief that she

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In the interests of brevity and efficiency, I will not repeat the discussion of res judicata at
Funayama vs. Nichia America Corp., 2014 U.S. Dist. LEXIS 34072, *12-19.
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“maintains the counts and allegations against the same defendant from the original
complaint.” See Document #20. Ms. Funayama further explains that the proposed
amendments will merely add explanatory facts to the existing complaint. Id. These
explanatory facts, interesting though they may be, will not alter the reality that this is the
same case involving the same people. The complaint will not be altered, only
supplemented, and this will not cure the plaintiff’s res judicata problem. “Any attempt to
amend this Count would be futile because a claim extinguished by res judicata ‘includes
all rights of the plaintiff to remedies against the defendant with respect to all or any part
of the transaction or series of transactions, out of which the action arose[.]’” Restatement
(Second) of Judgments § 24(1).
2. Statute of Limitations
Claims under the Fair Pay Act must be brought within two years of the last issued
discriminatory paycheck. See 29 U.S.C § 255, 626(d)(3). As a general rule, the statute
of limitations begins to run when the plaintiff’s cause of action accrues. In some cases,
the plaintiff may be unaware of the alleged unlawful discrimination. Under such
circumstances, the statute of limitations begins to run when the plaintiff discovers or
should have discovered through reasonable diligence that the unlawful discrimination had
occurred. Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir.
1994).
Ms. Funayama creatively argues that her complaint is not untimely because she
was unaware of the “long ongoing fraud against the [p]laintiff which she only discovered
through Mr. Kuboniwa’s September 21, 2010 deposition testimony and confirmed when
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she received from an unknown source the ‘hard evidences’ of the said ‘fraud.’” See
Document #20 at 6. The plaintiff appears to be asserting the discovery rule as a means to
circumvent the statute of limitations. Ms. Funayama’s assertion that she discovered the
alleged discrimination in 2010 is precisely the same argument that I have already
dismissed, and her assertions here are disingenuous in light of her testimony in the 2008
action, as outlined in my memorandum dismissing her complaint:
Ms. Funayama was fully aware of the defendant’s
compensation model at the time of the commencement of
the 2008 action. In that case, she alleged that, although her
job was substantially equal with respect to skill, effort,
and responsibility to that of her male supervisor as of
September 2003, her supervisor received substantially
more in compensation than she did. See Compl. ¶ 11, and
Am.Compl. ¶ 13 of 2008 action. Ms. Funayama’s
knowledge of the defendant’s compensation model was
verified repeatedly during the course of her September 15,
2009 deposition in the 2008 action. She testified that, at
the time of her hiring in 1995, she was assigned to the
position of Business Coordinator/Accountant in the
defendant’s Mountville Accounting Department where she
“managed payroll and company benefits.” See Document
#9-1 at 56. She further testified that when she was
promoted to Assistant Financial Manager in 1998, she was
responsible
for
day-to-day accounting,
payroll
management, and employee benefits. Id. at 57. Ms.
Funayama was again promoted to the position of Financial
Manager in 2004, and testified that she managed “day-today accounting and month in closing, semi-annual outside
auditing firm reviews and audits, reports, analysis” and
“was still managing payroll then and employee benefits.”
See Document #9-1 at 59. Ms. Funayama testified that she
had a general idea of the raises that other employees
received when she was managing the defendant’s payroll
because she knew “all the raw data of the payroll.” Id. at
90. The only employee in the Accounting Department
who earned more money than she when she was the
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Financial Manager was Mr. Ujike, her direct supervisor.
Id.
I also note that Ms. Funayama testified at that same
deposition that, at least as early as the winter of 2004, she
had conversations with Ms. Calder, a co-worker, about the
defendant’s treatment of women in the workplace. When
asked what were the common complaints, Ms. Funayama
stated:
“That I told her no matter how hard I
work, I don’t get the deserving salary and
promotion because I’m a Japanese woman
in Japanese company.”
Id. at 87-88. Given Ms. Funayama’s testimony of her
knowledge of the defendant’s compensation and benefits
model during the course of her tenure with the company,
there is no question that she was aware or, through
reasonable diligence, should have been aware as early as
2004, that she did not receive certain compensation and
benefits received by the employees who had been sent by
the defendant’s Japanese parent corporation to work in the
United States at Nichia America. Thus, the discovery rule
brings no relief to Ms. Funayama’s claim which was filed
on October 2, 2012, long outside of the statute of
limitations applicable to Equal Pay Act claims.
Accordingly, even if the doctrine of res judicata did not
bar Ms. Funayama’s Equal Pay Act claim, it would still be
untimely.
Funayama vs. Nichia America Corp., 2014 U.S. Dist. LEXIS 34072, *21-23. I dismissed
the discovery rule argument based on the fact that Ms. Funayama was fully aware of the
two separate classes of employees and, as the Financial Manager for Nichia America, she
had full access to the payroll data at the beginning of the 2008 action. In fact, it is
obvious that Ms. Funayama was well aware of the defendant’s alleged fraud against her
from as early as 2004. The additional factual allegations Ms. Funayama wishes to add to
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her already dismissed complaint simply provide evidence to bolster a complaint that is
clearly barred by the two-year statute of limitations. The addition of Mr. Kuboniwa’s
second deposition, annotated organizational chart, and work visa documentation do not
refute my earlier finding that Ms. Funayama was “most definitely” aware of the alleged
discrimination before November 2010. Id. Therefore, even if Ms. Funayama were able
to overcome the defendant’s successful defense of res judicata, amending the complaint
would still be futile due to the two-year statute of limitations on claims under the Equal
Pay Act.
3. Prima Facie Case
From the start, Ms. Funayama could not plead a prima facie case of
discrimination. Her additional factual allegations do not cure that very basic flaw in her
case. The amendment would be futile, to be sure. In order to state a prima facie case
under the Equal Pay Act, a plaintiff must show that employees of the opposite sex are
paid differently for performing equal work. See Staniziale v. Jargowsky, 200 F.3d 101,
107 (3d Cir. 2000). I dismissed Ms. Funayama’s complaint for failure to state a prima
facie case because the complaint did not provide the name of any male employee of the
defendant who had been paid more for equal work. Funayama vs. Nichia America Corp.,
2014 U.S. Dist. LEXIS 34072, *25.
While the organizational chart of Nichia America included in the plaintiff’s
motion to amend now shows the names of her fellow managers and indicates whether
they are male or female, the plaintiff has again failed to allege that her male counterparts
perform equal work for more pay. According to Ms. Funayama’s testimony in the 2008
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action, Ms. Funayama was the third highest paid employee at the Lancaster location with
the exception of the sales persons. Ms. Funayama continues to argue that Mr. Ujike was
not her manager and that they were “parallel and equal” as indicated on the Nichia
organizational chart. However, further examination of Ms. Funayama’s testimony in the
2008 action reveals that Ms. Funayama admitted that Mr. Ujike’s job duties differed from
hers. Id. at *24-25. Mr. Ujike’s duties had more emphasis on credit management of the
customers and inventory, and cost accounting, whereas Ms. Funayama had direct
involvement in payroll and employee benefits that Mr. Ujike did not. Id. Mr. Ujike’s
“duties required far more skill and responsibility[,]” and as such, Ms. Funayama was not
performing equal work. Id.
Ms. Funayama’s proposed factual enhancements to the complaint fail to cure the
deficiencies described above and in the previous memorandum dismissing the complaint.
Under these circumstances, amending the complaint would be futile because Ms.
Funayama would still be unable to establish a prima facie case of discrimination.
B. Dilatory Motives and Undue Delay
Delay is undue where a plaintiff attempts to re-plead facts which could earlier
have been plead. See Cureton, 252 F.3d at 273 (citing Rolo v. City Investing Co.
Liquidating Trust, 155 F.3d 644, 654-55 (3d Cir. 1998)). Additionally, “a finding of
‘dilatory motive’ is justified where the plaintiff acts ‘in an effort to prolong litigation.”
Breyer, 23 F. Supp. 2d at 542.
Ms. Funayama admits that the documents she seeks to add to the complaint were
given to her from an “unknown source” during the course of litigation in the 2008 action.
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See Document #20 at 6. Ms. Funayama also states that the additional factual allegations
“are not newly developed.” Id. at 1. While Ms. Funayama is a pro se litigant and her
pleadings will be liberally construed, the extensive legal proceedings between Ms.
Funayama and the defendant belie her alleged inexperience. Ms. Funayama not only
appealed this court’s grant of summary judgment in favor of Nichia in her 2008 action,
but when she received an unfavorable decision from the Court of Appeals, Ms. Funayama
submitted a petition for writ of certiorari to the United States Supreme Court. Funayama
v. Nichia Am. Corp., 133 S.Ct. 1820 (2013). That petition was unsuccessful. Id. In
addition to the current motion for leave to amend, Ms. Funayama earlier filed a motion
for reconsideration which I denied, and a notice of appeal. See Documents #16 & 18. In
short, Ms. Funayama demonstrates a certain level of sophistication, she knows her case
well, she has had full access to all facts, material or otherwise, relating to her case and
she has had full access to all pertinent documents for several years. The factual
allegations Ms. Funayama seeks to add to her complaint were available to her at the time
she filed the initial complaint. Accordingly, I will deny the plaintiff’s motion for leave to
amend the complaint.
An appropriate Order follows.

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