I am actually trying to dismiss the action in NY while the action in CA is now in discovery (but defendants in CA might request a motion to stay). I'm not sure I want to be set up as an 'employee' because if I'm a contractor, then the issue of trade secrets might swing my way, since there was no written agreement to the effect of relinquishing any of the work created as 'work for hire' (is this correct?)
I'm not sure I understood your second paragraph. If the NY action goes forward (survives the motion to dismiss because of FNC), then should I counter sue, which would basically be the same actions that are going on in CA? how does an answer in NY with the same causes of action play against the CA suit? would the OP then have more of a standing to stay the CA action (the NY one is further ahead)?
Thanks for the follow up. Actually the reason why I didn't come back to the question is because there's quite a bit of information that I needed to digest and/or elaborate on.
Re Trade secrets, yes I did sign a non-compete/confidentiality agreement, with choice of law in NY.
We are currently motioning for FNC in NY (oral hearings in one month), so until then it seems the CA action will be 'on hold' depending on whether or not the NY action moves forward or not (obviously a dismissal in NY would greatly improve the strength of action in CA).
I guess what I am trying to understand is on your last paragraph:
"You cannot sue in NY for something you have already sued on in CA -- unless you dismiss the CA case first. Same in reverse for the NY party. The frist court to render a judgment or dismissal on the merits would provide the prevailing party with a the tool necessary to dismiss the case in the other jurisdiction as "res judicata" (already decided). "
By 'you cannot sue' what exactly do you mean? it seems that both actions can run in parallel, and it doesn't seem like they're necessarily 'aware' (to the causes of action) of each other. What would happen if in my answer in NY I made counter claims exactly as the complaint in CA? I understand res adjudicata, but that legal concept merely would mean that if the counter claims in NY were somehow to be decided first then (for better or for worse) then they could be brought to the CA court?
Thanks. But specifically to the wording you used, then I "can sue"? and then upon one or the other court deciding on it, it can be dismissed on the other end, is this the correct interpretation?
So, the question I have is for instance, if as a defense/counter-suit in NY for the non compete, I bring up the doctrine of 'unclean hands' due to wages that were not paid, it seems that the CA action would have been wasted? in this way, I am 'forced' to bring that 'card' out in NY even if I would prefer to have it sued under CA laws, and thus I am undermining my complaint in CA?
"Yes, you can sue, but the case could be dismissed in advance for FNC, exactly as your attorney is apparently attempting."
We're attempting to do a FNC in NY to move it to CA. I think the OP is going to try to do a stay of the CA action pending the resolution of the NY one.
so if the FNC motion is not granted, then the CA action would be moot, since I would have to put all the cards in the table in NY as a counter suit to ensure the actions against me are seen in the whole context?
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