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How to Choose the Right Forum for Disputes Regarding Your Non-Compete

You may have an attorney that you absolutely love in New York (assuming you could actually ever "love" a lawyer).

But that doesn't mean you get to bring your claim based on where your attorney is admitted to practice law.

And in the context of actions seeking to enforce the terms of a non-compete agreement, you need to have more than a passing connection with New York before you will be allowed to sue there.

Therefore, although the courts will usually accord a fair amount of deference to a plaintiff's choice of forum, that deference is not without limits. And where the plaintiff fails to show that the parties or the claim at issue has a substantial nexus to New York, the claim is liable to dismissed. In legalese, this is referred to as "forum non conveniens," which means pretty much what it sounds like.

To that end, New York's courts have set forth that the following criteria will be considered on a motion to dismiss for forum non conveniens (which, not coincidentally, are the same factors you should consider in determining where to bring your lawsuit):

"1) the burden on the New York courts; 2) the potential hardship to the defendant; 3) the unavailability of an alternative forum; 4) the residence of the parties; and 5) the location of the events giving rise to the transaction at issue. Ghose v. CNA Reins. Co., 43 A.D.3d 656, 660 (1st Dep't 2007).

While this test - at least insofar as New York is concerned - is not a very strict one, the following practicality should not be overlooked: why should a New York judge effectively volunteer to be burdened with a case that really belongs somewhere else?