Can you sue a foreign resident for failing to perform services?

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Can you sue a foreign resident for failing to perform services?

I work with a programmer who lives in another country. We split the proceeds to our joint bank account in California 50/50. Although things went great at first, the program is not being updated to my satisfaction and it is making me lose sales. This bothers me because I’ve already spent time and money marketing this product. No upfront payment was made, and we only have an email agreement to work together for profit sharing. The programmer won’t give me the source code to fix the program myself because he claims he has no such obligation. The programmer claims that I could start over with another programmer since we have no contract and no exclusive, however that would be costly for me. The programmer is willing to transfer the

Asked on October 9, 2016 under Business Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

If he violated a contract or other written agreement, you could sue him for breach of contract, or if he lied about what he could or would do, you could sue for fraud--but if there is no contractual breach and no fraud, there is no cause of action. You can't sue someone simply for not being as proactive or helpful as you'd like or even that he logically should be; only a breach of a legal obligation, like that in a contract or the general obligation to not lie and commit fraud, supports a lawsuit.
Also, be aware that even if you could establish some legal obligation which he violated (e.g. a contract he breached)--
1) It is VERY difficult to sue someone in another country--and in some countries, it's effectively impossible. You need the other nation to have an effective judicial system which cooperates with ours; without that, you can't effectively sue. 
2) Even when you can sue an overseas defendant, doing so is complex and slow, and you will almost certainly need an attorney, increasing the cost of doing so (this is not the kind of suit you can realistically bring "pro se," or as your own attorney).
3) With a fairly new business, it is very hard to establish any lost profits or opportunities, because there tends to not be good historical evidence of business performance; this can make it difficult to establish the "damages" to which you are entitled.
All in all, you are probably better starting over with a local programmer.


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