NY Resident sue Taiwanese business?

[jackbjones]

NY

I’m a New York State resident. Am I able to sue MSI Computers in my local small claims court? MSI is a Taiwanese company with its US headquarters in California. They sell their computers through Best Buy and other retailers present in New York State. I would like to sue MSI because firmware I downloaded from their website crippled my computer and I believe they are responsible for providing faulty software. My question isn’t about how strong my case is, but if I can sue MSI in my local small claims court. Any help will be greatly appreciated

 

[quincy]

If they have a registered agent in New York, you can sue them in New York in small claims.

 

[Zigner]

I know this isn't your question (because you told us as much), but you aren't going to win. Your actual question is moot, because you have no case in the first place. Why? Because of this: https://us.msi.com/page/website-terms-of-use

Disclaimers

MSI DOES NOT PROMISE THAT THE SITE OR ANY CONTENT, SERVICE OR FEATURE OF THE SITE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT YOUR USE OF THE SITE WILL PROVIDE SPECIFIC RESULTS. THE SITE AND ITS CONTENT ARE DELIVERED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. ALL INFORMATION PROVIDED ON THE SITE IS SUBJECT TO CHANGE WITHOUT NOTICE. MSI CANNOT ENSURE THAT ANY FILES OR OTHER DATA YOU DOWNLOAD FROM THE SITE WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. MSI DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. MSI DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE SITE AND/OR ANY MSI SERVICES. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SITE AND ANY LINKED SITES. YOUR SOLE REMEDY AGAINST MSI FOR DISSATISFACTION WITH THE SITE OR ANY CONTENT IS TO STOP USING THE SITE OR ANY SUCH CONTENT. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN THE PARTIES.


The above disclaimer applies to any damages, liability or injuries caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction of or unauthorized access to, alteration of, or use, whether for breach of contract, tort, negligence or any other cause of action.


MSI reserves the right to do any of the following, at any time, without notice: (1) to modify, suspend or terminate operation of or access to the Site, or any portion of the Site, for any reason; (2) to modify or change the Site, or any portion of the Site, and any applicable policies or terms; and (3) to interrupt the operation of the Site, or any portion of the Site, as necessary to perform routine or non-routine maintenance, error correction, or other changes.

Limitation of Liability

Except where prohibited by law, in no event will MSI be liable to you for any indirect, consequential, incidental or punitive damages, including lost profits, even if MSI has been advised of the possibility of such damages.

 

[jackbjones]

Definitely, I know I can never win this case. However, I’m banking MSI will not spend thousands of dollars to send a lawyer or representative to defend their case in a $700 lawsuit. Can MSI counter sue for legal fees in this case if they do hire a lawyer and I lose the case?

I know this isn't your question (because you told us as much), but you aren't going to win. Your actual question is moot, because you have no case in the first place. Why? Because of this: https://us.msi.com/page/website-terms-of-use

Disclaimers

MSI DOES NOT PROMISE THAT THE SITE OR ANY CONTENT, SERVICE OR FEATURE OF THE SITE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT YOUR USE OF THE SITE WILL PROVIDE SPECIFIC RESULTS. THE SITE AND ITS CONTENT ARE DELIVERED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. ALL INFORMATION PROVIDED ON THE SITE IS SUBJECT TO CHANGE WITHOUT NOTICE. MSI CANNOT ENSURE THAT ANY FILES OR OTHER DATA YOU DOWNLOAD FROM THE SITE WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. MSI DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. MSI DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE SITE AND/OR ANY MSI SERVICES. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SITE AND ANY LINKED SITES. YOUR SOLE REMEDY AGAINST MSI FOR DISSATISFACTION WITH THE SITE OR ANY CONTENT IS TO STOP USING THE SITE OR ANY SUCH CONTENT. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN THE PARTIES.


The above disclaimer applies to any damages, liability or injuries caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction of or unauthorized access to, alteration of, or use, whether for breach of contract, tort, negligence or any other cause of action.


MSI reserves the right to do any of the following, at any time, without notice: (1) to modify, suspend or terminate operation of or access to the Site, or any portion of the Site, for any reason; (2) to modify or change the Site, or any portion of the Site, and any applicable policies or terms; and (3) to interrupt the operation of the Site, or any portion of the Site, as necessary to perform routine or non-routine maintenance, error correction, or other changes.

Limitation of Liability

Except where prohibited by law, in no event will MSI be liable to you for any indirect, consequential, incidental or punitive damages, including lost profits, even if MSI has been advised of the possibility of such damages.

 

[quincy]

Definitely, I know I can never win this case. However, I’m banking MSI will not spend thousands of dollars to send a lawyer or representative to defend their case in a $700 lawsuit. Can MSI counter sue for legal fees in this case if they do hire a lawyer and I lose the case?

Yes. They can countersue but the case will probably be removed from small claims if they do. Then you will want an attorney. And you might find yourself not only losing the suit but having to pay all court costs and their attorney fees.

 

[Zigner]

Definitely, I know I can never win this case. However, I’m banking MSI will not spend thousands of dollars to send a lawyer or representative to defend their case in a $700 lawsuit. Can MSI counter sue for legal fees in this case if they do hire a lawyer and I lose the case?

In other words, you KNOW you don't have a case, yet you want to sue. In legal circles, that is known as abuse of process and, as Quincy pointed out, that can cause you to be responsible for their legal fees.

 

[jackbjones]

It’s not that I know I don’t have a case, it’s that I know MSI will use their Terms of Use to defend their case. However, I’m filing my case because I strongly believe MSI is not only responsible for providing faulty software, but also not providing a way for users to revert affected systems to the state before installation. MSI computers are known for failed firmware updates. Users have to chose between operating faulty computers, or risk installing firmware provided by MSI that can brick the system. Isn’t this the same as when cell phone companies send firmware updates to users? If the firmware fails and phones are bricked, who is responsible?

In other words, you KNOW you don't have a case, yet you want to sue. In legal circles, that is known as abuse of process and, as Quincy pointed out, that can cause you to be responsible for their legal fees.

 

[Zigner]

Let me rephrase: You should reasonably have known that your case is baseless. Just because you don't want to believe it doesn't make it not true.