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Judges rule in favor of California attorney in Simon case

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A divided Indiana Court of Appeals has reversed the decision of a Marion Superior judge that denied a California attorney’s motion to dismiss a defamation lawsuit filed by Herbert and Bui Simon for lack of personal jurisdiction. The lawsuit stems from comments the attorney made to an Indianapolis television station regarding lawsuits involving the Simons.

Joseph Davis, a California attorney representing plaintiffs in several suits against the Simons in California, was contacted by an Indianapolis TV station for comment on the lawsuits, including one involving the Simons’ former house manager in California. Over the phone, Davis said “[t]he firing is because my client refused to engage in an unlawful, meaning a criminal, act pursuant to our immigration laws. . . . This was all designed to conceal from local and state authorities the existence of this undocumented worker.” The comments were aired in Indiana.

The Simons sued in Marion County for defamation and false light publicity based on those statements. Davis wanted the suit dismissed for lack of personal jurisdiction or grounds of forum non conveniens. Marion Superior Judge Heather Welch denied the motion.

On interlocutory appeal, the majority ruled in favor of Davis. The judges relied in part on the “express aiming test” outlined in Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482 (1984), and Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 203 (1st Cir. 1994).

Davis’ act of responding to the questions of a reporter who initiated the contact with Davis in California regarding a California lawsuit, in which he is the plaintiff’s attorney, wasn’t done with the purpose of expressly targeting a resident of the forum state, the majority ruled.

“Davis neither wrote nor disseminated the news story which is the object of the Simons’ defamation and false light claim. In short, the record does not reveal ‘purposeful conduct’ which was ‘intentionally directed at’ Indiana on the part of Davis to defame the Simons in Indiana, and accordingly Davis did not ‘expressly aim’ conduct at the State of Indiana,” wrote Judge Elaine Brown in Joseph A. Davis v. Herbert Simon and Bui Simon, No. 49A04-1101-CT-5.

The majority concluded that an attorney, in answering a reporter’s unsolicited questions - in which the attorney made comments regarding the allegations of a lawsuit and represented that the allegations were truthful -  without more, doesn’t constitute expressly aiming one’s conduct at the forum state.

Judge James Kirsch dissented, writing that Davis engaged in intentional conduct in Indiana that was calculated to cause injury to the Simons in Indiana by “intentionally communicating defamatory statements … to a reporter for an Indianapolis television station.” He believed Davis’ conduct was “expressly aimed” at Indiana.

 

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  1. For many years this young man was "family" being my cousin's son. Then he decided to ignore my existence and that of my daughter who was very hurt by his actions after growing up admiring, Jason. Glad he is doing well, as for his opinion, if you care so much you wouldn't ignore the feelings of those who cared so much about you for years, Jason.

  2. Good riddance to this dangerous activist judge

  3. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  4. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  5. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

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