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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. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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