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Justices hear Simon defamation appeal

October 24, 2012

The Indiana Supreme Court on Wednesday heard arguments on whether Indianapolis billionaire Herb Simon may proceed with a defamation suit against a California attorney. The suit involves comments the lawyer made to an Indianapolis TV station regarding allegations that Simon and his wife employed illegal immigrants at their California home.

California attorney Joseph A. Davis granted an interview to WTHR-13 to discuss suits he filed on behalf of former Simon employees, and the Simons sued claiming defamation and false light publicity. A Marion County trial court denied a defense motion to dismiss, but the Court of Appeals reversed. The Supreme Court granted transfer in Joseph A Davis v. Herbert Simon and Bui Simon, 49S04-1208-CT-498.

“This is a jurisdictional issue,” argued Davis’ attorney, Maggie L. Smith, who said that Indiana should not have jurisdiction because the case involves mostly California litigants. “Returning a phone call in and of itself is not sufficient to establish jurisdiction.”

Smith said Davis returned a telephone call from a TV news reporter and gave a taped interview. “He did nothing more than quote the allegations of the complaint” filed against Simon in California.

The Simons’ attorney, David K. Herzog, told the justices that Indiana had jurisdiction in the case because Davis directed his comments to the state with the intent to cause harm. “Mr. Davis purposely delivered defamatory comments to a person he knew to be an Indianapolis TV reporter,” Herzog said.

“It took a jury 30 minutes to determine there were no illegal aliens in the household,” he said of a suit in California against the Simons.

The justices asked about the fairness of bringing a defendant 3,000 miles to face a civil action, but Herzog told the justices any burden for Davis was of his own doing.

Simon, chairman emeritus of Simon Property Group and owner of the Indiana Pacers and Indiana Fever, has an estimated net worth of $2.2 billion, and was listed No. 218 on the Forbes 400 in September.

Just three justices heard arguments in the case – Chief Justice Brent Dickson and Justices Robert Rucker and Steven David.

 

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