ILNews

Judges rule in favor of California attorney in Simon case

Back to TopCommentsE-mailPrintBookmark and Share

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.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  2. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  3. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

  4. Duncan, It's called the RIGHT OF ASSOCIATION and in the old days people believed it did apply to contracts and employment. Then along came title vii.....that aside, I believe that I am free to work or not work for whomever I like regardless: I don't need a law to tell me I'm free. The day I really am compelled to ignore all the facts of social reality in my associations and I blithely go along with it, I'll be a slave of the state. That day is not today......... in the meantime this proposed bill would probably be violative of 18 usc sec 1981 that prohibits discrimination in contracts... a law violated regularly because who could ever really expect to enforce it along the millions of contracts made in the marketplace daily? Some of these so-called civil rights laws are unenforceable and unjust Utopian Social Engineering. Forcing people to love each other will never work.

  5. I am the father of a sweet little one-year-old named girl, who happens to have Down Syndrome. To anyone who reads this who may be considering the decision to terminate, please know that your child will absolutely light up your life as my daughter has the lives of everyone around her. There is no part of me that condones abortion of a child on the basis that he/she has or might have Down Syndrome. From an intellectual standpoint, however, I question the enforceability of this potential law. As it stands now, the bill reads in relevant part as follows: "A person may not intentionally perform or attempt to perform an abortion . . . if the person knows that the pregnant woman is seeking the abortion solely because the fetus has been diagnosed with Down syndrome or a potential diagnosis of Down syndrome." It includes similarly worded provisions abortion on "any other disability" or based on sex selection. It goes so far as to make the medical provider at least potentially liable for wrongful death. First, how does a medical provider "know" that "the pregnant woman is seeking the abortion SOLELY" because of anything? What if the woman says she just doesn't want the baby - not because of the diagnosis - she just doesn't want him/her? Further, how can the doctor be liable for wrongful death, when a Child Wrongful Death claim belongs to the parents? Is there any circumstance in which the mother's comparative fault will not exceed the doctor's alleged comparative fault, thereby barring the claim? If the State wants to discourage women from aborting their children because of a Down Syndrome diagnosis, I'm all for that. Purporting to ban it with an unenforceable law, however, is not the way to effectuate this policy.

ADVERTISEMENT