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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. Video pen? Nice work, "JW"! Let this be a lesson and a caution to all disgruntled ex-spouses (or soon-to-be ex-spouses) . . . you may think that altercation is going to get you some satisfaction . . . it will not.

  2. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

  3. wow is this a bunch of bs! i know the facts!

  4. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  5. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

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