Preview:

FOR PUBLICATION

ATTORNEYS FOR APPELLANT: JULIA BLACKWELL GELINAS MAGGIE L. SMITH Frost Brown Todd LLC Indianapolis, Indiana ROBERT D. EMMERSON SCOTT SHOCKLEY Defur Voran LLP Fishers, Indiana

ATTORNEYS FOR APPELLEES: DAVID K. HERZOG JON LARAMORE APRIL E. SELLERS Baker & Daniels LLP Indianapolis, Indiana

FILED
Feb 29 2012, 9:34 am
of the supreme court, court of appeals and tax court

CLERK

IN THE COURT OF APPEALS OF INDIANA
JOSEPH A. DAVIS, Appellant-Defendant, vs. HERBERT SIMON and BUI SIMON, Appellees-Plaintiffs. ) ) ) ) ) ) ) ) )

No. 49A04-1101-CT-5

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Heather A. Welch, Judge Cause No. 49D12-1005-CT-20141

February 29, 2012

OPINION - FOR PUBLICATION

BROWN, Judge

Joseph A. Davis appeals the trial court`s denial of his Motion to Dismiss for Lack of Personal Jurisdiction, or in the Alternative, on Grounds of Forum Non Conveniens (the Motion to Dismiss), in favor of Herbert and Bui Simon (collectively, the Simons). Davis raises four issues, which we consolidate and restate as whether the court erred in denying his Motion to Dismiss. We reverse. The relevant facts follow.1 On May 5, 2010, the Simons filed a complaint in the Marion County Superior Court alleging claims for defamation and false light publicity based on false, malicious, and defamatory statements that Davis, a California lawyer, has made concerning the Simons to the media in Indianapolis. Appellant`s Appendix at 21. The complaint alleged that Davis is an attorney who maintains his law practice in Beverly Hills, California and that Herbert Simon has his personal domicile in Indianapolis, Indiana, but together with [Bui] also maintains a home in California. [Herbert] is a longtime Indianapolis resident, having maintained his principal office and residence in Indianapolis for more than fifty (50) years. Id. at 22. It also noted that Herbert is Chairman Emeritus and co-founder of Simon Property Group, Inc., whose worldwide headquarters are in Indianapolis that he is the owner of the Indiana Pacers, and that Bui lives primarily in Los Angeles, County, California, but visits Indianapolis several times a year and is a resident of California. Id. at 23. The complaint recited the following allegations giving rise to the claims: 10. On or about April 9, 2010, Davis purposefully communicated with WTHR, a news organization based in Indianapolis, and prompted WTHR to publish a story on the evening news (the April 9 Broadcast) regarding a lawsuit that he had filed against the Simons

We held oral argument on January 25, 2012, in Indianapolis. We commend counsel for their well-prepared advocacy.

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on behalf of the Simons` former house manager in California (the California Lawsuit), alleging that the Simons had wrongfully terminated her. 11. On the April 9 Broadcast, Davis stated that, [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. 12. Davis`s statements in the April 9 Broadcast (Davis`s Statements) falsely portray the Simons as having committed criminal acts and having attempted to coerce another to commit a criminal act, representing those facts to be established and true, and without making clear that they are simply allegations in the California lawsuit. The Simons deny any and all wrongdoing alleged in the California lawsuit. . . .

13.

Id. at 23. The complaint contained attached exhibits which purport to demonstrate the falsity of Davis`s statements to WTHR. On July 1, 2010, Davis filed his Motion to Dismiss and his brief in support in which he argued that the court should dismiss the Simons` action pursuant to Ind. Trial Rule 12(B)(2) or, in the alternative, on grounds that the State of California is a more convenient forum. In his Motion to Dismiss, Davis stated in part: 3. Mr. Davis is not now nor has he ever owned property in the State of Indiana nor has he ever held a bank account, been employed, had a registered agent, advertised, or otherwise conducted business in the State of Indiana. Mr. Davis has not engaged in any acts that would provide a basis for personal jurisdiction in Indiana pursuant to Trial Rule 4.4(A) or the Due Process Clause. Mr. Davis` only contacts with the State of Indiana resulted from his response to repeated inquiries from television station WTHR regarding lawsuits Davis filed in California on behalf of his clients. 3

4.

Id. at 35-36. Attached to the Motion to Dismiss as Exhibit C was the affidavit of Davis in which Davis stated that he, in his capacity as an attorney practicing in California, filed three lawsuits in March or April 2010 on behalf of Robert G. Young and Claudia Leite, Mayra Acosta, and Beverly Du Jacques, in which the Simons were listed as defendants in each suit. Also, Davis stated in part: 43. Prior to March 13, I was initially contacted by a reporter with WTHR in connection with the Young Case. The reporter informed me that WTHR had learned of the existence of the Young Case through a report distributed by TMZ. The reporter requested that I provide to it (WTHR) a copy of the Complaint in the Young Case but I declined and continue to decline to do so. Thereafter, WTHR requested that I provide to it (WTHR) a copy of the Complaint in the Acosta Case and Du Jacques Case and again, I declined and continue to decline to do so. Thereafter, WTHR notified me that it (WTHR) had obtained copies of the Complaints in the above cases by independent means. In or about April 2010, I was in California when WTHR contacted me by telephone indicating that it was prepared to take my recorded statement regarding Du Jacques, who is suing the Simons for wrongful termination. I was always in California when I spoke by telephone to WTHR. In the recorded statement, I repeatedly referred to the content of the Complaint in the Du Jacques Case and that it was Du Jacques (not me) making allegations as referenced in the Complaint, a public record accessible to anyone located anywhere in the world. WTHR did not provide any control to me nor did I have any control over how my comments were edited or how they were presented by WTHR in the context of its reporting. Nor was I provided an advance copy of anything that WTHR published or reported in advance of it doing so.

44.

Id. at 76-77. On August 16, 2010, the Simons filed their Opposition to Davis`s Motion to Dismiss in which they stated in a footnote: Davis`s suggestion that he did not initiate contact with WTHR means only that WTHR placed the call in which he gave the interview, not the other 4

way around. But Davis`s affidavit says that WTHR initially contacted him [p]rior to March 13 and then in April 2010 told him they were prepared to take [his] recorded statement. (Davis Aff.

Download Joseph A. Davis v. Herbert Simon and Bui Simon.pdf

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