Legal Issues and Appeal and Herb Simon and Law

Appellate judges rule against Simon in defamation case

February 29, 2012

A defamation lawsuit filed by Indiana Pacers owner Herb Simon and his wife against a California attorney looks as though it will be thrown out.

A panel of Indiana Court of Appeals judges on Wednesday reversed the decision of a Marion Superior Court judge that denied attorney Joseph Davis’ motion to dismiss the suit.

The lawsuit stems from comments Davis made to Indianapolis television station WTHR-TV Channel 13 regarding lawsuits involving the Simons, specifically one filed by a former nanny, whom Davis represented.

WTHR contacted Davis by phone for comment on the suit, in which he responded: “[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.”

A Los Angeles Superior Court judge tossed the lawsuit filed by the nanny, who claimed the Simons fired her because she became pregnant.

The Simons sued in Marion County for defamation based on Davis’ statements. Davis moved to dismiss the suit for lack of jurisdiction because Davis resides in California. Marion Superior Judge Heather Welch denied the motion.

On appeal, judges Elaine Brown and John Baker ruled in favor of Davis.

“Davis neither wrote nor disseminated the news story which is the object of the Simons’ defamation and false-light claim,” Brown wrote. “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.”

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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