Davis v. Simon

KIRSCH, Judge,

dissenting.

I respectfully dissent.

In Calder v. Jones, 465 U.S. 783, 789, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), the United States Supreme Court addressed the issue of long arm jurisdiction. In Colder, the plaintiff, a known entertainer, sued the defendant, a national magazine, in California for libel published in Florida and circulated in California. Id. at 785, 104 S.Ct. 1482. Prior to publishing the allegedly libelous article, the defendant’s reporter lived in Florida, did the majority of his research in Florida, made phone calls and wrote letters from Florida to California, and occasionally flew to California on business. Id. at 785-86, 104 S.Ct. 1482. The named defendant, Calder, was the president and editor of the magazine and had been to California once prior to the publication, for pleasure not business. Id. The Court agreed with the California Court of Appeal and its holding that defendant’s contacts were insufficient to establish general jurisdiction, but that specific *61jurisdiction exists when the action arises out of the defendant’s “intentional conduct” allegedly calculated to cause injury in the forum state. Id. at 791, 104 S.Ct. 1482. Where the forum is the focal point of the conduct and the injury, jurisdiction is proper. Id. at 790, 104 S.Ct. 1482 (citing World-Wide Volkswagen Corp. et al. v. Woodson, 444 U.S. 286, 297-98, 100 S.Ct. 559, 62 L.Ed.2d 490 and Restatement (Second) of Conflicts of Law § 87) (known as the “effects” test). The court held that specific jurisdiction lay in the forum state because the defendant’s intentional and allegedly tortious actions were “expressly aimed” at the forum state. Id. at 789, 104 S.Ct. 1482.

In JPMorgan Chase Bank, N.A. v. Desert Palace, Inc., 882 N.E.2d 748 (Ind.Ct.App.2008), we applied Calder and said that jurisdiction is proper where the forum is the focal point of the defendant’s purposeful conduct and the plaintiffs injury.

Here, California Attorney Joseph Davis returned a long distance telephone call from a television reporter located in Indianapolis, Indiana. The reporter identified himself as a reporter for WTHR, an Indianapolis television station. Davis agreed to provide a taped interview to the reporter. In due course, Davis provided the taped interview to the reporter by long distance telephone call to the reporter in Indiana. In the course of the interview, Davis made remarks that are deemed to be defamatory at this stage of the litigation. These defamatory remarks were broadcast by the television station throughout central Indiana.

By intentionally communicating defamatory statements about Herbert and Bui Simon to a reporter for an Indianapolis television station, Joseph Davis engaged in intentional conduct in Indiana that was calculated to cause injury to the Simons in Indiana. Indiana was the focal point of the defendant’s purposeful conduct and the plaintiffs’ injuries. Davis’s conduct was “expressly aimed” at Indiana. His intention was to cause harm to the Simons in Indiana. The reporter worked only in Indiana, and WTHR broadcasts only in Indiana. Where else, but in Indiana, could the defamatory remarks have been aimed?

Indeed, Davis’s tortious conduct here was more directly and narrowly aimed at Indiana than the conduct at issue before the Court in Calder. In Calder, the defamatory statements were written and published in a magazine issue in the foreign state, which was then distributed nationally, including California, the plaintiffs state of residence. Here, Davis’s defamatory statements were not transmitted nationally, but were telephonically transmitted only to Indiana where it was clearly foreseeable that they would be re-transmitted throughout the state.

My colleagues rely upon the decision of the federal Circuit Court of Appeal’s decision in Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201 (1st Cir.1994). While the facts presented by the case are analogous, I do not believe that the court’s opinion in Ticketmaster should inform our decision here. Although Ticketmaster was decided more than ten years after the United States Supreme Court decided Calder, the court in Ticketmaster did not apply, and did not discuss, the express aiming test set forth in Calder and, indeed, cited the Calder decision only in relation to a collateral issue.

In Brockman v. Kravic, 779 N.E.2d 1250 (Ind.Ct.App.2002), we held that a psychologist who was not licensed and did not practice in Indiana, but sent allegedly defamatory letters into Indiana about an Indiana resident was subject to specific personal jurisdiction in Indiana. Indiana was where the alleged wrong was committed and where the alleged harm to the *62plaintiff occurred. The defendant’s tor-tious actions were expressly aimed at Indiana.

Here, a lawyer who was not licensed in and did not practice in Indiana communicated allegedly defamatory statements to an Indiana television station via telephone about a long-time Indiana resident who maintains a significant presence in this state. The defendant’s tortious actions were expressly aimed at Indiana. Indiana was where the alleged wrong was committed and where the alleged harm occurred. I am unable to draw a meaningful distinction between Brockman and the case now before us.

More than fifty years ago, the United State Supreme Court observed that a state has “a ‘manifest interest’ in providing its residents with a convenient forum for redressing injuries inflicted by out-of-state actors.” McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). Indiana’s interest here is similarly manifest. I would affirm the considered judgment of the trial court in all particulars.