FOR PUBLICATION

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEES:

JULIA BLACKWELL GELINAS DAVID K. HERZOG

MAGGIE L. SMITH JON LARAMORE

Frost Brown Todd LLC APRIL E. SELLERS

Indianapolis, Indiana Baker & Daniels LLP

Indianapolis, Indiana

ROBERT D. EMMERSON

SCOTT SHOCKLEY

Defur Voran LLP

Fishers, Indiana

IN THE

COURT OF APPEALS OF INDIANA

JOSEPH A. DAVIS, )

)

Appellant-Defendant, )

)

vs. ) No. 49A04-1101-CT-5

)

HERBERT SIMON and BUI SIMON, )

)

Appellees-Plaintiffs. )

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
2

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 

 

1 We held oral argument on January 25, 2012, in Indianapolis. We commend counsel for their 

well-prepared advocacy.
3

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.

13. The Simons deny any and all wrongdoing alleged in the California 

lawsuit. . . .

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.

4. 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.
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.

44. 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.

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 
5

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. ¶¶43, 44). So it 

appears that WTHR had contacted him earlier to arrange the interview. So 

who placed the call at the pre-arranged time is of no consequence. What is 

important is that Davis knowingly and voluntarily directed defamatory 

statements to Indiana with the understanding and intention that they would 

be published here. . . .

Id. at 170. The Simons‘ Opposition also contained the attached affidavit of Herbert 

Simon, in which Herbert stated that his principal office and residence are in Indianapolis, 

Indiana, and have been for more than fifty (50) years,‖ that his ―principal place for voting 

on most Election Days is in Indianapolis,‖ that he files income taxes in Indiana, that he is 

―Chairman Emeritus and co-founder of Simon Property Group, Inc., whose worldwide 

headquarters are in Indianapolis,‖ and that he is ―the owner of the Indiana Pacers.‖ Id. at 

178.

On August 30, 2010, Davis filed his Reply in Support of Motion to Dismiss. On 

October 12, 2010, the court held a hearing on the Motion to Dismiss and arguments were 

presented by both parties. On October 27, 2010, the court entered an order denying 

Davis‘s Motion to Dismiss in its entirety.2 On November 19, 2010, Davis filed a motion 

to certify the court‘s order for interlocutory appeal pursuant to Ind. Appellate Rule 14(B)

which the court approved on December 12, 2010. On March 8, 2011, this court granted 

Davis‘s motion to accept jurisdiction of interlocutory appeal pursuant to Ind. Appellate 

Rule 14(B)(3). 

 

2

Specifically, the court entered an Amended Order Denying Davis‘s Motion to Dismiss for Lack 

of Personal Jurisdiction, or in the Alternative, on Grounds of Forum Non Conveniens. However, the 

record does not contain or allude to an initial order. 
6

The issue is whether the court erred in denying Davis‘s Motion to Dismiss. We 

begin by addressing whether the court erred in determining that Davis had sufficient 

minimum contacts with the State of Indiana to find personal jurisdiction. ―Personal 

jurisdiction is a question of law . . . .‖ LinkAmerica Corp. v. Albert, 857 N.E.2d 961, 965 

(Ind. 2006) (quoting Anthem Ins. Co. v. Tenet Healthcare Corp., 730 N.E.2d 1227, 1237 

(Ind. 2000)). ―Because Indiana state trial courts are courts of general jurisdiction, 

jurisdiction is presumed.‖ Everdry Mktg. and Mgmt., Inc. v. Carter, 885 N.E.2d 6, 10 

(Ind. Ct. App. 2008). ―The party contesting jurisdiction bears the burden of proving the 

lack of personal jurisdiction by a preponderance of the evidence, unless the lack of 

jurisdiction is apparent on the face of the complaint.‖ Id. As with other questions of law, 

a determination of the existence of personal jurisdiction is entitled to de novo review by 

appellate courts, and is reviewed on a case-by-case basis. LinkAmerica, 857 N.E.2d at 

965. We do not defer to the trial court‘s legal conclusion as to whether personal 

jurisdiction exists. Id. However, personal jurisdiction turns on facts, typically the 

contacts of the defendant with the forum, and findings of fact by the trial court are 

reviewed for clear error. Id. ―Where the trial court did not find jurisdictional facts, we 

may accept the plaintiff‘s well-pleaded facts to the extent they are not challenged, and we 

may view challenged facts in favor of the plaintiff.‖ JPMorgan Chase Bank, N.A. v. 

Desert Palace, Inc., 882 N.E.2d 743, 747-748 (Ind. Ct. App. 2008) (citing Anthem, 730 

N.E.2d at 1238), trans. denied.

―The Due Process Clause of the Fourteenth Amendment requires that before a 

state may exercise jurisdiction over a defendant, the defendant must have  ̳certain 

minimum contacts with [the state] such that the maintenance of the suit does not offend 
7

traditional notions of fair play and substantial justice.‘‖3 LinkAmerica, 857 N.E.2d at

967 (quoting Int‘l Shoe Co. v. Wash., 326 U.S. 310, 316, 66 S. Ct. 154 (1945) (internal 

quotation omitted)). ―If the defendant‘s contacts with the state are so  ̳continuous and 

systematic‘ that the defendant should reasonably anticipate being haled into the courts of 

that state for any matter, then the defendant is subject to general jurisdiction, even in 

causes of action unrelated to the defendant‘s contacts with the forum state.‖ Id. (citing 

Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415 n.9, 104 S. Ct. 

1868 (1984)). 

In cases where a defendant is not subject to general jurisdiction in a forum state, 

―specific jurisdiction may be asserted if the controversy is related to or arises out of the 

defendant‘s contacts with the forum state.‖ Id. ―Specific jurisdiction requires that the 

defendant purposefully availed itself of the privilege of conducting activities within the 

forum state so that the defendant reasonably anticipates being haled into court there.‖ Id.

(citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-475, 105 S. Ct. 2174 (1985)). 

Also, ―[a] single contact with the forum state may be sufficient to establish specific 

jurisdiction over a defendant, if it creates a  ̳substantial connection‘ with the forum state 

and the suit is related to that connection.‖ Id. (citing McGee v. Int‘l Life Ins. Co., 355 

U.S. 220, 223, 78 S. Ct. 199 (1957)). ―But a defendant cannot be haled into a jurisdiction 

 ̳solely as a result of random, fortuitous, or attenuated contacts or of the unilateral activity 

 

3 We note that the LinkAmerica Court held that an amendment to Indiana‘s long arm statute, 

Indiana Trial Rule 4.4(A), rendered inapplicable the two-pronged test for personal jurisdiction in Anthem, 

730 N.E.2d at 1232, stating that ―[r]etention of the enumerated acts found in Rule 4.4(A) serves as a 

handy checklist of activities that usually support personal jurisdiction but does not serve as a limitation on 

the exercise of personal jurisdiction by a court of this state.‖ 857 N.E.2d at 967. Thus, we ―direct our 

analysis toward the constitutional safeguards found in the Fourteenth Amendment‖ of the Federal 

Constitution. Everdry, 885 N.E.2d at 12.
8

of another party or a third person.‘‖ Id. (quoting Burger King, 471 U.S. at 475, 105 S. Ct. 

2174 (internal quotation marks omitted) (citing Helicopteros, 466 U.S. at 417, 104 S. Ct. 

1868; Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S. Ct. 1473 (1984); 

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 299, 100 S. Ct. 559 (1980))).

Once either general or specific jurisdiction has been established, ―due process 

requires that the assertion of personal jurisdiction over the defendant is reasonable.‖ Id. 

However, ―[t]he assertion of personal jurisdiction will rarely be found unreasonable if 

 ̳minimum contacts‘ are found.‖ Id. The Court cited to Burger King and set forth five 

factors to balance in determining reasonableness:

(1) the burden on the defendant; (2) the forum State‘s interest in 

adjudicating the dispute; (3) the plaintiff‘s interest in obtaining convenience 

and effective relief; (4) the interstate judicial system‘s interest in obtaining 

the most efficient resolution of controversies; and (5) the shared interest of 

the several States in furthering fundamental substantive social policies.

Id. at 968 (citing Burger King, 471 U.S. at 476-77, 105 S. Ct. 2174).4

In this case, the parties agree that Davis is not subject to general personal 

jurisdiction and confine their arguments to specific jurisdiction. In particular, the parties 

argue over the application of the ―express aiming test‖ first articulated in the United 

States Supreme Court case of Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482 (1984).5 In 

 

4 Again, ―[t]hese considerations come into play only if the defendant has sufficient contacts with 

the forum state to assert personal jurisdiction.‖ LinkAmerica, 857 N.E.2d at 968 (citing Asahi Metal 

Indus. Co. v. Superior Court, 480 U.S. 102, 116, 107 S. Ct. 1026 (1987)).

5 We note that the Calder test has been referred to as the ―effects test.‖ See, e.g., JP Morgan, 882 

N.E.2d at 752 (―While we acknowledge the possible slippery slope and the importance of the  ̳effects 

test,‘ . . . .‖). The Seventh Circuit has recently observed: 

In the past, the reasoning in Calder has been called the ―effects test.‖ We believe the 

phrase ―express aiming test‖-adopted by this court in Tamburo[ v. Dworkin, 601 F.3d 

693, 697 (7th Cir. 2010), cert. denied, 131 S. Ct. 567 (2010)]-is more faithful to Calder. 

It properly focuses attention on whether the defendant intentionally aimed its conduct at 
9

Calder, the plaintiff, a known entertainer, sued the defendant, a national magazine, in 

California for libel published in Florida and circulated in California. JP Morgan, 882 

N.E.2d at 750 (citing Calder, 465 U.S. 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. (citing Calder, 465 U.S. at 785-786, 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 and not business.

Id. (citing Calder, 465 U.S. at 785-786, 104 S. Ct. 1482).

The Court held that jurisdiction over the defendants in California was proper 

―because of their intentional conduct in Florida calculated to cause injury to [Jones] in 

California,‖ noting that the defendants were ―not charged with mere untargeted 

negligence. Rather, their intentional, and allegedly tortious, actions were expressly 

aimed at California.‖ Calder, 465 U.S. at 790, 104 S. Ct. at 1487. The Court began its 

analysis by noting that ―[i]n judging minimum contacts, a court properly focuses on  ̳the 

relationship among the defendant, the forum, and the litigation,‘‖ id. at 788, 104 S. Ct. at 

1486 (quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S. Ct. 2569, 2579 (1977)), but 

that ―[t]he plaintiff‘s lack of  ̳contacts‘ will not defeat otherwise proper jurisdiction, but 

they may be so manifold as to permit jurisdiction when it would not exist in their 

absence.‖ Id. (citation omitted). The Court held, as restated by a federal circuit decision, 

 

the forum state, rather than on the possibly incidental and constitutionally irrelevant 

effects of that conduct on the plaintiff.

Mobile Anesthesiologists Chicago, LLC v. Anesthesia Assocs. Of Houston Metroplex, P.A., 623 F.3d 

440, 445 n.1 (7th Cir. 2010). We agree with the Seventh Circuit‘s observation and will refer to the test 

laid out in Calder as the ―express aiming test.‖
10

that in such cases where minimum contacts may be otherwise insufficient, 

constitutionally sufficient contacts can be imputed to a defendant if:

(1) The defendant committed an intentional tort;

(2) The plaintiff felt the brunt of the harm in the forum such that the 

forum can be said to be the focal point of the harm suffered by the 

plaintiff as a result of that tort;

(3) The defendant expressly aimed his tortious conduct at the forum

such that the forum can be said to be the focal point of the tortious 

activity.

Remick v. Manfredy, 238 F.3d 248, 258 (3d Cir. 2001) (citing IMO Indus., Inc. v. 

Kiekert AG, 155 F.3d 254, 265-266 (3d Cir. 1998) (examining Calder, 465 U.S. at 788-

789, 104 S. Ct. at 1486-1487)).6

Recently, the Seventh Circuit examined the ―express aiming test‖ and noted that 

Calder did not hold that ―any plaintiff may hale any defendant into court in the plaintiff‘s 

home state, where the defendant has no contacts, merely by asserting that the defendant 

has committed an intentional tort against the plaintiff;‖ rather, its ―express aiming‖ 

requirement ―was merely one means of satisfying the traditional due process standard set 

out in International Shoe and its familiar progeny, not an independent path to jurisdiction 

that allowed a defendant to avoid  ̳minimum contacts‘ altogether.‖ Mobile 

Anesthesiologists Chicago, LLC v. Anesthesia Assocs. Of Houston Metroplex, P.A., 623 

F.3d 440, 445 (7th Cir. 2010). The court made clear that ― ̳express aiming‘ remains the 

crucial requirement‖ in applying Calder. Id. at 445-446.

 

6 We note that in federal decisions, including Remick, courts state that the plaintiff must show 

that the three-part test has been met. See, e.g., Remick, 238 F.3d at 258 (―the Calder  ̳effects test‘

requires the plaintiff to show that . . . .‖). However, unlike in Indiana, in the federal system the burden is 

on the plaintiff to establish personal jurisdiction. See Tamburo v. Dworkin, 601 F.3d 693, 700 (7th Cir. 

2010). Thus, for our purposes, in Indiana the burden is on the defendant to show that at least one element 

of the express aiming test is not present.
11

In determining whether a defendant‘s conduct satisfies the ―express aiming‖ 

requirement, we might discern whether such conduct was ―intentionally directed at‖ the 

forum resident, see Calder, 465 U.S. at 790, or whether ―the defendant is alleged to have 

engaged in wrongful conduct targeted at a plaintiff whom the defendant knows to be a 

resident of the forum state.‖ See Bancroft & Masters, Inc. v. Augusta Nat‘l Inc., 223 

F.3d 1082, 1087 (9th Cir. 2000), overruled on other grounds by Yahoo! Inc. v. La Ligue 

Contre Le Racisme Et L‘Antisemitisme, 433 F.3d 1199, 1207 (9th Cir. 2006) (en banc), 

cert. denied, 547 U.S. 1163, 126 S. Ct. 2332 (2006).

7

 This court has similarly recognized

jurisdiction is proper where a defendant exhibits ―purposeful conduct‖ in which ―the 

forum is the focal point of the conduct and the injury . . . .‖ JP Morgan, 882 N.E.2d at 

750 (citing Calder, 465 N.E.2d at 788-789, 104 S. Ct. 1482 (citing World-Wide 

Volkswagen, 444 U.S at 297-298, 100 S. Ct. 559; and Restatement (Second) of Conflicts 

of Law § 37)). We examined previous Indiana cases in which a defendant‘s purposeful 

conduct subjected it to Indiana‘s jurisdiction:

[I]n Brockman v. Kravic, 779 N.E.2d 1250 (Ind. Ct. App. 2002), we held 

that a psychologist who did not practice and was not licensed in Indiana but 

sent allegedly defamatory letters regarding his treatment of an Indiana 

citizen into Indiana that affected the rights of others was subject to

Indiana‘s personal jurisdiction. Similarly, in Mart v. Hess, 703 N.E.2d 190, 

193 (Ind. Ct. App. 1998), defendant-wife sent disparaging, libelous, and 

defamatory letters about the plaintiff-husband from her home in Hawaii to 

individuals in Indiana. We found that when the claim arises out of the 

defendant‘s conduct, ―less is required to support jurisdiction,‖ and 

defendant-wife‘s acts were sufficient. Id.

 

7 As observed by the court in Bancroft & Masters, ―[e]xpress aiming is a concept that in the 

jurisdictional context hardly defines itself.‖ 223 F.3d at 1087.
12

Id.8

As stated above, the parties agree that whether Davis‘s contacts with Indiana are 

sufficient depends upon our application of the ―express aiming test‖ to the facts. 

However, before addressing whether the court misapplied the ―express aiming test‖ when 

it found specific personal jurisdiction, we must examine whether the court clearly erred in 

making certain factual findings. Davis argues that the Simons ―place significant and 

repeated emphasis on their allegation that Attorney Davis  ̳called the reporter back and 

agreed to provide a taped interview at a scheduled date in the future‘‖ and cites to pages 

3, 4, 7, 11, 12, 18, and 24 of the Simons‘ brief. Appellant‘s Reply Brief at 3. Davis 

argues that such an allegation ―is not supported by the Record on appeal‖ and notes that 

the Simons‘ citation to the record for the proposition consists of Paragraph 44 of Davis‘s 

affidavit and to the ―Factual Background‖ section of the court‘s order, which in turn cites 

to the same Paragraph 44. Id. at 3-4. Davis further notes that the court‘s order denying 

his motion to dismiss made findings to the same effect, and he argues that such findings 

are erroneous because the court‘s evidentiary support was the same Paragraph 44 of 

Davis‘s affidavit which does not stand for the proposition. Id. at 4. However, we also 

note that, at oral argument, Davis conceded that ―[t]he record . . . does not affirmatively 

state one way or the other. The inference to be drawn from the way Mr. Davis presented 

his testimony is that he returned the call, and we have accepted that one inference in the 

 

8 We note that the court in JP Morgan stated that Brockman and Mart ―applied Calder;‖ however, 

although these cases applied Calder‘s principles in reaching their decisions, they did not examine the 

Calder decision itself and focused their analysis on the traditional minimum contacts factors. 882 N.E.2d 

at 750; see Mart, 703 N.E.2d at 193 (―While it is true that such contacts would not ordinarily subject a 

nonresident to jurisdiction in our state, the law is clear that an ordinarily insignificant contact with a state 

becomes constitutionally significant when it gives rise to the claim involved in the lawsuit.‖); see also

Brockman, 779 N.E.2d at 1257-1258 (comparing Mart with certain Indiana cases in which the minimum 

contacts present were deemed insufficient).
13

record,‖ before noting that ―much has been made about the returning of the phone call, as 

if somehow that changes who initiated the contacts,‖ that this ―is not the inquiry we 

should be focusing on,‖ and that instead: ―While a news source may know that his 

statements will ultimately end up in the forum state, the news source is not the one 

selecting the . . . forum state as a target. Instead the news media, the person responsible 

for publishing the story, has already selected that target.‖

The court‘s order states the following in its ―Factual Background:‖ 

The Simons‘ complaint for defamation and false light publicity stems from 

one interview which Davis provided to Indianapolis television station 

WTHR regarding a lawsuit Davis filed in California on behalf of a client. 

(Complaint ¶ 10-12). WTHR contacted Davis about the lawsuit he filed on 

behalf of Beverly Du Jacques and Davis responded to the inquiry by 

WTHR and agreed to schedule a time to provide a taped interview. (Davis 

Affidavit ¶ 44). Davis responded to WTHR‘s request for an interview and 

reached out to Indiana by giving an interview to an Indiana television 

station making statements which the Plaintiffs . . . alleged are defamatory.

Appellant‘s Appendix at 8 (emphasis added). In determining that Davis had sufficient 

minimum contacts with Indiana, the court relied heavily on its factual finding that Davis 

responded to WTHR‘s request and in so doing reached out to Indiana, as follows:

In this case, an analysis of the aforementioned factors establishes 

Davis does have the ―minimum contacts‖ sufficient to support specific 

jurisdiction. With respect to the first factor, Davis acknowledges that the 

claim brought by the Simons does arise from his alleged ―forum contacts‖ 

in the form of his scheduled taped interview with WTHR regarding the Du 

Jacques lawsuit filed in California. Since this defamation case addresses 

alleged contacts and statements made by Davis to an Indianapolis television 

station, the Court gives little weight to the second factor, which examines a 

defendant‘s overall contacts with the forum state particularly since the 

Simons are only seeking specific jurisdiction. The third factor is the 

foreseeability of the defendant being haled into court in Indiana. In this 

case, it was and is foreseeable that one who makes alleged defamatory 

statements about an individual where they reside could be haled into Court 

because the statements were broadcast in the jurisdiction where the plaintiff 

resides, in this case in Indiana. Although WTHR contacted Davis, he did 
14

make a voluntary decision to respond to their inquiry and scheduled a time 

to provide a taped interview about the Simons. By responding and 

scheduling a taped interview with WTHR, Davis purposefully established 

contact with the State of Indiana. Davis ―expressly aimed‖ his comments at 

Indiana. Where an out-of-state resident such as Davis, an attorney, 

voluntarily gives an interview to a news organization headquartered in the 

Plaintiff‘s hometown, he must ―reasonably anticipate being hailed [sic] into 

court here‖ [sic] to answer for the truth of those statements. See Calder v. 

Jones, 465 U.S. at 790. Davis‘s statements did not randomly end up in the 

possession of an Indiana news source; he directed them solely to that news 

source. Davis should have foreseen that his statements and comments in 

the taped interview he provided to WTHR would be broadcast in Indiana 

and could or would cause harm in Indiana not California. The Court does 

not find such actions to be random, fortuitous, or attenuated. Such actions 

are purposeful and make it foreseeable that he could be haled into an 

Indiana Court.

The fourth question is who initiated the contacts. When examining 

this prong of the minimum contacts test, the Court finds the initial inquiry 

was made by WTHR to Davis about the Simons but that Davis made a 

voluntary decision to contact WTHR. He could have simply failed to 

contact WTHR but he did not. Thus, he did initiate contact with WTHR 

when he telephoned them to respond to their inquiry and when he 

scheduled a time to complete a telephone taped interview. This is initiating 

contact. He did not simply answer the telephone and refuse to provide a 

taped interview. The final ―minimum contacts‖ factor is whether the 

defendant expected or encouraged contacts with the state. There is nothing 

present in this case to lead the Court to believe that Davis expected or 

encourage [sic] contact with the State of Indiana when he filed the lawsuits 

against the Simons in California but that all changed when he made the 

voluntary decision to respond to WTHR’s inquiry and schedule a taped 

interview and provided that taped interview to an Indianapolis television 

station. He went beyond simply filing lawsuits on behalf of his clients in 

the State of California against the Simons, and he purposefully reached out 

and contacted Indiana when he communicated by his choice with WTHR. 

When the Court considers the five factors set out in Anthem, the Court finds 

after conducting a Federal Due Process analysis that Davis does have the 

―minimum contacts‖ sufficient to support specific jurisdiction under the set 

of facts present in this case.

Id. at 15-16 (emphases added).

As noted above, there are two paragraphs from Davis‘s affidavit which are 

relevant to Davis‘s contacts with Indiana:
15

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.

44. 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.

Id. at 76-77. Based upon the record, the extent of Davis‘s contacts with the State of 

Indiana consist of: (1) WTHR phoning Davis multiple times about Davis‘s various cases 

against the Simons and requesting that Davis provide WTHR with the complaints filed in 

those actions, and in each instance Davis declined to so provide the complaint; and (2) 

WTHR phoning Davis indicating that it ―was prepared to take [his] recorded statement,‖ 

which Davis provided to WTHR. Although we recognize that Davis conceded at oral 

argument that one inference to be drawn from the record may indicate that he returned a 
16

phone call to WTHR, we find the trial court‘s heavy reliance on this inference in its order 

to be problematic.9

Indeed, regardless of whether Davis returned the WTHR reporter‘s phone call or 

not, we conclude that this inquiry is immaterial because the record unequivocally 

demonstrates that it was WTHR who initiated the contact, and Davis did nothing more

than simply respond to WTHR‘s inquiry it initiated. Unlike the defendants in Brockman

and Mart, who sent letters into Indiana, Davis‘s act of responding to the questions of a 

reporter who initiated the contact with Davis regarding a California lawsuit, in which he 

is serving as a plaintiff‘s attorney, was not done with the purpose of expressly targeting a 

resident of the forum state. Unlike in Calder itself, here 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 

 

9 We note that, in an attempt to further this argument, the Simons appear to misstate Davis‘s 

statements from his affidavit in their Opposition to Davis‘s Motion to Dismiss, inferring that a time to 

take Davis‘s recorded statement had been set up during a previous phone call pursuant to Paragraph 43, 

stating:

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 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. 

¶¶43, 44). So it appears that WTHR had contacted him earlier to arrange the interview. 

So who placed the call at the pre-arranged time is of no consequence. What is important 

is that Davis knowingly and voluntarily directed defamatory statements to Indiana with 

the understanding and intention that they would be published here. . . .

Id. at 170 (emphasis added). As discussed above, Paragraph 43 discusses inquiries made by WTHR to 

Davis asking that Davis send WTHR copies of complaints filed in the Young, Acosta, and Du Jacques

cases.

We also note that the Simons assert in their brief that they ―requested discovery from Davis 

before responding to his Motion to Dismiss,‖ that ―Davis refused,‖ and that they therefore ―pieced 

together the evidence establishing personal jurisdiction by other means . . . .‖ Appellees‘ Brief at 2. 

Davis responded to the Simons‘ assertion by noting that ―discovery from WTHR related to its contacts 

with Attorney Davis was a possibility,‖ that ―[i]t is [the Simons] who thereafter intentionally chose not to 

seek discovery from WTHR,‖ and that if true ―[t]hat  ̳only a partial picture of the facts‘ exists,‖ it ―is 

directly attributable to [the Simons‘] own choices.‖ Appellant‘s Reply Brief at 5.
17

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.10

The contacts present in this case are not unlike those from a case in another court 

examining personal jurisdiction in a defamation action. In Ticketmaster-New York, Inc. 

v. Alioto, the Boston Globe, a newspaper, undertook ―an investigation into pricing 

practices on Ticketmaster‘s part,‖ and ―[i]n conducting this investigation, a Globe

reporter conversed by telephone‖ with Alioto, who was an attorney practicing in 

California who was ―pressing a class action in the California courts against Ticketmaster . 

. . .‖ 26 F.3d 201, 203 (1st Cir. 1994). The newspaper ran a story which stated the 

following, quoting Alioto: ―[K]ickbacks are the key to Ticketmaster‘s California 

monopoly.  ̳They‘re nothing more than a straight bribe,‘ [Alioto] said.‖ Id. at 204. The 

record in that case did ―not suggest[] that Alioto dialed the telephone or otherwise 

initiated the call,‖ and it was ―equally barren of any showing that Alioto solicited the 

inquiry or that more than one call occurred.‖ Id. at 203 (footnote omitted). However, it 

was clear that Alioto ―knew when speaking that his comments would inform a story 

 

10 We note that the crux of the dissent‘s position is that ―[w]here else, but in Indiana, could the 

defamatory remarks have been aimed?‖ Infra, slip op. at __. However, this position presupposes that 

Davis‘s conduct was ―expressly aimed‖ at all. Indeed, as explained above ―express aiming,‖ although a 

phrase which ―hardly defines itself‖ in the jurisdictional context, is a term of art and requires a showing 

that a defendant undertook ―purposeful conduct‖ which was ―intentionally directed at‖ the forum state, 

and in which ―the forum is the focal point of the conduct and the injury.‖ Here, Davis‘s act of responding 

to the inquiry of a WTHR reporter by telephone from his office in California about a California lawsuit 

(rather than ―purposefully communicat[ing] with WTHR‖ and ―prompt[ing] WTHR to publish a story,‖ as 

the Simons alleged in their complaint) did not satisfy Calder‘s ―express aiming‖ requirement. 

Also, we note that the dissent distinguishes Ticketmaster, discussed below, by noting that it does

not apply Calder to the issue, and the dissent instead examines this court‘s opinion in Brockman, 

concluding that ―I am unable to draw a meaningful distinction between Brockman and the case now 

before us.‖ Infra, slip op. at __. However, Brockman, which was decided almost twenty years after 

Calder, did not apply the ―express aiming‖ test or otherwise examine Calder. See generally Brockman, 

779 N.E.2d 1250 (holding that certain minimum contacts were present which provided for specific 

personal jurisdiction).
18

slated for publication in a newspaper circulated chiefly in Massachusetts.‖ Id. at 203-

204.

In affirming the district court‘s dismissal of the action based upon a lack of 

personal jurisdiction, the court examined the relatedness of the contacts and noted:

[W]hen the defendant in a defamation action is a journalist‘s source, the 

link between the defendant‘s conduct and the cause of action is attenuated 

by the intervening activities of third parties, e.g., the reporter, the editor, the 

media outlet, and that those intermediaries shape, amplify, and occasionally 

distort the original utterance. This case illustrates the point. The original 

comment, technically a tort in its own right (if defamatory), inflicted no 

significant injury, except insofar as it led to republication in the ensuing 

newspaper article—and the form and tone of the republication was not by 

any stretch of the most active imagination within the defendant‘s effective 

control.

Id. at 207. Further, regarding purposeful availment, the court noted:

Courts are consentient that when, as in McBreen[ v. Beech Aircraft Corp., 

543 F.2d 26 (7th Cir. 1976)], the source of an allegedly defamatory remark 

did not initiate the pivotal contact, and the in-forum injury is not 

reasonably foreseeable, jurisdiction may not be asserted over the source 

based on the comment. See, e.g., Madara v. Hall, 916 F.2d 1510, 1517-19 

(11th Cir. 1990); Mann v. Tom James Co., 802 F. Supp. 1293, 1296-97 

(E.D. Pa. 1992). However, when the source takes the initiative and causes 

foreseeable injury, jurisdiction may lie. See, e.g., Brown v. Flowers Indus., 

Inc., 688 F.2d 328, 333-34 (5th Cir. 1982)[, reh‘g denied, cert. denied, 460 

U.S. 1023, 103 S. Ct. 1275 (1983)]; Rusack v. Harsha, 470 F. Supp. 285, 

291 (M.D. Pa. 1978); Fallang v. Hickey, 40 Ohio St. 3d 106, 532 N.E.2d 

117, 118-19 (1988) . . . .

Id. at 208 (emphasis added). The court, after first observing that ―[t]his case falls 

between the stools, for, although the source did not initiate the contact, the resultant inforum injury was foreseeable,‖ held that Ticketmaster ―has made only the most marginal 

of showings that Alioto purposefully availed himself of an opportunity to act in 

Massachusetts.‖ Id. at 208-209. The court explained its holding using the ―classic 

analogy for an out-of-state libel: the gunman firing across a state line,‖ as follows:
19

In a situation like this one, the analogy is imperfect. The person who 

responds to a journalist‘s question in the course of an interview initiated by 

the latter is less like a traditional sniper and more like a person who has 

been transported to the border and eased into position behind a rifle aimed 

at a pre-selected target. While such a person retains the choice of pulling 

the trigger, or not, he cannot fairly be equated with an individual who has 

achieved the same position through a series of personalized affirmative 

choices reaffirmed at every significant juncture.

Id. (emphasis added).

Thus, although the court did not explicitly apply the ―express aiming test,‖ we find 

the Ticketmaster court‘s analysis instructive in answering the question of whether an 

attorney, 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, constitutes expressly aiming one‘s conduct at the forum state. We 

conclude that it does not.11

Finally, the Simons cite to the recent United States Supreme Court case of J. 

McIntyre Mach., Ltd. V. Nicastro, 131 S. Ct. 2780, 2787 (2011), for the proposition that 

 

11 Davis also directs our attention to a treatise in support of his position which states:

[W]here a plaintiff is allegedly defamed by statements made by an out-of-state news 

source during a telephone conversation instituted by a forum reporter, and where the 

statement is subsequently published in the forum state, the courts of that state do not, in 

most cases, on that basis alone, have jurisdiction over the source in a resulting libel suit. 

The source‘s act in responding to a question by telephone is not sufficiently directed to 

the state to confer jurisdiction there. The result is particularly appropriate where the 

plaintiff, too, is from out of state, but the result should be the same in any event.

When a forum seeks to establish specific personal jurisdiction over a nonresident 

defendant, due process requires that there be fair warning that a particular activity may 

subject him to personal jurisdiction in that forum. This fair warning requirement is 

satisfied if the defendant purposefully directed his activities toward the forum state. 

Defendants rightly argue that it would be senseless to find that their answering the 

telephone [one in Iowa and one in Indiana] and speaking to a Dallas reporter constituted 

―purposeful direction.‖

ROBERT D. SACK, SACK ON DEFAMATION: LIBEL, SLANDER & RELATED PROBLEMS § 15:1.3 (4th Ed. 

2011) (footnotes omitted).
20

Davis is ―attempting to avoid Indiana‘s jurisdiction‖ and ―trying to obstruct Indiana‘s 

laws by forcing [the Simons] to bring their claims in a forum state that he believes 

(correctly) would treat his defamation more leniently.‖ Appellees‘ Brief at 25. As cited 

to by the Simons, the J. McIntyre Court, in a plurality decision, noted:

As a general rule, the sovereign‘s exercise of power requires some act by 

which the defendant ―purposefully avails itself of the privilege of 

conducting activities within the forum State, thus invoking the benefits and 

protections of its laws,‖ Hanson, 357 U.S., at 253, though in some cases, as 

with an intentional tort, the defendant might well fall within the State’s 

authority by reason of his attempt to obstruct its laws.

Id. (quoting J. McIntyre, 131 S. Ct. at 2787).

However, we note that this issue has been previously addressed since the Court‘s 

opinion in J. McIntyre. In S.E.C. v. Compania Internacional Financiera S.A., No. 11 Civ. 

4904(DLC), 2011 WL 3251813 (S.D.N.Y. July 29, 2011), ―[t]he SEC allege[d] that the 

defendants traded Arch securities using insider information in violation of § 10(b) of the 

Securities Exchange Act of 1934 . . . .‖ Id. at *4. The court, in examining whether it had 

personal jurisdiction over the defendants, examined the relevant language from J. 

McIntyre and noted: 

This is not a new statement of the law, as the Second Circuit had earlier 

held that ―personal jurisdiction is proper where the defendant took 

 ̳intentional, and allegedly tortious, actions expressly aimed at the forum.‘‖ 

In re Terrorist Attacks on September 11, 2001, 538 F.3d 71, 93 (2d Cir.

2008) (quoting Calder v. Jones, 465 U.S. 783, 789, (1984)).‖

Id. at *5. We agree with the Compania Internacional Financieara S.A. court that this is 

not a new statement of the law and is instead a statement grounded in the ―express aiming 

test.‖

12

 

12 Indeed, were we to conclude that this statement is a new statement of law, it would abrogate the 
21

For the foregoing reasons, we reverse the court‘s order denying Davis‘s Motion to 

Dismiss.

Reversed.

BAKER, J., concurs.

KIRSCH, J., dissents with separate opinion.

 

―express aiming test,‖ which includes the commission of an intentional tort as one of the three elements to 

satisfy in its application.
22

IN THE

COURT OF APPEALS OF INDIANA

JOSEPH A. DAVIS, )

)

Appellant-Defendant, )

)

vs. ) No. 49A04-1101-CT-5

)

HERBERT SIMON AND BUI SIMON, )

)

Appellee-Plaintiff. )

KIRSCH, Judge, dissenting.

I respectfully dissent.

In Calder v. Jones, 465 U.S. 783, 789 (1984), the United States Supreme 

Court addressed the issue of long arm jurisdiction. In Calder, 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. 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. 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 
23

Court agreed with the California Court of Appeal and its holding that defendant‘s 

contacts were insufficient to establish general jurisdiction, but that specific 

jurisdiction exists when the action arises out of the defendant‘s ―intentional 

conduct‖ allegedly calculated to cause injury in the forum state. Id. at 791. Where 

the forum is the focal point of the conduct and the injury, jurisdiction is proper. Id.

at 790 (citing World-Wide Volkswagen Corp. et al. v. Woodson, 444 U.S 286, 297–

98 and Restatement (Second) of Conflicts of Law § 37) (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. 

In JPMorgan Chase Bank, N.A. v. Desert Palace, Inc., 882 N.E.2d 743 (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 plaintiff‘s 

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 
24

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 

plaintiff‘s 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 
25

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 plaintiff occurred. The defendant‘s 

tortious 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. 
26

Co., 355 U.S. 220, 223 (1957). Indiana‘s interest here is similarly manifest. I 

would affirm the considered judgment of the trial court in all particulars.