Simon v. U.S.

• Citation: 711 F.2d 740
• Decision Date: 12 August 1983
• Docket Number: No. 82-3420,82-3420
• Parties: J. Minos SIMON, Plaintiff-Appellant, v. UNITED STATES of America, et al., Defendants, James F. Neal, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 740

711 F.2d 740 J. Minos SIMON, Plaintiff-Appellant,
v.
UNITED STATES of America, et al., Defendants,
James F. Neal, Defendant-Appellee. No. 82-3420. United States Court of Appeals,
Fifth Circuit. Aug. 12, 1983.

Page 741

Raymond Morgan Allen, Clay Morgan Allen, Lafayette, La., for plaintiff-appellant.

Voorhies & Labbe, D. Mark Bienvenu, Lafayette, La., for defendant-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before CLARK, Chief Judge, THORNBERRY and RANDALL, Circuit Judges.

THORNBERRY, Circuit Judge:

INTRODUCTION:

J. Minos Simon (Simon) appeals from the district court's grant of summary judgment to appellee James F. Neal (Neal). Concluding that the district court in granting Neal's motion failed to entertain the cause of action actually pleaded by Simon, we REVERSE and REMAND for proceedings not inconsistent with this opinion.

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FACTS AND PROCEDURAL HISTORY:

Simon alleges that attorney Neal, while serving as defense counsel in a criminal case in federal court in Atlanta, Georgia, intentionally caused to issue a subpoena which incorrectly stated both his name and address. ¹ The subpoena was issued on February 13, 1973, compelling Simon to appear as a defense witness in Atlanta on February 22, 1973. Because of the incorrect information on the subpoena, the federal marshals were unable to effect service on Simon. When on February 22nd Simon still had not been served, the U.S. Marshal's Office in Atlanta, at Neal's request, contacted its corresponding office in Shreveport, Louisiana for aid in obtaining service on Simon. The Shreveport office relayed the information to a Lafayette, Louisiana deputy U.S. marshal, who wrote out a subpoena ticket on February 23rd incorrectly directing Simon to appear at the Atlantan Hotel in Atlanta on the evening of Sunday, February 25, 1973. ²

On that same day, February 23, 1973, attorney Neal incorrectly informed Judge Real, the presiding judge in the Atlanta criminal trial, that Simon had "just been served a few moments ago with the help of the F.B.I. and the marshals converging on him in the bayous of Louisiana." Apparently under the impression that Simon had been served and was avoiding compliance with the subpoena, Judge Real then and there issued a bench warrant for Simon's arrest.

Simon was eventually served with the subpoena ticket at his home in Lafayette on the afternoon of Sunday, February 25, 1973. The complaint alleges that when Simon informed the marshal effecting service that it was physically impossible for him to appear in Atlanta that evening, the marshal replied that it would be sufficient if Simon appeared the next day. Simon then sought to contact Judge Real, but was unable to reach him.

Simon was unable to depart for Atlanta the following morning, February 26th, due to a previously scheduled appearance in state court. It was only when state Judge Edmond Guidry contacted Judge Real's office to resolve the conflict in appearances that Simon learned that Judge Real had issued a bench warrant for his arrest. Simon left immediately to catch the next plane to Atlanta. Ten minutes after his departure, a deputy U.S. marshal arrived at Judge Guidry's court seeking to arrest Simon. Upon learning that he had already left for the airport, the marshal departed in hot pursuit, arriving just as Simon's plane was taking off. The marshal then phoned ahead to Atlanta to advise his colleague there that Simon would be arriving shortly.

Upon his arrival at the Atlanta airport at 9:35 p.m., Simon was met by two deputy U.S. marshals and an F.B.I. agent who promptly placed him under arrest. He was then delivered to the local authorities, who placed him in a holding cell at about 10:30 p.m. At 10:45 p.m. he was fingerprinted, deprived of his personal effects, and returned to his original cell. On February 27th, in the wee hours of the morning, he was placed in isolation and compelled to submit to a strip search.

He was brought before Judge Real early the next morning, accompanied by counsel. Simon explained to the judge that he was not avoiding service and had in fact attempted

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to respond to the subpoena ticket actually served on him. The judge then released Simon from custody, and vacated the bench warrant ordering his arrest. Upon returning to Louisiana, Simon was greeted by newspaper headlines announcing that he had been arrested in Georgia.

Simon subsequently filed a complaint in federal district court against Neal and the five federal officers involved in his arrest, alleging that they had conspired and misrepresented facts to procure his arrest, search, seizure and imprisonment without probable cause, in violation of his fourth, fifth, sixth, and fourteenth amendment rights. The district court granted summary judgment dismissing Simon's suit against the federal officers because the factual showing disclosed no irregular activity on their part. The district court dismissed the suit against Neal without prejudice on finding that Neal had such minimal contact with the forum state that the Louisiana long-arm statute ³ did not permit a federal court sitting in Louisiana to exercise in personam jurisdiction over him.

Neal then appealed to this Court. We concluded that because the federal officers merely executed a warrant valid on its face, Simon had failed to present a claim against them over which a federal court could exercise jurisdiction. Simon v. United States, 644 F.2d 490, 496 (5th Cir.1981). However, we also determined that under the Louisiana long-arm statute, the court could constitutionally exercise personal jurisdiction over Neal, and reversed the district court's holding as to him, remanding for further proceedings. Id. at 499.

The complaint was pursued on remand against Neal, and was based on his allegedly tortious acts under Louisiana law in wrongfully and maliciously influencing a trial judge to issue a bench warrant for Simon's arrest by misrepresenting that Simon was evading service. The district court granted Neal's motion for summary judgment,...