Simon v. U.S.
| Decision Date | 07 May 1981 |
| Docket Number | No. 80-3122,80-3122 |
| Citation | 644 F.2d 490 |
| Parties | J. Minos SIMON, Plaintiff-Appellant, v. UNITED STATES of America et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
J. Minos Simon, Lafayette, La., for plaintiff-appellant.
D. H. Perkins, Jr., Frances O. Allen, Asst. U.S. Attys., Shreveport, La., for the U.S.
Voorhies & Labbe, H. Lee Leonard, Lafayette, La., for Neal.
Appeal from the United States District Court for the Western District of Louisiana.
Before GEE, TATE and WILLIAMS, Circuit Judges.
The plaintiff Simon appeals from the dismissal of his suit against (a) the defendant Neal, a private attorney, and (b) five federal officers (four deputy United States marshals and an FBI officer). 1 The essential cause of action alleged against them is that the defendants violated Simon's Fourth, Fifth, and Sixth Amendment rights by conspiring to have issued and served in Louisiana a falsified or invalid subpoena for Simon to appear as a witness in a federal trial in Georgia, which ultimately led to his arrest, search, and imprisonment in Georgia. Federal jurisdiction is asserted on the basis of 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1332 (diversity of citizenship). Suit was brought in federal district court in Louisiana.
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 committed no act in Louisiana and had such minimal connexity with the forum state that the Louisiana long-arm statute, La.R.S. 13:3201, did not permit a court in Louisiana to exercise personal jurisdiction over him for the acts complained of. We affirm the dismissal as against the federal officers. However, we reverse the dismissal as against Neal on the personal jurisdiction issue, holding that an act in Louisiana for which Neal was responsible was a cause-in-fact of the tortious injury alleged by the complaint.
The record contains full development of the relevant facts, primarily by depositions. The record shows:
The plaintiff-appellant, J. Minos Simon, alleges that attorney James Neal, while serving as a defense counsel in a criminal case in federal court in Atlanta, Georgia, intentionally had issued a subpoena with Simon's incorrect name and address in Louisiana. 2 This subpoena was issued on February 13, 1973, compelling Simon to appear as a defense witness in Atlanta on February 22, 1973. This (at best) careless mistake in completing the subpoena set in motion a stream of incidents leading to a very disagreeable experience for Simon, an attorney in Lafayette, Louisiana.
As a result of the incorrect information on the subpoena, Simon was unable to be served. Nevertheless, on February 23, 1973, defense attorney Neal also incorrectly informed Judge Manuel L. Real (the presiding judge in the Atlanta criminal trial) that Simon had been served, although in actuality he had not and his nonappearance was thus not due to any deliberate failure to respond to the subpoena (as implied by Neal).
Because Simon had not been served by February 22 (when he was supposed to appear) with the subpoena issued on February 13, Chief Deputy U.S. Marshal Leonard Herndon (of Atlanta, Georgia) telephoned Chief Deputy U.S. Marshal Emmett Wyche 3 in Shreveport, Louisiana, to aid in obtaining service on Simon. Chief Deputy Wyche relayed the subpoena information to Deputy U.S. Marshal Byron J. Schiller in Lafayette, Louisiana, who wrote out a "subpoena ticket" 4 on February 23, directing Simon to appear in Atlanta on February 25.
Simon was eventually served with the subpoena ticket in Lafayette on the afternoon of Sunday, February 25, 1975, by Deputy U.S. Marshal James Griffin. When Simon informed Marshal Griffin that it was impossible for him to appear in Atlanta that evening, the complaint alleges that Griffin responded that it would suffice if Simon would appear the next day, Monday, February 26, 1973.
Simon was unable to depart for Atlanta the following morning due to a state court appearance that had been previously scheduled for that day. It was when state Judge Edmond Guidry contacted Judge Real's office to resolve the conflict in appearances that Simon ascertained that Judge Real, apparently under the impression that Simon had been served and was avoiding compliance with the subpoena, had already issued a bench warrant for his arrest.
Simon immediately left for Atlanta, where he was arrested by Deputy U.S. Marshals William Floyd and J. Elmer Dilbeck, and FBI Agent Earl Petersen. He was subsequently jailed, placed in isolation, and subjected to a strip search. He was released from custody the next day (Tuesday, February 27, 1973) and the bench warrant ordering his arrest was vacated by Judge Real after it was learned that Simon was not avoiding service and had in fact attempted to respond to the subpoena ticket actually served on him.
The cause of action before us on this appeal is Simon's complaint of conspiracy, including misrepresentations, leading to his arrest and search without probable cause and wrongful imprisonment, among the following defendants: (a) Neal, the Tennessee attorney defending in a federal criminal trial in Georgia; (b) FBI Agent Petersen, then acting in Georgia; (c) federal marshals Floyd and Dilbeck, who executed the bench warrant in Georgia; and (d) federal marshals Schiller and Griffin, who allegedly knew of the invalidity of the subpoena ticket typed by them (per telephone instructions) and served by Griffin. Before continuing, we note that the damages alleged by the complaint are solely those resulting from Simon's allegedly wrongful arrest, search, and imprisonment.
Simon emphasizes certain alleged deficiencies in the subpoena ticket that was ultimately served on him in Louisiana: a. It was based, not on a new subpoena issued commanding him to appear in court in Atlanta, but instead on the pencilled-in addition of a new date on the original subpoena commanding him to appear at 9:00 a. m. on February 22, (already past); b. the subpoena ticket issued in Louisiana (per telephone conversation with Georgia-based officers) commanded Simon to appear "before said (Atlanta federal) court at Atlantan Hotel, Atlanta, Ga. at ______ (left blank) P.M. on the 25th day of February (a Sunday), 1973." Simon contends that the subpoena ticket, requiring him to appear at an unspecified p. m. hour at a hotel (not in court), was invalid on its face, as well as unauthorized (not being based on an actual subpoena for his appearance on February 25), and that the federal officers knew or should have known this. As noted, he also contends (although the federal officer disputes this) that a Lafayette federal marshal had incorrectly told him, after service of the subpoena ticket on Sunday, February 25, that he could delay his appearance in Atlanta until Monday evening, February 26 (Simon having explained the necessity for his state court appearance Monday morning). 5
On these facts, produced principally by deposition, the plaintiff Simon, whom the record shows to be a prominent and reputable attorney in Lafayette, Louisiana, not unreasonably feels outraged to have been subjected to the arrest, strip search, and seemingly unnecessary detention in a jail following his arrival in Atlanta, stemming initially from (at best) a mistake on the part of Neal's associate in misaddressing the original subpoena. Simon also points out several adverse or false comments to the federal judge by Neal in court or in chambers (in Georgia) that led the federal judge to believe Simon was attempting to evade service and, thus, to eventually issue the bench warrant that led to the Georgia arrest, strip search, and imprisonment.
The issue before us, however, is not whether Simon has shown any cause of action whatsoever. Rather, it is: (1) As to the federal officers, whether he has shown any cause of action of which a federal court has jurisdiction, or at least any disputed issue of material fact that precludes summary judgment in their favor; and (2) as to the defendant Neal, a Tennessee citizen who performed various allegedly wrongful acts in Georgia, whether Simon has shown a basis for a federal court in Louisiana to exercise personal jurisdiction over the cause of action Simon alleges against him.
The sole damages claimed by Simon's complaint are those resulting from his allegedly wrongful arrest, search, and imprisonment in Georgia as a result of the bench warrant issued in Georgia by a federal judge there sitting. The record reflects no invalidity or impropriety in the issuance of the bench warrant itself, nor in the arrest pursuant thereto in which the three Georgia federal officers participated. The federal trial judge, acting within his authority, issued the bench warrant after a witness had thrice failed to appear at the trial, on representations made to him (and apparently true, although explainable in fact) that the witness (an attorney) had initially evaded service and subsequently had, after service, failed to appear. 6 Likewise, after execution of the bench warrant, neither the search nor the detention are shown to have been invalid or illegal, albeit perhaps inappropriate.
The thrust of the cause of action alleged against the present defendants is that they knowingly conspired to cause the federal judge to issue the bench warrant.
With regard to Neal, the showing arguably supports conduct causing tortious injury: Neal implied to the judge on one occasion that Simon was evading service (of a subpoena sent to the wrong district about which Simon did not know), and on the second occasion of Simon's nonappearance the following day Neal incorrectly stated that service had finally been made by the FBI (when in fact the federal...
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