The 5th U.S. Circuit Court of Appeals has affirmed in a split decision a district court’s ruling that dismissed the defamation complaint of former Major League Baseball pitcher Roger Clemens against his trainer on jurisdictional grounds.
Clemens had alleged that defendant Brian McNamee defamed him when he gave testimony to a federal commission and to a website writer about the athlete’s alleged use of performance enhancing drugs.
On appeal, the panel considered whether the allegedly defamatory statements made elsewhere, but which caused damage to the athlete in the forum state, were sufficient to confer personal jurisdiction when the content and context of the statements lacked any connection with the forum state.
In providing background, the 5th Circuit noted that Clemens met McNamee while he was a member of the Toronto Blue Jays in 1996. Three years later, Clemens joined the New York Yankees, and one year later, the Yankees hired McNamee as an assistant trainer. Clemens trained with McNamee until some point in 2007. Over the course of their professional relationship, McNamee traveled to Texas approximately 35 times to train Clemens and other professional athletes. Although he temporarily resided in other cities during his professional baseball career, Clemens returned to Houston at the end of every baseball season.
In the summer of 2007, federal authorities contacted McNamee in New York City in connection with the United States Government’s criminal investigation of BALCO, a Bay Area laboratory allegedly involved in the development and sale of performance-enhancing drugs. At the interview, authorities told McNamee that the Government had sufficient evidence to secure a conviction against McNamee for delivering illegal performance-enhancing drugs to athletes. In lieu of prosecution, the United States Attorney’s Office for the Northern District of California gave McNamee immunity for any statements he gave in relation to the Government’s investigation. McNamee was interviewed by the Government for two days during which he told investigators that he had injected Clemens with performance-enhancing drugs in 1998, 2000, and 2001. These injections, according to McNamee, took place in Toronto and New York.
A short time after his interview with the Government, federal authorities contacted McNamee again, this time requesting that he cooperate with a Major League Baseball investigation being conducted by former United States Senator George Mitchell into the use of performance-enhancing drugs in the game. Federal investigators arranged and participated in McNamee’s meeting with Mitchell in New York. On December 12, 2007, the Mitchell Commission released the findings of its investigation in its Report to the Commissioner of Baseball of an Independent Investigation Into the Illegal Use of Steroids and Other Performance Enhancing Substances By Players In Major League Baseball.
“Every national news service, as well as every major newspaper in Texas, republished McNamee’s statements,” wrote the court. “Following the Mitchell Report’s release, McNamee spoke with John Heyman, a senior writer for the internet site SI.com. During this interview at McNamee’s house in Queens, New York, McNamee repeated the statements that had been published in the Mitchell Report. Heyman posted an article containing these statements to the website SI.com on January 7, 2008.”
In January 2008, Clemens sued McNamee in Texas state court for defamation. McNamee removed the action to federal court and moved to dismiss the complaint for inter alia lack of personal jurisdiction and failure to state a claim. The district court dismissed Clemens’ defamation action for lack of personal jurisdiction because the focal point of McNamee’s statements about Clemens was not Texas. The district court also found, in the alternative, that if the court had personal jurisdiction over McNamee, his statements to the Mitchell Commission were cloaked with absolute immunity.
On appeal, the panel looked at “whether McNamee had sufficient minimum contacts with the forum to support specific personal jurisdiction. It is essential that there be some act by which the defendant purposefully avails himself of the privilege of conducting activities with the forum state, thus invoking the benefits and protections of its laws. Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958). The ‘purposeful availment’ requirement ensures that a defendant will not be hauled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts. In this case, the relevant contacts from which Clemens’ cause of action arises are McNamee’s allegedly defamatory remarks… . Therefore, the issue narrows to whether these defamatory remarks constituted purposeful availment such that McNamee could have reasonably anticipated being hauled into a Texas court as a result of his statements.
The most instructive case on this issue from the Supreme Court is Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d 804 (1984). In Calder, a Hollywood gossip tabloid published an allegedly libelous story about the actress Shirley Jones. Id. at 785. Jones filed suit in California against the author of the story and the editor of the tabloid. Id. The Supreme Court held that California courts had jurisdiction over the defendants because they had ‘expressly aimed’ their conduct towards California.”
The court added that “to support personal jurisdiction against the defaming defendant, this court has emphasized Calder’s requirement that the forum ‘be the focal point of the story.’ Id.
“We read Calder as requiring the plaintiff seeking to assert specific personal jurisdiction over a defendant in a defamation case to show ‘(1) the subject matter of and (2) the sources relied upon for the article were in the forum state.’ Id. (citing Revell, 317 F.3d at 474 & n.48). Thus the question in this case further narrows to whether McNamee’s allegedly defamatory statements were aimed at or directed to Texas. As in Revell and Fielding, the statements in this case concerned non-Texas activities–the delivery of performance-enhancing drugs to Clemens in New York and Canada. The statements were not made in Texas or directed to residents of Texas.”
In the dissent, the judges applied Calder more broadly, suggesting that the visits McNamee made to Texas “related to”the statements and the defamation claim, establishing specific jurisdiction.
William Roger Clemens v. Brian Mcnamee; 5th Cir.; No. 09-20625, 2010 U.S. App. LEXIS 16718; 8/12/10
Attorneys of Record: (for plaintiff-appellant) Russell Hardin, Jr., Lara Hudgins Hollingsworth, Joe Mac Roden, Rusty Hardin & Associates, Houston, TX. (for defendant-appellee) David Richard Miller, Houston, TX; Richard D. Emery, Debra L. Greenberger, Emery Celli Brinckerhoff & Abady, L.L.P., New York, NY; Earl S. Ward, Law Offices of Earl S. Ward, New York, NY.
