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Thursday, February 12, 2009
I'm leaving (Texas) today . . . New York, New York (Updated)

Updated and Moved to Top

Portions of Roger Clemens' defamation action against Brian McNamee was dismissed for lack of personal jurisdiction, in what sounds (according to the ESPN report) like a very unusual split-the-difference approach. The claims involving the statements to Bud Selig and Jon Heyman of Sports Illustrated both occurred in New York, so those claims do not belong in Texas. But the claims involving statements McNamee made to Andy Pettitte, which occurred in Texas, can remain. As I said, this sounds like an unusual approach, since the SI story was published in Texas and the "effects" of the defamation were felt in Texas, where Clemens resides and was working at the time.

Ironically, the dismissal comes a year and a day after McNamee removed the action to federal court.

The order is here: Download Clemens_v._McNamee. A few thoughts after a quick read:

1) The personal jurisdiction analysis as to the claims arising from statements to the Mitchell Commission and Sports Illustrated takes a very narrow approach to Calder v. Jones, which is not necessarily a bad thing. The court took the requirement that the defendant's contacts be directed towards the forum to be about more than the plaintiff's home state and whether the story was published in the state; much depended on the locus of the comments and the events described in the comments, which meant New York. I do wonder about the decision as to the statements made to SI. This is a national magazine with a substantial circulation in Texas, so McNamee surely knew that his statements about a Texan would be heard and would sting in Texas.

2) I wonder if Clemens is going to stick with his claim based on the statements to Pettitte. It is properly in Texas and it survived summary judgment on a statute of limitations defense, but the court held that the claim as stated is not libel per se, thus Clemens had to plead actual damages, which he was granted leave to do. But given that he is going to bring the big claims (the statements to Mitchell and SI) in New York, he probably will bring the whole thing there.

3) For my civ pro teaching purposes, a nice explanation of converting motions to dismiss into motions for summary judgment.


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