Fifth Circuit affirms lack of jurisdiction in Clemens v. McNamee

A divided panel of the Fifth Circuit yesterday affirmed the district court dismissal of Roger Clemens' defamation action against former trainer/friend Brian McNamee, agreeing that McNamee was not subject to suit in Texas. (H/T: Adam Steinman at Civil Procedure & Federal Courts Blog).

The panel divided on two aspects of personal jurisdiction analysis (warning: This post of interest to civ pro geeks only).

First, the majority found irrelevant the multiple visits that McNamee made to Texas to train Clemens, because the lawsuit was about McNamee's allegedly defamatory statements about giving Clemens steroids in places other than Texas and not more broadly about their relationship. The visits to Texas did not give rise to the defamation claim, so they could not be the basis for specific jurisdiction (as opposed to general jurisdiction, which Clemens did not argue). The dissent, taking a much broader view, argued that these visits "related to" the defamatory statements and thus the defamation claim; contacts "relating to" a claim can establish specific jurisdiction, an argument suggested by Justice Brennan in dissent in Helicopteros, but never picked up elsewhere. The visits to Texas were part of the overall relationship that put McNamee in position to give Clemens steroids, to be a source on steroid use for the Mitchell Commission and Sports Illustrated, and to make the defamatory statements.

Second, the panel divided over the proper understanding of the "effects test" of Calder v. Jones. The majority said Calder did not support jurisdiction because it is not enough for the forum to be the place where the harm occurred; the tort must be "directed at" the forum, meaning the subject matter of the defamatory statements must be the conduct or events occurring in the forum and it must be based on sources in the forum. Here, the subject matter (narrowly viewed) was McNamee giving Clemens steroids in places other than Texas. The dissent argued that Calder is a broader (and more flexible) approach to jurisdiction, not as narrow or rigid limitation on minimum contacts. Calder applied here because McNamee knew Clemens lived (and at the time worked) in Texas, knew the harm would be felt in Texas, knew SI would be read in Texas, and knew the effects to Clemens' reputation would be felt in Texas. Moreover, the "sources" idea was not in play, since McNamee himself was the source and not a journalist writing something based on other sources.

This may actually be a good teaching case, because the judges cross swords over two open areas of personal jurisdiction--the scope of Calder (a case that many academics dislike) and when contacts with a forum are connected enough to a claim to allow specific jurisdiction. The Supreme Court has not decided a major personal jurisdiction case since 1990, although I doubt the Court is going to touch this. So, if Clemens is going to pursue this, it probably will be in a court in New York.