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Thursday, March 06, 2008

Clemens v. McNamee: Your One-Stop Civ Pro Exam

Apparently, the new goal of sports figures is to educate the public about civil procedure (not a bad thing, actually). First came the lawsuit between West Virginia University and Rich Rodriguez, its former football coach, which taught us about removal and the difference between a citizen of a state and an arm of the state for purposes of diversity jurisdiction and now is going to demonstrate just what the discovery process looks like. (WVU Law's Sports and Entertainment Law Society and Professor Beth Thornburg (SMU, visiting at West Virginia) both are doing a great job watching and reporting on the procedural details).

Now comes the defamation lawsuit that Roger Clemens filed against Brian McNamee, his former trainer, over McNamee's statements to law enforcement and the Mitchell Commission that Clemens used performance-enhancing drugs. Clemens filed the lawsuit in January in state court in Houston; McNamee removed to federal court (on diversity--this was an obvious move). Yesterday, McNamee brought Rule 12(b) alive for civ pro students and sports fans alike. Get ready for your final exam, featuring a motion to dismiss for:

1) Lack of Personal Jurisdiction: McNamee argues that his allegedly defamatory statements were made in New York (where he met with Mitchell Commission investigators) about actions that Clemens took in Toronto and New York. McNamee went to Texas several times to train Clemens (about 2-3 times per year since the late 1990s) but none of those trips had anything to do with his injecting Clemens or with his statements. Clemens suffered harm in Texas, where he lives, but McNamee did nothing to direct his statements to Texas, and 5th Circuit precedent holds that the situs of harm alone is not enough. More interestingly, Clemens' complaint argues that McNamee is subject to general jurisdiction based on 2-3 annual trips to Texas.

2) Improper Venue: Under § 1391, a diversity case can be brought in a federal district in which a defendant resides or in a district where a substantial part of the events and omissions giving rise to the claim occurred. McNamee resides in New York, which also is where the events and omissions (his statements and the subject of those statements) occurred. It is not clear any of the key events occurred in Texas.

3) Failure to State a Claim: McNamee argues that Clemens' complaint is factually insufficient, by failing to allege with specific detail the defamatory statements--when the statements where made, when, to whom--and cites, of course, Bell Atlantic v. Twombly, the current focus of much academic obsession. There also is citation to prior case law that required higher pleading for defamation claims, such claims being "disfavored."
McNamee also argues for dismissal of Clemens' claim for a declaratory judgment that Clemens did not defame McNamee, arguing that case law generally prohibits a potential tortfeasor from seeking a declaration of non-liability, since doing so would allow a potential defendant always to trump the potential plaintiff's choice of forum. This likely is a first step towards McNamee bringing a defamation counterclaim (which likely would be compulsory) if he is unsuccessful in getting Clemens' complaint dismissed.

Notably missing is a motion to transfer venue from Texas to New York--that even if Texas is appropriate, the case can more easily and more appropriately be litigated in New York. This probably is because it is tough to get a case transferred out of the plaintiff's home forum (Clemens lives in Texas). But I am surprised McNamee's attorneys did not spot that issue and at least try to raise that issue.

Posted by Howard Wasserman on March 6, 2008 at 01:27 PM in Law and Politics | Permalink


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Funny this should be here -- Jack Greenberg actually gave this case as his Civ Pro final at Columbia Law school last semester (Fall 08). The ruling came out today and I stumbled on this blog looking for it. One point you don't mention -- Texas does not allow a special appearance to challenge personal jurisdiction, and before the case was removed McNamee appeared in the suit. There is therefore an Erie analysis hidden in here as well.

Posted by: Anonymous | Feb 12, 2009 8:03:14 PM

Anonymous: Good point that I forgot. But there is something of a split as to whether a s. 1391 motion is appropriate in removed cases (I actually clerked for a court who took the view it was). I am not sure of the rules in TX and we will see what Clemens' lawyer does in response.

As for those pre-Twombly decisions, they were on shakey ground to begin with under Conley, Leatherman, and Swerkiewicz. But one problem with the way Twombly was written was that it purported to keep the prior landscape in place (other than "retiring" the "no set of facts" language).

Posted by: Howard Wasserman | Mar 6, 2008 3:06:39 PM

Same anonymous poster from 2:17--another point worth noting is that the Twombly Court pretty explicitly rejected the application of "heightened pleading standards" to any cause of action not specifically listed in Rule 9(b) (unless heightened pleading is required under other law, such as the PSLRA). Pre-Twombly decisions requiring that defamation be pleaded with particularity in federal court are accordingly on somewhat shaky ground.

Posted by: anonymous | Mar 6, 2008 2:41:34 PM

I'm pretty sure that § 1391 (concerning venue) does not apply to cases that are removed from state court to federal court. Under § 1446(a), the ONLY permissible venue for a removed case is the district court for the district in which the state court in which the case is pending is located. A defendant who removes under § 1441 and objects to venue has to file motion to change venue under § 1404, as far as I can tell. If anyone knows of authority to the contrary, please respond.

Posted by: anonymous | Mar 6, 2008 2:17:49 PM

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