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Friday, February 13, 2009

I'm leaving (Texas) today . . . New York, New York

A year and a day after the suit was removed to federal court, Judge Ellison of the United States District Court for the Southern District of Texas has dismissed the main chunk of Roger Clemens' defamation action against former trainer Brian McNamee. The suit contained three claims, arising from statements made: 1) to the Mitchell Commission; 2) to SI reporter Jon Heyman; and 3) to Andy Pettitte. The first two claims were based on statements made in New York about conduct occurring in New York and Toronto (and not Texas). Any action on these claims must be brought in New York.

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

1) The personal jurisdiction analysis as to the Mitchell Commission and Sports Illustrated claims 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 (and certainly not Texas). I do wonder about the decision as to the statements made to SI. He was speaking to 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. It is hard to think that his statements were not "directed to" 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) A couple of things for my civ pro teaching purposes: Including a nice explanation of converting motions to dismiss into motions for summary judgment and a largely unexplained demand for more (and more specific) facts in the complaint, namely facts showing actual damages on the defamation per quod allegations.

Finally, I have gotten several e-mails and comments from Columbia 1Ls who had Jack Greenberg for civ pro in the fall and dealt with this case on the final exam, with an Erie issue thrown in. Any Greenberg students out there who can tell me what the Erie issue was?

Posted by Howard Wasserman on February 13, 2009 at 12:19 AM in Civil Procedure, Current Affairs, First Amendment, Howard Wasserman | Permalink


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