Clemens v. McNamee

Case: 09-20625 Document: 00511202505 Page: 1 Date Filed: 08/12/2010

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

August 12, 2010

No. 09-20625 Lyle W. Cayce

Clerk

WILLIAM ROGER CLEMENS,

Plaintiff – Appellant,

v.

BRIAN M CNAMEE,

Defendant – Appellee.

Appeal from the United States District Court

for the Southern District of Texas

Before DAVIS, SMITH, and HAYNES, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge.

In this appeal, we consider whether allegedly defamatory statements made

elsewhere but which caused damage to the plaintiff in the forum state are

sufficient to confer personal jurisdiction over the defendant when the content

and context of the statements lack any connection with the forum state. For the

following reasons, we agree with the district court that the plaintiff failed to

establish personal jurisdiction over the defendant and affirm.

I.

The plaintiff, Roger Clemens, moved to Texas in 1977 at the age of fifteen.

In 1983, after playing college baseball for the University of Texas, he was

drafted by the Boston Red Sox, a Major League Baseball team. Clemens played

Case: 09-20625 Document: 00511202505 Page: 2 Date Filed: 08/12/2010

No. 09-20625

for the Red Sox until 1996, when he signed with the Toronto Blue Jays. As a

member of the Blue Jays, Clemens met the defendant Brian McNamee, an

athletic trainer for the Toronto organization. In 1999, 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 2007.1 Over the

course of their professional relationship, McNamee traveled to Texas

approximately thirty-five 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. He

currently lives in Texas with his wife and four children.

In the summer of 2007, federal authorities contacted McNamee in New

York City in connection with the 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 use 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

1

Clemens retired from the Yankees in 2003. In 2004, he joined the Houston Astros and

played with the team for three seasons. In 2007, he signed a one-year contract with the

Yankees. At present, he is not a member of any professional baseball team.

2

Case: 09-20625 Document: 00511202505 Page: 3 Date Filed: 08/12/2010

No. 09-20625

George Mitchell into the use of performance-enhancing drugs in the game

(“Mitchell Commission”). 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 (“Mitchell Report”). The Mitchell Report included McNamee’s

statements concerning Clemens’ use of performance-enhancing drugs. Every

national news service, as well as every major newspaper in Texas, republished

McNamee’s statements. 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 filed suit for defamation against McNamee in

Texas state court. McNamee removed the action to the United States District

Court and moved to dismiss Clemens’ 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. This appeal followed.

II.

A.

Whether the district court can properly exercise personal jurisdiction over

the defendant is an issue of law we review de novo. Felch v. Tranportes. Lar-Mex

S.A. de C.V., 92 F.3d 320, 324 (5th Cir. 1996). The plaintiff bears the burden of

3

Case: 09-20625 Document: 00511202505 Page: 4 Date Filed: 08/12/2010

No. 09-20625

establishing personal jurisdiction over a non-resident defendant and that burden

is met by making a prima facie showing. Kelly v. Syria Shell Petroleum Dev.

B.V., 213 F.3d 841, 854 (5th Cir. 2000). We must accept the plaintiff’s

uncontroverted allegations as true, and resolve in his favor all conflicts between

the facts contained in the parties’ affidavits and other documentation. Revell v.

Lidov, 317 F.3d 467, 469 (5th Cir. 2002) (citation omitted).

B.

A federal district court sitting in diversity may exercise personal

jurisdiction over a foreign defendant if (1) the long-arm statute of the forum

state creates personal jurisdiction over the defendant; and (2) the exercise of

personal jurisdiction is consistent with the due process guarantees of the United

States Constitution. Latshaw v. Johnston, 167 F.3d 208, 211 (5th Cir. 1999).

Because Texas’s long-arm statute reaches to the constitutional limits, the

question we must resolve is whether exercising personal jurisdiction over the

defendant offends due process. Helicopteros Nacionales de Colombia, S.A. v.

Hall, 466 U.S. 408, 413–14 (1984).

The Due Process Clause of the Fourteenth Amendment permits a court to

exercise personal jurisdiction over a foreign defendant when (1) that defendant

has purposefully availed himself of the benefits and protections of the forum

state by establishing minimum contacts with the forum state and (2) the exercise

of jurisdiction over that defendant does not offend traditional notions of fair play

and substantial justice. Revell, 317 F.3d at 470 (footnotes and internal citation

omitted). There are two types of minimum contacts: contacts that give rise to

specific personal jurisdiction and those that give rise to general jurisdiction.

Wilson v. Belin, 20 F.3d 644, 647 (5th Cir. 1994). On appeal, Clemens only

argues that McNamee’s defamatory statements were sufficient to confer specific

personal jurisdiction; accordingly, we only examine whether McNamee’s contacts

with Texas were sufficient to confer jurisdiction under the Supreme Court and

4

Case: 09-20625 Document: 00511202505 Page: 5 Date Filed: 08/12/2010

No. 09-20625

this Circuit’s specific personal jurisdiction jurisprudence. Specific jurisdiction

exists when “the defendant has ‘purposefully directed’ his activities at residents

of the forum . . . and the litigation results from alleged injuries that arise out of

or relate to those activities.” See Burger King v. Rudzewicz, 471 U.S. 462, 472

(1985) (citations omitted); Jones v. Petty-Ray Geophysical Geosource, Inc., 954

F.2d 1061, 1068 n.9 (5th Cir. 1992). The non-resident’s purposefully directed

activities in the forum must be such that he could reasonably anticipate being

haled into court in the forum state. Burger King, 471 U.S. at 474. Specific

jurisdiction also requires a sufficient nexus between the non-resident’s contacts

with the forum and the cause of action. Helicopteros Nacionales de Colombia,

S.A., 466 U.S. at 414 n.8.

We first address 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 (1958). The

“purposeful availment” requirement ensures that a defendant will not be haled

into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts.

Burger King, 471 U.S. at 472 (citation omitted). In this case, the relevant

contacts from which Clemens’ cause of action arises are the allegedly defamatory

remarks about Clemens which McNamee made to the Mitchell Commission and

John Heyman of SI.com. Therefore, the issue narrows to whether these

defamatory remarks constituted purposeful availment such that McNamee could

have reasonably anticipated being haled 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 (1984). In Calder, a Hollywood gossip tabloid published

an allegedly libelous story about the actress Shirley Jones. Id. at 785. Jones

5

Case: 09-20625 Document: 00511202505 Page: 6 Date Filed: 08/12/2010

No. 09-20625

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 allegedly libelous story concerned the California activities of a

California resident. It impugned the professionalism of an

entertainer whose television career was centered in California. The

article was drawn from California sources, and the brunt of the

harm, in terms both of respondent’s emotional distress and the

injury to her professional reputation, was suffered in California. In

sum, California is the focal point both of the story and the harm.

Id. at 788-89 (emphasis added).

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. For example, in Revell v. Lidov, the plaintiff sued a non-resident

defendant in Texas after the defendant alleged on a Columbia University

website that the plaintiff had advance knowledge of the bombing of Pan Am

Flight 103. Revell, 317 F.3d at 469. Although we recognized that the plaintiff

suffered emotional distress and damage to his professional reputation in Texas,

the Revell court concluded that the alleged defamatory statements were

inadequately directed to Texas to satisfy minimum contacts under Calder. Id.

at 473. As this court explained:

First, the article written by [plaintiff] about [defendant] contains no

reference to Texas, nor does it refer to the Texas activities of

[plaintiff] and it was not directed at Texas readers as distinguished

from readers in other states. Texas was not the focal point of the

article or the harm suffered, unlike Calder, in which the article

contained descriptions of the California activities of the plaintiff,

drew upon California sources, and found its largest audience in

California.

Id.

6

Case: 09-20625 Document: 00511202505 Page: 7 Date Filed: 08/12/2010

No. 09-20625

In Fielding v. Hubert Burda Media, Inc., 415 F.3d 419 (5th Cir. 2005), we

again required the plaintiff to show that Texas was the focus of the defamatory

communication. In Fielding, the plaintiffs were the Swiss Ambassador to

Germany and his American wife, a former Mrs. Texas who was a resident of

Texas; the defendants were several German newspapers who wrote allegedly

libelous articles about the plaintiffs’ social lives in Berlin. Id. The plaintiffs

sued the defendants in Texas, arguing that jurisdiction was proper because the

stories harmed their reputation among friends and family in Texas. Id. at 424.

Despite the alleged harm suffered in the forum, the Fielding court declined to

find personal jurisdiction because “the clear focus of the . . . articles was the

alleged affair between [the Ambassador] and [his alleged mistress] and its

aftermath, activities which occurred in Germany and Switzerland.” Id. at 426.

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 support of jurisdiction, Clemens points to the harm he suffered in Texas

and to McNamee’s knowledge of the likelihood of such damage in the forum. Yet

under Calder, Revell, and Fielding, Clemens has not made a prima facie showing

that McNamee made statements in which Texas was the focal point: the

statements did not concern activity in Texas; nor were they made in Texas or

directed to Texas residents any more than residents of any state. As such, the

7

Case: 09-20625 Document: 00511202505 Page: 8 Date Filed: 08/12/2010

No. 09-20625

district court did not err in dismissing Clemens’ suit for lack of personal

jurisdiction over McNamee.2

III.

For the foregoing reasons, the district court’s judgment is affirmed.

AFFIRMED.

2

See also Mullins v. TestAmerica, Inc., 564 F.3d 386, 401 (5th Cir. 2009) (“Under

Calder, . . . the plaintiff’s residence in the forum, and suffering of harm there, will not alone

support [personal] jurisdiction.”) (brackets in original, citation omitted); Panda Brandywine

Corp. v. Potomac Elec. Power Co., 253 F.3d 865, 870 (5th Cir. 2001) (“If we were to accept

Appellants’ arguments, a nonresident defendant would be subject to jurisdiction in Texas for

an intentional tort simply because the plaintiff’s complaint alleged injury in Texas to Texas

residents regardless of the defendant’s contacts.”); Wien Air Alaska, Inc. v. Brandt, 195 F.3d

208, 212 (5th Cir. 1999) (citations omitted) (foreseeable injury alone is not sufficient to confer

specific jurisdiction, absent the direction of specific acts toward the forum).

8

Case: 09-20625 Document: 00511202505 Page: 9 Date Filed: 08/12/2010

No. 09-20625

HAYNES, Circuit Judge, dissenting.

Because I conclude that specific jurisdiction exists here, I respectfully

dissent. McNamee had sufficient minimum contacts with Texas, and the

exercise of personal jurisdiction does not offend traditional notions of fair play

and substantial justice. Accordingly, the district court should not have

dismissed this case on that ground.1

The Due Process Clause of the Fourteenth Amendment requires that,

before a person can be subject to jurisdiction in a particular forum, he must have

“purposefully availed himself of the benefits and protections of the forum state

by establishing ‘minimum contacts’ with the forum state; and . . . the exercise of

jurisdiction over that defendant [must] not offend ‘traditional notions of fair play

and substantial justice.’” Cent. Freight Lines Inc. v. APA Transp. Corp., 322 F.3d

376, 380 (5th Cir. 2003). In turn, minimum contacts can be broken down into

two categories: those sufficient to support specific jurisdiction and those

sufficient to support general jurisdiction. Id. at 381. Only the former concerns

us here, as I agree that McNamee’s contacts were not sufficient for general

jurisdiction.

In construing Supreme Court precedents in this area, we have held that

specific jurisdiction may be asserted over a defendant where that defendant has

“‘purposefully directed [his] activities at the forum state and the litigation

results from alleged injuries that arise out of or relate to those activities.’” Id.

(emphasis added) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472

(1985)). In analyzing whether personal jurisdiction is proper, we “must accept

1

The majority opinion does not reach the question of the district court’s alternative

holding on the immunity question for the Mitchell Commission statements, so I will not

address that question here.

9

Case: 09-20625 Document: 00511202505 Page: 10 Date Filed: 08/12/2010

No. 09-20625

the plaintiff’s uncontroverted allegations, and resolve in his favor all conflicts

between the facts contained in the parties’ affidavits and other documentation.”

Revell v. Lidov, 317 F.3d 467, 469 (5th Cir. 2002) (quotation marks, brackets,

and citation omitted).

A. McNamee Established Minimum Contacts with Texas

In this case, there are two independent grounds upon which the minimum

contacts inquiry is satisfied. First, McNamee made numerous business trips to

Texas to train Clemens, and these trips “relate to” and form an integral part of

the instant cause of action. Second, under the Calder2 “effects test,” McNamee

established minimum contacts with Texas because, taking Clemens’s allegations

as true, McNamee intentionally directed his false claims at Texas, where he

knew Clemens resided and where it was foreseeable that the brunt of the injury

from McNamee’s statements would be felt.

1. McNamee’s Business Contacts with Texas Satisfy the Minimum Contacts

Test

Unlike the cases upon which the majority opinion relies, McNamee had

repeated business contacts with Clemens in Texas. As the majority opinion

acknowledges, McNamee visited Texas approximately thirty-five times over the

course of his paid, professional relationship with Clemens, each time to train

Clemens and other professional athletes. The fact that these training sessions

occurred in Texas is not fortuitous: McNamee traveled to Texas because that is

where Clemens continuously resided during the off-season and because, for at

least part of his career, Clemens played professional baseball in Texas.3 Thus,

2

Calder v. Jones, 465 U.S. 783 (1984).

3

Notably, McNamee served as Clemens’s personal trainer during the three years that

Clemens played for the Houston Astros. Clemens asserts that this time period was the height

of his professional career. He left the Astros only a year before the allegedly libelous

statements were made.

10

Case: 09-20625 Document: 00511202505 Page: 11 Date Filed: 08/12/2010

No. 09-20625

McNamee purposely availed himself of the privileges of conducting business in

Texas. See Nuovo Pignone, SPA v. Storman Asia M/V, 310 F.3d 374, 380 (5th

Cir. 2002) (holding that minimum contacts exist where the defendant “purposely

has availed itself of the privilege of conducting business in that state”); Stroman

Realty, Inc. v. Antt, 528 F.3d 382, 386 (5th Cir. 2008) (“Purposeful availment of

the privileges of conducting business in a forum is indicative that a defendant

has contacts with a state.”).

Further, McNamee’s business trips to Texas form a part of and “relate to”

the training relationship from which the alleged steroid regimen either arose

(McNamee’s version) or did not arise (Clemens’s version). See Trinity Indus.,

Inc. v. Myers & Assocs., Ltd., 41 F.3d 229, 231 (5th Cir. 1995). In Trinity

Industries, two lawyers allegedly counseled a Texas client’s competitor to bring

adverse litigation in Pennsylvania. The Texas client brought suit in Texas court,

claiming breach of fiduciary duty, civil conspiracy, and negligence. We rejected

the defendants’ contention that personal jurisdiction was lacking because the

tortious conduct occurred in Illinois—where the defendants’ law firm was

located—and in Pennsylvania—where the tortious advice was given. Concluding

that the lawsuit related to the defendants’ contacts with Texas, we observed:

“The essence of Trinity’s complaint is that its own lawyers counseled its

competitor in bringing adverse litigation. There would be no injury or basis for

a claim but for the fact that [the defendants] represented Trinity in Texas before

and during their engagement by [the competitor].” Id. at 231-32.

Similarly, the litigation in question here clearly “relates to” McNamee’s

business trips to Texas because the allegedly defamatory statements relate to

McNamee’s training relationship with Clemens. See Helicopteros Nacionales de

Colombia, S.A. v. Hall, 466 U.S. 408, 414 & n.8 (1984) (“When a controversy is

related to or ‘arises out of’ a defendant’s contacts with the forum, the Court has

said that a ‘relationship among the defendant, the forum, and the litigation’ is

11

Case: 09-20625 Document: 00511202505 Page: 12 Date Filed: 08/12/2010

No. 09-20625

the essential foundation of in personam jurisdiction.”) (quoting Shaffer v.

Heitner, 433 U.S. 186, 204 (1977)). As discussed above, McNamee’s background

as Clemens’s trainer, in both Texas and New York, is what put McNamee in a

position to—in his words—give Clemens steroids and, further, made him a

credible person of interest to the various investigatory bodies and a news

organization such as SI.com. See Trinity Indus., 41 F.3d at 231-32. Accordingly,

McNamee should reasonably anticipate being haled into a Texas court for

matters “relating to” his services as Clemens’s personal trainer, including his

statements that Clemens used steroids as part of his training regimen.

The fact that McNamee’s training relationship with Clemens extended

beyond Texas’s borders does not deprive the district court of specific jurisdiction.

Neither the Supreme Court nor this court has ever required the tortious conduct

to occur exclusively in or be exclusively related to the forum state. See Keeton

v. Hustler Magazine, Inc., 465 U.S. 770, 780 (1984) (“[R]espondent is carrying on

a ‘part of its general business’ in New Hampshire, and that is sufficient to

support jurisdiction when the cause of action arises out of the very activity being

conducted, in part, in New Hampshire.”) (emphasis added); Walk Haydel &

Assocs., Inc. v. Coastal Power Prod. Co., 517 F.3d 235, 244 (5th Cir. 2008)

(rejecting defendant’s argument that personal jurisdiction was improper because

most of the relevant contacts occurred outside the forum state); Streber v.

Hunter, 221 F.3d 701, 718 (5th Cir. 2000) (holding that specific jurisdiction was

proper where “at least some of the allegations forming the basis of this lawsuit

arise out of [the defendant’s] contacts with Texas”). Accordingly, I conclude that

the first prong of the specific jurisdiction inquiry is satisfied because McNamee’s

business contacts with Texas relate to this litigation and were more than

“minimum.”

2. The Calder “Effects” Test Is Not a Limitation on the Ordinary Minimum

Contacts Analysis

12

Case: 09-20625 Document: 00511202505 Page: 13 Date Filed: 08/12/2010

No. 09-20625

In contrast, the majority opinion treats the thirty-five business trips

discussed above as irrelevant and focuses entirely on the location of the alleged

steroid injections in New York. Of course, Clemens denies that any such

injections occurred—in Texas, New York, or anywhere else. Given the fact that

we must assume for purposes of this analysis that Clemens’s version of the facts

is the true one, the “New York” situs of this case is based entirely upon a lie.

McNamee could just as easily have named any other state as far as Clemens’s

position in this case is concerned. In relying entirely on the alleged libelant to

fix the situs of suit, the majority opinion greatly limits specific jurisdiction

jurisprudence in general and its application to libel cases in particular.

The majority opinion’s formulation of the Calder effects test—requiring

a plaintiff to show that (1) the subject matter of the defamatory statements

concerned the forum; and (2) the sources relied upon by the author were in the

forum—results in a mechanical personal jurisdiction test for defamation and

libel cases that is both over- and under-inclusive. Two examples demonstrate

this point.

In the first example, assume the same underlying facts present in this

case, except that McNamee falsely stated that he injected Clemens with

performance-enhancing drugs while at a truck stop in Montana. The majority’s

test would compel a conclusion that McNamee had purposefully availed himself

of the laws of Montana because his defamatory statements concerned Montana

and the focus of McNamee’s story was on events that allegedly occurred in

Montana. This conclusion would perhaps follow even if Clemens denied ever

visiting Montana, and McNamee had no other contacts with Montana. In such

a scenario, the setting of the false statement—and thus the defendant’s

relationship to the forum state—is fortuitous, see Burger King, 471 U.S. at 475,

yet sufficient to establish minimum contacts under the reasoning of the majority

opinion.

13

Case: 09-20625 Document: 00511202505 Page: 14 Date Filed: 08/12/2010

No. 09-20625

In the second example, assume that Clemens played his entire professional

career with the Houston Astros and that McNamee trained Clemens on a weekly

basis in Texas.4 Further assume, like we are required to here, that McNamee

falsely stated that he injected Clemens with performance-enhancing drugs in

New York, knowing that his statements would destroy Clemens’s personal and

professional reputation in Texas. Thus, the only relevant connection to New

York in this hypothetical is McNamee’s own false statement, and all other

relevant contacts between McNamee and Clemens occur in Texas. Under the

majority opinion’s reasoning, personal jurisdiction in Texas in this example is

improper because McNamee’s statements did not concern Texas or rely on

sources within Texas. McNamee’s numerous business contacts with Texas,

intent to harm Clemens in Texas, and knowledge that Clemens resided in Texas

and would feel the brunt of the defamatory impact there would thus be

insufficient to establish minimum contacts. The fact that McNamee did not

research his allegations by consulting sources close to Clemens in Texas also

becomes, under the majority opinion’s analysis, a factor thwarting personal

jurisdiction.5 As a result of the majority opinion’s test, McNamee could force

Clemens to litigate his defamation action in a foreign state simply by omitting

reference to Texas, staging the false story elsewhere, or declining to research his

allegations in Texas.

These two contrasting examples demonstrate how the majority opinion

misconstrues the Calder effects test as some sort of restriction in defamation or

4

This hypothetical scenario also presumes that general jurisdiction over McNamee is

unavailable.

5

The “research” prong of Calder, Revell, and Fielding is irrelevant in this case because

McNamee is not a journalist relying on external sources. He is the very person who claims to

have committed the act which is the subject of the alleged libel. Unlike a journalist, such an

alleged eyewitness would never be conducting “research” in Texas or anywhere else on

whether he himself is telling the truth.

14

Case: 09-20625 Document: 00511202505 Page: 15 Date Filed: 08/12/2010

No. 09-20625

libel cases on the ordinary minimum contacts analysis. In truth, Calder was an

expansion of specific jurisdiction and the minimum contacts inquiry. The Calder

“effects test” was an outgrowth of the recognition that a defendant need not ever

have been physically present in the forum state to be subject to personal

jurisdiction there. See Calder, 465 U.S. at 789 (“An individual injured in

California need not go to Florida to seek redress from persons who, though

remaining in Florida, knowingly cause the injury in California.”).

To understand this point, we must detour briefly back to the seminal case

of International Shoe v. Washington, 326 U.S. 310 (1945), which first articulated

the minimum contacts test as a way to establish jurisdiction over a defendant

not physically present in the state. The International Shoe Court recognized

that a court’s ability to exercise personal jurisdiction over a defendant

historically required the defendant to be physically present in the forum. Id. at

316. Analyzing the physical presence concept, the International Shoe Court

determined that a nonresident who had a random contact with the forum state

should not be haled into court there on a matter unrelated to that contact, yet

the absence of physical presence should not defeat jurisdiction for actions

directed at the forum state. Id. at 316-18. Thus, while physical presence is not

irrelevant to the jurisdictional analysis, it is not determinative of it either.

Understood against this backdrop, the Calder effects test is simply an

additional, but not exclusive, vehicle for establishing personal jurisdiction over

a nonresident defendant who may never have been to the forum state. See

Allred v. Moore & Peterson, 117 F.3d 278, 287 (5th Cir. 1997) (“[T]he key to

Calder is that the effects of an alleged intentional tort are to be assessed as part

of the analysis of the defendant’s relevant contacts with the forum. Whether

these effects, either alone or in combination with other contacts, are sufficient

to support in personam jurisdiction will turn upon the particular facts of each

case.”) (quoting Wallace v. Herron, 778 F.2d 391, 395 (7th Cir. 1985)). Put

15

Case: 09-20625 Document: 00511202505 Page: 16 Date Filed: 08/12/2010

No. 09-20625

another way, Calder allows a court to find that a nonresident defendant who

intentionally aims his or her tortious conduct at the forum state has established

minimum contacts with the forum, even if the defendant has not established a

physical presence there. See Mullins v. TestAmerica, Inc., 564 F.3d 386, 402 (5th

Cir. 2009).

In this case, unlike Calder, Revell, and Fielding6 , we are not in need of

proxies for physical presence. McNamee indeed visited Texas many times.

These were not mere pleasure trips or trips where McNamee was merely

“passing through” Texas on the way to somewhere else. Rather, McNamee’s

numerous visits to Texas were business contacts with Clemens in the course of

the very training relationship that did—or did not—give rise to the steroid use.

See Trinity Indus., 41 F.3d at 231 (holding that the defendants’ business contacts

with Texas “indicate that the defendants deliberately availed themselves of the

benefits of an ongoing relationship with a Texas client and reasonably should

have anticipated the possibility of being haled into court in Texas for claims

arising out of or related to that relationship”); Bullion v. Gillespie, 895 F.2d 213,

217 (5th Cir. 1990) (holding that personal jurisdiction over a California doctor

was proper in Texas for claims related to the administration of an experimental

medical program in California because, in the aggregate, the doctor maintained

numerous business contacts with patients, including the plaintiff, in Texas). In

sum, McNamee’s business relationship with Clemens in Texas establishes

sufficient minimum contacts with Texas to support specific jurisdiction for this

lawsuit, even without considering the Calder effects test.

3. McNamee Has Minimum Contacts with Texas Under the Calder Effects

Test

6

Fielding v. Hubert Burda Media, Inc., 415 F.3d 419 (5th Cir. 2005).

16

Case: 09-20625 Document: 00511202505 Page: 17 Date Filed: 08/12/2010

No. 09-20625

However, even if Clemens must meet the Calder requirements, he has

done so. It is undisputed that Clemens is a resident of Texas with many civic

and business activities in that state. In addition to his residency in Texas,

Clemens played baseball for the Houston Astros for three years shortly before

the events in question. Taking Clemens’s allegations in the complaint as true,

McNamee intended to cause particular harm to Clemens in Texas because he

was aware that Clemens resided in Texas and that the brunt of the impact of his

statements would be felt by Clemens in Texas. This conduct constitutes the kind

of “deliberate targeting” that the Calder Court found dispositive in analyzing

personal jurisdiction.

In Calder, the National Enquirer published an article alleging that Shirley

Jones, a nationally-known actress, drank alcohol so heavily as to interfere with

her professional obligations as an actress. 465 U.S. at 789 n.9. Jones sued both

the author and the editor of the article in California state court. The Court

found that, despite the limited or total absence of physical connections between

the defendants and the forum state, personal jurisdiction over the defendants

was “proper in California based on the ‘effects’ of their Florida conduct in

California.” Id. at 789. The Court emphasized that the defendants’ “intentional,

and allegedly tortious, actions were expressly aimed at California” because the

defendants knew the devastating impact the article would have upon Jones, and

that the brunt of the injury would be felt by Jones in California, where she lived

and worked. Id. at 789-90.

Thus, under Calder, personal jurisdiction is appropriate over McNamee

because McNamee knew that Clemens resided and worked in Texas and that

Clemens would feel the brunt of the impact of his allegedly defamatory

statements in Texas. See Southmark Corp. v. Life Investors, Inc., 851 F.2d 763,

772 (5th Cir. 1988) (“In Calder, the Supreme Court held that when an alleged

tort-feasor’s intentional actions are expressly aimed at the forum state, and the

17

Case: 09-20625 Document: 00511202505 Page: 18 Date Filed: 08/12/2010

No. 09-20625

tort-feasor knows that the brunt of the injury will be felt by a particular resident

in the forum, the tort-feasor must reasonably anticipate being haled into court

there to answer for its tortious actions.”); Guidry v. U.S. Tobacco Co., 188 F.3d

619, 628 (5th Cir. 1999) (“Even an act done outside the state that has

consequences or effects within the state will suffice as a basis for jurisdiction in

a suit arising from those consequences if the effects are seriously harmful and

were intended or highly likely to follow from the nonresident defendant’s

conduct.”); Brown v. Flowers Indus., Inc., 688 F.2d 328, 333 (5th Cir. 1982)

(holding that specific personal jurisdiction existed in defamation action even

though the non-resident defendant was not present in the forum state, but

concluding that, “[i]f, as is alleged in this case, [the defendant] causes injury in

[the forum state], he is covered by the [long-arm] statute”).

For his part, McNamee does not dispute that Clemens suffered particular

injury in Texas as a result of McNamee’s allegations. Instead, McNamee

contends, and the majority opinion apparently agrees, that because he said the

steroid injections occurred only in New York, this case has no connection to

Texas, citing Revell and Fielding.

However, unlike Revell, where the defendant was unaware of the

plaintiff’s residence, here McNamee was acutely aware of Clemens’s relationship

to Texas from his visits there and from his overall training relationship with

Clemens. Further, the defendant in Revell had no relevant contacts with Texas

and no other facts demonstrated that the defendant had intentionally directed

his allegedly tortious conduct toward the plaintiff in Texas. In this case,

McNamee’s training relationship with Clemens in Texas and his knowledge that

Clemens resided and had recently played professional baseball in his home state

of Texas demonstrate that McNamee purposefully directed his allegedly

defamatory statements at Clemens’s personal and professional reputation in

Texas. See Revell, 317 F.3d at 475-76 (observing that knowledge of the forum at

18

Case: 09-20625 Document: 00511202505 Page: 19 Date Filed: 08/12/2010

No. 09-20625

which the defendant’s conduct is directed will often provide sufficient evidence

that the forum is the focal point of the tortious activity).

Similarly, Fielding is inapposite. In Fielding, the plaintiffs were living

overseas in the Swiss embassy in Germany. The court observed that it was

unclear if and when the appellants ever lived in Texas because “during virtually

the entire time relevant to this lawsuit, [the appellants] appear to have been

residents of Germany.” 415 F.3d at 423-24 n.2. The allegedly libelous articles

focused on the appellants’ social lives in Germany, and the brunt of the injuries

suffered by the appellants occurred overseas. In contrast, Clemens’s life is

anchored in Texas, and McNamee was well aware of this fact at the time he

made the allegedly defamatory statements about Clemens. Further, unlike the

German newspaper at issue in Fielding, which was unlikely to be read in Texas,

SI.com is widely available and likely to be read by Clemens’s fan base in Texas.

In short, the SI.com publication is much more similar to the publication at issue

in Calder, where the Court found personal jurisdiction over the nonresident

defendant.

By focusing exclusively on the setting of McNamee’s allegedly defamatory

statements, the majority opinion unduly narrows the minimum contacts and

specific jurisdiction inquiry to a mechanical or technical formulation, rather than

the “highly realistic” approach urged by the Supreme Court. Burger King, 471

U.S. at 478-79 (“The Court long ago rejected the notion that personal jurisdiction

might turn on ‘mechanical’ tests or on ‘conceptualistic . . . theories’ . . . . Instead,

we have emphasized the need for a ‘highly realistic’ approach . . .”); Int’l Shoe

Co., 326 U.S. at 319 (“It is evident that the criteria by which we mark the

boundary line . . . cannot be simply mechanical or quantitative. . . . Whether due

process is satisfied must depend rather upon the quality and nature of the

activity in relation to the fair and orderly administration of the laws . . .”).

Indeed, were this case to proceed to trial, McNamee and Clemens would no

19

Case: 09-20625 Document: 00511202505 Page: 20 Date Filed: 08/12/2010

No. 09-20625

doubt testify extensively regarding their training relationship, including the

relationship in Texas, both in the off-seasons and while Clemens played with the

Houston Astros. The scope of the trial certainly would not be limited to the

events that did or did not transpire in New York on the particular dates alleged

by McNamee. Employing the “highly realistic” approach advocated by the

Supreme Court, Clemens has alleged sufficient facts to show that McNamee

intentionally directed his allegedly defamatory remarks at Clemens’s personal

and professional reputation in Texas.

Thus, I would conclude that McNamee had sufficient minimum contacts

with Texas under the Calder effects test because McNamee was aware that

Clemens resided and worked in Texas and that the brunt of the impact of his

defamatory statements would be felt by Clemens in Texas.

4. McNamee Had Minimum Contacts with Texas Sufficient to Support

Specific Jurisdiction Here

Either considering only the business contacts by McNamee in Texas or

considering the “effects test” of Calder under the facts alleged here, McNamee

had sufficient minimum contacts with Texas. When both are combined, this

conclusion becomes even more clear. See Walk Haydel, 517 F.3d at 243 (“W&S’s

purposeful contacts with Louisiana, in combination with the foreseeable harmful

effects in Louisiana of its allegedly illegal activity, makes specific jurisdiction

proper.”); see also Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 214 (5th Cir.

1999) (“In addition to the communications Brandt directed into Texas from

outside of Texas, Brandt also visited Texas during 1989 at which time he

allegedly gained from Tjontveit the confidential information he would later use

against Wien Air.”). Accordingly, I would conclude that McNamee had sufficient

minimum contacts with Texas to make it reasonably foreseeable that he would

be haled into a Texas court for this lawsuit.

20

Case: 09-20625 Document: 00511202505 Page: 21 Date Filed: 08/12/2010

No. 09-20625

B. Exercising Personal Jurisdiction Over McNamee in Texas Does Not

Offend Traditional Notions of Fair Play and Substantial Justice

Finally, I would conclude that McNamee has failed to show that the

exercise of personal jurisdiction over him in this action would be unfair or

unreasonable. In assessing the reasonableness of a court’s exercise of personal

jurisdiction, we examine five factors: (1) the burden upon the nonresident

defendant to litigate in that forum; (2) the interests of the forum state; (3) the

plaintiff’s interest in obtaining relief; (4) the interstate judicial system’s interest

in obtaining the most efficient resolution of controversies; and (5) the several

states’ shared interest in furthering substantive social policies. Asahi Metal

Indus. Co. v. Superior Court, 480 U.S. 102, 113 (1987).

In this case, the burden upon McNamee to litigate the case in Texas would

not be unfair. McNamee has repeatedly traveled to Texas, deliberately targeted

his conduct toward Texas, and profited from his work in Texas. Further, we

have repeatedly recognized that the forum state has a compelling interest in

protecting its residents from tortious injuries by nonresidents. See Walk Haydel,

517 F.3d at 245. Similarly, Clemens has an equal, if not greater, interest in

securing relief in his home state, where the brunt of the injury to his personal

and professional reputation was sustained. Both Texas and New York would

be efficient forums for resolution of this case. Texas’s substantive policy of

protecting its citizens from reputational injuries is greater than New York’s

interest in an event that, assuming for purposes of this analysis, did not occur.

Because I conclude that McNamee had established minimum contacts with

Texas and that the exercise of personal jurisdiction would not violate traditional

notions of fair play and substantial justice, I conclude that the district court

should have exercised specific personal jurisdiction over McNamee. I

respectfully dissent from the majority opinion’s contrary decision.

21