William Clemens v. Brian McNamee

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
August 12, 2010 N o . 09-20625 Lyle W. Cayce Clerk

W I L L I A M ROGER CLEMENS, P la in t iff ­ Appellant, v. B R I A N MCNAMEE, D e fe n d a n t ­ Appellee.

A p p e a l from the United States District Court for the Southern District of Texas

B e fo r e DAVIS, SMITH, and HAYNES, Circuit Judges. W . EUGENE DAVIS, Circuit Judge. In this appeal, we consider whether allegedly defamatory statements made e ls e w h e r e but which caused damage to the plaintiff in the forum state are s u ffic ie n t to confer personal jurisdiction over the defendant when the content a n d context of the statements lack any connection with the forum state. For the fo llo w in g reasons, we agree with the district court that the plaintiff failed to e s t a b lis h personal jurisdiction over the defendant and affirm. I. T h e 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 d r a ft e d by the Boston Red Sox, a Major League Baseball team. Clemens played

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fo r the Red Sox until 1996, when he signed with the Toronto Blue Jays. As a m e m b e r of the Blue Jays, Clemens met the defendant Brian McNamee, an a t h le t ic trainer for the Toronto organization. In 1999, Clemens joined the New Y o r k Yankees, and one year later, the Yankees hired McNamee as an assistant t r a i n e r . Clemens trained with McNamee until some point in 2007.1 Over the c o u r s e of their professional relationship, McNamee traveled to Texas a p p r o x im a t e ly thirty-five times to train Clemens and other professional athletes. Although he temporarily resided in other cities during his professional baseball c a r e e r , Clemens returned to Houston at the end of every baseball season. He c u r r e n t ly lives in Texas with his wife and four children. I n the summer of 2007, federal authorities contacted McNamee in New Y o r k City in connection with the Government's criminal investigation of BALCO, a Bay Area laboratory allegedly involved in the development and sale of p e r fo r m a n c e -e n h a n c in g drugs. At the interview, authorities told McNamee that t h e Government had sufficient evidence to secure a conviction against McNamee fo r delivering illegal performance-enhancing drugs to athletes. In lieu of p r o s e c u t io n , the United States Attorney's Office for the Northern District of C a lifo r n ia gave McNamee use immunity for any statements he gave in relation t o the Government's investigation. McNamee was interviewed by the

G o v e r n m e n t for two days during which he told investigators that he had injected C le m e n s with performance-enhancing drugs in 1998, 2000, and 2001. These in je c t io n s , according to McNamee, took place in Toronto and New York. A short time after his interview with the Government, federal authorities c o n t a c t e d McNamee again, this time requesting that he cooperate with a Major L e a g u e Baseball investigation being conducted by former United States Senator

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.

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G e o r g e Mitchell into the use of performance-enhancing drugs in the game ("Mitchell Commission"). Federal investigators arranged and participated in M c N a m e e 's meeting with Mitchell in New York. On December 12, 2007, the M it c h e ll Commission released the findings of its investigation in its Report to the C o m m is s io n e r of Baseball of an Independent Investigation Into the Illegal Use o f Steroids and Other Performance Enhancing Substances By Players In Major L e a g u e Baseball ("Mitchell Report"). The Mitchell Report included McNamee's s t a t e m e n t s concerning Clemens' use of performance-enhancing drugs. Every n a t io n a l news service, as well as every major newspaper in Texas, republished M c N a m e e 's statements. Following the Mitchell Report's release, McNamee s p o k e with John Heyman, a senior writer for the internet site SI.com. During t h is interview at McNamee's house in Queens, New York, McNamee repeated t h e statements that had been published in the Mitchell Report. Heyman posted a n article containing these statements to the website SI.com on January 7, 2008. I n January 2008, Clemens filed suit for defamation against McNamee in T e x a s state court. McNamee removed the action to the United States District C o u r t and moved to dismiss Clemens' complaint for inter alia lack of personal ju r is d ic t io n and failure to state a claim. The district court dismissed Clemens' d e fa m a t io n action for lack of personal jurisdiction because the focal point of M c N a m e e 's statements about Clemens was not Texas. The district court also fo u n d , in the alternative, that if the court had personal jurisdiction over M c N a m e e , his statements to the Mitchell Commission were cloaked with a b s o lu t e immunity. This appeal followed. II. A. W h e t h e r the district court can properly exercise personal jurisdiction over t h e 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

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e s t a b lis h in g personal jurisdiction over a non-resident defendant and that burden i s 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

u n c o n t r o v e r t e d allegations as true, and resolve in his favor all conflicts between t h e facts contained in the parties' affidavits and other documentation. Revell v. L id o v , 317 F.3d 467, 469 (5th Cir. 2002) (citation omitted). B. A federal district court sitting in diversity may exercise personal ju r is d ic t io n over a foreign defendant if (1) the long-arm statute of the forum s t a t e creates personal jurisdiction over the defendant; and (2) the exercise of p e r s o n a l jurisdiction is consistent with the due process guarantees of the United S t a te s Constitution. Latshaw v. Johnston, 167 F.3d 208, 211 (5th Cir. 1999). Because Texas's long-arm statute reaches to the constitutional limits, the q u e s t io n we must resolve is whether exercising personal jurisdiction over the d e fe n d a n t offends due process. Helicopteros Nacionales de Colombia, S.A. v. H a ll, 466 U.S. 408, 413­14 (1984). The Due Process Clause of the Fourteenth Amendment permits a court to e x e r c is e personal jurisdiction over a foreign defendant when (1) that defendant h a s purposefully availed himself of the benefits and protections of the forum s t a t e by establishing minimum contacts with the forum state and (2) the exercise o f jurisdiction over that defendant does not offend traditional notions of fair play a n d substantial justice. Revell, 317 F.3d at 470 (footnotes and internal citation o m it t e d ). There are two types of minimum contacts: contacts that give rise to s p e c ific 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 a r g u e s that McNamee's defamatory statements were sufficient to confer specific p erson a l jurisdiction; accordingly, we only examine whether McNamee's contacts w it h Texas were sufficient to confer jurisdiction under the Supreme Court and 4

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t h is Circuit's specific personal jurisdiction jurisprudence. Specific jurisdiction e x is t s when "the defendant has `purposefully directed' his activities at residents o f the forum . . . and the litigation results from alleged injuries that arise out of o r relate to those activities." See Burger King v. Rudzewicz, 471 U.S. 462, 472 (1 9 8 5 ) (citations omitted); Jones v. Petty-Ray Geophysical Geosource, Inc., 954 F .2 d 1061, 1068 n.9 (5th Cir. 1992). The non-resident's purposefully directed a c t iv it ie s in the forum must be such that he could reasonably anticipate being h a le d into court in the forum state. Burger King, 471 U.S. at 474. Specific ju r is d ic t io n also requires a sufficient nexus between the non-resident's contacts w i t h the forum and the cause of action. Helicopteros Nacionales de Colombia, S .A ., 466 U.S. at 414 n.8. W e first address whether McNamee had sufficient minimum contacts with t h e forum to support specific personal jurisdiction. It is essential that there be s o m e act by which the defendant purposefully avails himself of the privilege of c o n d u c t in g activities with the forum state, thus invoking the benefits and p r o t e c t io n s of its laws. Hanson v. Denckla, 357 U.S. 235, 253 (1958). The " p u r p o s e fu l availment" requirement ensures that a defendant will not be haled in t o a jurisdiction solely as a result of random, fortuitous, or attenuated contacts. B u r g e r King, 471 U.S. at 472 (citation omitted). In this case, the relevant c o n t a c t s from which Clemens' cause of action arises are the allegedly defamatory r e m a r k s about Clemens which McNamee made to the Mitchell Commission and J o h n Heyman of SI.com. Therefore, the issue narrows to whether these

d efa m a tor y remarks constituted purposeful availment such that McNamee could h a v e reasonably anticipated being haled into a Texas court as a result of his sta tem en ts. 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 a n allegedly libelous story about the actress Shirley Jones. Id. at 785. Jones 5

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file d suit in California against the author of the story and the editor of the t a b lo id . Id. The Supreme Court held that California courts had jurisdiction over t h e defendants because they had "expressly aimed" their conduct towards C a lifo r n ia : T h e allegedly libelous story concerned the California activities of a C a lifo r n ia resident. It impugned the professionalism of an e n te r t a in e r whose television career was centered in California. The a r t ic le was drawn from California sources, and the brunt of the h a r m , in terms both of respondent's emotional distress and the in ju r y to her professional reputation, was suffered in California. In s u m , 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 c o u r t has emphasized Calder's requirement that the forum "be the focal point of t h e story." Id. For example, in Revell v. Lidov, the plaintiff sued a non-resident d e fe n d a n t in Texas after the defendant alleged on a Columbia University w e b s it e that the plaintiff had advance knowledge of the bombing of Pan Am F lig h t 103. Revell, 317 F.3d at 469. Although we recognized that the plaintiff s u ffe r e d emotional distress and damage to his professional reputation in Texas, t h e Revell court concluded that the alleged defamatory statements were in a d e q u a t e ly directed to Texas to satisfy minimum contacts under Calder. Id. a t 473. As this court explained: F ir s t , the article written by [plaintiff] about [defendant] contains no r e fe r e n c e to Texas, nor does it refer to the Texas activities of [p la in t iff] and it was not directed at Texas readers as distinguished fr o m readers in other states. Texas was not the focal point of the a r t ic le or the harm suffered, unlike Calder, in which the article c o n t a in e d descriptions of the California activities of the plaintiff, d r e w upon California sources, and found its largest audience in C a lifo r n ia . Id.

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I n Fielding v. Hubert Burda Media, Inc., 415 F.3d 419 (5th Cir. 2005), we a g a in required the plaintiff to show that Texas was the focus of the defamatory c o m m u n ic a tio n . In Fielding, the plaintiffs were the Swiss Ambassador to

G e r m a n y and his American wife, a former Mrs. Texas who was a resident of T e x a s ; the defendants were several German newspapers who wrote allegedly lib e lo u s articles about the plaintiffs' social lives in Berlin. Id. The plaintiffs s u e d the defendants in Texas, arguing that jurisdiction was proper because the s t o r ie s 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 f i n d personal jurisdiction because "the clear focus of the . . . articles was the a lle g e d affair between [the Ambassador] and [his alleged mistress] and its a ft e r m a t h , activities which occurred in Germany and Switzerland." Id. at 426. We read Calder as requiring the plaintiff seeking to assert specific p e r s o n a l jurisdiction over a defendant in a defamation case to show "(1) the s u b je c t matter of and (2) the sources relied upon for the article were in the forum s t a t e ." Id. (citing Revell, 317 F.3d at 474 & n.48). Thus the question in this case fu r t h e r narrows to whether McNamee's allegedly defamatory statements were a im e d at or directed to Texas. As in Revell and Fielding, the statements in this c a s e concerned non-Texas activities­the delivery of performance-enhancing d r u g s to Clemens in New York and Canada. The statements were not made in T e x a s or directed to residents of Texas. In support of jurisdiction, Clemens points to the harm he suffered in Texas a n d to McNamee's knowledge of the likelihood of such damage in the forum. Yet u n d e r Calder, Revell, and Fielding, Clemens has not made a prima facie showing t h a t McNamee made statements in which Texas was the focal point: the s t a t e m e n t s did not concern activity in Texas; nor were they made in Texas or d ir e c t e d to Texas residents any more than residents of any state. As such, the

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d is t r ic t court did not err in dismissing Clemens' suit for lack of personal ju r is d ic t io n over McNamee.2 III. F o r the foregoing reasons, the district court's judgment is affirmed. A F F IR M E D .

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).

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H A Y N E S , Circuit Judge, dissenting. B e c a u s e I conclude that specific jurisdiction exists here, I respectfully d is s e n t. McNamee had sufficient minimum contacts with Texas, and the

e x e r c is e of personal jurisdiction does not offend traditional notions of fair play a n d substantial justice. Accordingly, the district court should not have

d is m is s e d this case on that ground.1 T h e Due Process Clause of the Fourteenth Amendment requires that, b e fo r e a person can be subject to jurisdiction in a particular forum, he must have " p u r p o s e fu lly availed himself of the benefits and protections of the forum state b y establishing `minimum contacts' with the forum state; and . . . the exercise of ju r is d ic t io n over that defendant [must] not offend `traditional notions of fair play a n d substantial justice.'" Cent. Freight Lines Inc. v. APA Transp. Corp., 322 F.3d 3 7 6 , 380 (5th Cir. 2003). In turn, minimum contacts can be broken down into t w o categories: those sufficient to support specific jurisdiction and those s u ffic ie n t to support general jurisdiction. Id. at 381. Only the former concerns u s here, as I agree that McNamee's contacts were not sufficient for general ju r is d ic t io n . In construing Supreme Court precedents in this area, we have held that s p e c ific jurisdiction may be asserted over a defendant where that defendant has " `p u r p o s e fu lly directed [his] activities at the forum state and the litigation r e s u lt s from alleged injuries that arise out of or relate to those activities.'" Id. (e m p h a s is added) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1 9 8 5 )). In analyzing whether personal jurisdiction is proper, we "must accept

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.

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No. 09-20625 t h e plaintiff's uncontroverted allegations, and resolve in his favor all conflicts b e tw e e n the facts contained in the parties' affidavits and other documentation." R e v e ll v. Lidov, 317 F.3d 467, 469 (5th Cir. 2002) (quotation marks, brackets, a n d citation omitted). A. McNamee Established Minimum Contacts with Texas I n this case, there are two independent grounds upon which the minimum c o n t a c t s inquiry is satisfied. First, McNamee made numerous business trips to T e x a s to train Clemens, and these trips "relate to" and form an integral part of t h e instant cause of action. Second, under the Calder2 "effects test," McNamee e s t a b lis h e d minimum contacts with Texas because, taking Clemens's allegations a s true, McNamee intentionally directed his false claims at Texas, where he k n e w Clemens resided and where it was foreseeable that the brunt of the injury fr o m McNamee's statements would be felt. 1. McNamee's Business Contacts with Texas Satisfy the Minimum Contacts T est U n lik e the cases upon which the majority opinion relies, McNamee had r e p e a t e d business contacts with Clemens in Texas. As the majority opinion a c k n o w le d g e s , McNamee visited Texas approximately thirty-five times over the c o u r s e of his paid, professional relationship with Clemens, each time to train C le m e n s and other professional athletes. The fact that these training sessions o c c u r r e d in Texas is not fortuitous: McNamee traveled to Texas because that is w h e r e Clemens continuously resided during the off-season and because, for at le a s t part of his career, Clemens played professional baseball in Texas.3 Thus,

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

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.

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No. 09-20625 M c N a m e e purposely availed himself of the privileges of conducting business in T e x a s . See Nuovo Pignone, SPA v. Storman Asia M/V, 310 F.3d 374, 380 (5th C ir. 2002) (holding that minimum contacts exist where the defendant "purposely h a s availed itself of the privilege of conducting business in that state"); Stroman R e a lty , Inc. v. Antt, 528 F.3d 382, 386 (5th Cir. 2008) ("Purposeful availment of t h e privileges of conducting business in a forum is indicative that a defendant h a s contacts with a state."). Further, McNamee's business trips to Texas form a part of and "relate to" t h e training relationship from which the alleged steroid regimen either arose (M c N a m e e 's version) or did not arise (Clemens's version). See Trinity Indus., I n c . v. Myers & Assocs., Ltd., 41 F.3d 229, 231 (5th Cir. 1995). In Trinity I n d u s tr ie s , two lawyers allegedly counseled a Texas client's competitor to bring a d v e r s e litigation in Pennsylvania. The Texas client brought suit in Texas court, c la im in g breach of fiduciary duty, civil conspiracy, and negligence. We rejected t h e defendants' contention that personal jurisdiction was lacking because the t o r t io u s conduct occurred in Illinois--where the defendants' law firm was loc a t e d -- a n d in Pennsylvania--where the tortious advice was given. Concluding t h a t the lawsuit related to the defendants' contacts with Texas, we observed: " T h e essence of Trinity's complaint is that its own lawyers counseled its c o m p e t it o r 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 a n d during their engagement by [the competitor]." Id. at 231-32. Similarly, the litigation in question here clearly "relates to" McNamee's b u s in e s s trips to Texas because the allegedly defamatory statements relate to M c N a m e e 's training relationship with Clemens. See Helicopteros Nacionales de C o lo m b ia , S.A. v. Hall, 466 U.S. 408, 414 & n.8 (1984) ("When a controversy is r e la t e d to or `arises out of' a defendant's contacts with the forum, the Court has s a id that a `relationship among the defendant, the forum, and the litigation' is 11

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No. 09-20625 t h e essential foundation of in personam jurisdiction.") (quoting Shaffer v. H e itn e r , 433 U.S. 186, 204 (1977)). As discussed above, McNamee's background a s Clemens's trainer, in both Texas and New York, is what put McNamee in a p o s it io n to--in his words--give Clemens steroids and, further, made him a c r e d ib le person of interest to the various investigatory bodies and a news o r g a n iz a t io n such as SI.com. See Trinity Indus., 41 F.3d at 231-32. Accordingly, M c N a m e e should reasonably anticipate being haled into a Texas court for m a t t e r s "relating to" his services as Clemens's personal trainer, including his s t a t e m e n t s that Clemens used steroids as part of his training regimen. The fact that McNamee's training relationship with Clemens extended b e y o n d 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 t o 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 s u p p o r t jurisdiction when the cause of action arises out of the very activity being c o n d u c t e d , in part, in New Hampshire.") (emphasis added); Walk Haydel & A s s o c s ., Inc. v. Coastal Power Prod. Co., 517 F.3d 235, 244 (5th Cir. 2008) (rejecting defendant's argument that personal jurisdiction was improper because m o s t of the relevant contacts occurred outside the forum state); Streber v. H u n te r , 221 F.3d 701, 718 (5th Cir. 2000) (holding that specific jurisdiction was p r o p e r where "at least some of the allegations forming the basis of this lawsuit a r is e out of [the defendant's] contacts with Texas"). Accordingly, I conclude that t h e first prong of the specific jurisdiction inquiry is satisfied because McNamee's b u s in e s s contacts with Texas relate to this litigation and were more than " m in im u m ." 2. The Calder "Effects" Test Is Not a Limitation on the Ordinary Minimum C o n ta c ts Analysis 12

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No. 09-20625 I n contrast, the majority opinion treats the thirty-five business trips d is c u s s e d above as irrelevant and focuses entirely on the location of the alleged s t e r o id injections in New York. Of course, Clemens denies that any such

in je c t io n s occurred--in Texas, New York, or anywhere else. Given the fact that w e 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 p o s it io n 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 ju r is p r u d e n c e in general and its application to libel cases in particular. T h e majority opinion's formulation of the Calder effects test--requiring a plaintiff to show that (1) the subject matter of the defamatory statements c o n c e r n e d the forum; and (2) the sources relied upon by the author were in the fo r u m -- r e s u lt s in a mechanical personal jurisdiction test for defamation and lib e l cases that is both over- and under-inclusive. Two examples demonstrate t h is point. In the first example, assume the same underlying facts present in this c a s e , except that McNamee falsely stated that he injected Clemens with p e r fo r m a n c e -e n h a n c in g drugs while at a truck stop in Montana. The majority's t e s t would compel a conclusion that McNamee had purposefully availed himself o f the laws of Montana because his defamatory statements concerned Montana a n d the focus of McNamee's story was on events that allegedly occurred in M o n ta n a . This conclusion would perhaps follow even if Clemens denied ever v is itin g Montana, and McNamee had no other contacts with Montana. In such a scenario, the setting of the false statement--and thus the defendant's r e la t io n s h ip to the forum state--is fortuitous, see Burger King, 471 U.S. at 475, y e t sufficient to establish minimum contacts under the reasoning of the majority o p in io n . 13

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No. 09-20625 I n the second example, assume that Clemens played his entire professional c a r e e r with the Houston Astros and that McNamee trained Clemens on a weekly b a s is in Texas.4 Further assume, like we are required to here, that McNamee fa ls e ly stated that he injected Clemens with performance-enhancing drugs in N e w York, knowing that his statements would destroy Clemens's personal and p r o fe s s io n a l reputation in Texas. Thus, the only relevant connection to New Y o r k in this hypothetical is McNamee's own false statement, and all other r e le v a n t contacts between McNamee and Clemens occur in Texas. Under the m a jo r it y opinion's reasoning, personal jurisdiction in Texas in this example is im p r o p e r because McNamee's statements did not concern Texas or rely on s o u r c e s within Texas. McNamee's numerous business contacts with Texas,

in t e n t to harm Clemens in Texas, and knowledge that Clemens resided in Texas a n d would feel the brunt of the defamatory impact there would thus be in s u ffic ie n t to establish minimum contacts. The fact that McNamee did not r e s e a r c h his allegations by consulting sources close to Clemens in Texas also b e c o m e s , under the majority opinion's analysis, a factor thwarting personal ju r is d ic t io n .5 As a result of the majority opinion's test, McNamee could force

C le m e n s to litigate his defamation action in a foreign state simply by omitting r e fe r e n c e to Texas, staging the false story elsewhere, or declining to research his a lle g a t io n s in Texas. These two contrasting examples demonstrate how the majority opinion m is c o n s t r u e s the Calder effects test as some sort of restriction in defamation or

This hypothetical scenario also presumes that general jurisdiction over McNamee is unavailable. 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.
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No. 09-20625 lib e l cases on the ordinary minimum contacts analysis. In truth, Calder was an e x p a n s io n of specific jurisdiction and the minimum contacts inquiry. The Calder " e ffe c ts test" was an outgrowth of the recognition that a defendant need not ever h a v e been physically present in the forum state to be subject to personal ju r is d ic t io n there. See Calder, 465 U.S. at 789 ("An individual injured in

C a lifo r n ia need not go to Florida to seek redress from persons who, though r e m a in in g in Florida, knowingly cause the injury in California."). To understand this point, we must detour briefly back to the seminal case o f International Shoe v. Washington, 326 U.S. 310 (1945), which first articulated t h e minimum contacts test as a way to establish jurisdiction over a defendant n o t physically present in the state. The International Shoe Court recognized t h a t a court's ability to exercise personal jurisdiction over a defendant h is t o r ic a lly required the defendant to be physically present in the forum. Id. at 3 1 6 . Analyzing the physical presence concept, the International Shoe Court d e t e r m in e d that a nonresident who had a random contact with the forum state s h o u ld not be haled into court there on a matter unrelated to that contact, yet t h e absence of physical presence should not defeat jurisdiction for actions d ir e c t e d at the forum state. Id. at 316-18. Thus, while physical presence is not ir r e le v a n t to the jurisdictional analysis, it is not determinative of it either. Understood against this backdrop, the Calder effects test is simply an a d d it io n a l, but not exclusive, vehicle for establishing personal jurisdiction over a nonresident defendant who may never have been to the forum state. See A llr e d v. Moore & Peterson, 117 F.3d 278, 287 (5th Cir. 1997) ("[T]he key to C a ld e r is that the effects of an alleged intentional tort are to be assessed as part o f the analysis of the defendant's relevant contacts with the forum. Whether t h e s e effects, either alone or in combination with other contacts, are sufficient t o support in personam jurisdiction will turn upon the particular facts of each c a s e ." ) (quoting Wallace v. Herron, 778 F.2d 391, 395 (7th Cir. 1985)). Put 15

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No. 09-20625 a n o t h e r way, Calder allows a court to find that a nonresident defendant who in t e n t io n a lly aims his or her tortious conduct at the forum state has established m in im u m contacts with the forum, even if the defendant has not established a p h y s ic a l presence there. See Mullins v. TestAmerica, Inc., 564 F.3d 386, 402 (5th C ir . 2009). In this case, unlike Calder, Revell, and Fielding6 , we are not in need of p r o x ie s for physical presence. McNamee indeed visited Texas many times. These were not mere pleasure trips or trips where McNamee was merely " p a s s in g through" Texas on the way to somewhere else. Rather, McNamee's n u m e r o u s visits to Texas were business contacts with Clemens in the course of t h e 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 w it h Texas "indicate that the defendants deliberately availed themselves of the b e n e fits of an ongoing relationship with a Texas client and reasonably should h a v e anticipated the possibility of being haled into court in Texas for claims a r is in g out of or related to that relationship"); Bullion v. Gillespie, 895 F.2d 213, 2 1 7 (5th Cir. 1990) (holding that personal jurisdiction over a California doctor w a s proper in Texas for claims related to the administration of an experimental m e d ic a l program in California because, in the aggregate, the doctor maintained n u m e r o u s business contacts with patients, including the plaintiff, in Texas). In s u m , McNamee's business relationship with Clemens in Texas establishes s u ffic ie n t minimum contacts with Texas to support specific jurisdiction for this la w s u it , even without considering the Calder effects test. 3. McNamee Has Minimum Contacts with Texas Under the Calder Effects T est

6

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

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No. 09-20625 H o w e v e r , even if Clemens must meet the Calder requirements, he has d o n e so. It is undisputed that Clemens is a resident of Texas with many civic a n d business activities in that state. In addition to his residency in Texas, C le m e n s played baseball for the Houston Astros for three years shortly before t h e events in question. Taking Clemens's allegations in the complaint as true, M c N a m e e intended to cause particular harm to Clemens in Texas because he w a s aware that Clemens resided in Texas and that the brunt of the impact of his s t a t e m e n t s would be felt by Clemens in Texas. This conduct constitutes the kind o f "deliberate targeting" that the Calder Court found dispositive in analyzing p e r s o n a l jurisdiction. In Calder, the National Enquirer published an article alleging that Shirley J o n e s , a nationally-known actress, drank alcohol so heavily as to interfere with h e r professional obligations as an actress. 465 U.S. at 789 n.9. Jones sued both t h e author and the editor of the article in California state court. The Court fo u n d that, despite the limited or total absence of physical connections between t h e defendants and the forum state, personal jurisdiction over the defendants w a s "proper in California based on the `effects' of their Florida conduct in C a lifo r n ia ." Id. at 789. The Court emphasized that the defendants' "intentional, a n d allegedly tortious, actions were expressly aimed at California" because the d e fe n d a n t s knew the devastating impact the article would have upon Jones, and t h a t the brunt of the injury would be felt by Jones in California, where she lived a n d worked. Id. at 789-90. Thus, under Calder, personal jurisdiction is appropriate over McNamee b e c a u s e McNamee knew that Clemens resided and worked in Texas and that C le m e n s would feel the brunt of the impact of his allegedly defamatory s t a t e m e n t s in Texas. See Southmark Corp. v. Life Investors, Inc., 851 F.2d 763, 7 7 2 (5th Cir. 1988) ("In Calder, the Supreme Court held that when an alleged t o r t -fe a s o r 's intentional actions are expressly aimed at the forum state, and the 17

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No. 09-20625 t o r t -fe a s o r 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 t h e r e to answer for its tortious actions."); Guidry v. U.S. Tobacco Co., 188 F.3d 6 1 9 , 628 (5th Cir. 1999) ("Even an act done outside the state that has c o n s e q u e n c e s 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 w e r e intended or highly likely to follow from the nonresident defendant's c o n d u c t ." ); Brown v. Flowers Indus., Inc., 688 F.2d 328, 333 (5th Cir. 1982) (h o ld in g that specific personal jurisdiction existed in defamation action even t h o u g h the non-resident defendant was not present in the forum state, but c o n c lu d in g that, "[i]f, as is alleged in this case, [the defendant] causes injury in [t h e forum state], he is covered by the [long-arm] statute"). For his part, McNamee does not dispute that Clemens suffered particular in ju r y in Texas as a result of McNamee's allegations. Instead, McNamee

c o n t e n d s , and the majority opinion apparently agrees, that because he said the s t e r o id injections occurred only in New York, this case has no connection to T e x a s , citing Revell and Fielding. However, unlike Revell, where the defendant was unaware of the p la in t iff's residence, here McNamee was acutely aware of Clemens's relationship t o Texas from his visits there and from his overall training relationship with C le m e n s . Further, the defendant in Revell had no relevant contacts with Texas a n d no other facts demonstrated that the defendant had intentionally directed h is allegedly tortious conduct toward the plaintiff in Texas. In this case,

M c N a m e e 's training relationship with Clemens in Texas and his knowledge that C le m e n s resided and had recently played professional baseball in his home state o f Texas demonstrate that McNamee purposefully directed his allegedly d e fa m a t o r y statements at Clemens's personal and professional reputation in T e x a s . See Revell, 317 F.3d at 475-76 (observing that knowledge of the forum at 18

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No. 09-20625 w h ic h the defendant's conduct is directed will often provide sufficient evidence t h a t the forum is the focal point of the tortious activity). Similarly, Fielding is inapposite. In Fielding, the plaintiffs were living o v e r s e a s in the Swiss embassy in Germany. The court observed that it was u n c le a r if and when the appellants ever lived in Texas because "during virtually t h e entire time relevant to this lawsuit, [the appellants] appear to have been r e s id e n t s of Germany." 415 F.3d at 423-24 n.2. The allegedly libelous articles fo c u s e d on the appellants' social lives in Germany, and the brunt of the injuries s u ffe r e d by the appellants occurred overseas. In contrast, Clemens's life is a n c h o r e d in Texas, and McNamee was well aware of this fact at the time he m a d e the allegedly defamatory statements about Clemens. Further, unlike the G e r m a n newspaper at issue in Fielding, which was unlikely to be read in Texas, S I .c o m 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 d e fe n d a n t. By focusing exclusively on the setting of McNamee's allegedly defamatory s t a t e m e n t s , the majority opinion unduly narrows the minimum contacts and s p e c ific jurisdiction inquiry to a mechanical or technical formulation, rather than t h e "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 m ig h t turn on `mechanical' tests or on `conceptualistic . . . theories' . . . . Instead, w e have emphasized the need for a `highly realistic' approach . . ."); Int'l Shoe C o ., 326 U.S. at 319 ("It is evident that the criteria by which we mark the b o u n d a r y line . . . cannot be simply mechanical or quantitative. . . . Whether due p r o c e s s is satisfied must depend rather upon the quality and nature of the a c t iv it y 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

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No. 09-20625 d o u b t testify extensively regarding their training relationship, including the r e la t io n s h ip in Texas, both in the off-seasons and while Clemens played with the H o u s t o n Astros. The scope of the trial certainly would not be limited to the e v e n t s that did or did not transpire in New York on the particular dates alleged b y McNamee. Employing the "highly realistic" approach advocated by the

S u p r e m e Court, Clemens has alleged sufficient facts to show that McNamee in t e n t io n a lly directed his allegedly defamatory remarks at Clemens's personal a n d professional reputation in Texas. T h u s , I would conclude that McNamee had sufficient minimum contacts w it h Texas under the Calder effects test because McNamee was aware that C le m e n s resided and worked in Texas and that the brunt of the impact of his d e fa m a t o r y statements would be felt by Clemens in Texas. 4. McNamee Had Minimum Contacts with Texas Sufficient to Support S p e c ific Jurisdiction Here Either considering only the business contacts by McNamee in Texas or c o n s id e r in g the "effects test" of Calder under the facts alleged here, McNamee h a d sufficient minimum contacts with Texas. When both are combined, this c o n c lu s io n becomes even more clear. See Walk Haydel, 517 F.3d at 243 ("W&S's p u r p o s e fu l contacts with Louisiana, in combination with the foreseeable harmful e ffe c t s in Louisiana of its allegedly illegal activity, makes specific jurisdiction p r o p e r ." ); see also Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 214 (5th Cir. 1 9 9 9 ) ("In addition to the communications Brandt directed into Texas from o u t s id e of Texas, Brandt also visited Texas during 1989 at which time he a lle g e d ly gained from Tjontveit the confidential information he would later use a g a in s t Wien Air."). Accordingly, I would conclude that McNamee had sufficient m in im u m contacts with Texas to make it reasonably foreseeable that he would b e haled into a Texas court for this lawsuit.

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No. 09-20625 B . Exercising Personal Jurisdiction Over McNamee in Texas Does Not O f f e n d Traditional Notions of Fair Play and Substantial Justice F in a lly , I would conclude that McNamee has failed to show that the e x e r c is e of personal jurisdiction over him in this action would be unfair or u n r e a s o n a b le . In assessing the reasonableness of a court's exercise of personal ju r is d ic t io n , we examine five factors: (1) the burden upon the nonresident d e fe n d a n t to litigate in that forum; (2) the interests of the forum state; (3) the p la in t iff's interest in obtaining relief; (4) the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and (5) the several s t a t e s ' shared interest in furthering substantive social policies. Asahi Metal I n d u s . Co. v. Superior Court, 480 U.S. 102, 113 (1987). In this case, the burden upon McNamee to litigate the case in Texas would n o t be unfair. McNamee has repeatedly traveled to Texas, deliberately targeted h is conduct toward Texas, and profited from his work in Texas. Further, we

h a v e repeatedly recognized that the forum state has a compelling interest in p r o t e c t in g its residents from tortious injuries by nonresidents. See Walk Haydel, 5 1 7 F.3d at 245. Similarly, Clemens has an equal, if not greater, interest in s e c u r in g relief in his home state, where the brunt of the injury to his personal a n d professional reputation was sustained. Both Texas and New York would b e efficient forums for resolution of this case. Texas's substantive policy of p r o t e c t in g its citizens from reputational injuries is greater than New York's in t e r e s t in an event that, assuming for purposes of this analysis, did not occur. Because I conclude that McNamee had established minimum contacts with T e x a s and that the exercise of personal jurisdiction would not violate traditional n o t io n s of fair play and substantial justice, I conclude that the district court s h o u ld have exercised specific personal jurisdiction over McNamee. r e s p e c t fu lly dissent from the majority opinion's contrary decision. I

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