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
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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.
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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
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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
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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
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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.
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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
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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).
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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.
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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.
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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
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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
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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.
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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.
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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
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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).
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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
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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
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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
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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.
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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.
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