Clemens v. McNamee

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 *381person 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, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). In analyzing whether personal jurisdiction is proper, we “must accept the plaintiffs uneontroverted 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, 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 *382the 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, 104 S.Ct. 1868, 80 L.Ed.2d 404 (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 the essential foundation of in personam jurisdiction.”) (quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 53 L.Ed.2d 683 (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, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984) (“[Respondent 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 *383of 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

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 ease 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, 105 S.Ct. 2174, yet sufficient to establish minimum contacts under the reasoning of the majority opinion.

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 *384that 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 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, 104 S.Ct. 1482 (“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, 66 S.Ct. 154, 90 L.Ed. 95 (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, 66 S.Ct. 154. 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, 66 S.Ct. 154. 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 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. T.estAmerica, 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 visit*385ed 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

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, 104 S.Ct. 1482. 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, 104 S.Ct. 1482. 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, 104 S.Ct. 1482.

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 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 *386(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 nonresident 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 plaintiffs 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 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, 105 S.Ct. 2174 (“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, 66 S.Ct. 154 (“It is evident that the criteria by which we mark the boundary line ... cannot be simply *387mechanical 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 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 Colder 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.

k 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 Colder 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.

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 plaintiffs 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 of Cal., 480 U.S. 102, 113, 107 S.Ct. 1026, 94 L.Ed.2d 92 (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 *388personal 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.

. 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.

. Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (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.

. 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.

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