Academic journal article Harvard Law Review

Civil Procedure - Personal Jurisdiction - Fifth Circuit Reaffirms That a Defendant's Knowledge of Likely Harm to a Plaintiff in the Forum State Is Insufficient to Create Jurisdiction under Calder V. Jones: Clemens V. McNamee

Academic journal article Harvard Law Review

Civil Procedure - Personal Jurisdiction - Fifth Circuit Reaffirms That a Defendant's Knowledge of Likely Harm to a Plaintiff in the Forum State Is Insufficient to Create Jurisdiction under Calder V. Jones: Clemens V. McNamee

Article excerpt

In its landmark decision Calder v. Jones, (1) the Supreme Court established that the effects of an intentional act committed out of state, but aimed at the forum state and felt by the plaintiff there, create sufficient minimum contacts to establish personal jurisdiction. (2) The Court's requirement that the action be "expressly aimed" (3) at the forum has engendered confusion and division among lower courts. (4) Recently, in Clemens v. McNamee, (5) the Fifth Circuit refused to deviate from its prior holding that knowledge of likely injury to a plaintiff in the forum state is not alone sufficient to meet the express aim requirement in the defamation context. Instead, a plaintiff must show that the subject matter of the defendant's statements and that the sources the defendant relied upon are in the forum state. Clemens demonstrates the contrast between the Fifth Circuit's formulaic rule and the Supreme Court's flexible approach to personal jurisdiction, adopted to ensure fairness to both plaintiffs and defendants. It also reveals the primary problem with the Fifth Circuit's approach: it prevents the exercise of jurisdiction even when a defendant knows where the harm of his statements will be felt and thus could anticipate suit there.

Brian McNamee and Roger Clemens developed a professional relationship beginning in the 1990s in which McNamee trained Clemens for various periods until 2007. (6) During this time, Clemens played baseball for the Toronto Blue Jays, New York Yankees, and Houston Astros. (7) In the summer of 2007, federal authorities contacted McNamee and asked to meet with him in New York. (8) At the meeting, authorities told McNamee that they had sufficient evidence to convict him for delivering illegal performance-enhancing drugs to athletes, but promised to provide immunity for any statement he would give in relation to the government's investigation of the Bay Area Laboratory Cooperative (BALCO), a San Francisco-area lab suspected of involvement in the development and sale of such drugs. (9) McNamee told authorities that he had injected Clemens, in New York and Toronto, with performance-enhancing drugs in 1998, 2000, and 2001. (10) At the investigators' request, McNamee repeated these claims at another New York meeting to former Senator George Mitchell, who was leading an investigation for Major League Baseball into performance-enhancing drug use. (11) On December 13, 2007, the Mitchell Commission released its report, which contained McNamee's statements. (12) The statements were reported extensively in Texas, and also nationally. (13) On January 6, 2008, McNamee repeated his statements at his home in New York to SI.com, which published them. (14)

Clemens, a Texas resident since the age of fifteen who returned to Texas every off-season during his playing career, (15) sued McNamee in Texas state court. (16) McNamee removed the case to federal court and sought to dismiss the case, arguing, inter alia, that Texas courts lacked personal jurisdiction over him because the allegedly defamatory statements were made in New York. (17) The district court dismissed for lack of personal jurisdiction, (18) explaining that, because Texas's long-arm statute permits the exercise of personal jurisdiction to the extent permitted by the Fourteenth Amendment, the Calder test should be applied. (19) The court found that McNamee knew that the brunt of the statements' harm to Clemens would be felt in Texas. (20) However, it determined that it lacked jurisdiction because Texas was not the focal point of McNamee's statements. (21) The court stated that the sources used and the content of a defamatory statement must have a connection with a forum state to create jurisdiction. (22)

The Fifth Circuit affirmed. (23) Writing for the panel, Judge Davis (24) adopted an approach similar to that of the district court. As the panel observed, Clemens only argued that Texas could exercise specific jurisdiction over McNamee, which is proper only when a defendant has established minimum contacts with the forum and the exercise of jurisdiction would not be fundamentally unfair. …

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