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Brian G. Mcnamee v. William Roger Clemens

February 4, 2011


The opinion of the court was delivered by: Johnson, Senior District Judge


Plaintiff Brian G. McNamee ("Plaintiff" or "McNamee") has brought the above-captioned action against Defendant William Roger Clemens ("Defendant" or "Clemens") alleging state and common law causes of action for defamation, malicious prosecution, and intentional infliction of emotional distress, and seeking damages in excess of $75,000.

Presently before the Court is the Defendant's motion to dismiss the amended complaint filed by Plaintiff on July 31, 2009 ("Amended Complaint") for lack of personal jurisdiction and for failing to state a claim upon which relief can be granted. For the reasons set forth herein, Defendant's motion is GRANTED in part and DENIED in part.


Roger Clemens is a former major league baseball ("MLB") player who was drafted by the Boston Red Sox in 1983 after playing baseball for the University of Texas. (Am. Compl. Ex. H ¶¶ 12-13). Clemens spent thirteen years with the Red Sox until he signed with the Toronto Blue Jays in 1997. (Am. Compl. Ex. A). As a member of the Blue Jays, Clemens met Brian McNamee, an athletic trainer for the Toronto organization, and began training with him in 1998. (Am. Compl. Ex. H ¶ 16). In 1999, Clemens was traded to the Yankees. One year later, reportedly at Clemens' urging, the Yankees hired McNamee as an assistant strength and conditioning coach. (Am. Compl. Ex. A). Clemens retired from the Yankees in 2003. In 2004, Clemens came out of his short-lived retirement and joined the Houston Astros for three seasons. In 2007, he signed a one-year contract with the Yankees. At present, Clemens is not a member of any professional baseball team. Although Clemens reportedly stopped working with McNamee in 2001 when he learned that McNamee was facing rape allegations in Florida, Clemens re-hired McNamee after Clemens left the Yankees in 2003 and they continued to work together in 2005, 2006, and 2007. (Am. Compl. ¶ 10; Def. Mem. of Law in Supp. Mot. to Dismiss ("Def. Mem of Law")10, n. 2).

Clemens is not the average MLB player; with 354 career victories and seven Cy Young Awards, Clemens is one of the most prominent pitchers in baseball history. (Am. Compl. Ex. A). However, this storied reputation was called into question after statements McNamee made accusing Clemens of steroid use became public. In the spring 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. (Am. Compl. ¶ 17). At the interview, investigators from the United States Attorney's Office for the Northern District of California 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, McNamee was offered immunity for any statements he gave in relation to the Government's investigation; however, McNamee would face prosecution for perjury for any false statements he made. (Id. at ¶18). McNamee told investigators that he injected Clemens with steroids and Human Growth Hormone ("HGH") during the 1998, 2000, and 2001 baseball seasons. (Am. Compl. ¶ 14, Ex. A; McNamee Decl. ¶ 12).

Specifically, McNamee told investigators that Clemens asked him about steroids around June 8-10, 1998. (Am. Compl. Ex. A). Later that summer, McNamee stated that Clemens asked to be injected with Winstrol, which Clemens provided. (Id.; Am. Compl. ¶ 13). McNamee told investigators that in 2000, after Clemens was traded to the Yankees and McNamee joined the New York team as a trainer, he injected Clemens four to six times with testosterone and H.G.H. (Id.). The next year, late in the 2001 season, McNamee said he injected Clemens at least four times with Sustanon or Deca-Durabolin, injectable steroids. (Id.). McNamee stated that the 2001 injections took place at Clemens' apartment in New York and the Yankees' Clubhouse, while others took place in Florida. (Am. Compl. at ¶ 15, Ex. F). According to McNamee, Clemens provided him with additional compensation to cover the cost of the performance enhancing drugs during 2000 and 2001. (McNamee Decl. ¶ 15).

A short time after his interview with the Government, federal authorities contacted McNamee again, this time requesting that he cooperate with an investigation being conducted by former United States Senator George Mitchell into the use of performance-enhancing drugs in the MLB (the "Mitchell Commission"). (Am. Compl. ¶ 19, Ex. B). On December 13, 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 (the "Mitchell Report"). (Am. Compl. ¶ 20). The Mitchell Report named 89 MLB players alleged to have used performance-enhancing drugs. (Id. at ¶ 21). Clemens was named in the Mitchell Report, which included McNamee's statements concerning Clemens' drug use. (Id.). In the Report, McNamee reiterated statements made to federal investigators that Clemens first asked McNamee to inject him with steroids in 1998. (Am. Compl. Ex. F). McNamee went on to tell Mitchell that after the initial request, he injected Clemens "approximately four times in the buttocks over a several week period" and that "[e]ach incident took place in Clemens' apartment in the Sky Dome." (Id.).

Clemens has publicly denied all allegations of drug use. (Am. Compl. ¶¶ 7, 25). His efforts to clear his name after the release of the Mitchell Report have been called a "verbal fastball," (Am. Compl. Ex. C), "a ferocious attack," (Am. Compl. Ex. K), and "a furious and, some say, debatable public relations effort with the spin of his tightest slider," (Am. Compl. Ex. I). In his attempt to clear his name, Clemens and his agents made a number of public statements regarding McNamee's accusations, including inter alia:

 December 27, 2007 -- Clemens' taped a 60 Minutes interview with Chris Wallace in which he denied McNamee's accusations as "totally false." (Am. Compl. ¶32, Ex. F).

 December 14, 2007 - The New York Times reports that Clemens' attorney Rusty Hardin dismissed McNamee's statements as an "uncorroborated statement" from a "troubled and unreliable" witness. (Am. Compl. Ex. A).

 December 18, 2007 -- The New York Times reports that Rusty Hardin publicly stated that a cooperation agreement between McNamee and the United States Attorney gave McNamee an incentive to lie. (Am. Compl.Ex. B).

 December 19, 2007 -- The New York Times reports that Clemens issued a statement denying McNamee's allegations definitively," calling the reply "a verbal fastball." (Am. Compl. Ex. C).

 December 21, 2007- The Houston Chronicle reports a statement from Clemens' lawyer reiterating their stance that "Roger Clemens did not take steroids" and warning that "anybody who says he did had better start looking for a hell of a good lawyer." (Am. Compl. Ex. D).

 December 23, 2007 -- Clemens issued a YouTube video statement denying the allegations, stating again that "this report is simply not true." (Am. Compl. Ex. E).

 January 6, 2008 -- Clemens' 60 Minutes interview aired on broadcast television. In it, Clemens again denied all allegations as false and in response to a question about what motivation McNamee had to lie, stated that McNamee was able to avoid jail time for "buyin and movin steroids." (Am. Compl. Ex. F).

 January 7, 2008 -- Clemens held a press conference to announce that he'd filed a defamation suit against McNamee. At this conference, Clemens played a taped recording of a conversation with McNamee that had allegedly been recorded without McNamee's consent. In that recording, McNamee disclosed private medical information about his son. An article published that day reported that the suit did not seek a specific amount in damages and that it was filed to protect Clemens' reputation. (Am. Compl. ¶ 34, Ex. H).

 February 7, 2008 -- The New York Times article quotes Lanny A. Breuer's (one of Clemens' attorneys) response to the revelation that McNamee kept blood stained gauze and syringes allegedly used to inject Clemens with HGH: "McNamee ‗apparently has manufactured evidence' and is ‗a troubled man who is obsessed with doing everything possible to try to destroy Roger Clemens." (Am. Compl. Ex P).  February 8, 2008 -- The New York Times article quotes a statement from Clemens' lawyer that "in the cheapest mean spirited stunt, [McNamee] has made up a bunch of evidence" and arguing, presumably in reference to McNamee, "[t]his is a man who wanted to shake [Clemens] down." The article goes on to report that Clemens' lawyers had unleashed a "ferocious" attack on McNamee and the physical evidence McNamee was said to have kept to support his allegations. Clemens' lawyer was also quoted accusing McNamee of "constantly lying" and stating that saving the evidence was "a psycho thing to do." (Am. Compl. Ex. K).  February 8, 2008 -- The Houston Chronicle reports comments from Rusty Hardin describing McNamee's evidence (syringes and other material allegedly used to inject Clemens with steroids) as "fabricated waste." Hardin continued, "this guy is off the deep-end. All it shows is what a desperate person is trying to ruin Roger." (Am. Compl. Ex. O).  March 5, 2006 -- The New York Times reports a statement made by Clemens' lawyer, Rusty Hardin, in an email: "Brian McNamee's statements to the Mitchell commission and others concerning steroid and HGH use by Roger Clemens are absolutely false and the very definition of defamatory." (Am. Compl. Ex. L).  May 6, 2008 -- The New York Times article reports that Clemens' suit for defamation against McNamee, filed in Texas state court, was an "attempt to discredit McNamee's assertions." (Am. Compl. Ex.M).

In early 2008, the House Committee on Oversight and Government Reform (the "House Committee") launched an investigation into the differing accounts of Clemens and McNamee. To support his claims, McNamee produced physical evidence, including vials, used syringes, gauze pads, and needles said to contain traces of Clemens' blood and performance enhancing drugs. (Am. Compl.¶ 23, Ex. K). McNamee also provided unused needle heads, steroid pills, and unbroken testosterone ampoules that McNamee claims Clemens asked him to dispose of at the end of 2002. (Id.). In February 2008, both men gave depositions to staff members of the House Committee. (Am. Compl. Ex. M). In his testimony, Clemens continued his strident denials, directly contracting McNamee's testimony. (Id.).

Andy Pettitte, an MLB player named in the Mitchell Report, submitted an affidavit to the House Committee on February 8, 2008 stating that Clemens admitted using HGH to him in 1999 or 2000. (Id.). Ultimately, the House Committee recommended that the Justice Department investigate Clemens for perjury. (Id.). A Grand Jury was impaneled to investigate whether Clemens perjured himself in statements made to members of the House of Representatives and Clemens was indicted on perjury charges on August 19, 2010.*fn1


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. Clemens v. McNamee, No. 08cv471, 608 F. Supp. 2d 811 (S.D.Tex. 2009). On February 12, 2009, 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. Id. at 820. The district court also found that if the court had personal jurisdiction over McNamee, his statements to the Mitchell Commission were cloaked with absolute immunity. Id. at 824-25. On August 12, 2010 that decision was affirmed by the Fifth Circuit Court of Appeals. Clemens v. McNamee, 615 F.3d 374 (5th Cir. 2010).

McNamee filed the instant action on December 12, 2008 in the Supreme Court of the State of New York, Queens County. On April 22, 2009, Clemens removed the action to this Court. On May 4, 2009, this Court granted McNamee's request to file his amended Complaint by July 31, 2009. Clemens' motion to dismiss was filed fully briefed, pursuant to the rules of this Court.


On a motion to dismiss pursuant to Federal Rule of Civil Procedure ("F.R.C.P.") 12(b)(6), the Court may dismiss a complaint "when ‗it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief.'" Conley v. Gibson, 355 U.S. 41, 45-46 (1957); accord Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994). When considering a motion to dismiss under Rule 12(b)(6), a court "must accept as true all of the factual allegations set out in plaintiff's complaint, draw inferences from those allegations in the light most favorable to plaintiff, and construe the complaint liberally." Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001).

Consideration of Evidence Outside of the Complaint Defendant's motion to dismiss is accompanied by numerous documents neither annexed to the Complaint nor referenced therein. (See Clemens Mem. of Law in Supp. of his Mot. to Dismiss Exs. A-I). Under Rule 12(b), a court may not consider materials not appended to the Complaint, unless they are matters the Court may take judicial notice of. The Court considers only the "‗facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.'" Leonard F. v. Israel Discount Bank of New York, 199 F.3d 99, 107 (2d Cir. 1999) (quoting Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991)). Accordingly, the documents appended to Clemens' submission were not considered in rendering this decision.


Defendant moves to dismiss the Amended Complaint on two grounds: First, pursuant to Rule 12(b)(2), he asserts that this Court lacks personal jurisdiction over him, as he resides in Texas. Second, pursuant to Rule 12(b)(6), Defendant argues that the Complaint fails to state a claim upon which relief can be granted.

I. Personal Jurisdiction

On a motion to dismiss, the plaintiff bears the burden of showing that the court has jurisdiction over the defendants. Grand River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158, 165 (2d Cir. 2005). "In order to survive a motion to dismiss for lack of personal jurisdiction, a plaintiff must make a prima facie showing that jurisdiction exists." Best Van Lines v. Walker, 490 F.3d 239, 242 (2d Cir. 2007). However, prior to discovery, where a court relies on pleadings and affidavits, a plaintiff may defeat a motion to dismiss by producing "legally sufficient allegations of jurisdiction." In re Magnetic Audiotape Antitrust Litigations, 334 F.3d 204, 206 (2d Cir. 2003). The pleadings must be credited as true and doubts are resolved in the plaintiff's favor. Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990).

When a federal court sits in diversity, it must "determine whether there is jurisdiction over the defendant under the relevant forum state's laws." Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999). Accordingly, a district court must conduct a two-part inquiry when considering a motion to dismiss for lack of personal jurisdiction. "First, it must determine whether the plaintiff has shown that the defendant is amenable to service of process under the forum state's laws; and second, it must assess whether the court's ...

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