McNamee lawyers: Clemens suit should be dismissed, moved
NEW YORK -- Brian McNamee asked a federal court Wednesday to dismiss Roger Clemens' defamation lawsuit or move the case to New York.
Clemens, a seven-time Cy Young Award winner, sued McNamee in January after his former trainer accused him in the Mitchell Report of using steroids and human growth hormone. The case originally was filed in Texas state court and was shifted in February to the U.S. District Court in Houston.
McNamee's lawyers first tried to dismiss the case in early March. When Clemens' lawyers responded on May 27, they added a new claim of "intentional infliction of emotional distress" and two additional claims of defamation.
In their latest filing, McNamee's lawyers said New York has the most interest in this lawsuit and that many of the potential witnesses reside in New York. McNamee claims no defamation took place and that it would be a burden for him to defend the case in Texas.
"Mr. Clemens has so far pitched around Senator Mitchell, choosing not to sue him or Major League Baseball," McNamee's lawyer said in the motion.
McNamee's lawyers also said that because of the Texas statute of limitations, Clemens can't claim he was defamed by comments the trainer made to Andy Pettitte, Clemens' teammate, in 1999 or 2000, and 2003 or 2004.
McNamee said Clemens should have known as early as 2006 that McNamee and Pettitte believed Clemens used performance-enhancing drugs. Included in the filing was an e-mail from McNamee to Clemens from Oct. 1, 2006, which said that if Clemens thought "anything to do with me in regards to being a rat or flipping on you or anyone of my clients, I will hop on a plane, find you, and slap you very hard."
"In the end, Mr. Clemens cannot prevail because Mr. McNamee has the absolute defense of truth," McNamee's motion said. "Mr. McNamee has provided steroid paraphernalia, which will test positive for Clemens's DNA, to the federal government, and once the DNA results are revealed there will be little dispute about who is telling the truth."
McNamee also claims that he is immune from defamation because he made his comments to Mitchell at the behest of federal prosecutors.
In an interesting twist, McNamee said his statements weren't defamatory because he didn't accuse Clemens of doing anything wrong. He accused Clemens of using performance-enhancing drugs before players and owners agreed to ban them following the 2002 season.
"It is not per se contemptible or dishonest to be injected with steroids or HGH," McNamee's motion said. "Clemens is asking this court to infer that McNamee stated that Mr. Clemens cheated by knowingly using steroids and HGH to improve his pitching performance."
McNamee's motion also mentions that a divorce is pending with his wife and says that Clemens' former New York doorman could be called as a witness along with Angela Moyer, a bartender whom the Daily News linked to Clemens.
In an accompanying declaration, McNamee said he earned only about $3,000 between January and June.
Copyright 2008 by The Associated Press
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