McNamee asks for suit to be tossed

HOUSTON McNamee's lawyers filed motions in U.S. District Court in Houston, where the case was moved after Clemens filed it in Texas state court. They said that because McNamee made statements to baseball investigator George Mitchell as part of an agreement with federal prosecutors, anything McNamee said to Mitchell was covered by "absolute immunity."

An initial conference is scheduled for April 9, and the case has been assigned to U.S. District Judge Keith P. Ellison, a former law clerk for Supreme Court Justice Harry Blackmun. Ellison was nominated for the bench by former President Clinton.

Clemens claims he was defamed when McNamee, his former personal trainer, said the pitcher used steroids and human growth hormone from 1998-2001

"Rather than acknowledging the truth of Mr. McNamee's allegations, Mr. Clemens has chosen to wage a public-relations battle against Mr. McNamee in the media and the Halls of Congress," the motion stated.

At the request of Congress, the FBI is investigating whether Clemens lied when he repeated denials under oath last month.

Perhaps setting up grounds for a countersuit, the motion to dismiss said McNamee's "financial status has rapidly deteriorated."

"He has earned little since this complaint was filed and has poor prospects of future employment," the motion said. McNamee stated he had earned only $1,500 in the first two months of this year and may make a similar amount in March.

McNamee's lawyers said Texas was not the proper venue for the suit because their client's comments were made in New York about conduct of Clemens that took place largely in New York and Toronto. They said McNamee had made only sporadic and short visits to Texas in his work with Clemens.

"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," Clemens' lead lawyer, Rusty Hardin, said in a statement. "We look forward to trying this matter before a jury rather than in the court of public opinion."

McNamee's lawyers also asked that Hardin be removed from the case because he also represented Andy Pettitte for a period last year. They said one of Pettitte's new lawyers, Thomas Farrell, said Pettitte would not waive attorney-client privilege for conversations between Pettitte and Hardin.

"Continuing to represent Mr. Clemens would violate Mr. Hardin's duty of loyalty to Mr. Pettitte," McNamee's papers said.

Hardin brushed aside that argument.

"I intend to continue representing Roger in this case, and will file an appropriate response to this motion with the court," Hardin said.

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