In a motion to dismiss filed in Houston federal court late Wednesday night, Brian McNamee's defamation attorney Richard Emery asked U.S. District Judge Keith P. Ellison to schedule a hearing if it's necessary to determine if the statute of limitations expired on Roger Clemens' claim that McNamee defamed him when he told Andy Pettitte that Clemens had used performance-enhancing drugs.
"If the existing evidence doesn't convince the judge, if there is any doubt in the judge's mind, he should hold a hearing or set discovery," Emery told the Daily News on Wednesday night, "and that will disrupt Pettitte's season."
The motion also asked for a transfer of the case from Texas to the Southern District of New York if it is not dismissed entirely, which means the inconvenience to the Yankees, Clemens' former team, won't end with Pettitte. Yankee teammates, including Derek Jeter, Jason Giambi and Mariano Rivera, and team trainers and doctors are also on the witness list, as is Angela Moyer - the ex-Manhattan bartender who The News reported had a relationship with the Rocket - and Sen. George Mitchell and his aide, Charles Scheeler.
A transfer to New York would allow McNamee to subpoena witnesses with connections to New York and would help mitigate the cost of the litigation: According to the motion, he has made only $3,000 in the first half of 2008 and cannot afford to pay his legal bills and other debts.