1983 DES Case: Glater v. Eli Lilly & Co.

Abstract

“Plaintiff-appellant Cathy Glater brought this diversity action in the District Court for the District of New Hampshire against Eli Lilly & Co. (Lilly) to recover monetary damages for injuries allegedly caused by her exposure in utero to diethylstilbestrol (DES) manufactured and distributed by Lilly. By its order dated October 13, 1982, the district court granted Lilly’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. This appeal followed.

GLATER v. ELI LILLY & CO., Leagle, 19831447712F2d735_11321, July 27, 1983.

The issues in this case stem from the question of whether or not Glater, who had lived in New Hampshire for a period of years beginning in 1975, was a resident and citizen of that state when this action commenced. She filed her complaint with the district court in January 1981. In this complaint she alleged, inter alia, that she was a resident of Hooksett, New Hampshire, and that Lilly was a foreign corporation doing business in the state. Lilly answered that it lacked knowledge or information sufficient to form a belief as to Glater’s residence, but admitted to doing business in New Hampshire. At her deposition on March 5, 1981, Glater testified that she lived in Hooksett and commuted from there to her job in Burlington, Massachusetts.

More than thirteen months after Glater filed her complaint Lilly, in the course of discovery, received information indicating that Glater actually resided in Lynn, Massachusetts. Further discovery revealed that she had leased an apartment in Lynn beginning in August 1980, five months before filing her complaint in this action. Around this same time Glater, who had been working for the Allstate Insurance Company in Bedford, New Hampshire, transferred to an Allstate office in Burlington, Massachusetts. She maintains that she continued to be a domiciliary and citizen of New Hampshire even after her move to Massachusetts in August 1980. From September to November 1980 she apparently spent several nights a week at a friend’s apartment in Hooksett and from that time through April 1981 she spent several weekends a month there in an effort to maintain her status as a New Hampshire domiciliary. She also points to other factors, such as her driver’s license, auto registration and insurance, and her income tax returns to support her claim of continued New Hampshire citizenship after August 1980 and throughout the course of this litigation.

On June 11, 1982, after taking additional depositions to substantiate Glater’s Massachusetts connections, Lilly moved under Federal Rule of Civil Procedure 15(a) for leave to amend its answer to include the defenses of lack of jurisdiction over the person and improper venue and moved to dismiss under Federal Rules of Civil Procedure 12(b)(2) and 12(b)(3). It denied both that Glater was a New Hampshire resident and that its business activities in New Hampshire were sufficient to confer jurisdiction in this case.

In its order from which Glater now appeals the district court granted Lilly’s motion to dismiss for lack of personal jurisdiction and, because it found this issue dispositive, did not reach the question of venue. Glater had objected to the motion to amend on the ground that it was too late at that time to raise these defenses. The district court found, however, that the original pleadings were sufficient, without amendment, to raise the jurisdictional issue because Lilly’s answer that it lacked knowledge or information sufficient to form a belief as to Glater’s residence constituted a denial of her averment that she resided in New Hampshire.

In its analysis of the jurisdictional question the court noted that the New Hampshire long-arm statute extends jurisdiction over foreign corporations to the constitutional limit. Relying heavily on our opinion in Keeton v. Hustler Magazine, Inc., the court concluded that the focal point of the question was New Hampshire’s interest in the suit and, more specifically, in protecting the plaintiff. There was no evidence that the injury had arisen in New Hampshire; the evidence indicated that Glater’s mother lived in Massachusetts while Glater was in utero, that Glater was born in Massachusetts, had been treated there for the cancer allegedly caused by DES, and had lived there until she moved to New Hampshire in 1975. The court weighed Lilly’s contacts with New Hampshire, the cause of action’s connection with those contacts, and the forum’s interest in protecting a person who had been a citizen of the state but had moved to Massachusetts before filing the action and concluded that it lacked jurisdiction.”

… read the full paper GLATER v. ELI LILLY & CO., on Leagle.

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