Seymour v. Parke, Davis & Company
Citation | 423 F.2d 584 |
Decision Date | 27 March 1970 |
Docket Number | No. 7309.,7309. |
Parties | Helen L. SEYMOUR, Executrix, Plaintiff, Appellant, v. PARKE, DAVIS & COMPANY, Defendant, Appellee. |
Court | U.S. Court of Appeals — First Circuit |
John M. Hyson, Boston, Mass., with whom E. Paul Kelly, Manchester, N. H., Warner & Stackpole, Boston, Mass., and Sheehan, Phinney, Bass & Green, Manchester, N. H., were on brief for appellant.
Martin L. Gross, Concord, N. H., with whom Sulloway, Hollis, Godfrey & Soden, Concord, N. H., was on brief, for appellee.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
It is undisputed that New Hampshire has no interest in this litigation. The cause of action did not arise there, or as a result of anything which occurred there. The decedent, so far as appears, was never in New Hampshire, and owned no property there. Plaintiff, also, had no connection with New Hampshire. She acquired none of significance by being appointed ancillary executrix, admittedly solely for the purpose of bringing this suit. It is stipulated that the defendant was at all times doing business in Massachusetts, and that the time for suit, so far as Massachusetts is concerned, had expired prior to the institution of the present action. Plaintiff concedes that her only reason for suing in New Hampshire is to avoid the Massachusetts statute of limitations, New Hampshire having no "borrowing" statute.
The parties have stipulated the precise extent of the defendant's local activities. The defendant, a Michigan corporation, is engaged in the manufacture, distribution, and sale of various ethical drugs and like products. In the state of New Hampshire it does no manufacturing, and maintains no office or salesroom. It has no bank account, is not registered to do business, has designated no agent to receive process, and has engaged in no litigation except the present. Its nearest regional office is in Massachusetts. The branch manager there has supervision over the New Hampshire field manager, who is a resident of Massachusetts. Defendant has some half dozen New Hampshire salesmen, most of whom are New Hampshire residents. These visit New Hampshire physicians, hospitals and retail pharmacies to disseminate product information and to take orders. They have no authority to enter into contracts, and deliver nothing, except samples to physicians. Orders are forwarded to the Massachusetts office and upon acceptance are filled by parcel post or common carrier from a Massachusetts warehouse. The defendant advertises in the state by mail and otherwise.
We will assume for present purposes that the above activities constitute sufficient contacts with the state to constitute "presence" or the doing of business. International Shoe Co. v. Washington, 1945, 326 U.S. 310, 66 S.Ct. 154, 90 L. Ed. 95. The question is whether they are sufficient within principles of "fairness" and "convenience," substituted for earlier concepts of "presence" by that decision, when the cause of action is not only wholly unrelated to the forum and the business conducted therein, but the plaintiff, too, is unconnected with the forum and is not "convenienced" by being able to sue there except that she has lost her right to sue in what would otherwise have been the fair and convenient state. To put it another way, where the type and degree of business that a corporation is doing in the unrelated state is such that it would be manifestly inconvenient for it to defend there, and the plaintiff's only convenience is a procedural advantage that would not obtain in the related state, where there had been no impediment to suit, do principles of fairness swing the balance in favor of the plaintiff, or the defendant?
Assuming the cases cited continued to have the Court's approval after it had propounded its new rationale, in none was the defendant's connection with the forum as intangible as in the case at bar.1
The importance of differences is well indicated by the later decision in Perkins v. Benguet Consol. Mining Co., 1952, 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485. The Court again spoke of "fairness," stating that "fairness to the corporation" was the "essence of the issue." There the defendant, a...
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...entered as determined by the quality, substantially, continuity, and systematic nature of its activities," Seymour v. Parke, Davis & Co., 423 F.2d 584, 587 (1st Cir. 1970), quoted with approval in Ratliff v. Cooper Laboratories, Inc., 444 F.2d 745, 748 (4th Cir. 1971). In making this determ......
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...over claims unconnected to the forum “comports with neither logic nor fairness.” (Ibid. ; accord, Seymour v. Parke, Davis & Company (1st Cir. 1970) 423 F.2d 584, 585, 587 [suit in New Hampshire over drug taken and allegedly causing injury in Massachusetts “did not arise [in New Hampshire], ......
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