Kesi A. Falls Sr. v. Eli Lilly and Company

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 20, 2015*
Decided October 21, 2015
Before
JOEL M. FLAUM, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 15‐1476
KESI A. FALLS SR.,
Plaintiff‐Appellant,
v.
ELI LILLY AND COMPANY,
Defendant‐Appellee.
Appeal from the United States District
Court for the Northern District of
Indiana, South Bend Division.
No. 3:14cv746 JVB
Joseph S. Van Bokkelen,
Judge.
O R D E R
Kesi A. Falls Sr. appeals from the dismissal of his product‐liability suit against Eli
Lilly and Company for failure to state a claim. But because this suit is simply a state‐law
tort dispute between non‐diverse parties, we vacate the judgment and remand with
instructions to dismiss for lack of subject‐matter jurisdiction.
* After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. A PP. P.
34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

-- 1 of 2 --

No. 15‐1476 Page 2
Falls filed this action using the district court’s standard template for claims under
42 U.S.C. § 1983, alleging that he developed Type 2 diabetes as a result of taking
Zyprexa, an antipsychotic drug made by Eli Lilly, from December 1999 through July
2007. Falls acknowledged in his complaint that he had sued Eli Lilly for identical injuries
seven years earlier (that suit was voluntarily dismissed). See Falls v. Eli Lilly and Co.,
No. 3:07‐cv‐166 (N.D. Ind. Mar. 7, 2008). Eli Lilly moved for dismissal under Federal
Rule of Civil Procedure 12(b)(6), arguing that it was not subject to § 1983 because it is a
private company not acting under color of state law. Falls then amended his complaint,
relabeling it “Product Liability Complaint,” removing all references to § 1983, but
essentially restating the same allegations.
The district court construed Falls’s submissions as asserting a product‐liability
claim, which was time‐barred by Indiana’s two‐year statute of limitations, IND. C ODE
§ 34‐20‐3‐1(b)(1). Falls’s claim, the court explained, necessarily accrued no later than the
filing of his original suit in July 2007. The court specified that it was not basing its ruling
on § 1983.
Falls appeals the judgment in only general terms and indeed says nothing about
the district court’s conclusion that his state‐law claim was untimely. But the district
court’s ruling overlooks a threshold matter: that the court, having expressly excluded
§ 1983 as a basis for its ruling, lacked subject‐matter jurisdiction over the state‐law claim.
Neither party has asserted that jurisdiction is supplied by the diversity statute (both
parties are Indiana residents) or by some source apart from 28 U.S.C. § 1331.
See DeBartolo v. Healthsouth Corp., 569 F.3d 736, 740 (7th Cir. 2009); America’s Best Inns, Inc.
v. Best Inns of Abilene, L.P., 980 F.2d 1072, 1074 (7th Cir. 1992).
The judgment is VACATED, and the case is REMANDED with instructions to
dismiss this action for lack of subject‐matter jurisdiction.

-- 2 of 2 --