The opinion
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 7, 2019
Decided January 8, 2019
Before
DIANE P. WOOD, Chief Judge
DIANE S. SYKES, Circuit Judge
AMY J. ST. EVE, Circuit Judge
Nos. 18-1974 & 18-1975
PAMELA KILTY, as Special Administrator Appeals from the United States District
of the Estate of Elvira Kilty, et al., and Court for the Western District
SCOTT SPATZ, as Special Administrator of of Wisconsin.
the Estate of Herbert Spatz,
Plaintiffs-Appellees, Nos. 16-cv-515-wmc & 16-cv-726-wmc
v.
WEYERHAEUSER COMPANY, William M. Conley,
Defendant-Appellant. Judge.
ORDER
Weyerhaeuser Company, the defendant in these two consolidated tort suits, filed
this interlocutory appeal of the denial of its motion to dismiss. Because the district court
has since entered summary judgment in its favor on the merits, the appeal is moot. We
therefore grant the appellees’ motion to dismiss it.
We recount the relevant procedural history. Administrators of the estates of two
deceased employees sued their former employer, Weyerhaeuser, under diversity
jurisdiction. They alleged that the decedents acquired mesothelioma from “community
exposure” to asbestos dust and fibers expelled from Weyerhaeuser’s plant.
Nos. 18-1974 & 18-1975 Page 2
Weyerhaeuser moved to dismiss, arguing that the exclusive-remedy provision of
Wisconsin’s Worker’s Compensation Act, WIS. STAT. 102.03(2), immunized it from tort
suits brought by their former employees. Before the district court ruled on those
motions, Weyerhaeuser moved for summary judgment on the merits. While the
summary-judgment motions were pending, the court denied the motions to dismiss,
reasoning that the Act did not bar employee suits based on community exposure.
After the district court denied the motions to dismiss, several events quickly
occurred. First, Weyerhaeuser filed an interlocutory appeal to contest the denial of the
motions to dismiss. Second, it moved to stay proceedings in the district court. Before the
district court ruled on that motion, Weyerhaeuser asked this court for a similar stay. We
denied the motion without prejudice so that the district court could decide the issue
first. Then, one day after our ruling, the district court granted Weyerhaeuser’s motions
for summary judgment and denied its motions to stay as moot.
Once summary judgment was entered on the merits in favor of Weyerhaeuser,
the plaintiffs asked us to dismiss the interlocutory appeal as moot. Weyerhaeuser
opposed the motion, raising three contentions: (1) its interlocutory appeal divested the
district court of jurisdiction to enter summary judgment, so the appeal remains live; (2)
the denial of the motion to dismiss is immediately appealable as a collateral order; and
(3) the district court’s ruling about immunity is wrong.
If this appeal is moot and must be dismissed for that reason, we need not decide
the close question whether the district court’s ruling was immediately appealable as a
collateral order. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545–47 (1949).
Weyerhaeuser argues that it was immediately appealable because the Act immunizes
the company from suit, not just liability. But when courts have interpreted other states’
worker’s compensation statutes, they have come to different conclusions. Compare
Black v. Dixie Consumer Prod. LLC, 835 F.3d 579, 583 (6th Cir. 2016), cert. denied, 137 S.
Ct. 2294 (2017) (citing Beaver v. Oakley, 279 S.W.3d 527, 528 (Ky. 2009)) (Kentucky
contractor immunity statute provides immunity from suit and is thus immediately
appealable), with Freeman v. Kohl & Vick Mach. Works, Inc., 673 F.2d 196, 199–200 (7th
Cir. 1982) (citing Crider v. Zurich Ins. Co., 380 U.S. 39 (1965)) (Georgia worker’s
compensation statute provides immunity from liability and is thus not immediately
appealable). This court in Freeman also offered this “strong argument” for denying
collateral-order review: “the district court's order may be rendered moot by the
subsequent course of the litigation.” 673 F.2d at 200. Because that is what happened
here, we do not decide whether the collateral-order doctrine applies, nor do we review
the district court’s interpretation of Wisconsin’s Act.
Nos. 18-1974 & 18-1975 Page 3
Weyerhaeuser’s success on the merits at summary judgment moots this
interlocutory appeal. “Ordinarily, only a party aggrieved by a judgment or order of a
district court may exercise the statutory right to appeal therefrom.” Deposit Guaranty
National Bank v. Roper, 445 U.S. 326, 333 (1980). If the appellant “was not harmed by the
judgment, he lacks standing to appeal.” Chase Manhattan Mortgage Corp. v. Moore, 446,
F.3d 725, 727 (7th Cir. 2006). Weyerhaeuser is not harmed by the adverse interlocutory
ruling because, even if it was immune from suit under Wisconsin’s Act, summary
judgment in its favor on the merits precludes any further risk of suit. As we anticipated
in Freeman, the subsequent course of this litigation following the interlocutory order has
rendered this appeal moot.
Weyerhaeuser’s responses do not persuade us otherwise. First, it contends that
its filing of the notice of interlocutory appeal “divested the district court of jurisdiction
over issues of Weyerhaeuser’s liability.” That is incorrect. The Supreme Court said in
Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982), that “[t]he filing of a notice
of appeal … divests the district court of its control over those aspects of the case
involved in the appeal.” But “Griggs notes an important limitation on the rule that just
one court at a time possesses jurisdiction: the doctrine applies only to ‘those aspects of
the case involved in the appeal.’” Kusay v. United States, 62 F.3d 192, 194 (7th Cir. 1995).
This appeal seeks only a decision on immunity, not liability on the merits, and so the
appeal did not divest the district court of jurisdiction over the merits. If it did, this court
would not have answered Weyerhaeuser’s motion to stay the district court’s
proceedings on the merits by telling it to return first to the district court.
The Supreme Court’s decision in Grupo Mexicano de Desarrollo S.A. v. All. Bond
Fund, Inc., 527 U.S. 308 (1999), shows both that, despite an interlocutory appeal, a
district court can retain jurisdiction to decide the merits of a case and that the merits
decision can moot the interlocutory appeal. There, while the appeal of a preliminary
injunction was pending, the district court permissibly decided the merits and entered a
permanent injunction. Id. at 313. The plaintiff argued that the permanent injunction
mooted the preliminary-injunction appeal. Id. at 313. The Court reiterated that
“[g]enerally, an appeal from the grant of a preliminary injunction becomes moot when
the trial court enters a permanent injunction, because the former merges into the latter.”
Id. at 314. A limited exception may apply if, by winning the preliminary-injunction
appeal, the defendant may recover against an injunction bond Id. at 317, 333. But this
narrow exception does not apply here because Weyerhaeuser has no right of recovery
(such as a bond) if the district court wrongly denied it immunity. See, e.g., Int'l Bhd. of
Teamsters, Local Union No. 639 v. Airgas, Inc., 885 F.3d 230, 235–37 (4th Cir. 2018).
Nos. 18-1974 & 18-1975 Page 4
With no bond at play, Weyerhaeuser replies that we must address the immunity
question in order to spare it from the burden of future litigation. It relies on Goshtasby
v. Bd. of Trustees of Univ. of Ill., 123 F.3d 427, 428 (7th Cir. 1997), where we said that “if
the defendant is correct that it has immunity, its right to be free of litigation is
compromised, and lost to a degree, if the district court proceeds while the appeal is
pending.” But in Goshtasby the context was different. We were ruling on a motion to
stay proceedings in ongoing litigation. No such motion is before us now because the
case is over. If the district court had denied Weyerhaeuser’s stay motion without
simultaneously entering summary judgment, Weyerhaeuser could have returned to us
to argue that we should order a stay. But that sequence did not occur. And it need not
have. Goshtasby clarifies that even when we stay district-court proceedings based on
immunity, we do not do so because of “any formal division of ‘jurisdiction’ between
trial and appellate courts—for an appeal from an interlocutory order may endow both
courts with authority over discrete portions of the case.” Id.
Similarly, Weyerhaeuser unpersuasively argues that we may hear this appeal
because the district court’s ruling will have a “practical preclusive effect,” even if not a
“legally preclusive” one. It worries that, without an appellate immunity ruling, new
plaintiffs may pursue the same claim, and the company will be caught in “an endless
merry-go-round.” First Nat’l Bank v. Comptroller of Currency, 956 F.2d 1360, 1363 (7th Cir.
1992). But that concern is not present. For one thing, the “endless merry-go-round” in
First National Bank was litigation between the same two parties. Id. That cannot happen
here—Weyerhaeuser prevailed on summary judgment, so the parties’ disputes are over.
Second, nothing precludes Weyerhaeuser from asserting statutory immunity if sued by
new plaintiffs. And if a court denies immunity again, Weyerhaeuser may seek an
expedited interlocutory appeal to reduce the risk that its new appeal might become
moot. Finally, a fear of the collateral-estoppel consequence of a decision is not by itself
grounds to appeal it. LaBuhn v. Bulkmatic Transp. Co., 865 F.2d 119, 122 (7th Cir. 1988).
Likewise, this appeal does not remain live under the limited rule Weyerhaeuser
invokes from Camreta v. Greene, 563 U.S. 692 (2011). There, the Court carved another
slim exception to the presumption that a prevailing party cannot appeal. The case
involved a public official who, the Ninth Circuit decided, violated a constitutional right
but prevailed on qualified-immunity grounds because the right was not clearly
established. Id. at 703. The Court ruled that the official could appeal the adverse ruling
of substantive constitutional law because otherwise the Ninth Circuit’s decision, if
wrong, would adversely affect how that official discharged public duties in the future.
Id. Weyerhaeuser’s appeal does not fall within this exception for two reasons. First, the
question whether Weyerhaeuser is immune from suit does not bear on how it handles
Nos. 18-1974 & 18-1975 Page 5
its substantive legal duties to the public. Second, in Camreta, the appellee had won on
the substantive right, and so the appellant had a “stake in preserving the court’s ruling”
on immunity. Id. Here the appellees lost on the merits; this left them with no stake on
appeal.
Weyerhaeuser’s final argument is self-refuting. It suggests that if we rule that it is
not immune, we “should remand the case with instructions to re-enter the
summary-judgment order.” And if we rule that it is immune, we “should vacate the
summary-judgment order and remand with instructions to grant Weyerhaeuser’s
motion to dismiss.” Weyerhaeuser thus presents an appeal in which the only thing that
it asks us to decide is how it wins, not whether it wins. That is not an adequate reason for
us to hear the appeal. See LaBuhn, 865 F.2d at 121–22 (desiring “the greater authority of
an appellate decision,” and fearing “a Pyrrhic victory” do not justify pursuing an
appeal).
Thus, the appellees’ motion to dismiss the appeals is GRANTED, and the appeals
are DISMISSED.