# 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 of the Estate of Elvira Kilty, et al., and SCOTT SPATZ, as Special Administrator of the Estate of Herbert Spatz, Plaintiffs

- Appellees
, v

. WEYERHAEUSER COMPANY, Defendant

- Appellant

. Appeal s from the United States District Court for the Western District of Wisconsin.

Nos. 16

- cv

- 515

- wmc & 16

- cv

- 726

- wmc
William M. Conley, Judge

.

O R D E R
Weyerha e user 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 appellee s ’ 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. NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1No s

. 18

- 1974 & 18

- 1975 Page 2

Weyerhaeuser moved to dismiss, arguing that the exclusive

- remedy provision of Wisconsin’s Worker’s Compensation Act, W IS

. S TAT . 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 pendin g, 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 o f 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 appe al 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 i s wrong.
If this appeal is moot and must be dismissed for that reason
, we need not decide the clo se 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 interpret ed 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). T his 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

.No s

. 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 no t 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 litigatio n 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 W eyerhaeuser’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). T his 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 th e 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 appe al, 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 a nd entered a permanent injunction

. Id. at 313. The plaintiff argued that t he 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 appl y if, by winning the preliminary

- i njunction appeal, the defendant may recover against an injunction bond Id. at 317, 333. But t his narrow exception does not apply here because Weyerha e user 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).No s

. 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 relie s 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 proc eeds while the appeal is pending.” But in Goshtasby the context was different. W e were rul ing on a motion to stay proceedings in ongoing litigation . N o 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 clar ifies 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 o ver 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, with out 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 . Fo r one thing, t he “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’ dispute s are over. Second, n othing precludes Weyerhaeuser from asserting statutory immunity if sued by

new plaintiffs . And if a court denies immunity again , Weyerha e user 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 a nother 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

- i mmunity 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 exceptio n for two reasons. First, t he question whether Weyerha e user is immune from suit does not bear on how it handlesNo s. 18-1974 & 18-1975 Page 5

i ts substantive legal duti es t o t he p ublic. Second, in Camreta
, th e appellee had wo n on the su bstantive right , an d so the appell ant had a “s take i n p reserving the c ourt’s ruling” on i mmunity. Id. H e re t he appellees lost on th e m erits; th is l eft them with no stake on appeal

. Weyerhaeuser’s f inal a rgument i s s elf

- refuting. I t suggests th at ifw e r ule th at it is
not i mmune, w e “s hould r emand t he c ase w ith instr uctions to re

- enter t he

su mmary

-

judgment o rder.” A nd i f we r ule t hat i t i s immune , we “ should v acate t he summary

-

judgmen t order an d r emand w ith instructions to grant Weyerhaeuser’s motion to dismiss.” W eyerhaeuser th us p resents an ap peal in w hich th e on ly thing that it as ks us to d ecide is how it wins, not whether it w ins. That is not an ad equate r eason f or

us to hear th e ap peal. See L aBuhn , 865 F.2d at 121–22 ( desiring “the gr eater au thority of

an ap pellate d ecision,” an d f earing “a P yrrhic v ictory” d o not justify pursuing an

a ppeal). Thus, t he a ppellees’ motion t o di smiss t he a ppeal s is G RANTED , a nd the a ppeal s

are DISMISSED

.