J.b. Laboratories, Inc. v. Zee Medical, Inc.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0201n.06
Filed: March 16, 2007
No. 06-1561
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
J.B. LABORATORIES, INC.,
Plaintiff-Appellee,
v.
ZEE MEDICAL, INC.,
Defendant-Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MICHIGAN
Before: COLE, SUTTON and COOK, Circuit Judges.
PER CURIAM. This case involves an indemnification dispute over which of two
companies—Zee Medical or J.B. Laboratories—should be held responsible for liabilities and
litigation costs stemming from product-liability litigation regarding the production and distribution
of Dilotab, a nonprescription hay fever and sinus medication. The district court granted summary
judgment to J.B. Laboratories, concluding that Zee Medical is not entitled to contractual
indemnification from J.B. Laboratories and that J.B. Laboratories is entitled to common-law
indemnification from Zee Medical. Zee Medical appealed.
During oral argument, the parties informed us that all of the underlying Dilotab products-
liability lawsuits against J.B. Laboratories and Zee Medical have been resolved and that neither of

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No. 06-1561
J.B. Labs., Inc. v. Zee Med., Inc.
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the parties is seeking indemnity from the other. Since oral argument, the parties have clarified the
same thing through a letter, noting that “there are no pending product liability lawsuits naming both
Zee Medical and J.B. Labs,” that “Zee Medical is not actively asserting indemnification claims
against J.B. Labs seeking recovery of any out-of-pocket costs” and that “J.B. Labs is not actively
asserting indemnification claims against Zee Medical seeking recovery of any out-of-pocket costs.”
Letter from Richard A. Gaffin (March 14, 2007).
Whatever indemnification controversy once existed between the parties, in short, no longer
exists. Because under these circumstances our resolution of this appeal would offer the parties
nothing more than an advisory opinion, we must dismiss the case (and appeal) as moot. See Powell
v. McCormack, 395 U.S. 486, 496 (1969); Gottfried v. Med. Planning Servs., Inc., 280 F.3d 684,
691 (6th Cir. 2002). Consistent with our traditional practice when a case becomes moot on appeal
(and when the losing party thus cannot challenge the validity of the district court’s decision), we
vacate the district court’s partial orders and judgments dated March 24, 2005 and February 16, 2006,
as well as its order and final judgment dated March 1, 2006. See United States v. Munsingwear, Inc.,
340 U.S. 36, 40 (1950). The parties do not object to our application of Munsingwear in this setting.
For these reasons, we dismiss the appeal as moot.

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