                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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.                                                )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
ZEE MEDICAL, INC.,                                )   WESTERN DISTRICT OF MICHIGAN
                                                  )
       Defendant-Appellant.                       )




       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
No. 06-1561
J.B. Labs., Inc. v. Zee Med., Inc.

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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