P.H. Glatfelter Co., Plaintiff-Appellant/Cross-Appellee,
Windward Prospects Ltd., Defendant-Appellee/Cross-Appellant.
January 19, 2017
from the United States District Court for the Eastern
District of Wisconsin, Green Bay Division. No. 15-MC-46 -
William C. Griesbach, Chief Judge.
Flaum, Manion, and Williams, Circuit Judges.
three appeals arise out of a discovery dispute between P.H.
Glatfelter Co., a paper manufacturer, and Windward Prospects
Ltd., an English company on which Glatfelter served a
non-party subpoena. Two of the appeals are taken by
Glatfelter from the district court's orders denying both
Glatfelter's motion to compel responses to its subpoena
and Glatfelter's motion for reconsideration. The third
appeal, which we treat as a cross-appeal, was taken by
Windward to seek an award of fees and costs under Federal
Rule of Civil Procedure 37. For the reasons that follow, we
dismiss all three appeals for lack of jurisdiction.
present appeals are ancillary to an ongoing multiparty effort
to clean up polychlorinated biphenyls (PCBs) in the bed of
the Lower Fox River in northeastern Wisconsin. See
generally United States v. P.H. Glatfelter Co., 768 F.3d
662, 665-67 (7th Cir. 2014); NCR Corp. v. George A.
Whiting Paper Co., 768 F.3d 682, 686-89 (7th Cir. 2014);
United States v. NCR Corp., 688 F.3d 833, 835-36
(7th Cir. 2012). From the mid-1950s through the 1970s,
several paper mills and a coating plant discharged wastewater
containing PCBs into the Lower Fox River. By 1979, when the
EPA banned PCB use, approximately 250, 000 pounds of PCBs had
been released into the river bed. Beginning in the 1990s, the
EPA and the Wisconsin Department of Natural Resources began
investigating the contamination to develop a cleanup plan
under the Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA). The EPA's final plan, adopted
in 2002, proposed a cleanup proceeding in stages through a
combination of dredging and capping at various sites.
remediation cost for the Lower Fox River is estimated to be
approximately $700 million. See, e.g., P.H. Glatfelter
Co., 768 F.3d at 667. Under CERCLA, the obligation to
pay for the cleanup falls on the parties responsible for
creating the hazard, and potentially responsible parties
(PRPs) may be liable for the full costs of remediation. Paper
manufacturers NCR Corporation and Appvion, Inc. were named by
the EPA as PRPs and have funded the ongoing cleanup. Other
companies with a potential role in the discharge of PCBs,
including Glat-felter, also were named as PRPs and agreed to
perform remedial work.
2007, the EPA issued a unilateral administrative order
directing the PRPs to begin remedial work in the last four
operable units of the Lower Fox River. NCR and Appvion
undertook many of those remedial efforts. They then sued
other PRPs, including Glatfelter, in the Eastern District of
Wisconsin, seeking to recover the cleanup costs and to
require other PRPs to pay for future remedial
work. The district court initially ruled on
summary judgment that NCR and Appvion were not entitled to
any equitable contribution from the other paper mills
involved. In 2014, we reversed and remanded the cost recovery
action back to the district court. See NCR Corp.,
768 F.3d at 687, 689-90, 713. That action remains pending,
with Appvion seeking recovery against Glatfelter and other
PRPs for the Lower Fox River cleanup costs Appvion has
incurred, in addition to subrogation and declaratory relief.
is an English entity allegedly conducting Ap-pvion's
defense of CERCLA claims and managing Appvion's
responsibility for the Lower Fox River cleanup operations.
Windward ratified the commencement of the cost recovery
action by Appvion and has stated that Windward will be bound
by the result. To defend against Appvion in the cost recovery
action, Glatfelter sought discovery relating to Appvion's
costs from both Appvion and Windward. Glatfelter contends
that identifying those costs (and any potential offsets from
insurance, settlements, or indemnification payments) depends
on understanding how funds changed hands between Appvion and
its insurers or indemnitors, including Windward.
first attempted to obtain discovery from Windward through
Appvion, which refused to accept service on Windward's
behalf. Glatfelter next sent a copy of its discovery request
by certified mail to Windward's counsel at his home
office in New Hampshire. He returned the envelope unopened.
Glatfelter then filed a motion to compel responses to its
discovery requests in the Eastern District of Wisconsin. The
district court denied the motion, ruling that Windward's
ratification of Appvion's action did not, on its own,
give Glatfelter an independent right to seek discovery from
the former under Federal Rules of Civil Procedure 33 or 34,
but that there are other ways to obtain discovery from
next issued a subpoena to Windward at its attorney's New
Hampshire address. Windward's counsel informed Glatfelter
that Windward would not be making any production because it
was not subject to the jurisdiction of the United States
federal courts. Windward also objected to the subpoena to the
extent that it sought documents or information available from
another more convenient, less burdensome, or less expensive
source (i.e., Appvion).
then instituted this ancillary proceeding in the District of
Massachusetts,  seeking to compel Windward to respond to
the subpoena. Glatfelter also simultaneously moved under Rule
45(f) to transfer the case to the Eastern District of
Wisconsin, where the cost recovery action was pending before
Judge Griesbach, who had presided over the case since it was
first filed. Following a hearing, the magistrate judge in
Massachusetts ordered a transfer to the Eastern District of
Wisconsin, and the ancillary action was docketed before Judge
Griesbach. After receiving additional arguments and evidence,
he denied the motion to compel, concluding that the court
lacked personal jurisdiction over Windward and that
Glatfelter had not established which documents it sought that
were not already subject to production by Appvion. Glatfelter
filed a motion for reconsideration, which the district court
appealed the district court's denial of its motions, and
Windward filed a third appeal regarding fees, which we
treated as a cross-appeal. In our order dated July 25, 2016,
we directed that Windward's cross-appeal be taken with
the other appeals, ...