Melissa Mesenbring v. Rollins , Inc .

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2473
M ELISSA M ESENBRING, et al.,
Plaintiffs-Appellants,
v.
R OLLINS , I NC .,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:19-cv-08013 — Robert W. Gettleman, Judge.
____________________
A RGUED M AY 21, 2024 — DECIDED J UNE 28, 2024
____________________
Before S CUDDER , S T. EVE, and K IRSCH , Circuit Judges.
K IRSCH , Circuit Judge. Derek Mesenbring, an employee of
Industrial Fumigant Company, LLC (IFC), died in the course
of his employment after inhaling a toxic dose of methyl bro-
mide. His widow, Melissa Mesenbring, sued IFC and its par-
ent company, Rollins, Inc., in Illinois state court for wrongful
death. IFC and Rollins removed the case to federal court un-
der diversity jurisdiction. Mrs. Mesenbring subsequently dis-
missed IFC from the suit, leaving Rollins as the sole

-- 1 of 7 --

2 No. 23-2473
defendant. Rollins then moved for summary judgment, which
the district court granted. Because we agree with the district
court that Rollins is not liable for IFC’s acts under Illinois law,
and thus cannot be held responsible for Mesenbring’s death,
we affirm.
I
Derek Mesenbring, an employee of Industrial Fumigant
Company, LLC (a pest management company), was sched-
uled for a fumigation job using methyl bromide—an odorless,
colorless gas that is highly toxic to humans. Before heading to
the jobsite, Mesenbring transferred the methyl bromide he
needed from a large cylinder to a smaller cylinder using a
transfer hose. The large cylinder continued to release methyl
bromide following the transfer, causing Mesenbring to inhale
a toxic dose of the fumigant when he returned to the facility.
Following Mesenbring’s death, IFC’s parent company, Rol-
lins, Inc., investigated the accident and implemented certain
safety measures, such as adding air safety monitors and dis-
continuing the transfer of methyl bromide to smaller cylin-
ders, to help prevent future injury.
As IFC’s parent, Rollins has some authority to review and
approve IFC’s revenue goals and certain expenditures. Rol-
lins also leased IFC’s facility on behalf of IFC. But IFC man-
ages its own day-to-day operations without Rollins’s interfer-
ence. IFC is responsible for determining how to achieve the
revenue and profit goals that Rollins sets. Further, IFC main-
tains its own safety and regulatory departments (which de-
velop and implement policies related to the use and handling
of fumigants, such as methyl bromide), retains a methyl bro-
mide specialist, and trains its employees on the safe and
proper use, storage, and handling of all fumigants. In other

-- 2 of 7 --

No. 23-2473 3
words, IFC is in control of its own policies and procedures on
methyl bromide.
After Mesenbring’s death, his widow, Melissa Mesen-
bring, sued IFC and Rollins for wrongful death in Illinois state
court. IFC and Rollins then removed the case to federal court
under diversity jurisdiction. 28 U.S.C. § 1441(b). Because IFC
had been paying workers’ compensation benefits to Mrs.
Mesenbring, she eventually dismissed IFC pursuant to the ex-
clusive remedy provision of the Illinois Workers’ Compensa-
tion Act. But she continued seeking to hold Rollins liable for
her husband’s death under a limited theory of recovery rec-
ognized under Illinois law called direct participant liability.
Rollins moved for summary judgment, which the district
court granted. The court rejected Mrs. Mesenbring’s attempt
to hold Rollins liable because it did not specifically direct an
activity that made the accident foreseeable, nor did it control
or participate in IFC’s use of and training on methyl bromide,
thus foreclosing direct participant liability. Mrs. Mesenbring
appealed.
II
We review the district court’s grant of summary judgment
de novo, Johnson v. Edward Orton, Jr. Ceramic Found., 71 F.4th
601, 609 (7th Cir. 2023), and, as a federal court sitting in diver-
sity, we apply state substantive law, Bevolo v. Carter, 447 F.3d
979, 982 (7th Cir. 2006). The parties agree that Illinois law ap-
plies.
We have very little to add to Judge Gettleman’s thorough
and well-done order. As “a general principle of corporate law
deeply ‘ingrained in our economic and legal systems,’” a par-
ent company, such as Rollins, is not liable for the acts of its

-- 3 of 7 --

4 No. 23-2473
subsidiary. United States v. Bestfoods, 524 U.S. 51, 61 (1998)
(quotation omitted). The Illinois Supreme Court has adopted
a narrow exception to this general principle of limited liability
known as direct participant liability. Forsythe v. Clark USA,
Inc., 864 N.E.2d 227, 237 (Ill. 2007). Under that theory, a parent
company may be held liable for the acts of its subsidiary if it
“specifically directs an activity [] where injury is foreseeable.”
Id. Stated differently, to prevail, a plaintiff must show: “[1] a
parent’s specific direction or authorization of the manner in
which an activity is undertaken and [2] foreseeability” of in-
jury. Id. As for the first element, the parent is liable only if it
“surpass[es] the control exercised as a normal incident of
ownership in disregard for the interests of the subsidiary.” Id.
A parent’s or its officers’ imposition of budgetary strategies
(even if it amounts to mismanagement) and business policies
alone are generally not enough to impose direct participant
liability, so long as the subsidiary remains free to utilize its
own expertise. Id. at 237–39. As to the second element, the par-
ent is liable only “for foreseeable injuries.” Id. at 237.
The district court correctly applied Forsythe to conclude
that Rollins may not be held liable for IFC’s acts under direct
participant liability. Rollins did not employ “specific direction
or authorization” over IFC’s use of or training on methyl bro-
mide, as is required to impose direct participant liability. Id.
Rather, IFC retains its own methyl bromide specialist, main-
tains its own safety and regulatory departments, and trains its
employees on how to safely use, store, and handle methyl
bromide. Simply, IFC—not Rollins—is responsible for the
company’s policies and procedures on methyl bromide. Nor
does Rollins surpass the level of control typical of a parent-
subsidiary relationship. Id. IFC manages its own day-to-day
operations without interference from Rollins.

-- 4 of 7 --

No. 23-2473 5
Mrs. Mesenbring’s examples of Rollins’s alleged control
over IFC are not enough to impose direct participant liability.
For example, that Rollins is responsible for IFC’s facility lease
is irrelevant because we analyze a parent’s control over “spe-
cific activities contributing to [a] course of action”—here,
IFC’s use of and training on methyl bromide—rather than a
parent’s involvement more generally. Id. Further, that Rollins
sets annual revenue and profit targets for IFC likewise does
not impose direct participant liability because IFC remains
“free to utilize [its] own expertise” as to how to best achieve
those goals. Id. at 238. And even if Rollins’s budgetary strate-
gies were deemed mismanagement, that alone is not enough
to impose direct participant liability. Id. at 237.
The second element set forth in Forsythe—foreseeability of
injury—is also absent here. Id. Mrs. Mesenbring largely ar-
gues that direct participant liability should attach to Rollins
because it sets forth approval guidelines for IFC’s expendi-
tures. But Rollins’s mere imposition of certain budgetary re-
strictions over IFC—without evidence that Rollins foresaw
that safety would be compromised as a result—does not on
its own give rise to direct participant liability. See id. at 240
(finding a genuine issue of material fact because the parent
knew that its budgetary reductions were compromising
safety). Unlike in Forsythe, there is no evidence here that Rol-
lins’s budgetary approval policies have caused IFC to com-
promise on safety (or even that IFC has failed to obtain ap-
proval on expenditures regarding methyl bromide more gen-
erally). Mrs. Mesenbring also points to Rollins’s post-accident
investigation and support for IFC, but Rollins’s post-accident
behavior does not reveal the foreseeability of Mesenbring’s
accident before its occurrence. Simply, Mrs. Mesenbring fails

-- 5 of 7 --

6 No. 23-2473
to put forth evidence that Mesenbring’s accident was foresee-
able to Rollins.
In sum, we agree with the district court’s well-reasoned
opinion that Rollins cannot be liable for IFC’s acts under a the-
ory of direct participant liability because it did not specifically
direct an activity where injury was foreseeable. Rather, Rol-
lins’s minimal level of control over IFC adhered to “a normal
incident of ownership” in a parent-subsidiary relationship. Id.
at 237.
* * *
Mrs. Mesenbring’s counsel failed to include the district
court’s order on Rollins’s summary judgment motion in the
required short appendix, in violation of the Federal Rules of
Appellate Procedure, our Circuit Rules, and our precedent.
Fed. R. App. P. 30(a)(1)(A)–(C) (mandating that the appel-
lant’s appendix contain “(A) the relevant docket entries in the
proceeding below; (B) the relevant portions of the … opinion;
[and] (C) the judgment, order, or decision in question”); Cir.
R. 30(a) (“The appellant shall submit … an appendix contain-
ing the judgment or order under review and any opinion,
memorandum of decision, findings of fact and conclusions of
law, or oral statement of reasons delivered by the trial court
… upon the rendering of that judgment, decree, or order.”);
United States v. McGhee, 98 F.4th 816, 825–26 (7th Cir. 2024)
(admonishing the appellant’s counsel for failing to include the
district court’s rulings and reasoning in the appendix, in vio-
lation of Federal Rule of Appellate Procedure 30 and Circuit
Rule 30). We remind counsel before this court to adhere to the
Rules and our precedent that the appellant’s short appendix
must contain the lower court’s opinion. The lower court’s
opinion does not belong in a separate appendix. Cir. R. 30(a)

-- 6 of 7 --

No. 23-2473 7
(“The appellant shall submit, bound with the main brief, an ap-
pendix containing the judgment or order under review ….”)
(emphasis added).
A FFIRMED

-- 7 of 7 --