BLD-233
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-1543
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MARY CATHERINE BAUR,
Appellant
v.
KAREN WERTHEIMER; AMANDA LAWRENCE; DAVID A. CICOLA; TODD
SEELING; PENNSYLVANIA DEPARTMENT OF LABOR & INDUSTRY
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 11-cv-01965)
District Judge: Honorable C. Darnell Jones, II
____________________________________
Submitted for Possible Dismissal Due to a Jurisdictional Defect
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
May 9, 2013
Before: SCIRICA, HARDIMAN and GREENAWAY, JR., Circuit Judges
(Opinion filed: May 23, 2013)
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OPINION
_________
PER CURIAM
Mary Catherine Baur, proceeding pro se, appeals from the District Court‟s order
entered January 25, 2013. Because this appeal does not present a substantial question, we
will summarily affirm. See Third Cir. LAR 27.4; I.O.P. 10.6.
I.
In March 2011, Baur commenced a civil rights action against several of her former
coworkers at the Pennsylvania Department of Labor and Industry (L&I)—namely, Karen
Wertheimer, Amanda Lawrence, David Cicola, and Todd Seelig. In the complaint, Baur
alleged—among many other things—that the defendants had interfered with her ability to
obtain new work after she was terminated from L&I in October 2006. Baur subsequently
amended her complaint.
The defendants moved to dismiss the amended complaint. By order entered
January 25, 2013, the District Court granted in part and denied in part the motion. The
court first explained that many of Baur‟s claims had already been presented and ruled
upon in a separate civil rights suit that she had filed against the same defendants. See
Baur v. Crum, E.D. Pa. Civ. No. 08-cv-1222. According to the court, the only allegations
that were not (or could not have been) made in the previous suit were that the defendants:
(1) requested that the Pennsylvania Civil Service Commission remove her name from the
list of individuals eligible to serve as unemployment compensation referees; and (2)
mishandled inquiries from prospective employers—including her current employer, the
Internal Revenue Service. With respect to the first issue, the District Court determined
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that the amended complaint was devoid of any specific factual allegations against
Wertheimer, Seelig, or Cicola, and found that this potential claim could proceed against
defendant Lawrence only. The District Court then explained that, in considering this
allegation, along with Baur‟s allegation that the defendants had mishandled inquiries
from prospective employers, it was unable to determine precisely what causes of action
Baur intended to assert against which defendants, and what facts might potentially
support such claims. See Fed. R. Civ. P. 8(a). Therefore, the District Court instructed
Baur to file, within 30 days, a second amended complaint in support of these two
potential claims. Rather than filing a second amended complaint, Baur filed a notice of
appeal.
II.
Normally, an order that dismisses a complaint without prejudice is not
immediately appealable under 28 U.S.C. § 1291. See Borelli v. City of Reading, 532
F.2d 950, 951 (3d Cir. 1976) (per curiam). Such an order becomes appealable, however,
if the plaintiff “declares [her] intention to stand on [her] complaint” instead of amending
it. Id. at 952. When the District Court has provided a set amount of time within which to
amend, and the plaintiff fails to do so, the Court may conclude that the plaintiff elected to
stand on her complaint. Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 n.5 (3d Cir
1992); see also Hagan v. Rogers, 570 F.3d 146, 151 (3d Cir. 2009) (concluding that
plaintiffs stood on their complaints because they filed notices of appeal rather than
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amending within specified time period); Frederico v. Home Depot, 507 F.3d 188, 193 (3d
Cir. 2007) (same). Because Baur filed a notice of appeal instead of amending her
complaint within the allotted 30 days, and because her filings in this Court do not suggest
that she will attempt to submit a second amended complaint, we conclude that Baur has
elected to stand on her complaint. Therefore, we have jurisdiction over this appeal.
Having determined that jurisdiction is proper, we will summarily affirm the
District Court‟s order. First, we agree with the District Court that many of Baur‟s claims
were barred by the doctrine of res judicata because they were, or could have been,
brought in her previous civil rights suit. See United States v. Athlone Indus. Inc., 746
F.2d 977, 983 (3d Cir. 1984). We also agree with the District Court that Baur‟s amended
complaint is devoid of any specific factual allegations against defendants Wertheimer,
Seelig, or Cicola regarding the Civil Service List claim, and that the remainder of the
amended complaint—as it stands—does not meet the pleading requirements of Federal
Rule of Civil Procedure 8(a). See Fed. R. Civ. P. 8(a)(2) (requiring “a short and plain
statement of the claim showing that the pleader is entitled to relief”); Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (explaining that a complaint does not suffice “if it tenders
„naked assertion[s]‟ devoid of „further factual enhancement‟”) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 557 (2007)). Dismissal was therefore appropriate.
III.
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Accordingly, because no substantial question is presented by this appeal, we will
summarily affirm the District Court‟s judgment. See Third Cir. LAR 27.4; I.O.P. 10.6.
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