BLD-233

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-1543

___________

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)

_________

OPINION

_________
2

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 
3

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 
4

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.
5

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.