MACDOUGALL v. RHULING et al

Filing 14

ORDERED THAT: THE AMENDED COMPLAINT (DOC. NO. 11) IS DISMISSED WITHOUT PREJUDICE FOR THE REASONS SET FORTH IN THE COURTS MEMORANDUM. MACDOUGALL MAY FILE A SECOND AMENDED COMPLAINT WITHIN THIRTY (30) DAYS OF THE DATE OF THIS ORDER. UPON THE FILING OF A SECOND AMENDED COMPLAINT, THE CLERK SHALL NOT MAKE SERVICE UNTIL SO ORDERED BY THE COURT.THE CLERK OF COURT IS DIRECTED TO SEND MACDOUGALL A BLANK COPY OF THIS COURTS CURRENT STANDARD FORM COMPLAINT TO BE USED BY A SELF-REPRESENTED LITIGANT FILING AN EMPLOYMENT DISCRIMINATION ACTION BEARING THE ABOVE-CAPTIONED CIVIL ACTION NUMBER.. SIGNED BY DISTRICT JUDGE KAREN S. MARSTON ON 8/28/204. 8/29/2024 ENTERED AND COPIES MAILED AND E-MAILED TO PRO SE PLAINTIFF WITH BLANK COMPLAINT.(sg)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
HEATHER A. MACDOUGALL,
Plaintiff,
v.
BRIAN RHULING, SR., et al.,
Defendants.

:
:
:
:
:
:
:

CIVIL ACTION NO. 24-CV-0989

ORDER
AND NOW, this 28th day of August, 2024, upon consideration of Plaintiff Heather A.
MacDougall’s Amended Complaint (Doc. No. 11) it is ORDERED that:
1.

The Amended Complaint (Doc. No. 11) is DISMISSED WITHOUT

PREJUDICE for the reasons set forth in the Court’s Memorandum.
2.

MacDougall may file a second amended complaint within thirty (30) days of the

date of this Order. Any second amended complaint must identify all defendants in the caption of
the second amended complaint in addition to identifying them in the body of the second
amended complaint and shall state the basis for MacDougall’s claims against each defendant.
MacDougall shall do her best to present an organized narrative of facts that support her claims.
The second amended complaint shall be a complete document that does not rely on the initial
Complaint, Amended Complaint, or other papers filed in this case to state a claim. Only matters
alleged in the second amended complaint will be considered part of this lawsuit. When drafting
her second amended complaint, MacDougall should be mindful of the Court’s reasons for
dismissing the claims in her initial Complaint as explained in the Court’s Memorandum. Upon
the filing of a second amended complaint, the Clerk shall not make service until so ORDERED
by the Court.

3.

The Clerk of Court is DIRECTED to send MacDougall a blank copy of this

Court’s current standard form complaint to be used by a self-represented litigant filing an
employment discrimination action bearing the above-captioned civil action number.
MacDougall may use this form to file her second amended complaint if she chooses to do so.
She may include additional pages for additional claims if necessary, but is encouraged to do so in
an organized manner.
4.

If MacDougall does not wish to amend and instead intends to stand on her

Amended Complaint as pled, she may file a notice with the Court within thirty (30) days of the
date of this Order stating that intent, at which time the Court will issue a final order dismissing
the case. Any such notice should be titled “Notice to Stand on Amended Complaint,” and shall
include the civil action number for this case. See Weber v. McGrogan, 939 F.3d 232, 241 (3d
Cir. 2019) (“If the plaintiff does not desire to amend, he may file an appropriate notice with the
district court asserting his intent to stand on the complaint, at which time an order to dismiss the
action would be appropriate.” (quoting Borelli v. City of Reading, 532 F.2d 950, 951 n.1 (3d Cir.
1976))); In re Westinghouse Sec. Litig., 90 F.3d 696, 703–04 (3d Cir. 1996) (holding “that the
district court did not abuse its discretion when it dismissed with prejudice the otherwise viable
claims . . . following plaintiffs’ decision not to replead those claims” when the district court
“expressly warned plaintiffs that failure to replead the remaining claims . . . would result in the
dismissal of those claims”).
5.

If MacDougall fails to file any response to this Order, the Court will conclude that

MacDougall intends to stand on her Amended Complaint and will issue a final order dismissing

2

this case. 1 See Weber, 939 F.3d at 239–40 (explaining that a plaintiff’s intent to stand on his
complaint may be inferred from inaction after issuance of an order directing him to take action to
cure a defective complaint).
BY THE COURT:

/s/ Karen Spencer Marston
KAREN SPENCER MARSTON, J.

1

The six-factor test announced in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d
Cir. 1984) is inapplicable to dismissal orders based on a plaintiff’s intention to stand on her
complaint. See Weber, 939 F.3d at 241 & n.11 (treating the “stand on the complaint” doctrine as
distinct from dismissals under Federal Rule of Civil Procedure 41(b) for failure to comply with a
court order, which require assessment of the Poulis factors); see also Elansari v. Altria, 799 F.
App’x 107, 108 n.1 (3d Cir. 2020) (per curiam). Indeed, an analysis under Poulis is not required
when a plaintiff willfully abandons the case or makes adjudication impossible, as would be the
case when a plaintiff opts not to amend her complaint, leaving the case without an operative
pleading. See Dickens v. Danberg, 700 F. App’x 116, 118 n.2 (3d Cir. 2017) (per curiam)
(“Where a plaintiff’s conduct clearly indicates that he willfully intends to abandon the case, or
where the plaintiff’s behavior is so contumacious as to make adjudication of the case impossible,
a balancing of the Poulis factors is not necessary.”); Baker v. Accounts Receivables Mgmt., Inc.,
292 F.R.D. 171, 175 (D.N.J. 2013) (“[T]he Court need not engage in an analysis of the
six Poulis factors in cases where a party willfully abandons her case or otherwise makes
adjudication of the matter impossible.” (citing cases)).
3