                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                ______________

                                      No. 10-3153
                                    ______________

                                DONNA BALTIMORE,

                                                               Appellant

                                            v.

            HARRISBURG PARKING AUTHORITY; MARK YOBBI;
       GAIL LEWIS; NANCY KEIM; JASON BRINKER; RICHARD GIBNEY
                           ______________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                              (D.C. Civ. No. 1-07-01244)
                        Honorable Yvette Kane, District Judge
                                   ______________

                       Submitted under Third Circuit LAR 34.1(a)
                                   March 25, 2011

           BEFORE: FUENTES, SMITH, and GREENBERG, Circuit Judges

                                 (Filed: March 31, 2011)
                                     ______________

                               OPINION OF THE COURT
                                   ______________

GREENBERG, Circuit Judge.

       This matter comes on before this Court on Donna Baltimore’s appeal from an

order entered in the District Court on July 16, 2010, granting appellees, Harrisburg

Parking Authority, Mark Yobbi, Gail Lewis, Nancy Keim, Richard Gibney and Jason
Brinker, summary judgment on two separate motions in this civil rights action that

Baltimore brought against them. See Baltimore v. Harrisburg Parking Auth., Civ. No.

1:07-01244, 2010 U.S. Dist. LEXIS 59508 (M.D. Pa. June 15, 2010). The Court set forth

the background of the case in its comprehensive memorandum opinion and thus we do

not go into detail describing Baltimore’s complaint. Instead, we merely explain that the

case arose from Baltimore’s discharge from her employment with the Authority because

of her alleged theft from it, an allegation that led to the institution of criminal proceedings

against her on which she was acquitted on July 7, 2005. After her acquittal, following

her unsuccessful attempt to be reinstated to her position, she brought this action on July

9, 2007.

       On the summary judgment motions the Court found that some of Baltimore’s

claims were subject to a statute of limitations that required their filing within two years of

July 7, 2005, the day on which she had been acquitted, and some needed to be filed

within two years of an even earlier date. The Court then held that those claims were

untimely because she did not initiate this action until July 9, 2007. The Court, however,

found that her claim that the Authority wrongfully did not rehire her and certain other

claims that she advanced were not time barred, and it therefore addressed those claims on

the merits but rejected them. Ultimately the Court summed up its holding as follows:

“[t]he majority of [Baltimore’s] claims are time-barred because [Baltimore] filed her

complaint at least two days after the applicable limitations period expired” and, on “her

remaining claims based on the Authority’s failure to rehire her, [Baltimore] has failed to



                                              2
produce sufficient evidence to withstand Defendants’ motions for summary judgment.”

Id. at *29.

       The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367,1 and

we have jurisdiction under 28 U.S.C. § 1291. Ordinarily, we exercise plenary review on

an appeal from a summary judgment, see Santos ex rel. Beato v. United States, 559 F.3d

189, 193 (3d Cir. 2009), and thus we can affirm only if appellees can show “that there is

no genuine dispute as to any material fact and [they are] entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). Here, however, as we shall explain, appellees do not have

that burden or, for that matter, any burden at all on this appeal.

       We start our discussion of the merits of this appeal by pointing out that Baltimore,

although in her statement of the case indicating that the District Court granted appellees’

motion for summary judgment, then seems to have lost track of the procedural posture of

this case. In this regard, we observe that the District Court started its opinion by stating

that “[p]ending before the Court are two separate motions for summary judgment[,]”

Baltimore, 2010 U.S. Dist. LEXIS 59508, at *1, and it ended its opinion by granting

appellees summary judgment both in its opinion and order. Accordingly, it should be

clear to anyone that this case is an appeal from an order issued under Fed. R. Civ. P. 56.

Yet in Baltimore’s brief she addresses the standard of review under Fed. R. Civ. P.

12(b)(6), a rule concerning motions to dismiss for failure to state a claim on which relief

may be granted. Then, she starts her discussion of the standard of review by correctly,


1
 We note that Baltimore’s brief ignores the requirement of Fed. R. App. P. 28(a)(4)(A)
as it does not set forth the basis for the District Court’s subject matter jurisdiction.
                                              3
but irrelevantly, explaining that we have “plenary powers to review a final appealable

order by a United States District Court granting a defense motion pursuant to F. R. Civ.

P. 12(b)(6).” Appellant’s br. at 6.

       Next we quote verbatim from the summary of her argument and Baltimore’s

argument in her brief:

                           SUMMARY OF THE ARGUMENT

               Criminal proceedings against the appellant ended on July 7, 2005.
       Plaintiff filed her complaint on July 9, 2007[,] a Monday, July 7, 2007[,]
       was a Saturday. Plaintiff timely filed her complaint.

                                       ARGUMENT

              Heck v. Humprey, 515 U.S.C. [sic] 477 (1994) holds that for
       purposes of malicious prosecution civil rights claims criminal proceedings
       must terminate in a complainants favor before an appropriate claim can be
       brought. On July 7, 2005 the criminal proceedings against plaintiff
       terminated in her favor. Plaintiff decided to proceed against defendants and
       met with her attorney on Saturday evening July 7, 2007. Plaintiff filed her
       complaint on Monday, July 9, 2007. The court erred in dismissing Donna
       Baltimore’s complaint for untimeliness.

              Wherefore the Court should order Ms. Baltimore’s complaint
       reinstated.

Appellant’s br. at 8-9.

       Baltimore’s brief is remarkable because she does not address the merits of her case

in her argument or explain why the District Court erred in granting summary judgment on

the merits, even though the District Court granted summary judgment solely on the merits

of the portion of her case that it held was not time barred. Furthermore, Baltimore does

not challenge any aspect of the District Court’s statute of limitations rulings other than

the Court’s determination that the statute of limitations ran on a Saturday. Moreover, the
                                              4
brief ignores the Court’s alternative holdings that certain of Baltimore’s time barred

claims also failed on the merits. Baltimore, U.S. Dist. LEXIS at *18 n.4, *19 n.5, and

*22. n.7. Indeed, it appears that the Court granted appellees summary judgment on the

merits of the entire case or on the basis of conclusions with respect to the statute of

limitations that she does not challenge on this appeal. 2

       Appellees answered Baltimore’s brief by pointing out, inter alia, that Baltimore

had ignored the merits of the case and, for that reason standing alone, we should affirm

the District Court’s order for summary judgment. Though it might be thought that

appellees’ briefs would have caused Baltimore to take steps to save her appeal, their

briefs had no such effect. Quite to the contrary, Baltimore did not file a reply brief nor

did she seek leave to supplement her opening brief so that she could address the merits of

the case. In the circumstances, she has waived a challenge to the order for summary

judgment and thus we are constrained to reject her appeal. See United States v. Irizarry,

341 F.3d 273, 305 (3d Cir. 2003); Nagle v. Alspach, 8 F.3d 141, 143 (3d Cir. 1993); Kost

v. Kozakiewicz, 1 F.3d 176, 182 n.3 (1993). We also observe that even though Baltimore

is correct that if the statute of limitations runs on a Saturday an action filed on the

following Monday is timely, she does not support this contention with any authority, not

even mentioning the obvious citation to Fed. R. Civ. P. 6(a)(3).

2
  The only claim that the District Court found to be time-barred, but did not also state
would fail on the merits, was Baltimore’s procedural due process claim. Because that
claim related to her contention that the institution of criminal charges against her was an
attempt to force her from her employment, it clearly accrued before Baltimore was
acquitted on July 7, 2005, and so it was properly found to be time-barred by the District
Court.

                                               5
       Overall, we regard the filing of Baltimore’s brief as the equivalent of a failure to

file a brief and thus we regard her as having abandoned this appeal. 3 Consequently,

though by considering the only issue that Baltimore raises in her argument and the

District Court’s entire opinion, we would affirm the July 16, 2010 judgment, we, instead

will dismiss this appeal. We direct that Baltimore’s attorney provide Baltimore with a

copy of this opinion and the accompanying judgment within one week of its filing and

that her attorney file an affidavit with the Clerk of this Court confirming that he has

complied with this direction.




3
  As is common in opinions, we have written this opinion referring to Baltimore as if she
wrote the brief herself. We, of course, know that this is not true as Don Bailey, Esq., has
represented her on this appeal as he did in the District Court.
                                              6
