                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 19-1913
                                      _____________

                                 PATRICK F. STEWART,
                                             Appellant

                                              v.

                                      KIP MOSTOWY
                                     _______________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                                (D.C. No. 2-18-cv-00372)
                          District Judge: Hon. Cathy Bissoon
                                    _______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  January 13, 2020

           Before: JORDAN, GREENAWAY, JR., and KRAUSE, Circuit Judges.

                                 (Filed: January 16, 2020)
                                     _______________

                                        OPINION ∗
                                     _______________




       ∗
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.

       Appellant Patrick Stewart challenges the District Court’s dismissal of his lawsuit

under the Fair Labor Standards Act (“FLSA”) and Pennsylvania’s Wage Payment and

Collection Law (“WPCL”).        The District Court dismissed Stewart’s claims on two

independent grounds: his failure to state a claim upon which relief could be granted and

his apparent attempt to circumvent an order of the Court in a related case by engaging in

“claim-splitting.” On appeal, Stewart contests only the District Court’s claim-splitting

determination, and in doing so has forfeited his right to challenge the Court’s separate and

sufficient holding that his claims fail on the merits. Accordingly, we will affirm.

I.     BACKGROUND

       Until December 2016, Stewart was employed by non-party Andritz Herr-Voss

Stamco (“Andritz” or “the company”) as a plant manager. Appellee Kip Mostowy is the

President of Andritz. In 2016, the company began the process of consolidating the plant

that Stewart managed with another Andritz plant. Another individual was named manager

of the combined plant and Andritz terminated Stewart’s employment.

       In August 2017, Stewart filed suit against Andritz (but not Mostowy) in the District

Court asserting a single claim for age discrimination (the “Andritz Litigation”).

Approximately six months later, Stewart moved for leave to file an amended complaint.

Stewart’s proposed amended complaint included a claim for unlawful retaliation under the

FLSA and a claim for violation of the WPCL. Stewart based his FLSA retaliation claim

on allegations that Andritz had wrongfully stopped paying him overtime in 2012, and that

his complaints about that stoppage and persistent requests to be paid overtime

                                             2
compensation thereafter resulted in his December 2016 termination. His WPCL claim

similarly was premised on the company wrongfully denying him overtime compensation,

as well as its allegedly improper refusal to pay him performance-based “Incentive Pay”

that he had earned. (App. at 357-59.) With one exception not relevant to this appeal, the

District Court denied Stewart’s motion for leave to amend, concluding that Andritz would

be prejudiced by Stewart’s untimely proposed amendments. The parties to that case

eventually entered a stipulation of dismissal.

       A week after he was denied leave in the Andritz Litigation, Stewart initiated the

present case against Mostowy (but not Andritz), also in the District Court. Stewart’s first

amended complaint, his operative pleading in this case, asserts only two claims: unlawful

retaliation under the FLSA and violation of the WPCL. Those two claims are nearly

identical to the FLSA and WPCL claims that Stewart was denied leave to add in the Andritz

Litigation, the only significant distinction being the targeted defendant – Andritz in the

previous case and Mostowy in this one.

       Mostowy moved to dismiss Stewart’s first amended complaint, contending that

Stewart’s allegations failed to state a claim upon which relief could be granted.

Specifically, Mostowy argued that Stewart did not allege a causal connection      between

his purportedly FLSA-protected activity (i.e., complaining about being denied overtime

compensation) and the termination of his employment with Andritz in December 2016.

Mostowy further urged that Stewart’s WPCL claim failed because such a claim must be

based on a contractual right to wages and Stewart did not allege adequately a contractual

entitlement to either overtime compensation or incentive pay. In response, Stewart filed

                                             3
an extensive merits-based opposition, describing both the legal basis for his claims and the

factual allegations in the first amended complaint supporting those claims.

       After considering the parties’ briefing, the District Court granted Mostowy’s

motion. It did so for two reasons. First, the Court, without analysis, “adopt[ed], and

incorporat[ed] by reference” the “arguments and analyses for dismissal” made pursuant to

Federal Rule of Civil Procedure 12(b)(6) set forth in Mostowy’s motion. (App. at 8.)

Second, the Court said that Stewart’s suit against Mostowy constituted “an attempted end-

run around the Court’s denial of leave to amend” in the Andritz Litigation by engaging in

improper “claim-splitting,” and that dismissal was “a necessary result” because a “contrary

ruling would send [the] unacceptable message” that a litigant could avoid an order denying

leave to amend by asserting the rejected claims in a new lawsuit.             (App. at 8-9.)

Accordingly, the Court dismissed Stewart’s case against Mostowy in its entirety.

       Stewart timely appealed that dismissal order. In his opening appellate brief, he

challenged only the District Court’s claim-splitting basis for dismissing his claims; he

made no argument with respect to the Court’s independent decision to dismiss his claims

on the merits. Mostowy highlighted this failure, and the potential consequences thereof,

in his answering brief. Stewart did not file a reply brief.

II.    DISCUSSION 1

       “[U]nder Federal Rule of Appellate Procedure 28(a)(3) and (5) and Third Circuit

Local Appellate Rule 28.1(a), appellants are required to set forth the issues raised on appeal


       1
           The District Court had jurisdiction pursuant to 28 U.S.C § 1331. We have
jurisdiction pursuant to 28 U.S.C. § 1291. “We exercise plenary review over a district
                                              4
and to present an argument in support of those issues in their opening brief.” Kost v.

Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993). “It is well settled that if an appellant fails to

comply with these requirements on a particular issue, the appellant normally has abandoned

and waived that issue on appeal and it need not be addressed by the court of appeals.” Id.

As already noted, the District Court dismissed Stewart’s amended complaint both on the

merits and on the separate ground that the complaint constituted an effort to engage in

improper claim-splitting. Neither Stewart’s statement of issues nor the argument portion

of his opening brief contain any reference to, or argument regarding, the Court’s merits-

based dismissal. Accordingly, he has failed to preserve that issue for appeal and has

forfeited his right to challenge that aspect of the District Court’s dismissal order. Kost, 1

F.3d at 182. 2 Moreover, because Stewart has failed to contest an independent, individually

sufficient basis for the Court’s order, that order must be affirmed. 3 See Nagle v. Alspach,


court’s grant of a motion to dismiss pursuant to Rule 12(b)(6).” Fleisher v. Standard Ins.
Co., 679 F.3d 116, 120 (3d Cir. 2012).
       2
            It gives us pause that the District Court adopted Mostowy’s Rule 12(b)(6)
arguments without providing some analysis to show that it exercised independent judicial
review before doing so. We again emphasize “that a district court’s verbatim adoption of
a party’s proposed findings of fact and conclusions of law” is generally disfavored, and, in
the rare cases when it may be appropriate to do so, such adoption should be supported by
“evidence in the record demonstrating that the district court exercised ‘independent
judgment[.]’” In re Cmty. Bank of N. Virginia, 418 F.3d 277, 300 (3d Cir. 2005).
       3
           Judge Greenaway concludes that the District Court’s statement adopting
Mostowy’s arguments is not a separate basis for the District Court’s decision granting the
motion to dismiss because, as he sees it, that statement lacks any indicia of the independent
judgment required by our jurisprudence and, more important, was not the stated basis for
granting the motion. See Bright v. Westmoreland Cty., 380 F.3d 729, 732 (3d Cir. 2004)
(“Judicial opinions are the core work-product of judges. … When a court adopts a party’s
proposed opinion as its own, the court vitiates the vital purposes served by judicial
                                              5
8 F.3d 141, 143 (3d Cir. 1993) (“Because the plaintiffs have not contested two of the four

independent grounds upon which the district court based its grant of summary judgment,

each of which is individually sufficient to support that judgment, we must affirm.”).

III.   CONCLUSION

       For the foregoing reasons, we will affirm the order of the District Court.




opinions.”). Since the District Court failed to issue a decision on the merits of the motion
to dismiss, Judge Greenaway concludes that Stewart could not have waived a challenge to
what he views as a non-existent decision. Instead, Judge Greenaway would affirm the
District Court’s decision on the claim-splitting issue.
                                             6
