Ahlam Khalil, M.d. v. OTTO BOCK ORTHOPADISCHE INDUSTRIE GmbH & CO. OF THE FEDERAL REPUBLIC OF GERMANY

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-1335
AHLAM KHALIL, M.D.,
Appellant
v.
OTTO BOCK ORTHOPADISCHE INDUSTRIE
GmbH & CO. OF THE FEDERAL REPUBLIC OF GERMANY;
OTTO BOCK ORTHOPEDIC INDUSTRY, INC.,
its wholly owned U.S. subsidiary in
Minneapolis, Minnesota
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 00-cv-00801)
District Judge: Honorable John W. Bissell
Argued September 26, 2001
Before: ROTH, AMBRO and FUENTES, Circuit Judges
(Opinion filed June 24, 2002)
Gerald C. Fallon, Esquire (Argued)
Sonageri & Fallon
411 Hackensack Avenue
Continential Plaza II
Hackensack, NJ 07601
Attorney for Appellant
Edward J. McBride, Jr., Esquire (Argued)

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Schnader, Harrison, Segal & Lewis
220 Lake Drive East, Suite 200
Cherry Hill, NJ 08002-1165
Attorney for Appellee
OPINION
AMBRO, Circuit Judge
Alleging violations of New Jersey’s products liability and consumer protection
statutes, Dr. Ahlam Khalil brought a diversity action against Otto Bock Orthopadische
Industrie GmbH & Co. (“Otto Bock Germany”) and Otto Bock Orthopedic Industry, Inc.
(“Otto Bock Minnesota”) in the United States District Court for the District of New Jersey.
On November 16, 2000, the Court dismissed with prejudice her claims against Otto Bock
Minnesota under Federal Rule of Civil Procedure 12(b)(6). On January 9, 2001, the Court
dismissed with prejudice Khalil’s claims against Otto Bock Germany for lack of personal
jurisdiction. Khalil appeals from the order of January 9, 2001.
The only issue we need discuss is whether we have jurisdiction under 28 U.S.C. §
1291 to hear Khalil’s appeal. An order is not final unless it disposes of all remaining
claims between the parties. The order of January 9, 2001, disposed of Khalil’s remaining
claims, but did so without prejudice. An order dismissing a claim without prejudice is not
appealable unless the plaintiff either cannot amend her complaint (e.g., because the statute
of limitations has run) or declares that she will stand on her complaint. Semerenko v.

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1 We note, however, that no party has sought the entry of a final judgment against
Otto Bock Minnesota under Federal Rule of Civil Procedure 54(b).
3
Cendant Corp., 223 F.3d 165, 172 (3d Cir. 2000); Shapiro v. UJB Fin. Corp., 964 F.2d
272, 278 (3d Cir. 1992); Borelli v. City of Reading, 532 F.2d 950, 951-52 (3d Cir. 1976).
Khalil does not maintain that she is unable to amend her complaint, nor could she—the last
instance of alleged misconduct underlying her claims occurred in 1999, and the statute of
limitations for claims under the New Jersey Consumer Fraud Act is six years. Mirra v.
Holland America Line, 751 A.2d 138, 140 (N.J. Super. Ct. App. Div. 2000). Khalil did not
declare before the District Court or in the briefs she submitted to our Court that she would
stand on her complaint. We would nevertheless have a final order if her counsel “stated
unequivocally” at oral argument that she would stand on her complaint. See Remick v.
Manfredy, 238 F.3d 248, 254 (3d Cir. 2001). But counsel did not, despite our asking him
several times whether he wished to do so. Therefore, the District Court’s dismissal of
Khalil’s complaint is not a final order, and we thus lack jurisdiction to hear Khalil’s appeal.1

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TO THE CLERK:
Please file the foregoing Opinion.
By the Court,
/s/ Thomas L. Ambro
Circuit Judge

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