Howard v. Stover

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 95-10336 USDC No. 3:95-CV-114-T __________________

RICHARD C. HOWARD and ASSOCIATES, INC., et al.

Plaintiffs,

RICHARD C. HOWARD,

Plaintiff-Appellant,

versus

ANDREW STOVER, individually and in his official capacity, et al.

Defendants-Appellees.

____________________

Appeal from the United States District Court for the Northern District of Texas ____________________ June 30, 1995

Before JONES, BARKSDALE and BENAVIDES, Circuit Judges.

BY THE COURT:

Because Richard C. Howard moved to substitute himself as

plaintiff before a responsive pleading had been filed, no leave

of court was required to file an amended complaint. Fed. R. Civ.

P. 15(a); see Sherman v. Hallbauer, 455 F.2d 1236, 1242 (5th Cir.

1972) (opposition memoranda to summary-judgment motion raised a

new issue and should have been construed as an amendment to the

complaint). Therefore, the corporate entities which were

originally identified as plaintiffs were no longer parties to the

lawsuit, and the district court erred in dismissing the complaint O R D E R No. 95-10336 -2-

for failure to prosecute. The district court's order is VACATED

and the case REMANDED for further proceedings.

Howard's motion to stay state judgments and proceedings,

petition for writ of habeas corpus ad testificandum, and motion

for change of venue of the district court are DENIED AS MOOT.