Whited v. United States

231 Ct. Cl. 1048, 1982 U.S. Ct. Cl. LEXIS 487, 1982 WL 25852

Opinion

This case is before the court on plaintiffs motion pursuant to Rule 152 for relief from this court’s order of May 7,1982, 230 Ct.Cl. 963, and for leave to file an amended petition pursuant to Rule 39. We grant plaintiffs motion.

This is the third suit in which recovery is sought for an alleged breach of a contract between the United States and the plaintiff in the amended petition, a closely held corporation. Moreover, this dispute is before the court for the sixth time. The first suit, in which the corporation was represented by the pro se plaintiff who is not an attorney, was dismissed for corporation’s failure to obtain legal counsel. Whited Co. v. United States, 229 Ct.Cl. 623, 624 (1981). The second suit, which was brought by the corporation’s shareholders, was dismissed in that the shareholders were not proper parties to bring suit on breach of the corporation’s contract. Whited v. United States, 230 Ct.Cl. 911 (1982). The present suit, which was filed by the pro se plaintiff as a "stockholder derivative action” under Federal Rule of Civil Procedure 23.1, was dismissed due to the absence of such a rule in this court. Whited v. United States, 230 Ct.Cl. 963, 964-5 (1982).

The plaintiff corporation, now represented by legal counsel, moves for relief from our order of May 7, 1982, on the ground its shareholder (the pro se plaintiff) was under the mistaken belief that he had standing to file suit. In addition, it moves for leave to file an amended petition in the name of the corporation. Accordingly, we grant plaintiffs motion for relief from this court’s order of May 7, 1982, 230 Ct.Cl. 963, and for leave to file an amended petition.

it is therefore ordered upon consideration of plaintiffs motion and its supporting brief, but without oral argument, that the motion be and is hereby granted.