IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-10336
USDC No. 3:95-CV-114-T
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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.
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Appeal from the United States District Court
for the Northern District of Texas
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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.