Howard v. Stover - Case Law

                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.