St. Clair E. Miller v. Am. Exp. Lines, Inc., 313 F.2d 218 (2d Cir. 1963). · Go Syfert
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St. Clair E. Miller v. Am. Exp. Lines, Inc., 313 F.2d 218 (2d Cir. 1963). Cases Citing This Book View Copy Cite
20 citation events (6 in the last 25 years) across 9 distinct courts.
Strongest positive: RX Sav., LLC v. Besch, No. 2:19-cv-02439 (D. Kan. July 15, 2020)
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At page 218 District court ruling dismissing withdrawn complaint is a nullity2 citing casesPER CURIAM. Appellant, proceeding pro se, filed a complaint which though inartistically drafted, appears to have alleged a cause of action for wrongful denial…opening of page *218 (no citing court says what it cites this page for)
Other citing cases3 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
St. Clair E. MILLER, Plaintiff-Appellant,
v.
AMERICAN EXPORT LINES, INC., and Personnel Physician, American Export Lines, Inc., Defendants-Appellees
27912_1.
Court of Appeals for the Second Circuit.
Feb 8, 1963.
Published opinion
313 F.2d 218
1963 U.S. App. LEXIS 6188
St. Clair E. Miller, pro se, appellant., Stephen K. Carr, of Haight, Gardner, Poor & Havens, New York City, (J. Ward O’Neill, New York City, of counsel) for appellee.
Lumbard, Smith, Hays.
Cited by 15 opinions  |  Published
PER CURIAM.

Appellant, proceeding pro se, filed a complaint which though inartistically drafted, appears to have alleged a cause of action for wrongful denial of employment, in violation of a Working Agreement between the National Maritime Union, of which appellant is a member, and the appellee corporation. On August 15, 1962, appellees moved for summary judgment. Thereafter, on September 16, 1962 appellant filed an amended complaint as of right [1] apparently alleging a cause of action for defamation, as well as a claim of wrongful denial of employment: On October 16, 1962, the district court granted defendant’s motion for summary judgment and ordered the action dismissed.

On the hearing of this appeal before us it developed that the district court at the time that it passed on the motion for summary judgment as to the first complaint was not aware of the fact that the plaintiff had filed an amended complaint.

Since the court did not have the amended complaint before it, its ruling dismissed a complaint that had already been withdrawn and the judgment was a nul[*219] lity. Cf. Park-In Theatres, Inc. v. Paramount-Richards Theatres, Inc., 9 F.R.D. 267, 269 (D.Del.1949); Angelini v. Merchants Despatch Transport Co., 253 App.Div. 506, 3 N.Y.S.2d 493 (4th Dept. 1938).

The appeal must therefore be dismissed.

Appeal dismissed.

1

. Pursuant to Fed.R.Civ.P. 15 (a) “a party-may amend Ms pleading once as a matter of course at any time before a responsive pleading is served * * A motion for summary judgment is not a “responsive pleading” within the meaning of Rule 15(a). Fed.R.Civ.P. 7(a); see Rogers v. Girard Trust Co., 159 F.2d 239 (6th Cir., 1947); 3 Moore, Federal Practice 825-26 (1948).