Opinion
No. 73-3510. Summary Calendar.
Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.
April 1, 1974.
Roger C. Myers, pro se.
Stan McMurry, Dallas, Tex., for Cap. Records.
James W. Mehaffy, Beaumont, Tex., for Columbia.
R. Daniel Settle, Fort Worth, Tex., for RCA.
J. Hoke Peacock, II, Beaumont, Tex., for Harry Fox Agency, Inc.
John F. Still, pro se.
Joseph Bonner, Nowata, Okl., for defendants-appellees.
Appeal from the United States District Court for the Eastern District of Texas.
Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.
The court below dismissed this pro se antitrust action on res judicata grounds, stating that the district court for the Western District of Oklahoma previously had dismissed an identical action for failure to state a claim upon which relief can be granted.
Unfortunately the record before us is incomplete. Since it does not contain the complaint from the prior action, we cannot verify that the two actions are the same. The dismissal order is the only document we have in the record from the first action, and it does not disclose what claims were litigated. Therefore we must remand this case to permit the district court to supplement and re-examine the record to remove all doubt that this action should be barred by either res judicata or direct estoppel.
See Estevez v. Nabers, 5th Cir. 1955, 219 F.2d 321; 9 Wright Miller, Federal Practice and Procedure: Civil § 2373, at 238-9.
Vacated and remanded.