*This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata and collateral estoppel. The court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 7/10/96

TENTH CIRCUIT

ROBERT E. FRITCHEY,

Plaintiff-Appellant, 

v.

IMMIGRATION &

NATURALIZATION SERVICE,

Defendant-Appellee. 

No. 96-2014

(Dist. of NM)

(D.C. No. CIV 95-798)

ORDER AND JUDGMENT*

Before ANDERSON, BARRETT, and MURPHY, Circuit Judges. 

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. This case is therefore

ordered submitted without oral argument.
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Plaintiff Robert Fritchey appeals the district court’s dismissal of his

petition for a writ of mandamus to compel the Immigration and Naturalization

Service (INS) to deport three alleged illegal aliens. We dismiss the appeal for

lack of jurisdiction.

Under 28 U.S.C. § 1291, this court has jurisdiction over appeals from final

orders. A final order is one which disposes of all issues in dispute as to all

parties. It “ends the litigation on the merits and leaves nothing for the court to do

but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233 (1945). 

In this case, plaintiff filed a motion to amend his complaint to add state law

tort claims on December 11, 1995. The motion was not entered on the district

court’s docket, however, until December 12, 1995, the same day the district

court’s order of dismissal was entered. The district court’s order makes no

mention of plaintiff’s motion and it appears from the circumstances that the

district court, through no fault of its own, was unaware of the existence of the

motion when it issued its order of dismissal.

Under Rule 15(a) of the Federal Rules of Civil Procedure, “[a] party may

amend the party’s pleading once as a matter of course at any time before a

responsive pleading is served.” Because no answer was ever filed and because

defendant’s motion to dismiss was not a responsive pleading, Fritchey was
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entitled to amend his complaint once as a matter of right. See Brever v. Rockwell

Int’l Corp., 40 F.3d 1119, 1131 (10th Cir. 1994). 

Although the district’s local rules provide that a proposed amendment to a

pleading must accompany a motion to amend, a pro se plaintiff’s failure to attach

a copy of the proposed amended complaint to his motion will not defeat his right

to amend where the motion sets forth the substance of the proposed amendment. 

See D.N.M.R. 15.1; Zaidi v. Ehrlich, 732 F.2d 1218, 1220 (5th Cir. 1984). 

Accordingly, while expressing serious doubts as to whether plaintiff’s state law

tort claims can survive a motion to dismiss, we hold that plaintiff’s motion to

amend was sufficient to amend his complaint. Because the additional claims

raised in plaintiff’s amended complaint were not disposed of by the district

court’s order, the order is not final and thus not appealable under 28 U.S.C. §

1291.

Finding no basis for appellate jurisdiction, we DISMISS plaintiff’s appeal.

The mandate shall issue forthwith.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge