V. § 294th JUDICIAL DISTRICT

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4. On July 3, 200 1, Udo Birnbaum was given the opport%nity and gave his deposition in this

matter.

5. On July 20, 200 1, Stephanie Podvin gave her depositicn in this matter.

6. This matter is currently set for trial on the Court's docket for November 13, 2001.

This motion for summary judgment is based upon the current live pleadings on file with

the Court at the time this motion is filed as well as any amended pleading on file at the time of

the ruling on this motion, all discovery requests and responses thereto or lack of responses

thereto. An examination of the foregoing shows that as a matter of law, with regard to one or

more of the elements on which the defendant, Birnbaum, hals the burden of proof, there is no

genuine issue as to any material fact, and that there is no competent summary judgment evidence

to suppor t at least one or more of the essential elements of each of the causes of action pled by

Birnbaum against the Movant. Therefore, Movant is entitled to a judgment against Birnbaum,

denying all of Birnbaum's causes of actions against Movant, as a matter of law under T.R.C.P.

166a (c) and/or (i).

IV.

Summary Judgment Argument

I An adequate time for discovery has passed. At the time of the hearing on this motion, the

suit will have been on file for a year. The Respondent has utilized the discovery tools of

interrogatories, request for production, request for disclosure, and depositions of the parties.

Further,'an adequate amount of time to develop the facts is admitted by Birnbaum in a judicial

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admission contained in paragraph 5 of Udo Birnbaum's Amended Third Party Plaintiff Civil RICCO Claim, filed in this Court on July 11, 2001.

2. There is no evidence to support one or more essentia: elements of each and every one of Birnbaum's claims or defenses on which Birnbaum has the burden of proof. Birnbaum's Complaints against Stephanie Podvin: 3. Birnbaum alleges that Stephanie Podvin is a participant in a "pattern of racketeering activity" by acts of "racketeering activity" (predicate acts) of obstruction in the administration of justice on the part of G. David WesLfall in the Dallas Federal Court. Birnbaum's RICCO complaint further alleges that Stephanie Podvin was the recipient of a flow of income from a pattern of racketeering activity. That is it. Birnbaum makes no other allegations against Podvin other than Podvin's participation in this "RICCO" type behavior. Birnbaum's pleadings contain no other allegation against Podvin on any lesser type of cause of action. This is the "sole indictment" brought by Birnbaum against Podvin.

4. Birnbaum has fully failed to provide even one single bit of summary judgment adequate evidence which in a light most favorable to Birnbaum would even tend to support a fact that Podvin was engaged in any sort of illegal, corrupt, or clandestine activity whatsoever, let alone the types of activity alleged in Birnbaum's pleadings. What the summary judgment evidence does prove is that Stephanie Podvin assisted the Law Offices of G. David Westfall, P.C. in the law office's efforts to provide Birnbaum with legal services which had been requested by Birnbaum. That is it! Stephanie Podvin, as an independent contractor to a law firm, assisted in providing

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legal services for Birnbaum, and having done so, is embroiled in an alleged RICCO violation arising out of a fee dispute for the legal services provided.

5. There is no summary judgment type evidence to support a genuine fact issue for several of the elements of Birnbaum's cause of action. Birnbaum's own pleading outlines several elements in paragraph 65, on pages 10 and I I of Udo Birnbarm's Amended Third Party Plaintiff Civil RICCO Claim.

6. Further, there is no evidence that Podvin ever received any income from Birnbaum or the

alleged ra I cketeering enterprise.

7. Further, there is no evidence that Bimbaum has suffered any damages which is an

essential element of Birnbaum's claims against Podvin. 1

8. The Texas "no-evidence" motion for summary judgment [T.R.C.P. 166a (i)] requires, like

the federal standard, that if the issue is one on which the Movant does not bare the burden of

proof, and after an adequate time for discovery has passed, summary judgment is mandated if the

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respondent fails to make a showing sufficient to establish the existence of at least a fact issue on each and every one of the elements essential to prevail on its case. Celotex v. Catrett, 477 U.S. 317 (1986), see Clay M. White, "A New Rule For Texas Surnmary Judgments," INSURANCE DEFENSE LEGAL UPDATE December 1997.

WHEREFORE, PREMISES CONSIDERED, Movant request this matter be set for hearing with notice to Udo Birnbaum and upon hearing thereof, the Court enter judgment that as a matter of law, Birnbaum's causes of action against Movant, as plead in Birnbaum's current live pleading or any amended petition filed prior to the hearing on this motion are dismissed with prejudice, and for such other and further relief, both at law and in equity, to which this Movant

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