I am asking the Fifth Court of Appeals to make the judge show up!

Filed June 23, 2003

 

A "visiting judge" (more on that at another time) assigned on Mar. 14, 2003. Seen no trace of him and trying to make him appear so we can get the show on the road. I am asking the Fifth Court of Appeals in Dallas to ORDER the judge to appear.

 

This is what is called a "Petition for writ of mandamus"

 

"Petition" = asking someone, in this case asking the Fifth Court of Appeals in Dallas

"Writ" is what one writes, what they put out (or should)

"Mandamus" = Latin for "we order" (at least that is what I think it means)

 

Look at end for what I am asking that the Appeals Court do (To note that any civil RICO suit, by its very nature, IS A COMPLAINT OF CRIMES, and that my complaint of CRIMES is for ABUSE OF THE JUDICIAL SYSTEM by a "pattern of racketeering activity" upon me.

 

 

Note: Some formatting has been lost in going to web page.

 

 

No. ___________

 

In the Court of Appeals

Fifth District of Texas at Dallas

 

 

In re UDO BIRNBAUM

Relator

 

v.

 

THE HONORABLE DONALD JARVIS, JUDGE

Respondent

 

FRANK C. FLEMING

 

Real party in interest

 

THE HONORABLE JOHN OVARD

 

Real party in interest

 

 

PETITION FOR WRIT OF MANDAMUS
(to make Judge Donald Jarvis appear)

 

(underlying proceeding is in 294th District Court

of Van Zandt County, No. 03-00082)

 

Udo Birnbaum, Pro Se

540 VZ 2916

Eustace, TX 75124

(903) 479-3929

phone and fax


 

 

(a) IDENTITY OF PARTIES AND COUNSEL

 

 

Udo Birnbaum Udo Birnbaum, Pro Se

Relator 540 VZ 2916

(Plaintiff in underlying proceedings) Eustace, Texas 75124

(903) 479-3929 (phone and fax)

 

 

Hon. Donald Jarvis c/o Pam Kelly, Court Coordinator

Respondent 294th Judicial District Court

(Senior Texas District Judge, 121 East Dallas St., Room 301 Sitting by assignment) Canton, Texas

Phone (903) 567-4422

Fax (903) 567-5652

 

 

Frank C. Fleming Frank C. Fleming

Real party in interest 6611 Hillcrest, Suit 305

(Defendant in underlying proceedings) Dallas, Texas 75205-1301

Phone (214) 373-1234

Fax (214) 373-3232

 

 

Hon. John Ovard Presiding Judge

Real party in interest First Adm. Judicial Region

(One who assigned Hon. Donald Jarvis) 133 N. Industrial, LB50

Dallas, Texas 75207.

 

 

 

 

 


(b) TABLE OF CONTENTS

 

(a) Identity of parties and counsel 2

 

(b) Table of contents 3

 

(c) Index of authorities 4

 

(d) Statement of the Case 5

(1) The nature of the underlying proceedings 5

(2) The judge's name and court where [should be] sitting 5

(3) Respondent's [non] action from which I seek relief 5

 

(e) Statement of jurisdiction 7

 

(f) Issues presented 8

 

ISSUE 1: WHETHER the failure of Judge Jarvis to appear in the 8

case is a violation of duty that cannot be remedied by appeal

 

ISSUE 2: WHETHER Judge Jarvis should be made to appear 8

 

(g) Statement of Facts 9

 

(h) Argument 9

 

CONTENTION 1: The failure of Judge Jarvis to appear in the

case is a violation of duty that cannot be remedied by appeal 9

CONTENTION 2: Judge Jarvis should be made to appear 9

 

(i) Prayer 10

 

(j) Appendix

Civil Docket Sheet (case filed Jan. 29, 2003) 12

Motion for Discovery Control Plan (Mar.11, 2003) 13

Request for Setting Form (Mar. 11, 2003) 15

Assignment of Judge Jarvis (Mar. 15, 2003) 16

Notice of Assignment (Apr. 2, 2003) 17


 

(c) INDEX OF AUTHORITIES

 

18 U.S.C. 1962(c ("RICO") 7

 

18 U.S.C. 1964(c) ("civil RICO") 8

 

18 U.S.C. 1341 (mail fraud) 8

 

18 U.S.C. 1346 ("scheme or artifice to deprive of honest service") 7

 

Jack B. Anglin Co. Inc v. Tipps, 842 S.W.2d 266 (Tex. 1992) 7

 

Rotella v. Wood et al., 528 U. S. 549 (2000) ("private attorneys general") 8

 

Tafflin v. Levitt, 493 U.S. 455 (1990). (state court civil RICO jurisdiction) 7


(d) STATEMENT OF THE CASE

(1) The nature of the underlying proceeding

("civil RICO", "pattern of racketeering activity" by a lying lawyer)

Plaintiff, UDO BIRNBAUM, complains under 18 U.S.C. 1964(c) ("civil RICO") of injury "by reason of" violations of 18 U.S.C. 1961, et seq. (Racketeer Influenced and Corrupt Organizations Act, "RICO"), by a certain FRANK C. FLEMING.

Birnbaum's complaint is for injury resulting from a RICO violative "pattern of racketeering activity" involving a "scheme to deprive of honest service" (pattern of lying, by an attorney, in violation of his duties, in the 294th District Court of Van Zandt County, Texas).

 

(2) The judge's name and court where [should be] sitting

(been assigned, but not appearing)

Relator Hon. Donald Jarvis has been assigned to this case in the 294th District Court of Van Zandt County. (Appendix) The court is located in Canton, Texas.

(3) Respondent's [non] action from which I seek relief

(from INDEFINITE CONTINUANCE)

Birnbaum filed suit on a certain FRANK C. FLEMING on Jan. 29, 2003 (Appendix). Neither party moved for recusal of the district judge.

On March 11, 2003 Birnbaum filed "Plaintiff's RCP Rule 190.4 Motion For Discovery Control Plan", and requested a HEARING per "Request For Setting Form". (Appendix)

Per document dated March 14, 2003, the First Administrative Judicial Region, (without an order of recusal or order of referral), issued "Order Of Assignment By The Presiding Judge", bearing the signature of Judge John Ovard as Presiding Judge, "attested" to by a Sandy Hughes, "Administrative Assistant", such "assignment" for a certain Honorable Donald Jarvis. (Appendix)

It was not until April 2, 2003, however, that Birnbaum (and apparently the 294th District Court) received any notice. (Appendix)

Even now, June 22, 2003 there has never been any record of such assignment posted among the regular notices of assignment appearing on the web site of the First Administrative Judicial Region. (www.firstadmin.com)

As of now, June 22, 2003, there has not been any notice OF ANY KIND regarding the requested Hearing, or the whereabouts of said Honorable Donald Jarvis. From all indications, the present status is INDEFINITE CONTINUANCE.

I am seeking relief from the INDEFINITE CONTINUANCE on the part of Hon. Donald Jarvis. Case filed Jan. 29, 2003. As of Jun. 22, 2003, no judge has appeared, and none appears in sight. A hearing for "Plaintiff's RCP Rule 190.4 Motion For Discovery Control Plan" has been requested (Appendix).

 

(e) STATEMENT OF JURISDICTION

 

Birnbaum is entitled to issuance of writ of mandamus because the failure of the assigned judge to appear is clear abuse of discretion and violation of duty imposed by law that cannot be remedied on appeal:

"Although mandamus relief will not issue merely because an appellate remedy may be more expensive and time-consuming than mandamus, it will issue when the failure to do so would vitiate and render illusory the subject matter of appeal." Jack B. Anglin Co. Inc v. Tipps, 842 S.W.2d 266 (Tex. 1992) (emphasis added)

 

The Law regarding my civil RICO claim:

"It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt". 18 U.S.C. 1962(c). ("RICO")

 

 

"Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney's fee. 18 U.S.C. 1964(c). ("civil RICO")

 

Note: State courts have concurrent jurisdiction to consider civil claims arising under RICO. Tafflin v. Levitt, 493 U.S. 455 (1990).

 

Sec. 1341. - Frauds and swindles: Whoever, having devised or intending to devise any scheme or artifice to defraud places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service or takes or receives therefrom shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both. 18 U.S.C. 1341 (mail fraud)

 

Definition: "For the purposes of this chapter, the term ''scheme or artifice to defraud'' includes a scheme or artifice to deprive another of the intangible right of honest services". 18 U.S.C. 1346

 

No less than the SUPREME COURT OF THE UNITED STATE is urging me to fight corruption by filing this civil RICO claim:

"Congressional objective [in enacting civil RICO with TREBLE damages] of encouraging civil litigation not merely to compensate victims but also to turn them into private attorneys general, supplementing Government efforts by undertaking litigation in the public good". Rotella v. Wood et al., 528 U. S. 549 (2000)

 

How else, except by mandamus, can I get my case heard, and justice be done according to the urging of the U. S. SUPREME COURT, if the judge just does not get around to hearing my cause, for whatever reason or none?


(f) ISSUES PRESENTED

ISSUE 1: WHETHER the failure of Judge Jarvis to appear in the case is a violation of duty that cannot be remedied by appeal

 

ISSUE 2: WHETHER Judge Jarvis should be made to appear

 

 

(g) STATEMENT OF FACTS

 

See Statement of the Case, above. Details of the Original Petition among the papers on file in Cause No. 03-0082 in the 294th District Court. Also available at my web page. (CourthouseAwarenessNews.com)

 

(h) ARGUMENT

 

CONTENTION AS TO ISSUE 1:

The failure of Judge Jarvis to appear in the case is a

violation of duty that cannot be remedied by appeal

 

How can justice be done if the judge does not appear?

How can I get around to appealing if Judge Jarvis does not appear?

 

 

 

CONTENTION AS TO ISSUE 2:

Judge Jarvis should be made to appear

It is time for Judge Jarvis to appear in the 294th District Court of Van Zandt County. Urging by mandamus is indicated.


PRAYER

I petition this Honorable Appeals Court to listen carefully to my pleas as to why WRIT OF MANDAMUS is required for the sake of due process and justice under the circumstances of this case (a "civil RICO" case). For the reasons presented above I petition for the following:

 

1.     To Order Judge Donald Jarvis to appear

2.     To make such other provisions in the WRIT OF MANDAMUS as to ensure justice under the extraordinary circumstances of this cause, i.e. me, a non-lawyer, suing a lawyer under civil RICO ("pattern of racketeering activity"), per urging of no less than the SUPREME COURT OF THE UNITED STATES in Rotella v. Wood ("private attorneys general").

3.     To note that any civil RICO suit, by its very nature, IS A COMPLAINT OF CRIMES, and that my complaint of CRIMES is for ABUSE OF THE JUDICIAL SYSTEM by a "pattern of racketeering activity" upon me.

 

Respectfully submitted,

 

___________________

Udo Birnbaum, Pro Se

540 VZ 2916

Eustace, Texas 75124

(903) 479-3929

 

APPENDIX (attached to this Petition):

Civil Docket Sheet (case filed Jan. 29, 2003) 12

Motion for Discovery Control Plan (Mar.11, 2003) 13

Request for Setting Form (Mar. 11, 2003) 15

Assignment of Judge Jarvis (Mar. 15, 2003) 16

Notice of Assignment (Apr. 2, 2003) 17

 


VERIFICATION

I, Udo Birnbaum, affirm that the factual statements I have made in the above Petition for Writ of Mandamus are based on my personal knowledge as I have obtained through my observation and investigation, and that the exhibits provided herewith are true and correct copies of the originals.

____________________

UDO BIRNBAUM

 

STATE OF TEXAS

 

COUNTY OF VAN ZANDT

 

Before me, a notary public, on this day personally appeared Udo Birnbaum, known to me to be the person whose name is subscribed to the foregoing Petition for Writ of Mandamus and being by me first duly sworn, declared that the statements above are true and correct.

Given under my hand and seal of office this _____ day of June , 2003

 

 

_________________________

Notary in and for The State of Texas

 

CERTIFICATE OF SERVICE

 

This is to certify that a true and correct copy of this document has been provided today via Certified Mail to Frank C. Fleming, 6611 Hillcrest, Suite 305, Dallas, Texas 75205-1301.

7000 0520 0023 3781 3009

 

Also by Certified Mail and Regular Mail to Hon. Donald Jarvis, c/o Pam Kelly, Court Coordinator, 294th Judicial District Court, 121 East Dallas St., Room 301, Canton, Texas.

7000 0520 0023 3781 3016

 

Also by Certified Mail, RESTRICTED DELIVERY, Regular Mail, and FAX to Hon. John Ovard, First Administrative Judicial Region, 133 N. Industrial, LB50, Dallas, Texas 75207.

7000 0520 0023 3781 3023

 

This the _____ day of June , 2003.

___________________

UDO BIRNBAUM