When an investigation of accounts or examination of vouchers appears necessary for the purpose of justice between the parties to any suit, the court shall appoint an auditor or auditors to state the accounts between the parties and to make report thereof to the court as soon as possible. The auditor shall verify his report by his affidavit stating that he has carefully examined the state of the account between the parties, and that his report contains a true statement thereof, so far as the same has come within his knowledge. Exceptions to such report or any item thereof must be filed within 30 days of the filing of such report. The court shall award reasonable compensation to such auditor to be taxed as costs of suit. (Rule 172 RCP, emphasis added)

We review de novo, a district court's grant of summary judgment, applying the same standard as the district court in the first instance. See Burge v. Parish of St. Tammany, 157 F.3d 452, 465 (5^th Cir. 1999). Summary judgment is appropriate where the moving party establishes that " there is no genuine issue of material fact and that it is entitled to judgment as a matter of law." Fed R.Civ.P. 50(c). The moving party must show that if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the nonmoving party to carry its burden. Celotex v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986).

Once the moving party has carried its summary judgment burden, the opposing party must set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations or denials of its pleadings. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Thus, this showing requires more than some metaphysical doubt as to the material facts. Matsushito Elec. Indus. Co v. Zenith Radio Corp., 475 U.S. 574, 584-86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Beck v. Texas State Board of Dental Examiners, U.S. Fifth Circuit No. 98-51111, March 3, 2000, emphasis added.

We review de novo a district court's grant of summary judgment, applying the same standard as the district court. See Walker v. Thompson, 214 F.3d 615, 624 (5^th Cir. 2000). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "If the moving party meets the initial burden of showing there is no genuine issue of material fact, the burden shifts to the nonmoving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial." Allen v. Rapides Parish Sch. Bd., 204 F.3d 619, 621 (5^th Cir. 2000) (internal quotations and citation omitted). Doubts are to be resolved in favor of the nonmoving party, and any reasonable inferences are to be drawn in favor of that party. See Burch v. City of Nacogdoches, 174 F.3d 615, 619 ( 5^th Cir. 1999). Evans v. City of Bishop, U.S. Fifth Circuit No. 99-41444, December 11, 2000, emphasis added.

This court reviews a grant of summary judgment de novo, viewing the evidence in the light most favorable to the nonmovant. Smith v. Brenoettsy, 158 F.3d 908, 911 (5^th Cir. 1998); see also Tolson v. Avondale Indus., Inc., 141 F.3d 604, 608 (5^th Cir. 1998). " Summary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). The moving party bears the burden of showing the district court that there is an absence of evidence to support the nonmoving party's case. See id. At 325. "If the moving party fails to meet this initial burden, the motion must be denied, regardless of the nonmovant's response. If the movant does, however, meet this burden, the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial." Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5^th Cir. 1995). "A dispute over a material fact is genuine 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Smith, 158 F.3d at 911 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The substantive law determines which facts are material. See Anderson, 477 U.S. at 248. Kee v. City of Rowlett Texas, U.S. Fifth Circuit No. 99-10555, March 28, 2001, emphasis added.

We review a grant or denial of summary judgment de novo. See Webb v. Cardiothoracic Surgery Assocs., P.A., 139 F.3d 532, 536 (5^th Cir. 1998). Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits filed in support of the motion, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56©. The summary judgment evidence is reviewed in the light most favorable to the nonmovant. See Melton v. Teachers Ins. & Annuity Ass'n, 114 F.3d 557, 559 (5^th Cir. 1997). If the moving party meets its initial burden of showing that there is no genuine issue, then the burden shifts to the nonmovant to set forth specific facts showing the existence of a genuine issue. See Fed. R. Civ. P. 56(e). Rascal Survey U.S.A. v. M/V Count Fleet, U.S. Fifth Circuit No. 98-31382, October 24, 2000, emphasis added.

We review the grant or denial of summary judgment de novo, applying the same standards as did the district court. See Webb v. Cardiothoracic Surgery Assocs., P.A., 139 F.3d 532, 536 (5^th Cir. 1998).(1) Summary judgment is appropriate if the record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56©. The moving party bears the initial burden of demonstrating an absence of evidence supporting the nonmovant's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Although we consider the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the nonmovant, the nonmoving party must come forward with specific facts indicating a genuine issue for trial. See Webb, 139 F.3d at 536. Babcock v. Hartmarx Corporation, U.S. Fifth Circuit No. 98-30766, July 26, 1999, emphasis added.

We review a grant of summary judgment de novo.(6) Summary judgment is proper under Federal Rule of Civil Procedure 56© "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the nonmoving party is entitled to judgment as a matter of law."(7) If the movant meets the initial burden of establishing that there is no genuine issue as to a material fact, the burden shifts to the nonmoving party to set forth specific facts showing that there is a genuine issue for trial. Wooley v. City of Baton Rouge, U.S. Fifth Circuit No. 98-30267, May 8, 2000, emphasis added.

"We review a grant of summary judgment de novo, applying the same criteria used by the district court in the first instance." Texas Manufactured Housing Ass'n v. City of Nederland, 101 F.3d 1095, 1099 (5^th Cir. 1996); see Tolson v. Avondale Indus., Inc., 141 F.3d 604, 608 (5^th Cir. 1998). Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). The party moving for summary judgment bears the initial burden of showing an absence of evidence to support the nonmoving party's case, see id. At 322-27, but, once this burden has been met, the nonmoving party can resist the motion by making a positive showing that a genuine issue of material fact exists, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue of material fact for trial. See Celotex, 477 U.S. at 324-25. Finally, we note that a grant of summary judgment may be affirmed on any ground that was raised to the district court and upon which both parties had the opportunity to present evidence. See Conkling v. Turner, 18 F.3d 1285, 1296 n.9 (5^th Cir. 1994). Batiste v. Island Records Inc., U.S. Fifth Circuit No. 98-30046, June 21, 2000, emphasis added.

We review the entry of summary judgment de novo, see Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5^th Cir. 1998), applying the same standards as the district court, see Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc., 831 F.2d 77, 79 (5^th Cir. 1987). After consulting applicable law in order to ascertain the material factual issues, we consider the evidence bearing on those issues, viewing the facts and the inferences to be drawn therefrom in the light most favorable to the non- movant. See King v. Chide, 974 F.2d 653, 656 (5^th Cir. 1992). The party moving for summary judgment has the initial burden of "informing the district court of the basis for its motion, and identifying those portions of [the summary judgment record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once that burden is met, the burden of production shifts to the non-movant to demonstrate that a genuine issue of fact does exist on the material elements of his claims. See id. At 323-24. Colson v. Grohman, U.S. Fifth Circuit No. 97-41388, April 26, 1999, emphasis added.

The party moving for summary judgment bears the initial burden of showing the absence of a genuine issue of material fact.(5) Once the burden of the moving party is discharged, the burden shifts to the nonmoving party to show, by either referring to evidentiary material in the record or by submitting additional evidentiary documents, that genuine issues of material fact remain to be resolved.(6) We will affirm the grant of summary judgment only if there exists no genuine issue of material fact and the movant was entitled to judgment as a matter of law. Wise v. E.I Dupont De Nemours and Co., U.S. Fifth Circuit No. 94-60490, July 18, 1995, emphasis added.

We review the district court's grant of summary judgment de novo. Montgomery v. Brookshire, 34 F.3d 291, 294 (5^th Cir.1994). Summary judgment is proper under Rule 56 of the Federal Rules of Civil Procedure when all the evidence viewed in the light most favorable to the non-movant shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Rule 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); accord Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5^th Cir.1994) (en banc). The movant bears the initial burden of demonstrating the absence of a genuine issue of material fact, but need not negate the elements of the nonmovant's case. Celotex, 477 U.S. at 323, 106 S.Ct. at 2553; accord Little, 37 F.3d at 1075. "If the moving party fails to meet this initial burden, the motion must be denied, regardless of the nonmovant's response." Little, 37 F.3d at 1075. "Once the moving party has supported its contention that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law, the burden is on the nonmoving party "to go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate "specific facts" showing that there is a genuine issue for trial.' " Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1445 (5^th Cir.1993) (quoting Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.) Dempsey v. State of Texas, U.S. Fifth Circuit No. 94-50599, Oct. 3, 1995, emphasis added.

The owners correctly state that under Texas law, the determination of whether a fiduciary relationship exists between the parties is a question of fact for the jury. Schiller v. Elick, 240 S.W.2d 997, 999 (Tex.1951). However, that the determination of whether a fiduciary relationship exists is a fact question did not abolish the owners' burden to come forward with specific facts demonstrating that there is a genuine issue of material fact for trial after Apache moved for summary judgment and offered evidence that no fiduciary relationship existed. Under Federal Rule of Civil Procedure 56(c), the party moving for summary judgment bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 ( 1986). Once this burden is met, the burden shifts to the non-moving party to establish the existence of a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 585-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Leonard v. Dixie Well Serv. & Supply Inc., 828 F.2d 291, 294 (5^th Cir.1987). The burden on the non-moving party is to " do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. at 1355-56.

The party moving for summary judgment must demonstrate the absence of fact issues by identifying portions of the pleadings, discovery, and affidavits which support its position. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552-53. If the movant fails to meet this initial burden, the non-moving party has no burden to produce evidence, even if the non-moving party bears the burden of proof at trial. Russ v. International Paper Co., 943 F.2d 589, 592 (5^th Cir.1991).

Apache has not met its initial burden under Celotex. Thus, whether Apache took upon itself the duty to continue to operate the Brothers well or to take reasonable action to prevent the loss of the Brothers Unit leases and, if so, whether Apache breached its duty by failing to act as a reasonably prudent operator under these circumstances are genuine fact issues. We therefore conclude that summary judgment was inappropriate.

Apache also failed to meet its initial burden under Celotex with respect to the owners' claim that Apache misrepresented to the owners that it continued to operate the Brothers well by sending the owners monthly billing statements from July through November 1990. Norman v. Apache Corporation, U.S. Fifth Circuit No. 93-7194, April 29, 1994, emphasis added.

Although this statement provides little insight into the district court's reasons for granting summary judgment, it does seem to indicate that the district court felt that the plaintiffs were under an initial burden to come forward with summary judgment evidence demonstrating a material issue of fact as to every element of their case. If so, the district court was incorrect.

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." However, even when the non-movant bears the burden of proof at trial, "[s]imply filing a summary judgment motion does not immediately compel the party opposing the motion to come forward with evidence demonstrating material issues of fact as to every element of its case." Russ v. International Paper Co., 943 F.2d 589, 591 (5^th Cir.1991).. See Celotex Corp. v. Catrett, 477 U.S. 317, 328, 106 S.Ct. 2548, 2555, 91 It is not enough for the moving party to merely make a conclusory statement that the other party has no evidence to prove his case L.Ed.2d 265 (1986) (White, J., concurring). "[B]efore the non-moving party is required to produce evidence in opposition to the motion, the moving party must first satisfy its obligation of demonstrating that there are no factual issues warranting trial." Russ, 943 F.2d at 592; Commander v. BASF Wyandotte Corp., 978 F.2d 924, 927 n. 4 (5^th Cir.1992) ("Before the non-moving party is required to produce evidence in opposition to a motion for summary judgment, the moving party in a motion for summary judgment must demonstrate that there are no factual issues warranting trial."); see Clark v. Coats & Clark, Inc., 929 F.2d 604, 608-09 (11^th Cir.1991) ( vacating order granting summary judgment and remanding for determination of whether movant met its initial burden under Rule 56).

From the Record, it is apparent that Montgomery County totally failed to satisfy the movant's burden as set out in Celotex and Russ. The County's motion for summary judgment failed to point out an absence of proof on any factual issue. In fact, the motion failed to raise any factual issues at all, other than in the most conclusory terms. And a mere conclusory statement that the other side has no evidence is not enough to satisfy a movant's burden. The County's motion was more akin to a 12(b)(6) motion in that it raised legal issues and challenged only the sufficiency of the plaintiffs' complaint. As a result, the burden never shifted to the plaintiffs to go beyond the pleadings to show specific facts creating a genuine issue for trial.(5) It therefore would have been error for the district court to grant summary judgment for the County solely because the plaintiffs did not come forward with any additional summary judgment evidence. Ashe v. Corley, U.S. Fifth Circuit No. 91-6299, June 4, 1993, emphasis added.

"There are three essential elements in a private action under this chapter [civil RICO]: a violation of this chapter, direct injury to plaintiffs from such a violation; and damages sustained by plaintiffs." Wilcox Development Co. v. First Interstate Bank of Oregon, N.A., D.C.Or.1983, 97 Ff.R.D., 440.

"Material issues of genuine fact existed with respect to existence of an enterprise as defined by this chapter, association of defendant printing company with such enterprise, association of the alleged enterprise with organized criminal activity, the intent and knowledge of defendant concerning the underlying predicate acts and existence of injury caused by alleged violation of this chapter, precluding summary judgment in favor of defendant in action alleging the kickback scheme. Estee Lauder, Inc. v. Harco Graphics, Inc., D.C.N.Y.1983, 558 F.Supp.83, emphasis added.

"As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242(1986)

"Thus, in ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden. This conclusion is mandated by the nature of this determination. The question here is whether a jury could reasonably find either that the plaintiff proved his case by the quality and quantity of evidence required by the governing law or that he did not. Whether a jury could reasonably find for either party, however, cannot be defined except by the criteria governing what evidence would enable the jury to find for either the plaintiff or the defendant: It makes no sense to say that a jury could reasonably find for either party without some [477 U.S. 242, 255] benchmark as to what standards govern its deliberations and within what boundaries its ultimate decision must fall, and these standards and boundaries are in fact provided by the applicable evidentiary standards." Anderson v. Liberty Lobby, Inc., 477 U.S. 242(1986)

"In prosecution under this chapter, jury is entitled to infer existence of enterprise on basis of largely or wholly circumstantial evidence." U.S. v. Elliott, C.A.Ga 1978, 571 F.2d 880, rehearing denied 575 F.2d 300, certiorari denied 99 S.Ct. 349,439 U.S. 953, 59 L.Ed.2d 344.

"Material issues of genuine fact existed with respect to existence of an enterprise as defined by this chapter, association of defendant printing company with such enterprise, association of the alleged enterprise with organized criminal activity, the intent and knowledge of defendant concerning the underlying predicate acts and existence of injury caused by alleged violation of this chapter, precluding summary judgment in favor of defendant in action alleging the kickback scheme. Estee Lauder, Inc. v. Harco Graphics, Inc., D.C.N.Y.1983, 558 F.Supp.83, emphasis added.

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 an unlawful debt." 18 U.S.C. § 1962(c).(emphasis added)

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". (emphasis added)

"Purpose and history of this chapter and substance of its provisions demonstrate clear congressional intent that chapter be interpreted to apply to activities that corrupt public or governmental entities". U.S. v. Angelili, C.A.N.Y.1981, 660 F.2d 23, certiorari denied 102 S.Ct. 1258, 1442, 455 U.S. 910, 945, 71 L.Ed.2d 449, 657, rehearing denied 102 S.CT. 1998, 1999, 2024, 456 U.S. 939, 951, 72 L.Wd.2d 460, 476. (emphasis added)

"Congress did not limit scope of this chapter to those persons involved in what traditionally has been thought of as "organized crime," but, rather, any "person" as the term is broadly defined in this chapter, whether associated with organized crime or not, can commit violation, and any person injured in his business or property by such violation may then sue violator for damages in federal court". Lode v. Leonardo, D.C.Ill.1982, 557 F.Supp. 675. (emphasis added)

(18 U.S.C. § 1962): "Whoever engages in prohibited patterns of racketeering activities comes within purview of this chapter, including public officials". U.S. v. Mandel, D.C. Md. 1976, 415 F.Supp. 997, supplemented 415 F.Supp. 1025. (emphasis added)

(18 U.S.C. § 1964): "A link to organized crime is not a requirement of a civil cause of action under this chapter". Kimmel v. Peterson, D.C.Pa.1983, 565 F.Supp. 476

In rejecting a significantly different focus under RICO, therefore, we are honoring an analogy that Congress itself accepted and relied upon, and one that promotes the objectives of civil RICO as readily as it furthers the objects of the Clayton Act. Both statutes share a common congressional objective of encouraging civil litigation to supplement Government efforts to deter and penalize the respectively prohibited practices. The object of civil RICO is thus not merely to compensate victims but to turn them into prosecutors, "private attorneys general," dedicated to eliminating racketeering activity. Klehr, at 187 (citing Malley-Duff, 483 U.S. at 151) (civil RICO specifically has a "further purpose [of] encouraging potential private plaintiffs diligently to investigate") The provision for treble damages is accordingly justified by the expected benefit of suppressing racketeering activity, an object pursued the sooner the better. It would, accordingly, be strange to provide an unusually long basic limitations period that could only have the effect of postponing whatever public benefit civil RICO might realize. Rotella v. Wood, United States Supreme Court No. 98-896, certiorari to the united states court of appeals for the fifth circuit, February 23, 2000. (emphasis added)