No. 00-00619
THE LAW OFFICES OF § IN THE DISTRICT COURT
G. DAVID WESTFALL, P.C. §
&# Plaintiff/Counter-Defendant
§
v. § 294th JUDICIAL DISTRICT
&#&#
§
UDO BIRNBAUM §
Defendant/Counter-Plaintiff and §
Third Party Plaintiff §
v. §
&#
§
G. David Westfall, Christina Westfall, §
and Stefani Podvin §
&# Third Party Defendants
§ VAN ZANDT COUNTY, TEXAS
BIRNBAUM'S RESPONSE TO [THE WESTFALLS'] MOTION FOR SANCTIONS:
LET THE U. S. JUSTICE DEPARTMENT DETERMINE THE FACTS
COMES NOW Udo Birnbaum in response to the "facts" and "actions" issues raised by [The Westfalls'] Motion for Sanctions, to show that justice requires that these issues be determined by the U. S. Justice Department, because this Court has no investigative capability:
IN RESPONSE TO MOVANTS' "FACTS" ISSUES
(Movants starting page 1 paragraph I)
The Westfalls' "sanctionable facts" issue 1:
"This lawsuit was brought by Plaintiff to collect on overdue legal fees for legal services rendered to the Defendant at Defendant's request".
FALSE: "Overdue" is a word never used in the entire case! This was an alleged "breach of contract" cause, where Plaintiff had breached the contract long ago by not openly and honestly informing Birnbaum by billing monthly and obligating Birnbaum to large expenses without Birnbaum's prior approval, all in violation of the agreement!
"Plaintiff" (and the lawyers) never had a cause!
The Westfalls' "sanctionable facts" issue 2:
"Instead of a mounting a normal defense to a rather simple lawsuit such as this and raising the normal objections to a suit on a sworn account, the Defendant/Third Party Plaintiff chose instead to make this lawsuit into his own public forum to make a mockery of all lawyers and the entire legal system".
FALSE: Birnbaum raised the normal defense of denying the account under oath per Rule 185, RCP, and calling for appointment of an auditor per Rule 172. (see attachment)
Neither the "Law Office", G. David Westfall, Stefani Podvin, Christina Westfall, or Frank C. Fleming ever responded to any of Birnbaum's motions for appointment of such Auditor under Rule 172!
Birnbaum has a First Amendment Right to speak out on the corruption G. David Westfall, Christina Westfall, and Stefani Podvin are bringing upon him in this Court in the name of their "Law Office".
The Westfalls' "sanctionable facts" issue 3:
"Defendant/Third Party Plaintiff tried unsuccessfully to intimidate and harass the Plaintiff into dropping this lawsuit by attempting to implicate the owner of the Plaintiff, G. David Westfall, as well as his wife and daughter in a totally frivolous claim of running an organized crime syndicate in the form of a law office".
FALSE AND CONCLUSORY: Birnbaum used more precise statutory language. But the issue is clear: Only the U. S. Justice Department can determine whether the above were indeed running a racketeering enterprise in violation of 18 U.S.C. $ 1961, et seq. out of the "law office" as Birnbaum complains. This Court has no investigative capability.
Birnbaum has a First Amendment Right to speak out against public corruption as he has seen it, without fear of retaliation masquerading as "sanctions".
"Implicate the owner" is ludicrous under the circumstances: "Plaintiff" is the alter ego of Westfall, his wife, and his daughter. Another issue for the U. S. Justice Department.
The Westfalls' "sanctionable facts" issue 4:
"The Defendant/Third Party Plaintiff has attempted to use the forum of this lawsuit to launch a full scale attack on the integrity and character of G. David Westfall, Christina Westfall, and Stephanie Podvin".
FALSE: Birnbaum was seeking the intervention of the Court from the beginning upon the issue of fraud in bringing this suit. Another issue for the U. S. Justice Department.
The Westfalls' "sanctionable facts" issue 5:
"If those attacks were not enough, the Defendant/Third Party Plaintiff broadened his attack in his pleadings and so called "Open Letters" to include casting aspersions at this Court, the visiting Judge, the Hon. Paul Banner, the Coordinator of the Court, the Court Reporter for the Court, and the Court of Appeals".
FALSE: Birnbaum was seeking the intervention of the addressees to bring this entire matter to the attention of the U. S. Justice Department.
IN RESPONSE TO MOVANTS' "ACTIONS" (OF BIRNBAUM) ISSUES
(Movants starting page 2 paragraph II)
Further Westfalls' "sanctionable facts" issues:
"Specifically, Movants file this request for sanctions against the Defendant/Third Party Plaintiff for the following actions of the Defendant/Third Party Plaintiff:"
Issue II-1
"Filing a frivolous third party claim pleading without factual support or a valid legal basis in Defendant/Third Party Plaintiffs causes of action filed against either G. David Westfall, Christina Westfall, or Stefani Podvin. Movants contend that Defendant/Third Party Plaintiff filed these pleadings for the purpose of causing inconvenience and/or harassment for Stefani Podvin, Christina Westfall, G. David Westfall, P.C., and G. David Westfall, individually and not in support of any valid, legally factual, and legally supportable claims."
FALSE: Birnbaum has a First Amendment Right to speak out against public corruption as he has seen it, without fear of retaliation masquerading as "sanctions". Another issue for the U. S. Justice Department.
Issue II-2
"Filing discovery requests and taking depositions for the purpose of harassment and inconvenience and not to support any valid claims or causes of actions against the Movants."
FALSE: Birnbaum has a First Amendment Right to speak out against public corruption as he has seen it, without fear of retaliation masquerading as "sanctions". Another issue for the U. S. Justice Department.
Issue II-3
"Filing a frivolous motion to recuse the Hon. Paul Banner for the purpose of causing inconvenience and/or harassment for Movants.
FALSE: As pointed out at the trial by Hon. Paul Banner himself, Birnbaum has a procedural right to ask for recusal.
Birnbaum has a First Amendment Right to speak out against public corruption as he has seen it, without fear of retaliation masquerading as "sanctions". Another issue for the U. S. Justice Department.
Issue II-4
Filing frivolous and untimely motions to appeal the granting of the Movants' Motions for Summary Judgment granted by the trial court."
Birnbaum has a First Amendment Right to speak out against public corruption as he has seen it, without fear of retaliation masquerading as "sanctions". Another issue for the U. S. Justice Department.
In response to [The Westfall'] Movants "Wherefore, Premises Considered" paragraph, seeking the following:
a. Reimbursement of all Movants' reasonable and necessary attorney's fees expended by Movants in defense of the allegations made by the Defendant/Third Party Plaintiff in this lawsuit to the extent such attorney's fees have not yet been awarded in any prior rulings of this Court.
b. Reimbursement of all Movants' reasonable and necessary attorney's fees expended by Movants in pursuit of this Motion for Sanctions.
c. Monetary damages to reimburse Movants for the inconvenience and harassment suffered by the Movants as a direct result of the improper actions taken by the Defendant/Third Party Plaintiff against the Movants in connection with this lawsuit.
d. Punitive damages to be assessed against the Defendant/Third Party Plaintiff and awarded to the Movants in order to prevent the reoccurrence of such behavior again in the future by the Defendant/Third Party Plaintiff
e. Damages assessed against the Defendant/Third Party Plaintiff and awarded to the Court to reimburse the Court for its expenses and inconvenience suffered as a direct result of frivolous pleadings filed on behalf of the Defendant/Third Party Plaintiff.
f And for such other and further relief, both general and special, to which Movants may be justly entitled, both at law and equity.
Birnbaum has a First Amendment Right to speak out against public corruption as he has seen it, without fear of retaliation masquerading as "sanctions". Another issue for the U. S. Justice Department.
WHEREFORE, PREMISES CONSIDERED, Birnbaum prays that a hearing be set on the "fact" and "actions" issues raised in the [Westfalls'] Motion for Sanctions, so that he may more fully show that the interest of justice requires that this matter be turned over to the U. S. Justice Department. (See attached Petition to U. S. Bankruptcy Judge for details). The Westfalls are a menace to society.
Respectfully submitted
________________________
UDO BIRNBAUM, Pro Se
540 VZ CR 2916
Eustace, TX 75124
(903) 479-3929
att:
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above document has this_10____ day of May, 2002 been delivered as follows:
REGULAR U.S. FIRST CLASS MAIL:
CERTIFIED MAIL, RESTRICTED DELIVERY
NO. 7000 0520 0022 8182 1532:
HAND DELIVERY:
____________________
Udo Birnbaum