IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF
GEORGIA
DEZSO BENEDEK and ANN
BENEDEK,
Plaintiffs,
vs.
MICHAEL F. ADAMS, NOEL
FALLOWS, JUDITH SHAW, JANE
GATEWOOD, KASEE LASTER, JOHN
DOES, THE BOARD OF REGENTS of
the UNIVERSITY SYSTEM OF
GEORGIA, SUSAN E. EDLEIN, and
SAM OLENS in his individual capacity
and as THE ATTORNEY GENERAL OF
GEORGIA

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CIVIL ACTION NO.
16-CV-1803
JURY TRIAL DEMANDED

Defendants.
MOTION FOR RULE 11 SANCTIONS and
BRIEF IN SUPPORT
Come now Plaintiffs Dezso and Ann Benedek pursuant to Rule 11 of
the Federal Rules of Civil Procedure (FRCP), and move this honorable
Court for an order imposing sanctions against Attorney General Sam Olens
for gross misrepresentations of fact and law, interposed for an improper
purpose, and show the Court as follows:

On July 18, 2016, Attorney General Sam Olens filed a Motion to Stay
Discovery, relying on the state’s Eleventh Amendment immunity from suit
in federal court—an immunity Defendants waived by removing the action to
federal court when it was originally filed in February 2013.
On July 20, 2016, Attorney General Sam Olens filed a Motion to
Dismiss and Brief in Support in the above-styled action, in which he relied
on Eleventh amendment immunity, as well as res judicata and the RookerFeldman doctrine—both of which rely on the existence of a prior final order
in state court (which does not exist in this case). That motion also relies on
the fundamental misrepresentation that there have been three separate
actions brought on the same subject matter—when in fact the instant federal
action is the unbroken continuation of the same case that was filed in state
court in February of 2013.
In that motion based in such fundamental misrepresentations, the
Attorney General also sought an order from this Court barring Plaintiffs’
counsel from the state and federal courts of Georgia, based on alleged
“abuse of legal process” for the very act of even filing this federal court
action against the Attorney General. This extreme gambit, based on
misrepresentations of fact and law brought for an improper purpose, merits
the harshest sanctions.

 

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Rule 11 Violations Based on the Non-existent Dismissal Orders
On August 5, 2016, Plaintiffs gave notice pursuant to Rule 11(c) that
the Attorney General had made knowingly false representations of law and
fact to the Court, and had made these misrepresentations for an improper
purpose. See Exhibit 1, attached.
The most glaringly improper purpose by the Attorney General was to
seek an order from this Court barring the access of Plaintiffs and their
counsel to the state and federal courts of Georgia. The Attorney General
misrepresented to the Court that Plaintiffs had abused the legal process by
bringing claims in this Court that had been previously subject to a final
adjudication of dismissal in state courts.
This is a knowingly false statement intended to distort the record and
confuse the Court.
The Attorney General relies on two orders entered by Defendant
Susan Edlein.1 The first order was reversed and vacated by the Georgia
                                                                                                               

Judge Edlein denied a timely-filed motion to recuse, based on documented
conflicts of interest with respect to Sam Olens, on the false grounds that
there was no affidavit establishing timeliness of the motion to recuse. Aff.
Exhs. F-G. She is now a defendant based on her misrepresentations to the
mandamus court, outside the scope of judicial immunity, to obscure her
improper actions in defense of Olens’ own obstruction of an investigation of
wrongdoing in his office.  

1

 

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Court of Appeals as an improper attempt to bar Plaintiffs from amending
their complaint in violation of OCGA 9-11-15. Thus it is no basis either for
barring Plaintiffs’ claims--or for barring their counsel from the courts.
The second dismissal order--entered by Edlein to bar Plaintiffs for the
second time from amending their complaint, and without the parties ever
even briefing the effective complaint as determined by the Court of Appeals-was admittedly vacated by Edlein herself in response to a motion to vacate,
objections filed to document Edlein’s bad faith actions, a motion to recuse
based on financial and political ties to Attorney General Sam Olens, and a
mandamus petition for violating statutes such as OCGA 9-11-15 under
which she had no discretion—vacating the second dismissal “out of
abundance of caution,” according to Edlein.2 Humphreys Aff., Exh. C, F.
In any case, Edlein’s vacating of her own dismissal order removed
any of the preclusive effect now claimed by the Attorney General. In fact,
Edlein’s own order to vacate expressly allowed the amendments that were
cut off by Edlein’s second attempt to dismiss the action--and also prevent
Olens from being named as a party.
Benedek filed that amendment, and then—given that Edlein denied
the motion to recuse on false grounds contradicted by the public record-                                                                                                                
2  Presumably  Edlein  was  also  aware  that  her  highly  unusual  actions  triggered  a  
federal  investigation—an  even  better  reason  for  caution  on  Edlein’s  part.  
 

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voluntarily dismissed the action in state court in order to re-file the amended
complaint in federal court. That is the only other dismissal of the action
known as Benedek I, Plaintiffs’ own voluntary dismissal without prejudice,
subject to re-filing within six months without any penalty pursuant to OCGA
9-11-41. Any attempt to hold this voluntary dismissal without prejudice
against Plaintiffs is a misrepresentation of fact and law so clear as to merit
Rule 11 sanctions.
In the early stages of this litigation, when Defendants removed the
action known as Benedek I from state court to federal court—waiving any
claim of Eleventh Amendment immunity from suit in federal court—Judge
Amy Totenberg dismissed a single federal Section 1983 claim on statute of
limitations grounds and remanded the remaining claims to state court. That
does not affect any other claim in this litigation. Judge Totenberg did not
make any substantive ruling on any other claims—in particular Plaintiffs’
RICO claims. Totenberg merely declined to reconsider her remand order to
allow amendment to add the RICO claims. Despite the Attorney General’s
attempt to use the complicated procedural history to confuse the issues, this
is certainly no grounds for arguing that Plaintiffs’ present claims—which
have never been adjudicated on the merits--are barred, much less for the
personal and professional attack on Plaintiffs’ counsel.

 

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Nor can Defendants rely on any supposed final order of dismissal in
Benedek v. Edlein, the mandamus petition in Fulton Superior Court that
turned into substantive claims when Edlein misrepresented her actions to the
mandamus court, and also brought frivolous claims that are barred by statute
against Benedek and his counsel. Cobb County Senior Judge Grant Brantley,
sitting by designation in Spalding Superior Court after transfer of the action
from Fulton Superior Court, purported to rule from the bench, similar to
Edlein, to dismiss the action before the claims had even been briefed by the
parties. See Humphreys Aff., Exh P. Yet that oral order was never reduced
to writing or entered by the clerk, and was retracted by Judge Brantley—by
email—the same day. Aff., Exh. O. Based on this worrisome conduct in state
court, Benedek v. Edlein was also voluntarily dismissed without prejudice
and re-filed as part of this federal action. That aborted dismissal order and
voluntary dismissal without prejudice cannot serve as the basis for the
Attorney General’s attempt to claim there was a final adjudication in state
court to bar Plaintiffs’ counsel from the courts of Georgia.
Nor can the Attorney General rely on judge Jerry Baxter’s order in
Benedek II.3 As the Attorney General is well aware, since Judge Baxter
stated his position clearly on the record, Baxter’s ruling was that Judge
                                                                                                               
3  Benedek  II  consisted  exclusively  of  the  RICO  amendments  Judge  Edlein  “denied,”  
preventing  Plaintiffs  from  bringing  these  claims  in  Benedek  I.    
 

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Edlein was in error to deny the RICO amendments—which should proceed
in Benedek I when the Court of Appeals inevitably reversed Edlein’s order,
as did in fact occur. Humphreys Aff., Exh. E, 24:2-25:8, 30:9-31:12.
The Attorney General deserves to be seriously sanctioned for bringing
personal and professional attacks on Plaintiffs’ counsel based on the false
grounds of a supposed final state court adjudication that does not exist, and
attempting to confuse the Court by reference to dismissal orders that have
been reversed and/or vacated.

Legal defenses that also rely on a “phantom” state court order
The Attorney General also raised defenses of res judicata and the
Rooker Feldman doctrine—that also depend on a final adjudication in state
court.4 These arguments are entirely frivolous because there is no final state
court order to serve as a basis either for res judicata or the Rooker-Feldman
doctrine. These arguments are based on contentions that have no factual or
legal support under FRCP 11(b)(2&3), and can have no other purpose than
to confuse the Court with factual and legal misrepresentations, and to further

                                                                                                               
4  On August 29, 2016 in her Reply Brief, Defendant Edlein raised the exact same
defenses based on alleged final orders of adjudication in state court, orders that do not
exist.  
 

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harass, annoy, and delay Plaintiffs in the pursuit of their just claims in
violation of FRCP 11(b)(1).

Attempt to Hide Known Authority from the Court
Defendants claim Eleventh Amendment immunity, though they admit
that, at the time this action was originally filed in state court in 2013, the
Attorney General removed the action to federal court, waiving Eleventh
Amendment immunity. Defendants are well aware of the controlling US
Supreme court authority, as Defendant Board of Regents was the losing
party, and two members of the Attorney General’s staff who signed the
motion to dismiss argued the losing case. Lapides v Board of Regents of
University System of Georgia, 535 US 613 (2002).
In support of this avoidance of contrary legal authority, the Attorney
General has attempted to misrepresent this action, Benedek I--originally filed
in Fulton State Court, removed to federal court and remanded back to state
court, before being voluntarily dismissed and re-filed in federal court—as
three separate actions, “two of which have been dismissed.” Of course there
have not been three separate actions. Rather, a single action has continued to
go forward after the two dismissal orders were reversed and vacated.

 

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Additional Misrepresentations of Fact
Just as Judge Edlein resorted to extreme measures to protect her
political ally, Sam Olens, during the course of this litigation, the Attorney
General made numerous misrepresentations of fact in support of his motion
to dismiss that disguise the actions of Judge Edlein and have no evidentiary
support. See Exh. 1, pp. 5-6.
Plaintiffs have a pending motion to expedite discovery that will
adduce additional evidence that Attorney General has made
misrepresentations to this Court, other courts, the media, and the public.5
The evidence proffered in the requested deposition testimony also
highlights legal and ethical issues related to the Attorney General’s inability
to investigate and defense of claims of wrongdoing in his own office—and
thus is highly germane to the Attorney General’s conduct in defending this
action, both by claiming sovereign immunity for himself and by seeking to
bar Plaintiff’s counsel from pursuing further claims against the Attorney
General in the state and federal courts of Georgia.

Rule 11 Standard
                                                                                                               
5  Just  as  this  motion  addresses  actions  by  the  Attorney  General  that  fall  beyond  the  
scope  of  the  Attorney  General’s  claimed  sovereign  immunity  defense,  pending  
discovery  requests  show  that  her  actions  fall  outside  the  scope  of  judicial  immunity.  
 

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Rule 11(b) provides, in relevant part, that "[b]y presenting to the court
a pleading, written motion, or other paper[,]... an attorney or unrepresented
party" certifies to the best of his knowledge that: (1) the pleading is not
being presented for an improper purpose; (2) the "legal contentions are
warranted by existing law or by a nonfrivolous argument" to change existing
law; and (3) "the factual contentions have evidentiary support or... will likely
have evidentiary support after... discovery." Once the court determines, after
giving the offending party notice and a reasonable opportunity to respond,
that Rule 11 (b) has been violated, the court "may impose an appropriate
sanction" on the offending party. Attwood v Singletary, 105 F3d 610, 613
(11th Cir. 1997).
Courts have the inherent authority to control the proceedings before
them, which includes the authority to impose "reasonable and appropriate"
sanctions. Martin v. Automobili Lamborghini Exclusive, Inc., 307 F.3d 1332,
1335 (11th Cir., 2002). To exercise its inherent power a court must find that
the party acted in bad faith. Id. Such bad faith can be found in “continual and
flagrant abuse of the judicial process in this case.” Id. at 1336. When a court
imposes such sanctions. “the bite must be real.” Id. at 1337.
The sanction may include nonmonetary directives; an order to pay a
penalty into court; or, if imposed on motion and warranted for effective

 

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deterrence, an order directing payment to the movant of part or all of the
reasonable attorney's fees and other expenses directly resulting from the
violation. FRCP 11(c)(4).
Defendants’ knowing misrepresentations to the Court for purposes of
unfairly prejudicing Plaintiffs and levying a personal and professional attack
on Plaintiffs’ counsel—especially by Attorney General Sam Olens, in his
own self-interest and in defense of his own improper and unethical
conduct—certainly qualify for the severest sanctions contemplated by the
authors of Rule 11.

Rule 11 Procedural Deadlines
Plaintiffs served the Attorney General with notice of intent to file for
Rule 11 sanctions on August 5, 2016.
More than 21 days have elapsed since that notice, pursuant to FRCP
11(c)(2).
The Attorney General has not retracted the misrepresentations of fact
and law outlined in the August 5 notice. In fact, the Attorney General ceased
correspondence with Plaintiff’s counsel for all purposes, including routine
housekeeping matters such as extensions of time and acknowledgement of

 

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service. See Exh. 2. The Attorney General has not responded to phone calls,
letters, or emails, on any subject, for any purpose, since August 5, 2016.
Moreover, the Attorney General co-defendant, Judge Edlein—with
whom Attorney General Sam Olens shares close personal, financial, and
political ties—has since filed a pleading containing the identical
misrepresentations concerning supposed final state court adjudication orders
that simply do not exist, repeating misrepresentations identical to those of
the Attorney General.6 Defendant Edlein cites the state court proceedings in
this action’s procedural history, but identifies no final order upon which a
state court adjudication could be based for purposes of res judicata or
Rooker Feldman doctrine.
That is because, as Edlein and Olens are both personally well aware
by now, there is no such state court order in this ruse, which is merely an
attempt to confuse the Court.

Accountability of the Attorney General
If, after notice and a reasonable opportunity to respond, the court
determines that Rule 11(b) has been violated, the court may impose an

                                                                                                               
6  These  constitute  yet  another  round  of  knowing  misrepresentations  transmitted  to  
another  court,  outside  the  scope  of  Defendant  Edlein’s  judicial  immunity,  in  addition  
to  her  misrepresentations  and  false  and  frivolous  claims  to  the  Fulton  Superior  
Court,  in  aid  of  Olens’  obstruction  of  independent  state  and  federal  investigations,  
which  form  the  principal  basis  of  the  claims  against  Edlein.  
 

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appropriate sanction on any attorney, law firm, or party that violated the rule
or is responsible for the violation. FRCP 11(c)(1).
In a prior action, which also serves as a precedent that state entities
such as the Attorney General’s office are not immune from civil claims for
evidence tampering, the Attorney General was fined $10,000 for concealing
material evidence.
Judge Ural Glanville of Fulton Superior Court fined the Attorney
General for withholding material evidence in a whistleblower action brought
by former head of the Georgia ethics Commission, Stacey Kalberman, who
was removed from her position in retaliation for investigating claims of
campaign finance violations by Governor Nathan Deal.
In the holding of that order, Judge Glanville expressed regret that the
penalty fell upon the taxpayers of Georgia instead of the persons responsible
in the Attorney General’s office.
For this reason, among others, Plaintiffs respectfully request that any
monetary sanctions in connection with this motion be imposed against
Attorney General Sam Olens, personally. The reasons are further outlined in
the notice letter. Exh. 1, pp 6-7. However, it should be noted that the attempt
to bar Plaintiffs’ counsel from the practice of law in the courts of Georgia,
on a fraudulent basis, is merely the culmination of a longstanding campaign

 

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of character assassination--that can be fully documented at the Court’s
request, in violation of every precept of legal ethics and civility.
It is our belief that the Attorney General of Georgia should set the
standard for the highly-principled practice of law, not the lowest common
denominator.

Wherefore, premises considered, Plaintiffs pray for the Court to enter an
order granting any or all of the following relief:
The striking of Defendants’ pleadings in this action;
The denial of the stay of discovery sought on knowingly false
Eleventh Amendment grounds;
Denial of Defendants’ Motions to Dismiss;
The entry of stipulations of law that Defendants’ may not avail
themselves of any of the asserted defenses at law;
The entry of stipulations of fact as to Plaintiffs’ allegations of
wrongdoing against Defendants;
Referral of the Attorney General’s actions to the State Bar of
Georgia for review under the Georgia Rules of Professional
Responsibility;

 

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Referral of Judge Edlein’s actions to the Judicial Qualifications
Commission for review under the Canons of Judicial Conduct;
Monetary sanctions, including but not limited to the Plaintiffs’
costs for responding to the pleadings containing false statements of fact
and law interposed for an improper purpose, with such monetary
sanctions to be levied against Attorney General Sam C. Olens,
personally;
Imposition of any additional monetary sanctions against
remaining Defendants; and
Any other relief the Court finds just and equitable.
Respectfully submitted this 1st day of September, 2016.

STEPHEN F. HUMPHREYS, P.C.
/s/ Stephen F. Humphreys
___________________________
STEPHEN F. HUMPHREYS
Georgia Bar No. 378099
P.O. Box 192
Athens, GA 30603
1671 Meriweather Drive
Bogart, GA 30622
(706) 543-7777 p
(706) 543-1844 f
(706) 207-6982 m
 

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CERTIFICATE OF COMPLIANCE
Pursuant to Local Rule 7.1(D), I hereby certify that the foregoing has
been prepared in compliance with Local Rule 5.1(B) in 14-point New Times
Roman type face.

This 1st day of September, 2016.
/s/ Stephen F. Humphreys
___________________________
STEPHEN F. HUMPHREYS
Georgia Bar No. 378099

 

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CERTIFICATE OF SERVICE
Undersigned counsel hereby certifies the electronic filing of this Motion for
Rule 11 Sanctions with the Clerk of the Court using the CM/ECF system,
this 1st day of September, 2016, serving opposing counsel as follows:
Samuel S. Olens
Kathleen M. Pacious
Devon Orland
Deborah Nolan Gore
Office of the Attorney General
40 Capitol Square, SW
Atlanta, Georgia 30334-1300

STEPHEN F. HUMPHREYS, P.C.
/s/ Stephen F. Humphreys
___________________________
STEPHEN F. HUMPHREYS
Georgia Bar No. 378099

P.O. Box 192
Athens, GA 30603
1671 Meriweather Drive
Bogart, GA 30622
(706) 543-7777 p
(706) 543-1844 f
(706) 207-6982 m

 

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