You are on page 1of 17

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA

DEZSO BENEDEK and ANN

)

BENEDEK,

)

)

CIVIL ACTION NO.

Plaintiffs,

)

16-CV-1803

)

vs.

)

JURY TRIAL DEMANDED

)

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

)

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 Rooker-

Feldman 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.

2

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

1 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.

3

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 investigationan even better reason for caution on Edlein’s part.

4

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.

5

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 .

6

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.

7

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.

8

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.

9

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

(11 th 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

10

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

11

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 ye t 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.

12

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

13

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;

14

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.

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

/s/ Stephen F. Humphreys

STEPHEN F. HUMPHREYS Georgia Bar No. 378099

15

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

16

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 1 st 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.

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

/s/ Stephen F. Humphreys

STEPHEN F. HUMPHREYS Georgia Bar No. 378099

17