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.

JURY TRIAL DEMANDED

Defendants.

PLAINTIFFS RESPONSE TO DEFENDANTS

MOTION TO STAY DISCOVERY
Come now Plaintiffs Ann and Dezso Benedek, in response to
Defendants Motion to Stay Discovery, and show the Court as follows:
The Attorney Generals Motion to Stay Discovery relies on a series of
mis-statements of factmis-statements that show, rather, that discovery is
needed, if only to debunk the knowingly false statements upon which the

Attorney General is also relying in the Motion to Dismiss the Benedeks

Complaint.
First and foremost, the Attorney Generals claim that this is the third
separate lawsuit filed on this subject matter is entirely misleading. Motion to
Stay, p. 2.
In fact, the instant action, 16CV1803, filed in US District Court on
June 2, 2016, is a direct continuation of Benedek I, Benedek v. Board of
Regents, 13EV016714, filed in Fulton State Court on February 15, 2013.
Benedek I was removed to federal court, where certain federal claims
were dismissed on statute of limitations grounds and the rest of the case
remanded back to Fulton State Court. After it was discovered that the
presiding judge had personal, political, and financial ties to the Attorney
Generaland refused to recuse--the instant action, Benedek I,1 voluntarily
dismissed in state court, was properly re-filed in federal court pursuant to
OCGA 9-11-41.

1 The Attorney General has also confused the record with respect to Benedek II. As
more fully documented in Plaintiffs response to the Motion to Dismiss, Judge
Baxters actual ruling was that the RICO claims filed in Benedek II should properly

That brings us to the Attorney Generals second major mis-statement

of material fact, a corollary of the first: that this federal court action was
filed, in alleged defiance of the rule of law, after Defendants had to expend
significant resources responding to prior lawsuits by Plaintiffs arising out of
the same set of operative facts, both of which were dismissed. Motion to
Stay, p. 5.
While this may be satisfying to the Attorney General in terms of
making Benedeks counsel sound like some sort of a legal renegade, it is
completely false. While it is true that Judge Edlein did previously attempt to
enter two dismissal orders to bar Plaintiffs from amending their complaint to
add RICO claims against the Attorney General, both orders were vacated in
their entirety with respect to dismissal. Judge Edleins first attempt to
dismiss the case on spurious grounds was reversed and vacated by the
Georgia Court of Appeals. The second attempted dismissal order was
vacated by Judge Edlein herself in the face of documented improprieties.
See Humphreys Affidavit, Exhs. C & F.
Needless to say, a vacated order has no legal effect whatever to bar
the Benedeks from pursuing their claims according to the proper laws and
procedures governing this action.

Benedek I continued on its own course after both of Edleins dismissal

orders were vacated. It continues today as 16-CV-1803 in the United States
District Court for the Northern District of Georgia.
This correction of the procedural history is fatal to the Attorney
Generals Eleventh Amendment defense, as Defendants previously waived
immunity from suit in federal court by removing this case to federal court in
2013. In addition, they now invoke this Courts jurisdiction to impose
unwarranted sanctions on Plaintiffs counsel, based on the same
misrepresentation that this is the third filing of the same lawsuit that has
twice been subject to a final adjudication of dismissal.
That sounds badit just does not happen to be true. Absent an actual,
valid final adjudication of dismissal, the Attorney General has conjured up
mere phantoms of one from the vestiges of long-since vacated orders.
Therefore, this Court also potentially has jurisdiction on its own motion
under Rule 11 of the Federal Rules of Civil Procedure.
List of Exhibits
This Response refers to the following exhibits filed with the Affidavit
of Stephen F. Humphreys. Since the instant action is the re-filing of the state
court actions, Benedek I, Benedek II, and Benedek v. Edlein pursuant to

OCGA 9-11-41, the following documents are in effect pleadings already

filed in this case, but since the pleadings were filed in a different forum, the
Court may not have practical access to them. They are listed here and filed
as exhibits to assist the Court.

Exh A. Michael Adams Deposition Notice. This deposition was noticed

after remand from the Court of Appeals and long after the expiration of the
90-day stay of discovery, which cannot be extended, under Georgia law.
OCGA 9-11-12.
Exh. B. Ex parte order by Judge Susan Edlein Quashing Adams Deposition.
Judge Edlein merely signed the motion filed by the Attorney General the
same day, without first receiving Benedeks response, which was also ready
the same day.
Exh C. July 21 Objections. This pleading was filed to memorialize the
improper actions of Judge Edlein on July 21, 2015. These include Judge
Edleins stated intention to rule on the motion to dismiss that was pending
since January 6, 2014, even though it could not and did not address
amendments filed on March 24, 2014which the Court of Appeals deemed
the effective complaint and reversed Judge Edlein for denying, an action

she had no discretion to take under OCGA 9-11-15, which allows

amendment as of right up until entry of a pre-trial order.
Exh D. Benedeks response to the motion to quash Adams deposition. It
was filed as an after-the-fact exhibit only--since it was not received by Judge
Edlein, though she was informed that it was ready, before she issued her
ruling quashing the deposition.
Exh. E. Transcript of April 9, 2014 hearing before Judge Jerry Baxter in
Benedek II. The transcript clarifies that Baxter considered Judge Edleins
denial of the RICO amendments separately filed in Benedek II to be clearly
erroneous, and that the proper course was for Plaintiff to pursue those claims
in Benedek I when Edleins order was reversedas it was, by the Georgia
Court of Appeals, on June 6, 2014.
Exh F. Motion to Recuse. As stated in the motion, it was filed upon
discovery--after a cursory investigation instigated by Edleins ex parte order
and other highly irregular rulings to prevent claims from being pursued
against Attorney General Sam Olens--that Edlein had longstanding and
extensive personal, financial, and political ties to Olens that had never been
disclosed during the three years she presided over Benedek I.

Exh G. Order Denying Motion to Recuse. The denial is based largely on

Edleins demonstrably false statement that Benedek failed to file the
supporting affidavit establishing the timeliness of the motion.
Exh H. Affidavit of Stephen Humphreys in support of motion to recuse. This
shows that, despite logistical difficulties that had been previously explained
to Judge Edlein, the affidavit supporting the Motion to Recuse was, contrary
to Edleins denial order, filed on a timely basis, within five days of
discovery on the grounds for recusalas was the Motion to Recuse itself.
Judge Edlein has not altered her stance taken on the public record that this
affidavit was not filedyet she has also denied on the public record, outside
the proceedings of her own court, that she entered the order denying the
motion to recuse for lack of a supporting affidavit--even though the affidavit
was, in fact, filed.
Exh. I. Written Interrogatories to Susan Edlein. These were served by
agreement of the parties to commence discovery, after expiration of the
mandatory stay, in the mandamus action filed in Fulton Superior Court that
became Benedek v. Edlein, 2015CV264754--later voluntarily dismissed and
re-filed as part of the instant action pursuant to OCGA 9-11-41. This
discovery has now been pending for six months without responses.

Exh J. Requests for Production of Susan Edlein. These were served by

agreement of the parties to commence discovery in the mandamus action
that became Benedek v. Edlein, 2015CV264754, later voluntarily dismissed
and re-filed as part of the instant action pursuant to OCGA 9-11-41. This
discovery has now been pending for six months without responses.
Exh. K. Edlein Objections. This blanket refusal to respond to Benedeks
interrogatories and requests for production does not name the specific
discovery objected to or the grounds for objecting with particularity. Rather,
it asks the court to bar all discovery, to which Defendant Edlein previously
assented.
Exh. L. Recusal order of Judge Kimberly Esmond Adams in Benedek v.
Edlein, staying discovery though the court had no authority to do so under
the statute, OCGA 9-11-12, limiting the stay to 90 days absent a proper
objection to discovery.
Exh. M. Chief Judge Tusan order recusing the entire Fulton Count bench,
transferring the cause, and maintaining the unauthorized stay of discovery.

Exh. N. Order of Judge Grant Brantley, sitting by designation, setting a

hearing on the discovery motion and maintaining the unauthorized stay of
discovery.
Exh. O. Judge Brantley email retraction of oral dismissal of claims (that had
not yet even been briefed by the parties) from the bench during the eventual
hearing on Edleins inchoate discovery objections.
Exh. P. Transcript of May 23, 2016 hearing in Benedek v. Edlein presided
over by Judge Grant Brantley. It shows Judge Brantley purporting to dismiss
the action in its entirety over counsels objections that the amended claims
had never been briefed by the parties and that there was pending discovery
related to those claims.
Exh. Q. Second Amended Complaint filed in the removed action in Benedek
I in federal court, May 15, 2013. The attempted amendment, denied on
procedural grounds under FRCP 15 by Judge Amy Totenburg (even though
the amendment was a response to a second motion to dismiss filed by the
Attorney General two weeks earlier), was Plaintiffs first fledgling effort to
add RICO claims and parties to the action. That effort to amend did not
succeed until over three years laterwith this filing anew in federal court,

after the state courts of Georgia blocked every attempt to amend to add
RICO claims against the Attorney General.
Exh. R. Notice of Filing Exhibits. This includes some of the evidence
already in Plaintiffs possession, though no discovery has ever been allowed
in the more than three-year course of this litigation. The evidence supporting
the allegations comes from UGA records and was authenticated by sworn
testimony of witnesses adverse to Benedek at the hearing on the failed
attempt to revoke Professor Benedeks tenure. The records show evidence
tampering, both by the manufacture of false evidence and the attempt to
conceal material evidence contradicting the knowingly false charges brought
against Professor Benedek by the Attorney General and then-President of
UGA, Michael Adams.

A. Eleventh Amendment Defense

Defendants attempt to raise an Eleventh Amendment immunity
defense to discovery is only one of the reasons that it is important to see
through the fiction they are selling that this is the third of three separate
lawsuits. Rather, the instant federal court action traces its pedigree all the
way back to February of 2013, with the filing of Benedek I.

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Thus the instant case is the same case that Defendant Board of
Regents previously removed to federal court, also in 2013, at the instance of
the Attorney General who was serving as legal counsel for the Regents.
Defendants admit this removal in their own pleadings. Motion to Dismiss, p.
9.
In a pertinent authority the Attorney General neglected to mention, the
United State Supreme Court has already held that states waive their Eleventh
Amendment immunity by removing a case to federal court. Lapides v Board
of Regents of University System of Georgia, 535 US 613, 620, 624 (2002)
(Georgias Board of Regents, by removing case to federal court, waived its
Eleventh Amendment immunity).2
Therefore, this alleged immunity cannot serve as grounds either for a
bar to discovery or dismissal.
Furthermore, based on the misrepresentation that the instant case is
barred by any final adjudication in the courts of the State of Georgia, the
Attorney General invokes the jurisdiction of this court to enter an
injunctionunjustly barring counsel from practicing before this Court. It is,

2 Devon Orland, then Assistant Attorney General of Georgia--and now Senior Assistant
Attorney General and also a signatory to the Motion to Stay in the instant case--argued
the cause in the US Supreme Court for the losing respondents in Lapides. Deputy
Attorney General Kathleen Pacious, also a signatory to the Motion to Stay, was also on
the brief to the US Supreme Court in Lapides.

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in effect, asking a federal court to enter an injunction against the laws of

State of Georgia itselfas this case was properly voluntarily dismissed and
re-filed in accordance with OCGA 9-11-41.
The Attorney Generals knowing misrepresentation in pleadings
signed by the Attorney General of Georgia, Sam Olens, also waives
Eleventh Amendment immunity, since it authorizes this Court to invoke
jurisdiction on its own motion under Rule 11 of the Federal Rules of Civil
Procedure.
These three separate grounds of federal court jurisdictionremoval,
request for injunctive relief, and misrepresentations to the Court--negate
Defendants assertions that the Eleventh Amendment shields them from
discovery.

B. Discovery and the Interests of Justice

While it is certainly true that the District Court has broad discretion to
manage discovery, the interests of justice militate against any such stay in
this case.
This case was filed in Fulton State Court and resumed there after
removal and remand, continuing for approximately three years. Though the

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Georgia statute, OCGA 9-11-12, limits the stay of discovery for a motion to
dismiss to 90 days, and does not permit an extension, the Attorney General
has, with considerable assistance from his co-defendant, Judge Edlein, now
been able to milk the stay to keep it going for more than three years.
This delay, in extreme non-compliance the governing statute during
all this time, stepping fifteen times over the statutory limit, has by itself
prejudiced Plaintiffs. Courts commonly recognize such delay as cause for
prejudice against a party seeking discovery. Singleton v. State, 732 SE2d
312, 318 (Ga. App. 2012) (prejudice from delay in discovery includes
dimming memories and loss of evidence). The potential prejudice is
especially significant in a case like this one, where the wrongdoing alleged
includes the disappearance of documents and the denial that they even exist,
only to later find that they were in the possession of the Attorney General all
along. See Aff, Exh. R.
While Defendants seek to avoid a planning conference for future
discovery, they overlook the discovery that is already pending, unanswered
and unresolved for some time. See Aff., Exhs A, I & J.
As to the already pending discovery requests from state court,
Defendants have the burden of showing that a particular request is overbroad

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or oppressive. There are, in this case, pending discovery requests to which

no proper objection has ever been made. Objections to discovery must be
made with particularity. Panola Land Buyers Ass'n v. Shuman, 762 F.2d
1550, 1559 (C.A.11 (Ala.), 1985). Defendant Edlein, on the other hand,
refused all pending discovery in a motion that wrapped a single wet blanket
around all discovery and did not state any specific grounds for objecting to
any specific request. Aff, Exh. K. The Attorney General likewise made only
boilerplate objections to the deposition of Michael Adams, but were unfairly
boosted by Judge Edleins ex parte order. Aff, Exhs. B&C. Contrary to the
history of this case, broad shotgun objections are not supposed to be
sufficient. 762 F.2d at 1559. It is, in fact, an abuse of discretion to stay
discovery where no proper objection, with the required specificity, has been
made. Panola, 762 F.2d at 1558-59. It is also an abuse of discretion to grant
a dispositive motion when discovery related to that motion has been
curtailed. Id. 1558, 1560; Bazemore v. State, 244 Ga. App. 460, 463, 535
S.E.2d 830, 834 (Ga. App., 2000).3

3
Judicial immunity does not exempt a judge from discovery, either. Harris v. Harvey,
605 F.2d 330, 337 (7th Cir. 179) (leading case stating that even where judicial immunity
exists it does not exclude a judges acts from evidence, but merely bars liability); Citizens
to Preserve Overton Park v. Volpe, 401 US 402 (1971) (judges mental impressions
could be subject to discovery with a strong showing of bad faith or improper behavior);
United States v. Morgan, 303 US 309, 421 (1940) (opens door to mental processes if
nothing in the record supports a decisionas in the case of Edleins ruling that Benedek
did not file the recusal affidavit, when the record shows it was filed. Aff., Exhs G&H).

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Plaintiffs are also entitled to discovery because Defendant Edlein

brought knowingly false and frivolous claims for damages against Benedek
and his counsel in Benedek v. Edlein, which has now been blended in the
instant case. Complaint, p. 16. In response, Benedek amended to allege that
Edlein brought these claims in bad faith since they are, in fact, specifically
prohibited by statute. OCGA 9-15-15.
More egregiously, Defendant Edlein engaged in numerous knowing
misrepresentations in her answers to the mandamus petition and amended
complaint. The Attorney General has also made false claims in support of
Motion to Dismiss, which the Benedeks should be afforded an opportunity
to rebut. The Attorney General claims, for example, that Edleinbefore
attempting to enter an order dismissing Benedek I for the second time, an
order she was later forced to vacateshe considered all the arguments of the
parties and afforded Benedek a chance to amend his complaint on remand.
In fact, The Attorney General has constructive notice of the absolute
falseness of both assertions because an assistant attorney general was a party
to the July 21, 2015 phone conference in which counsel gave notice to Judge
Edlein that the March 24, 2014 amendments Judge Edlein purported to
deny, contrary to the plain language of OCGA 9-11-15 before being

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reversed by the Georgia Court of Appeals, had never been briefed by the
parties and that, upon remand from the Court of Appeals, Benedek was
filing a further amendment as of right under OCGA 9-11-15. Aff., Exh. C.
When Judge Edlein inquired, during the July 21 phone conversation,
how long that would take, counsel responded he could not file the
amendment before July 27, 2015 (because of the interruption and time taken
to address her ex parte order quashing the duly noticed deposition of
Michael Adams. Id.
Therefore, when Judge Edlein entered an order once again dismissing
the Benedek I action in its entirely, she was well aware that the 2014
amendments had never even been briefed--as required by law (S. LNG, Inc.
v. MacGinnitie, 294 Ga. 657, 755 S.E.2d 683, 693 (Ga. 2014), and which is
also a matter of public recordand that counsel did not have time to file the
subsequent amendment, which was pre-empted by the dismissal order
which just so happened to cut off amendments directed at obstruction by the
Attorney General. Exh. C.4

4 This second attempted dismissal order was vacated only in the face of a mandamus
petition, a motion to recuse, the initiation of a federal investigation, and a motion to
vacate documenting numerous irregularities.

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It is, logically, an abuse of discretion to deny discovery that is related

to the pending dispositive motion. Panola, 762 F.2d at 1560. That is
especially true given the prejudice Plaintiffs have already suffered after
being stonewalled in the same manner for more than three years.

Defendants enjoy no immunity, and no equities in their favor.

Wherefore, premises considered, the Motion to Stay Discovery should be
denied.

Respectfully submitted this 10th day of August, 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 10th day of August, 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 Response to
Motion to Stay Discovery with the Clerk of the Court using the CM/ECF
system, this 10th day of August, 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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