Rule 11 Motion Olens CX
Rule 11 Motion Olens CX
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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 states Eleventh Amendment immunity from suit
in federal courtan 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 doctrineboth 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 matterwhen 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.
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 courtwaiving any
claim of Eleventh Amendment immunity from suit in federal courtJudge
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 claimsin particular Plaintiffs
RICO claims. Totenberg merely declined to reconsider her remand order to
allow amendment to add the RICO claims. Despite the Attorney Generals
attempt to use the complicated procedural history to confuse the issues, this
is certainly no grounds for arguing that Plaintiffs present claimswhich
have never been adjudicated on the merits--are barred, much less for the
personal and professional attack on Plaintiffs counsel.
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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.
harass, annoy, and delay Plaintiffs in the pursuit of their just claims in
violation of FRCP 11(b)(1).
Rule 11 Standard
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Just
as
this
motion
addresses
actions
by
the
Attorney
General
that
fall
beyond
the
scope
of
the
Attorney
Generals
claimed
sovereign
immunity
defense,
pending
discovery
requests
show
that
her
actions
fall
outside
the
scope
of
judicial
immunity.
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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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 Edleinwith
whom Attorney General Sam Olens shares close personal, financial, and
political tieshas 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 actions 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.
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These
constitute
yet
another
round
of
knowing
misrepresentations
transmitted
to
another
court,
outside
the
scope
of
Defendant
Edleins
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 Generals 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 Generals 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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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.
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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
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