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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 TO FILE SUR-REPLY


Come now Plaintiffs Dezso and Ann Benedek, move the Court for an

order allowing an additional response, and show the Court as follows:


1.
Upon the re-filing of this action, which was voluntarily dismissed
without prejudice in state court, in federal court, Defendants filed motions to
dismiss and to stay discovery. Plaintiffs filed their Response and, after an

extension of both the time to answer and page-limit, Defendants filed their
Reply on September 8, 2016.
2.
In that Reply, Defendants abandoned many of their principal
arguments, to which Plaintiffs previously responded, and raised new
defenses and authorities, to which Plaintiffs have not yet had an adequate
opportunity to respond.
3.
For example, Defendants abandoned their main argument, that
Plaintiffs re-filed the same action that had been previously dismissed twice
in state court. Defendants further asserted in the motion to dismiss that this
now-abandoned premise represented an abuse of legal process for which
Plaintiffs counsel should be sanctioned and barred from practice in the
courts of Georgia. With no mention of what used to be the principal defense
raised in the motion to dismiss, Defendants have entirely altered their
argument for why the instant action is not a continuation of Benedek I, and
now apparently argue that the original state court actions, Benedek I and
Benedek v. Edlein, were not properly voluntarily dismissed and re-filed,

which represents a fundamental change to their original main argument for


dismissal.1
4.
Plaintiffs contend that this claim that Benedek I was not properly
voluntarily dismissed without prejudice and re-filed in the instant federal
court action is also a misrepresentation to the Court, but have had no
opportunity to respond to this newly-asserted defense.
5.
Similarly, the Attorney General, after more than three years of
insisting on it, throughout the course of this litigation, has just now conceded
that the Georgia Tort Claims Act (GTCA) is not the sole means of waiving
the states sovereign immunity, an argument relied on in the motion to
dismiss.2 Apparently, Defendants have effectively abandoned one sovereign
immunity argument and substituted anotherto which Plaintiffs have not
had an adequate opportunity to respond.

1 It is also a tacit concession that there was no basis whatsoever for Defendants
request to this Court for an injunction for alleged abuse of the legal process, which
was based on Plaintiffs re-filing the complaint in spite of the previous state court
dismissal ordersorders that were reversed and vacated.
2 Interestingly enough, the Court may take judicial notice that the Attorney General
continues to assert the defense, now abandoned in this case, in defending another
action brought under the Georgia Whistleblower Act, Barrow v Board of Regents. The
Attorney General is arguing in that case that University of Georgia employees who
have been retaliated against have no remedy, that the whistleblower statute is
unconstitutional--because it is in conflict with the theory that the GTCA constitutes
the sole means of waiving the states sovereign immunity.

6.
Defendants, who previously omitted a controlling Supreme Court
authority on waiver of Eleventh Amendment immunity, Lapides v Board of
Regents of University System of Georgia, 535 US 613 (2002)., have now
altered their basis for claiming that defense, as well.
7.
Defendants make no mention of this Courts independent Rule 11
jurisdiction pursuant to the Defendants request to impose sanctions on
Plaintiffs counsel without any factual or legal basis, as tacitly conceded in
their Reply, which makes no mention of the supposed grounds, argued in the
motion to dismiss, for barring Plaintiffs counsel from the courts.
8.
Defendants in their Reply have also mis-stated facts material to the
issues before the Court. For example, they assert that Plaintiffs conceded
that all tort claims are barred by the statute of limitationssupposedly by
not opposing that defense. However, Plaintiffs did dispute Defendants
arguments that these claims were first filed in 2016, which was the basis of
Defendants statute of limitations argument. Plaintiff requests an opportunity
to correct this and other factual distortions.
9.

These are issues that jumped out from an initial cursory review upon
receiving the Reply. Upon information and belief, Plaintiffs upon further
review will discover additional omissions, distortions, and altered defenses
in the Reply. In the interest of fairness, Plaintiffs should be afforded an
opportunity to sort out exactly what procedural technicalities Defendants are
now relying on and respond to the revised legal theories and material facts.
10.
Plaintiffs, while they will strive to be more concise, request an
extension of the page-length to allow a 20-page additional response, equal to
Defendants Reply.
11.
Plaintiffs, though they will endeavor to file the additional response as
soon as possible to avoid delay, request 15 days to file the additional
response. As reason therefor, Plaintiffs counsel is leaving the country on
business next week for at least ten days.

Wherefore, premises considered, Plaintiffs request permission to file of surreply of up to 20 pages by September 24, 2016.

Respectfully submitted this 9th 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

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 9th day of September, 2016.


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

CERTIFICATE OF SERVICE
Undersigned counsel hereby certifies the electronic filing of this Motion to
File Sur-reply with the Clerk of the Court using the CM/ECF system, this
9th 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