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Defendants.
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,
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.
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.
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