Case: 17-11714 Date Filed: 02/12/2018 Page: 1 of 15
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-11714 Non-Argument Calendar ________________________
D.C. Docket No. 1:16-cv-01803-ELR
DEZSO BENEDEK, ANN BENEDEK,
Plaintiffs-Appellants,
versus
MICHAEL F. ADAMS, NOEL FALLOWS, JUDITH SHAW, JANE GATEWOOD, KASEE LASTER, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(February 12, 2018)
Before MARCUS, WILLIAM PRYOR and ANDERSON, Circuit Judges.
PER CURIAM: Case: 17-11714 Date Filed: 02/12/2018 Page: 2 of 15
Dezso and Ann Benedek (collectively, “the Benedeks”) appeal the district
court’s denial of Fed. R. Civ. P. 11 sanctions against the defendants and the court’s
Fed. R. Civ. P. 12(b)(6) dismissal of their amended complaint, which asserted
§ 1983 civil rights claims for First Amendment retaliation and conspiracy, claims
for violation of 18 U.S.C. § 1961, et seq., the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), and numerous state law claims. The district court
determined that the claims alleged against Judge Susan Edlein that concerned her
rulings in a case over which she presided were barred by judicial immunity, any
claims based on Judge Edlein’s conduct in a separate mandamus proceeding were
too conclusory to state a claim, and the federal claims against the remaining
defendants were barred by res judicata. The court declined to exercise
supplemental jurisdiction over the Benedeks’ state law claims and dismissed them
without prejudice. On appeal, the Benedeks assert that the district court erred in its
dismissal and the denial of Rule 11 sanctions. After review, we affirm.
I.
The relevant and complicated facts and legal history surrounding this case,
as alleged in the Benedeks’ 169-page amended complaint, are these. Dezso
Benedek was a professor at the University of Georgia (“UGA”) and head of its
Asian Language Program. He developed study-abroad programs for students in
Budapest and China. Professor Benedek engaged in several acts of protest and
2 Case: 17-11714 Date Filed: 02/12/2018 Page: 3 of 15
spoke out publicly against defendant Michael Adams, who was president of UGA
at that time. In retaliation, the defendants allegedly denied academic credits to
students seeking to participate in the study-abroad programs and denied general
funding to the programs, and defendant Noel Fallows allegedly impersonated UGA
students involved in these programs by hacking into their e-mail accounts to
manufacture evidence harmful to Professor Benedek.
In October 2009, Professor Benedek’s attorney complained about the
retaliation to the Board of Regents of the University System of Georgia (“BOR”), a
defendant in this action, and asked the Attorney General of Georgia to investigate.
The Attorney General initiated formal tenure revocation proceedings against
Benedek at UGA’s request in July 2010. Specifically, Benedek was accused of
forging transcripts and having undisclosed conflicts of interest concerning the
study-abroad program. Benedek alleges in his complaint that defendants Fallows,
Judith Shaw, Jane Gatewood, and Kasee Laster used manufactured evidence and
perjured testimony against Benedek, and that they suppressed evidence helpful to
the professor.
After a three-day hearing, a faculty committee found that Professor Benedek
had been insubordinate for failing to provide information about his alleged
conflicts of interest. The committee recommended that Benedek remain tenured
but that credit and funding be denied to his study-abroad programs, and that he be
3 Case: 17-11714 Date Filed: 02/12/2018 Page: 4 of 15
demoted as head of the Asian Language Program. Adams accepted the findings
and recommendations. After an appeal, the BOR upheld Adams’s decision in
February 2011. Professor Benedek and his wife, Ann, separated in May 2011.
In February 2013, Professor Benedek filed a civil complaint in Fulton
County State Court against Adams, Fallows, Gatewood, and the BOR (“Benedek
I”). The defendants removed the case to federal court, where a district court
dismissed the § 1983 claims as time-barred and remanded the remaining state law
claims in May 2013. Professor Benedek attempted to amend his complaint again
before dismissal, but the district court denied amendment. He moved to stay
dismissal and remand, arguing that he had leave to amend as of right, and that the
new claims that he added, including federal RICO claims, extended the statute of
limitations. The district court denied the motion, concluding that Benedek could
not amend his complaint a second time as a matter of course, and that the proposed
amendment to the complaint did not raise federal RICO claims. The court later
denied a motion for reconsideration, and Professor Benedek did not appeal.
On remand in state court, Judge Edlein dismissed the remaining state law
claims as barred by sovereign immunity and denied Professor Benedek leave to
amend his complaint to add state RICO claims and name Georgia Attorney
General Sam Olens as a defendant. The Georgia Court of Appeals reversed
because Judge Edlein used an incorrect standard to deny leave to amend. On
4 Case: 17-11714 Date Filed: 02/12/2018 Page: 5 of 15
remand, Judge Edlein allowed Professor Benedek to add Ann Benedek as a
co-plaintiff and add state law claims. Judge Edlein again granted a motion to
dismiss the claims on sovereign immunity grounds and denied a motion for
sanctions. The Benedeks moved to vacate the dismissal order because Judge
Edlein had entered it before giving them the agreed additional time to further
amend the complaint. Judge Edlein vacated her dismissal to allow the Benedeks to
amend their complaint.
After Judge Edlein ruled against Benedek several times, his attorney
researched alleged connections between Judge Edlein and Olens. Counsel
allegedly learned that Olens had sent substantial business to Judge Edlein’s former
law firm while she was a partner there, and Olens was on the Judicial Nominating
Commission when Judge Edlein was appointed as a Fulton County State Court
judge. The Benedeks moved for Judge Edlein to recuse herself, but she denied the
motion. The Benedeks eventually voluntarily dismissed Benedek I in state court.
Before Benedek I was dismissed, Professor Benedek filed a second lawsuit
in the Superior Court of Fulton County against Gatewood, Shaw, Laster, Fallows,
and Olens, asserting state RICO claims arising out of the same allegations as were
contained in Benedek I (“Benedek II”). The court dismissed the action, concluding
that the state RICO claims were barred by res judicata because they concerned the
same subject matter as the claims raised in Benedek I.
5 Case: 17-11714 Date Filed: 02/12/2018 Page: 6 of 15
While Benedek I was pending, the Benedeks also sought an independent
investigation into alleged wrongdoing during the tenure revocation proceedings. In
November 2014, Olens made statements to the media that the Benedeks’ claims
were frivolous. The Benedeks claimed that Olens’s statements were an effort to
obstruct Benedek I and the requested independent investigation. Benedek then
filed a mandamus action in Fulton County Superior Court against Judge Edlein. In
response, Edlein denied any wrongdoing and sought attorney’s fees under a
Georgia statute. Benedek eventually voluntarily dismissed the mandamus action.
In June 2016, the Benedeks filed the instant action, raising claims based on
interference with the study-abroad program, the tenure revocation proceeding,
Professor Benedek’s demotion and restrictions, Olens’s media comments, and
Judge Edlein’s conduct. The district court denied the Benedeks’ motion for Rule
11 sanctions against the defendants and granted the defendants’ motions to
dismiss. This timely appeal followed.
II.
“We review de novo the district court’s grant of a motion to dismiss under
Rule 12(b)(6) for failure to state a claim, accepting the allegations in the complaint
as true and construing them in the light most favorable to the plaintiff.” Am.
Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1288 (11th Cir. 2010) (quotation
omitted). We also review the district court’s res judicata determinations de novo.
6 Case: 17-11714 Date Filed: 02/12/2018 Page: 7 of 15
Maldonado v. U.S. Att’y Gen., 664 F.3d 1369, 1375 (11th Cir. 2011). We review
the district court’s denial of Rule 11 sanctions for abuse of discretion. Worldwide
Primates, Inc. v. McGreal, 26 F.3d 1089, 1091 (11th Cir. 1994).
III.
First, we are unpersuaded by the Benedeks’ argument that the district court
erred in dismissing the claims they brought against Judge Edlein in the context of
the mandamus action they had filed. To survive dismissal for failure to state a
claim, “a plaintiff’s obligation to provide the grounds of his entitlement to relief
requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quotation and internal alterations omitted). “Factual allegations
must be enough to raise a right to relief above the speculative level.” Id. Mere
conclusory statements in support of a threadbare recital of the elements of a cause
of action will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
While the Benedeks mentioned the mandamus proceeding in their lengthy
complaint, they did not refer to the mandamus proceeding in the 50-page section
that listed their causes of action. Instead, the complaint generally described
Edlein’s claims and representations in the mandamus proceeding as
misrepresentations and efforts at obstruction, but these statements are too
conclusory to state a cause of action. Id. The Benedeks’ allegation that Edlein
7 Case: 17-11714 Date Filed: 02/12/2018 Page: 8 of 15
deprived Professor Benedek of due process by her actions outside her courtroom
also was too conclusory to support a claim. Id. Thus, the district court properly
held that the Benedeks failed to state claims based on Judge Edlein’s conduct in
the mandamus action. 1
Nor did the district court err in holding that the remaining claims against
Judge Edlein were barred by judicial immunity since they were based on Edlein’s
rulings in Benedek I. Under the doctrine of judicial immunity, a judge is entitled
to absolute judicial immunity from damages for those acts taken while acting in a
judicial capacity, unless they acted in the clear absence of all jurisdiction. Bolin v.
Story, 225 F.3d 1234, 1239 (11th Cir. 2000). Whether an act is done within a
judge’s judicial capacity is determined by “the nature of the act itself, i.e., whether
it is a function normally performed by a judge, and to the expectations of the
parties, i.e., whether they dealt with the judge in his judicial capacity.” Mireles v.
Waco, 502 U.S. 9, 12 (1991) (quotation omitted).
For starters, we are unpersuaded by the Benedeks’ claim that judicial
immunity should not extend to courtroom acts that are purely ministerial. Even
ministerial acts involved in managing a case’s docket are functions “normally
performed by a judge,” and, thus, are within the contemplated protection of judicial
1 The Benedeks raise several arguments regarding Judge Edlein’s judicial immunity in the mandamus proceeding. The district court did not rule on Judge Edlein’s immunity in that context, and we need not address it here because the district court correctly concluded that the Benedeks failed to state claims based on the mandamus proceeding. 8 Case: 17-11714 Date Filed: 02/12/2018 Page: 9 of 15
immunity. Mireles, 502 U.S. at 12. Nor is there support for the Benedeks’
argument that judicial rulings that deny a litigant a constitutional right should not
be entitled to immunity. Rather, a judge is entitled to judicial immunity even when
she acts erroneously, maliciously, or in excess of her authority, so long as she acts
with subject matter jurisdiction. Dykes v. Hosemann, 776 F.2d 942, 947–48 (11th
Cir. 1985). Finally, as for the Benedeks’ complaints about Judge Edlein’s rulings
in Benedek I and her failure to recuse herself, these too are normal judicial
functions over which she had subject matter jurisdiction. Story, 225 F.3d at 1239.
Accordingly, the district court properly dismissed all claims against Judge Edlein.
We also find no merit to the argument that the district court erred in
concluding that Benedek’s federal claims against the remaining defendants were
barred by res judicata. The doctrine of res judicata has four elements: (1) the prior
decision was rendered by a court of competent jurisdiction; (2) there was a final
judgment on the merits; (3) both cases involve the same parties or their privies; and
(4) both cases involve the same causes of action. Mann v. Palmer, 713 F.3d 1306,
1311 (11th Cir. 2013). Res judicata applies if a claim raised in the new suit was
raised or could have been raised in a previous case. Id. “In determining whether
the causes of action are the same, a court must compare the substance of the
actions, not their form.” Id. (quotation omitted). As we’ve explained, “if a case
arises out of the same nucleus of operative fact, or is based upon the same factual
9 Case: 17-11714 Date Filed: 02/12/2018 Page: 10 of 15
predicate, as a former action, . . . the two cases are really the same claim or cause
of action for purposes of res judicata.” Id. (quotation omitted).
As for the Benedeks’ argument that they were unfairly denied an opportunity
to present federal RICO claims in federal court in Benedek I, we disagree. The
record reveals that Professor Benedek’s second amended complaint in that case did
not raise claims under the federal RICO statute. However, as the district court
correctly held, their federal RICO claims were barred, even though they were not
raised in Benedek I, because the claims arose “out of the same nucleus of operative
fact” and were “based upon the same factual predicate” as the § 1983 claims in
Benedek I. Mann, 713 F.3d at 1311. It does not matter whether the RICO claims
would have been timely filed in Benedek I or would be timely filed now. The
original dismissal of the § 1983 claims as untimely was a decision on the merits for
res judicata purposes. Mathis v. Laird, 457 F.2d 926, 927 (5th Cir. 1972).2
As for the Benedeks’ claim that the defendants’ res judicata defense is
barred by waiver and laches, the Benedeks did not make that argument in the
district court. “[A]n issue not raised in the district court and raised for the first
time in an appeal will not be considered.” Access Now, Inc. v. Sw. Airlines Co.,
385 F.3d 1324, 1331 (11th Cir. 2004) (quotation omitted).
2 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as binding precedent all decisions of the former Fifth Circuit issued before October 1, 1981. 10 Case: 17-11714 Date Filed: 02/12/2018 Page: 11 of 15
The Benedeks also argue that some of their claims had not accrued when the
§ 1983 claims were dismissed as untimely in Benedek I. Specifically, they argue
that Olens made misrepresentations to the media to obstruct Benedek I in state
court and an independent federal investigation after the federal district court’s 2013
ruling.3 They add that a § 1983 claim for retaliation for filing the original state
court action and other unspecified events had not accrued at that time.
It is true that claims arising from facts that were not in existence at the time
of the first federal action are not precluded. We’ve observed that
the res judicata preclusion of claims that “could have been brought” in earlier litigation [does not] include[] claims which arise after the original pleading is filed in the earlier litigation. Instead, . . . for res judicata purposes, claims that “could have been brought” are claims in existence at the time the original complaint is filed or claims actually asserted . . . in the earlier action . . . . The underlying core of facts must be the same in both proceedings.
In re Piper Aircraft Corp., 244 F.3d 1289, 1298, 1301 (11th Cir. 2001) (quotation
omitted).
However, we can affirm on any basis supported by the record, regardless of
whether the district court decided the case on that basis. Lucas v. W.W. Grainger,
Inc., 257 F.3d 1249, 1256 (11th Cir. 2001). And even if the Benedeks’ § 1983
retaliation claim based on Olens’s misrepresentations to the media was not
precluded by the district court’s dismissal in Benedek I, they did not sufficiently
3 They also list conduct from the mandamus proceeding, which we’ve already addressed. 11 Case: 17-11714 Date Filed: 02/12/2018 Page: 12 of 15
allege a First Amendment violation. To state a claim for retaliation under the First
Amendment, a plaintiff must allege that (1) he engaged in protected speech; (2) the
defendant’s conduct adversely affected the protected speech; and (3) a causal
connection exists between the speech and the defendant’s retaliatory actions. See
Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008); Bennett v. Hendrix, 423
F.3d 1247, 1250 (11th Cir. 2005). We’ve explained that a defendant adversely
affects protected speech if his alleged retaliatory conduct “would likely deter a
person of ordinary firmness from the exercise of First Amendment rights.”
Bennett, 423 F.3d at 1254 (quotation omitted).
In the complaint, the Benedeks allege that Olens made false statements to
the media about the validity of their claims in an effort to obstruct the civil
proceeding and an independent federal investigation. However, it is unclear from
the complaint how Olens’s media statements affected the rulings in Benedek I or
any federal investigation. Moreover, media statements expressing an opinion that
allegations are frivolous would not “deter a person of ordinary firmness” from
attempting to exercise their rights. Id. Accordingly, the Benedeks failed to state a
claim based on Olens’s conduct after 2013.
Finally, we are unconvinced by Benedek’s claim that the district court
abused its discretion when it denied the Benedeks’ motion for sanctions. As an
initial matter, we reject the Benedeks’ argument that we should review the district
12 Case: 17-11714 Date Filed: 02/12/2018 Page: 13 of 15
court’s decision de novo because the district court avoided facts and arguments in
its ruling. Although the district court did not address each argument raised by the
Benedeks, the court examined whether the defendants raised frivolous arguments
and correctly determined that at least some of the defenses raised were successful
and dispositive. The court had more than an adequate factual basis for its ruling.
The standard used to evaluate an alleged violation of Rule 11 is
“reasonableness under the circumstances.” Worldwide Primates, 26 F.3d at 1091;
see Didie v. Howes, 988 F.2d 1097, 1104 (11th Cir. 1993). A court has discretion
to award Rule 11 sanctions: (1) when a party files a pleading without a reasonable
factual basis; (2) when the party files a pleading that is based on a legal theory that
has no reasonable chance of success and that cannot be advanced as a reasonable
argument to change existing law; or (3) when the party files a pleading in bad faith
for an improper purpose. Anderson v. Smithfield Foods, Inc., 353 F.3d 912, 915
(11th Cir. 2003) (quotation omitted). Under the objective standard, “[a]lthough
sanctions are warranted when the claimant exhibits a ‘deliberate indifference to
obvious facts,’ they are not warranted when the claimant’s evidence is merely
weak but appears sufficient, after a reasonable inquiry, to support a claim under
existing law.” Baker v. Alderman, 158 F.3d 516, 524 (11th Cir. 1998) (footnote
omitted). Thus, Rule 11 sanctions “may be appropriate when the plain language of
an applicable statute and the case law preclude relief.” Id. (footnote omitted).
13 Case: 17-11714 Date Filed: 02/12/2018 Page: 14 of 15
Here, the district court did not abuse its discretion by concluding that
sanctions were not warranted. Contrary to the Benedeks’ claim, the defendants did
not mislead the district court about the procedural history of the case. The
defendants set out the procedural history in Benedek I, Benedek II, and the
mandamus proceeding and provided state court orders in their filings. The
defendants’ assertions that three lawsuits had been filed based on the same factual
predicate and that three courts had dismissed the claims were not entirely
inaccurate. Although the dismissals in Benedek I were vacated, they were not
vacated on the merits of the claims. Thus, the defendants did not show a deliberate
indifference to obvious facts as it related to the procedural history of the case. Id.
The Benedeks also assert that the current action is a continuation of Benedek
I, following a voluntary dismissal, in compliance with O.C.G.A. § 9-11-41. They
argue that the defendants chose a federal forum by removing Benedek I from state
court, and, therefore, their sovereign immunity defense was barred by the Supreme
Court’s ruling in Lapides v. Bd. of Regents of the Univ. Sys. Of Ga., 535 U.S. 613
(2002). But Lapides did not clearly foreclose the defendants’ sovereign immunity
defense. Although Lapides instructed that a state waives its Eleventh Amendment
immunity by voluntarily invoking the jurisdiction of federal courts, it did not
address a scenario in which a federal forum is chosen by the plaintiff after a
voluntary dismissal. Lapides, 535 U.S. at 619-20. Further, in Stroud v. McIntosh,
14 Case: 17-11714 Date Filed: 02/12/2018 Page: 15 of 15
722 F.3d 1294, 1301 (11th Cir. 2013), we held that “a state, if it chooses, can retain
immunity from liability for a particular claim even if it waives its immunity from
suit in federal courts.”
Finally, we disagree that the district court abused its discretion by failing to
sanction the defendants for asking the court to restrict the Benedeks’ filings of
future claims based on the same factual predicate. The defendants’ request was not
without foundation because the Benedeks had filed the same or similar claims in
three different courts, and the district court correctly determined that the federal
claims were barred by res judicata. Thus, the defendants’ request did not lack a
reasonable factual basis and was not based on a legal theory with no reasonable
chance of success. Anderson, 353 F.3d at 915.
Accordingly, we affirm the district court’s order dismissing the Benedeks’
claims and denying their motion for sanctions.
AFFIRMED.