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                                                         [DO NOT PUBLISH]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:
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      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


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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


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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


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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.


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      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.

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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


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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.
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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


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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.
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      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.
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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


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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).


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      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,


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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.




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