Best Jewelry Mfg. Co. v. Reed Elsevier Inc.

• Decision Date: 20 November 2015
• Docket Number: No. A15A0970.,A15A0970.
• Parties: The BEST JEWELRY MANUFACTURING CO., INC. et al. v. REED ELSEVIER INC. d/b/a Lexis/Nexis Courtlink, Inc. et al.
• Court: Georgia Court of Appeals

334 Ga.App. 826

780 S.E.2d 689

The BEST JEWELRY MANUFACTURING CO., INC. et al.

v.REED ELSEVIER INC. d/b/a Lexis/Nexis Courtlink, Inc. et al.

No. A15A0970.

Court of Appeals of Georgia.

Nov. 20, 2015.

James W. Hurt Jr., Athens, Steven James Newton, Atlanta, Shuli Larisa Green, for Appellant.

Cynthia Grace Burnside, Vernon Markice Strickland, Lanna Renee Hill, Atlanta, Kristen Boyd Williams, Marietta, Kaye Woodard Burwell, for Appellee.

BRANCH, Judge.

In 2010, The Best Jewelry Manufacturing Company, Inc. ("plaintiff") filed this class action challenging Fulton County State Court's adoption of an electronic filing system administered by Reed Elsevier Inc., d/ b/a Lexis/Nexis Courtlink ("Lexis"). In its second amended complaint,¹ filed in February 2014, plaintiff alleged inter alia that in 2008, some years after the adoption of e-filing, Lexis conspired with Fulton County to collect illegal fees and barred plaintiff from filing a motion in at least one case by means of either the e-filing system or a public access terminal purportedly available for that purpose. After Fulton County and Lexis moved to dismiss the second amended complaint, the trial court granted the motion on the grounds of sovereign immunity, in which Lexis shared, and failure to state any claim. The trial court also denied plaintiff's motions to add the past and current clerks of Fulton County State Court as indispensable parties.

On this appeal, plaintiff asserts that the trial court erred when it granted the motion to dismiss because its second amended complaint pled facts sufficient to state claims that the e-filing and other fees imposed by Lexis² on litigants were illegal, that the e-filing system denied plaintiff its right under the Georgia Constitution to access to the state's courts, and that Lexis has committed the torts of money had and received and conversion, and conspiracy. Plaintiff also asserts that Lexis does not share in Fulton County's sovereign immunity, that the chief clerk of Fulton County State Court is a necessary party to the suit, and that the clerk does not have judicial or official immunity. We disagree with these contentions and therefore affirm.

"A motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party's favor."

Austin v. Clark, 294 Ga. 773, 774–775, 755 S.E.2d 796 (2014) (punctuation omitted), quoting Anderson v. Flake, 267 Ga. 498, 501(2), 480 S.E.2d 10 (1997). On appeal, we review a trial court's decision to grant or deny a motion to dismiss de novo. Chandler v. Opensided MRI of Atlanta, 299 Ga.App. 145, 682 S.E.2d 165 (2009).

So viewed, plaintiff's second amended complaint and the exhibits thereto, including an affidavit from counsel,³ alleges that under local rules taking effect in 1999, Fulton County Superior Court made certain classes of cases subject to e-filing. Effective June 1, 2006, the chief judge of Fulton County State Court issued a standing order requiring that certain types of civil cases be subject to fees "for access and electronic transmission of documents," which were "in addition to any charges associated with" the court's filing fees. The state court required litigants participating in these cases to enter into online subscriber agreements with the designated vendor Lexis "or use the public access terminal located at" the state court to upload filings. The state court also authorized Lexis to charge litigants fees in connection with their use of Lexis's "File & Serve" online application. The state court then promulgated local e-filing rules that directed court clerks to reject paper filings received in e-filing cases. The Georgia Supreme Court approved this program and its rules.

Pursuant to a written "File & Serve Agreement" with Lexis, plaintiff's counsel became an "advanced subscriber," defined as a user "billed for its use of File & Serve on a monthly basis ... who is permitted to authorize [u]sers within its organization to whom File & Serve [u]ser IDs shall be issued." At the outset of the agreement appeared the following notice: "[Lexis] File & Serve does not engage in the practice of law, nor is [Lexis] File & Serve part of the court system in which your lawsuit is pending. " (Emphasis changed.) The agreement also provided that users would pay so-called "usage fees," defined as "those fees imposed by [Lexis] for use of File & Serve"; that such fees might "vary based upon a number of factors including the State, Court, Case Type, Case Class, and features being used"; and that such fees "will be set forth on a project-specific basis and are subject to change from time to time." Local Rule 2–105 likewise provided that an e-filing services provider "may charge registered users additional fees to deliver, access, and use the service," and that such fees "shall be payable to [the provider] at the time of filing and are in addition to any statutory filing fees."

After the implementation of e-filing, litigants in designated cases were required to file by one of the following means: (1) online, and thus paying the usage fees assessed by Lexis concerning those filings;⁴ (2) via the public access terminal (PAT) located in the clerk's office, at which litigants could scan and upload documents into the e-filing system at no charge; or (3) via paper filing to the clerk, along with a prepaid administrative scanning fee. As to those litigants refusing to take advantage of either e-filing or the PAT, the state court's Local Rule 2–115, which remained in effect throughout the period at issue,⁵ provided as follows:

[A] litigant who [a] declines or refuses to use the PATs and files paper via mail to or at the counter of the State Court of Fulton County Clerk's Office [,] AND [b] declines or refuses to sign an affidavit that he or she does not have access to a personal computer will be charged an administrative scanning fee as follows: $5 for the first page of the document and $1 for each additional page of that document. The Clerk's Office will not scan said documents until the litigant has paid the fee in full and will scan and up-load the documents to [File & Serve] as time and work load allow.

As of 2014, if the clerk's office received a mailed or hand-delivered paper pleading to litigants without a scanning fee payment, it would return the pleading with the following notice:

This document is associated with an e-filed case. Therefore, it is being returned to you to scan/upload into the LexisNexis e-file system. If you are not a LexisNexis File and Serve subscriber or you do not have internet access, there is a Public Access Terminal available in the Fulton County State Court Clerk's Office ... You may use the Public Access Terminals to scan and upload your documents at no cost to you. (Emphasis supplied.)

The second amended complaint, including counsel's attached affidavit, also alleges that in April 2008, plaintiff's counsel was unable to e-file a motion in a pending case as a result of being "locked out" of File & Serve for counsel's alleged failure to pay usage fees. When counsel informed the clerk's office that he was locked out of File & Serve and requested permission to file paper pleadings, he was told that paper pleadings would not be accepted, but that the judge's staff "would file them electronically." When counsel attempted to file a set of proposed jury charges a few days later, he was again denied access, although "the judge offered to file them for [counsel]." There is no allegation or evidence that counsel accepted either of these offers or that he attempted to file a paper version of the pleading with a scanning fee. In the weeks that followed, Lexis customer service representatives repeatedly told counsel that he would be unable to e-file anything, including at the PAT, because his online account was delinquent (which it was not). Plaintiff also alleges that the cost of using the PAT, which required travel to the courthouse, "far exceeds the fees to file remotely" via File & Serve; that the PAT is inconvenient to use; and that it is "not a meaningful alternative" to mail filing in that it requires clerk assistance, considerable waiting time, and is often inoperable. Plaintiff does not allege, however, that it ever actually attempted to use the PAT and was unable to do so. In fact, plaintiff's counsel admits that he has "not previously used the PAT due to the associated logistical cost accompanying the access of the PAT, located in downtown Atlanta."

On the basis of these factual allegations, plaintiff asserted the following causes of action and sought damages, injunctive relief, and the certification of a class against Fulton County and Lexis for (1) violations of OCGA §§ 15–5–40 (stating that no clerk shall reject a filing for the reason that the filing is on letter-sized paper), 15–6–77 (concerning filing fees), and 50–29–12 (concerning approval and monitoring of electronic media projects by the Georgia Technology Authority), as well as Uniform Superior Court Rule 1.2 (concerning a court's power to enact rules which deviate from the Uniform Superior Court Rules); (2) a violation of plaintiff's right of access to the courts "guaranteed by the Georgia Constitution, our Supreme Court [and] OCGA § 1–2–6(a)(6) (concerning a citizen's right to appeal to the courts); and (3) conversion and money had and received as to fees collected. Plaintiff also sought punitive damages, fees, and injunctive relief as to both the lack...