THE BEST JEWELRY MANUFACTURING COMPANY, INC. et al. v. REED ELSEVIER INC.
A15A0970
Court of Appeals of Georgia
November 20, 2015
826 | 780 SE2d 689
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 accеss 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 complаint 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
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 subjeсt 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 Supreme Court of Georgia 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 рermitted 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
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 throughоut 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 thе 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
1. Plaintiff first argues that it has stated a viable claim as to Lexis‘s violations of
(a) (i) Plaintiff argues that Lexis‘s File & Serve fees violated
As a preliminary matter, we note that the File & Serve Agreement, Local Rule 2-105, and the trial court‘s standing orders in the matter all identify the File & Serve fees as “usage” fees imposed “in addition to any statutory filing fees.”
Plaintiff seeks to forestall this conclusion by citing Cotton v. Med-Cor Health Information Solutions, 221 Ga. App. 609 (472 SE2d 92) (1996), in which we reversed a grant of a motion to dismiss a complaint alleging that a hospital had violated
(ii) Plaintiffs also argue that Fulton County State Court‘s failure to obtain approval from and submit progress reports to the Georgia Technology Authority amounts to a violation of
(a) The General Assembly desires to promote economic development and efficient delivery of government services by encouraging state governmental agencies and private sector entities to conduct their business and transactions using electronic media.
(b) All state agencies, authorities, and boards are authorized to establish pilot projects, which are to serve as models for the application of technology such as electronic signatures, through public and private partnerships with private companies providing such technology related services. Such pilot prоjects shall be approved by the Georgia Technology Authority. . . . Any private partner chosen for these pilot projects may establish user fees to pay for the cost of these services so that no state funds would be required.
(c) State agencies establishing pilot projects shall submit quarterly progress reports on such projects to the Georgia Technology Authority. The authority shall monitor the success of such pilot projects and provide technical assistance to the еxtent that resources of the authority are available.
(Emphasis supplied.)
As a preliminary matter, we note that
(iii) Plaintiff also argues that the e-filing system established by local rule violates Uniform Superior Court Rulе 1.2 (B) in that the system authorizes defendants to collect e-filing fees, which plaintiff characterizes as “illegal.” We disagree.
Rule 1.2 (B) provides that after the expiration of local rules in December 2010,
courts may continue to maintain practices and standing orders to regulate the internal processes of the court in matters which are not susceptible to uniformity, which relate only to internal procedure and which do not affect the rights of any party substantially or materially, either to unreasоnably delay or deny such rights. . . .
Rule 1.2 clearly authorizes courts to promulgate “orders governing electronic filing” such as the File & Serve system and fees at issue here. Further, plaintiff‘s counsel‘s own affidavit shows that the state court, not Lexis, maintained both the PAT, which the court offered free of charge as an alternative to e-filing, as well as paper filing, which required a scanning fee. For both of these reasons, plaintiff has failed to plead any violation of Rule 1.2 by Lexis. See Lumpkin v. Johnson, 270 Ga. 392, 393-395 (1), (2) (509 SE2d 621) (1998) (dismissing murder defendant‘s petition under Rule 1.2 (B) to assign a related civil action to the same judge presiding over the murder prosecution; there was “no Rule from which the case assignment method adopted by the judges deviates in any substantive manner,” and the chief judge‘s method was consistent with his “discretionary authority . . . to assign a case to a specific trial judge“).
(b) Even assuming, moreover, that plaintiff had successfully pled a violation of any of the above statutes or rules, plaintiff has not shown that it is entitled to a private right of action for damages arising from any such alleged violation.
2. Plaintiff also argues that the combination of Lexis‘s e-filing and other fees and its “prohibition” on paper filing created an “unreasonable barrier” on plaintiff‘s right to access to the courts guaranteed by
The Supreme Court of Georgia has recently repeated that “Art. I, Sec. I, Par. XII was never intended to provide a right of access to the courts, but was intended to provide only a right of choice between self-representation and representаtion by counsel.” Smith v. Baptiste, 287 Ga. 23, 24 (1) (694 SE2d 83) (2010), citing Couch v. Parker, 280 Ga. 580, 581 (1) (630 SE2d 364) (2006); see also Santana v. Ga. Power Co., 269 Ga. 127, 129 (4) (498 SE2d 521) (1998) (Art. I, Sec. I, Par. XII “is a ‘right of choice’ between self-representation and representation by counsel provision, and not an ‘access to the courts’ provision“) (citations and punctuation omitted); State of Ga. v. Moseley, 263 Ga. 680, 682 (3) (436 SE2d 632) (1993); Nelms v. Georgian Manor Condo. Assn., 253 Ga. 410, 412-413 (2), (3) (321 SE2d 330) (1984); Bloomfield v. Liggett & Myers, Inc., 230 Ga. 484 (198 SE2d 144) (1973).
As our Supreme Court has also noted, these authorities establish that “there is no express constitutional ‘right of access to the courts’ under the Georgia Constitution.” Couch, 280 Ga. at 581 (1). Nor is this Court authorized to create or construe an “implied” right of access to the courts in the absence of Georgia authority establishing such a
For all these reasons, the trial court did not err when it granted the motion to dismiss plaintiff‘s claims under the Georgia Constitution and
3. Plaintiff also asserts that it has stated viable claims for the common-law torts of conversion and money had and received as well as civil conspiracy. We disagree.
(a) The second amended complaint alleges that the state court and Lexis have and “will continue to сonvert to their own use sums unlawfully collected from [p]laintiff and the Class pursuant to the e-filing scheme,” and also that the court and Lexis are “indebted to [p]laintiff and the Class . . . for money had and received to be paid . . . as civil restitution, a refund, and[/]or damages.” But plaintiff has not argued on appeal that these common-law claims have any basis other than the alleged statutory violations discussed and rejected above. Further, a party cannot survive a motion to dismiss merely by recasting alleged statutory or constitutional violations as torts. See Troncalli v. Jones, 237 Ga. App. 10, 12-13 (1) (514 SE2d 478) (1999) (reversing jury verdict as to civil stalking claim because there is no cause of action for stalking simply because a criminal statute prohibits it); Rolleston v. Huie, 198 Ga. App. 49, 50 (2) (400 SE2d 349) (1990) (no tort remedy available under
(b) A claim of civil conspiracy10 requires a pleading of facts showing that “two or more persons, acting in concert, engaged in conduct that constitutes a tort.” Mustaqeem-Graydon v. SunTrust Bank, 258 Ga. App. 200, 207 (6) (573 SE2d 455) (2002) (citation omitted). “Absent the underlying tort, there can be no liability for civil conspiracy.” Id. (citation and punctuation omitted). Because plaintiff
4. In light of our determination that plaintiff has failed to state a claim for any of its causes of action, we need not reach the questions whether Lexis should have the benefit of Fulton County‘s sovereign immunity from suit and whether various Fulton County clerks are indispensable parties to this action.
Judgment affirmed. Andrews, P. J., and Miller, J., concur.
DECIDED NOVEMBER 20, 2015 --
Steven J. Newton, Shuli L. Green; Hurt & Stolz, James W. Hurt, Jr., Irwin W. Stolz, Jr., for appellants.
Holland & Knight, Cynthia G. Burnside, Vernon M. Strickland, for appellees.
Kaye W. Burrell, Lanna R. Hill, Kristen B. Williams, amici curiae.