ATLANTA (CN) – An attorney for Reed Elsevier faced a skeptical county judge in a case over high fees charged by the international conglomerate that controls internet access to the local courts. When lawyer William Whitner argued that there is no constitutional right of access to Georgia’s courts, Judge Robert Castellani expressed skepticism and later said he hopes Whitner’s case does not rely on that argument.
Whitner began his argument by chiding opposing lawyers for their years-long litigation accusing the publishing giant and Fulton County of running an illegal, mandatory e-filing system in Fulton County courts. “We are now on the eighth complaint,” said Whitner, with the law firm of Paul Hastings Janofsky and Walker. He told DeKalb County Superior Court Judge Castellani, “This case has been dismissed three times, twice voluntarily. This case should be over.”
Whitner and opposition counsel, including Steven Newton and Shuli Green, argued before Judge Castellani in a hearing on Whitner’s motion to dismiss the amended complaint.
Whitner cited Georgia law, which states that “a plaintiff’s secondary voluntary dismissal of a complaint alleging the same basic claims against a defendant constitutes a final adjudication on the merits.”
Newton’s class action “arises from an illegal scheme perpetuated by defendant Reed Elsevier Inc. dba Lexis-Nexis Courtlink Inc. to impose an unlawful, mandatory e-filing system upon litigants in Fulton County State and Superior Courts and to charge excessive and unauthorized fees in connection therewith,” according to the complaint. “Defendant Fulton County has participated in Lexis’ illegal scheme by promulgating a ‘pilot program’ authorizing Lexis’ unlawful mandatory e-filing scheme and excessive fees without the statutory authority to do so,” according to the complaint.
The case was originally filed in May 2009 in Fulton County Superior Court, then voluntarily dismissed and refiled on Jan. 6, 2010.
Newton filed a similar lawsuit against Lexis-Nexis Courtlink and Fulton County in Federal Court. He filed the original federal claim in December 2007 but withdrew it in March 2008, then refiled it in June 2008.
Whitner claimed that the plaintiffs’ joint venture theory is “flawed.”
He wrote in his motion: “It is no surprise that it has taken plaintiffs eight versions of their complaint, based on the exact same facts, to come up with this frivolous theory. The allegation is a desperate attempt to impose liability on Reed that, given Reed’s actions as a contract vendor to Fulton County, could not ever exist otherwise for plaintiffs’ claims of violations of state statutes and regulations.”
Whitner also said Newton misconstrued a clause in the Georgia Constitution which states that “no person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this state.”
The plaintiffs have argued that this clause guarantees rights of access to the court, which LexisNexis Courtlink and Fulton County have denied by charging excessive and unauthorized fees.
But Whitner said the clause does not guarantee rights of access to the courts, but to self-representation. He said there is “no express constitutional ‘rights of access to the courts’ under the Georgia Constitution.”
“Even if rights to the courts existed, Reed is not the one denying it,” Whitner told the judge.
Judge Castellani bore in on that statement.
“Are you saying that there is no constitutional right to access the courts?” the judge asked.
Castellani asked Whitner how indigent people may file a claim if it costs $1,000, for example. He later added, “I hope your case does not rely on that.”
Attorney Shuli Green presented the plaintiffs’ opposition to Whitner’s motion to dismiss the amended complaint.
Green denied Whitner’s claim that the plaintiffs had filed eight complaints. She said the case has been amended.
According to the plaintiffs’ written response in opposition: “Lexis simply ignores clearly established law in this state that a party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order. O.C.G.A. 9-11-15. Lexis cites no authority purporting to limit the number of times plaintiffs can amend their pleadings.”
She added that LexisNexis cannot separate itself from Fulton County in the administration of the e-filing system.
“Lexis’ argument is without merit because Lexis is not merely carrying out the directions of Fulton County; rather, it plays a central role in the scheme because it designed, implemented and controls the ‘File & Serve’ system authorized by Fulton County.”
Green wrote that the public access terminal in Fulton County State Court is not a viable option to file claims, though it has been presented as an option for litigants who want to avoid being charged fees.
“As a preliminary matter, plaintiffs allege that the PATs cannot be accessed by represented litigants except to view public files. Litigants who are represented by counsel are not authorized users pursuant to Fulton County’s e-filing rules.”
Green told the judge: “If you have to pay a lawyer to use a public access terminal, it’s not free.”
Green pointed out that only pro se litigants are not charged to use the terminal.
“Court fees should not be more if you have a lawyer,” Green told the judge. She added that using the terminal is not truly free, because of the costs of traveling to and from the courthouse.
Newton and other attorneys represent W. Phillip McCurdy III, Michael Cawthon, Nelson Picklesimer, Kenneth Clowdus as administrator for the estate of Kenneth Larry Clowdus, The Best Jewelry Manufacturing Co. and Does.
A ruling on Reed Elsevier’s motion is expected soon.