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Class OK’d to Proceed Against Reed Elsevier

ATLANTA (CN) - A judge has allowed a class action to go forward accusing British-based Reed Elsevier Inc. of violating the Georgia Constitution by entering into a pact with Fulton County that forces litigants to file their papers through Reed's division Lexis-Nexis, and pay dearly for it.

"The plaintiffs have stated facts that could support a claim against the Fulton courts and third parties acting together with the Fulton Courts, that the e-filing system as instituted is an unreasonable burden to litigants seeking redress in the courts of Fulton County," said Dekalb County Superior Court Judge Robert Castellani in his ruling.

The judge also shot down arguments by lawyers for Reed Elsevier suggesting that the Georgia Constitution does not guarantee a right of access to Georgia's courts.

"Based on Georgia Supreme Court precedent and the 14th Amendment to the U.S. Constitution, citizens of the State of Georgia do indeed have a right of access to the courts to resolve their disputes and neither the Legislature nor any court of this state can erect a total bar to that access or a bar that unreasonably restricts that right of access," the judge wrote.

Steven J. Newton and other attorneys filed the Fulton County Superior Court case in January, claiming that Lexis-Nexis Courtlink, owned by publishing giant Reed Elsevier, and Fulton County, Ga., violates the constitutional right of access to state courts by forcing litigants to file electronically through Lexis Nexis.

Judge Castellani assumed control of the case after all Fulton County State and Superior Court judges were recused.

Castellani denied Lexis-Nexis' motion to dismiss the case, except for three plaintiffs: W. Phillip McCurdy III, Michael Cawthorn and Nelson W. Picklesimer.

"This does not have an effect on the two remaining plaintiffs," Newton said in an interview. "They can represent the other people. There is one commonality: They had to pay fees."

Newton also represents Kenneth Clowdus as administrator for the estate of Kenneth Larry Clowdus and The Best Jewelry Manufacturing Co.

Castellani also denied the plaintiffs' motion to add defendants, saying his court sees no reason why additional parties "are required or necessary to fully resolve the matter before it."

Castellani noted that while the case is relatively simple in regard to the relief sought, the case "has had a long and convoluted procedural history." He advised counsel to adhere to the Civil Practices Act.

"Given the history of this case and the propensity of counsel to use a shotgun when a carefully aimed rifle would be preferable, the court directs counsel to conduct themselves in future filings and arguments in a manner that comports with the goals of the Civil Practices Act," he wrote.

Castellani rebutted an argument by Lexis-Nexis attorney William K. Whitner, who said the lawsuit should be dismissed according to state law, which asserts 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."

"The court finds that dismissal for having filed and voluntarily dismissed two previous actions applies only to the first original plaintiffs, to wit, McCurdy, Cawthorn, and Picklesimer, but not to plaintiffs Clowdus and The Best Jewelry Manufacturing Company, as neither of these parties was a party to the first federal action and therefore has only voluntarily dismissed this action once," the judge wrote.

"The remaining plaintiffs will still have to demonstrate that this action is properly brought as a class action, that they are adequate representatives of the class, or that additional plaintiffs will need to be added to achieve adequate representation."

Castellani also struck down Whitner's argument that the "plaintiffs' claim alleging a joint venture or partnership between it and Fulton County must fail, as it is only an independent contractor bound by a contract to provide the services of e-filing."

Castellani said that he agrees with the plaintiffs' assertion that "the contractor has not demonstrated there is no set of facts which would support plaintiffs' claim of joint venture or partnership."

Whitner also claimed the plaintiffs' 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 the clause guarantees rights of access to the court, which that Lexis-Nexis Courtlink and Fulton County have denied by charging excessive and unauthorized fees.

Whitner disagreed, saying 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."

Castellani sided with the plaintiffs on that argument.

"The plaintiffs have stated facts that could support a claim against the Fulton courts and third parties acting together with the Fulton Courts, that the e-filing system as instituted is an unreasonable burden to litigants seeking redress in the courts of Fulton County," Castellani wrote.

He also addressed issues concerning fraud, sovereign immunity and indispensable parties, before summarizing his reasons for denying Whitner's motion to dismiss.

He said he will set a hearing date after the first of the year on the discovery needed for a ruling class certification and discovery.

The lawsuit is the fourth claim against Fulton County and Lexis-Nexis Courtlink.

The Fulton County Superior Court case was originally filed in May 2009, then voluntarily dismissed and refiled on Jan. 6. 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.

Cathlene "Tina" Robinson and Mark N. Harper, Fulton County Superior and State Court clerks, respectively, were defendants in the federal case. That case was dismissed in March 2009.

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