Attorneys seeking to have the Fulton County State Court’s e-filing system declared unconstitutional said they will appeal a judge’s dismissal of the case.
In two orders issued on Dec. 18, DeKalb County Superior Court Judge Clarence Seeliger declared the county and Reed Elsevier, the parent company for LexisNexis, which provides the state court’s File & Serve e-filing service, protected from suit by sovereign immunity.
The suit was filed in Fulton County Superior Court, and Seeliger—sitting by appointment after the Fulton bench recused—also struck the complaint in its entirety. He reaffirmed an earlier ruling that the plaintiffs had failed to properly notify the county of their intent to sue before doing so.
Representing the sole remaining plaintiff in the putative class action were Atlanta attorney Steven Newton and his Newton Law Office partner Shuli Green, and Irwin Stolz and James Hurt Jr. of Athens’ Hurt, Stolz & Cromwell. Green said in a one-sentence email that they plan to appeal the rulings.
Paul Hastings partner William Whitner, who represents Reed Elsevier, said, “We are pleased with the decision and obviously believe it is correct.”
Fulton County Attorney David Ware, whose staff attorneys Kaye Burwell and Nwakaego Nkumeh represented the county in the litigation, did not respond to requests for comment.
The suit alleged that the court’s mandatory e-filing system is an unconstitutional infringement upon citizens’ right to have access to the court, and that the fees LexisNexis charges for access to the system on top of statutory filing fees collected by the court are illegal under Georgia law. LexisNexis charges between $7 and $12 per document, and all filings must be made online either through a subscriber’s paid account, or via a public-access computer terminal at the Fulton County Courthouse.
In dismissing the case, Seeliger noted that it was the fourth iteration of virtually identical allegations underlying suits that twice had been voluntarily dismissed in federal court in Atlanta and once in Fulton County Superior Court.
A similar suit is pending in federal court in Texas’s Southern District, where San Antonio attorney Robert “Lee” Mays Jr. is challenging Montgomery County’s e-filing arrangement with LexisNexis. Mays’ first such suit was dismissed in 2011 when U.S. District Judge Keith Ellison ruled that the action did not contain any federal statutory claim, and he declined to exercise supplemental jurisdiction over the state law claims. Even so, Ellison wrote in his dismissal order, he was “indeed troubled by certain aspects of the e-filing system at issue.”
Whitner, whose firm is also handling the Texas litigation, said the suit was re-filed in state court in Bexar County, and that LexisNexis moved to have the case removed to federal court.
“The Southern District dismissed the majority of those claims,” said Whitner in an email. “We now are proceeding in the Southern District against the remaining claims.”
“It’s back before the same judge in federal court in Houston,” Mays said in an interview.
The Fulton County case is The Best Jewelry Manufacturing Co. v. Fulton County, No. 2010CV179757.