The Best Jewelry Manufacturing Company, Inc. v. Reed Elsevier Inc. et al

Filing 28

OPINION AND ORDER GRANTING 15 Motion to Dismiss and DENYING 25 Motion for Oral Argument. Signed by Judge Thomas W. Thrash, Jr. on 3/24/17. (jkl)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
THE BEST JEWELRY
MANUFACTURING COMPANY,
INC.,
Plaintiff,
v.

CIVIL ACTION FILE
NO. 1:16-CV-1761-TWT

REED ELSEVIER INC.
also known as
Relx Inc., et al.,
Defendants.

OPINION AND ORDER

This is an action challenging the constitutionality of certain Georgia Supreme
Court administrative orders and rules regarding the State Court and Superior Court of
Fulton County, Georgia’s e-filing system. It is before the Court on the Defendants
Reed Elsevier Inc., a.k.a. Relx Inc., and File & Servexpress, LLC’s Motion to Dismiss
[Doc. 15]. For the reasons set forth below, the Defendants’ Motion to Dismiss [Doc.
15] is GRANTED. The Plaintiff’s Motion for Oral Argument [Doc. 25] is DENIED.

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I. Background
Around September 1999, the State Court of Fulton County, Georgia began
operating an e-filing system for certain civil actions.1 The Defendant Reed Elsevier
Inc., a.k.a. Relx Inc. (hereinafter referred to as “LexisNexis”), is a foreign business
that operated the e-filing system.2 In 2005, the State Court of Fulton County adopted
local e-filing rules, which the Supreme Court of Georgia approved.3 The e-filing
system “ordered that all litigants shall use [the Defendant’s] e-filing system for certain
civil cases and ordered litigants to pay [the Defendant’s] fees in addition to fees
authorized by O.C.G.A. § 15-6-77.”4 Around May 2000, the Superior Court of Fulton
County, Georgia implemented a similar e-filing system, with the Defendant
LexisNexis operating the system.5
The Plaintiff, The Best Jewelry Manufacturing Co., Inc., is a Georgia
corporation that paid the Defendant’s e-filing fees.6 On January 6, 2010, the Plaintiff,

1

See Compl., Ex. 8., at 2.

2

Id. ¶ 1. In 2012, the Defendant LexisNexis purportedly sold the e-filing
system to the Defendant File & Servexpress, LLC. Id. ¶ 11.
3

Id. ¶ 2; see also id., Ex. 3.

4

Id. ¶ 2.

5

Id., Ex. 8, at 3.

6

Id. ¶ 3.

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individually and on behalf of all others similarly situated, brought suit against the
Defendant LexisNexis and Fulton County in Fulton County Superior Court.7 The
Plaintiff argued that because there was no statutory approval for the e-filing system,
its rules and, most importantly, its fees should be declared illegal.8 Specifically, the
Plaintiff alleged that the e-filing system violated three Georgia statutes, the Georgia
Constitution, and Uniform Superior Court Rule 1.2(b).9 The Plaintiff sought
declaratory and injunctive relief, compensatory damages, punitive damages, pre- and
post-judgment interest, and attorneys’ fees.10
The allegations raised in the 2010 complaint were originally filed by a different
set of plaintiffs in 2007 in federal court.11 There, the district court granted the
defendants’ motion to dismiss as to the federal claims and dismissed the state law
claims without prejudice for lack of subject matter jurisdiction.12 Following the
dismissal of their federal claims, the plaintiffs filed suit in Fulton County Superior

7

Id. ¶ 1; see also id., Ex. 8, at 4.

8

Id. ¶ 2.

9

Id., Ex. 8, at 5.

10

Id., Ex. 8, at 4.

11

Id., Ex. 8, at 4; see also McCurdy v. Harper, No. 1:08-CV-2145-WSD
(N.D. Ga. June 27, 2008) [Doc. 85].
12

Compl., Ex. 8, at 4-5.

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Court in May 2009.13 It was at this point that the Plaintiff Best Jewelry was added as
a named plaintiff for the first time.14 Eventually, the plaintiffs voluntarily dismissed
that complaint.15 In January 2010, the plaintiffs filed suit for a fourth time.16 The
plaintiffs also filed a motion to recuse all Fulton County judges from the case.17 The
motion was assigned to DeKalb County Superior Court Judge Robert Castellani.18
Judge Castellani granted the motion, and he was then assigned to adjudicate the merits
of the case.19 The Defendant LexisNexis filed a motion to dismiss, which Judge
Castellani denied.20 Eventually, the case was reassigned to DeKalb County Superior
Court Judge Clarence Seeliger.21

13

Id., Ex. 8, at 5; see also McCurdy v. Fulton Cnty., Ga., No. 2009-CV169154 (Fulton Cnty. Sup. Ct. May 14, 2009).
14

Id., Ex. 8, at 5.

15

Id., Ex. 8, at 5.

16

Id., Ex. 8, at 5; see also McCurdy v. Fulton Cnty., Ga., No. 2010-CV179757 (Fulton Cnty. Sup. Ct. Jan. 6, 2010).
17

Compl. ¶ 7.

18

Id.

19

Id. ¶ 9.

20

Id. ¶ 10.

21

Id.

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On September 21, 2011, Fulton County filed a motion for judgment on the
pleadings, asserting sovereign immunity and the plaintiffs’ failure to comply with ante
litem notice.22 On November 10, 2011, the Defendant LexisNexis filed a renewed
motion to dismiss, asserting shared sovereign immunity and the plaintiffs’ lack of a
private right of action.23 Prior to the court’s ruling on the motions, the named plaintiff
Kenneth Clowdus withdrew as class representative, leaving the Plaintiff Best Jewelry
as the only remaining named plaintiff.24 On June 29, 2012, the trial court granted
Fulton County’s motion, ruling that Fulton County had sovereign immunity as to the
Plaintiff’s damages claims, and that all of the Plaintiff’s claims against Fulton County
should be dismiss for failure to follow the statutory ante litem notice requirements.25
Then, on December 18, 2012, the trial court granted the Defendant LexisNexis’s
renewed motion to dismiss based upon the theory of shared immunity.26 The Plaintiff
filed a direct appeal, but the Georgia Court of Appeals denied it as premature because

22

Id., Ex. 8, at 6.

23

Id., Ex. 8, at 6.

24

Id., Ex. 8, at 6.

25

Id., Ex. 8, at 6.

26

Id., Ex. 8, at 7.

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the Plaintiff’s claims for injunctive relief remained pending in the trial court.27 The
case then returned to the trial court for discovery.28
During merit discovery, Fulton County advised the Plaintiff that the Defendant
LexisNexis did not have a signed agreement with the County.29 In addition, the Fulton
County State Court Chief Clerk and an employee for the Defendant LexisNexis
admitted to having communications with Georgia Supreme Court Justice Harold
Melton regarding the e-filing system at issue.30 The Defendant also specified that it
had contact with the Clerk of the Georgia Supreme Court regarding the e-filing
system.31 After the Plaintiff amended its complaint to add File & Servexpress as a
Defendant, the Defendants filed a motion to dismiss.32 The trial court granted the
motion for three reasons: (1) shared sovereign immunity; (2) failure to state a claim;
and (3) lack of a private right of action under the Superior and State Courts’ rules and
statutes which the Plaintiff claimed the e-filing system violated.33 The Plaintiff
27

Id., Ex. 8, at 7.

28

Id. ¶ 11.

29

Id. ¶ 11; see also id., Ex. 6.

30

Id. ¶ 12.

31

Id.

32

Id., Ex. 8, at 7.

33

Id. ¶ 13; id., Ex.8.

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appealed, but the Georgia Court of Appeals affirmed the trial court.34 The Plaintiff
then filed a petition for writ of certiorari from the Supreme Court of Georgia and a
motion to recuse Justices Hugh Thompson, P. Harris Hines, Robert Benham, Carol
Hunstein, and Harold Melton.35 The Plaintiff sought the recusal of these five justices
because they administratively approved the e-filing system and its rules.36 Prior to the
Georgia Supreme Court’s ruling, Georgia enacted two statutes – O.C.G.A. §§ 15-6-11
and 15-7-5 – which authorize a superior court and state court to provide e-filing
services by court order.37 Ultimately, on May 9, 2016, the Georgia Supreme Court
denied both the petition and the motion.38
Based on the Georgia Supreme Court’s denials, the Plaintiff brought this action.
It contends that it was denied due process because of “the Georgia Supreme Court’s
non-judicial orders and rules that established the Defendants’ e-filing system.”39 The

34

Compl. ¶ 14; see also The Best Jewelry Mfg. Co., Inc. v. LexisNexis
Elsevier Inc., 334 Ga. App. 826, 836 (2015).
35

Compl. ¶ 15; id., Exs. 9, 10.

36

Id. ¶ 15.

37

Id. ¶ 19.

38

Id. The Plaintiff also filed motions for reconsideration of the denials. Id.
¶ 17. The Georgia Supreme Court denied both motions. Id. ¶ 20.
39

Id. ¶ 22.

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Plaintiff seeks a declaration that the Georgia Supreme Court’s administrative orders
and rules “are non-judicial orders that are unlawful, invalid, ultra vires, void ab initio,
unconstitutional, or otherwise illegal.”40 The Plaintiff also seeks a declaration that it
was denied due process when the Georgia Supreme Court denied its motion for
recusal. The Defendants now move to dismiss.
II. Legal Standard
A. Federal Rule of Civil Procedure 12(b)(1)
A complaint should be dismissed under Rule 12(b)(1) only where the court
lacks jurisdiction over the subject matter of the dispute.41 Attacks on subject matter
jurisdiction come in two forms: "facial attacks" and "factual attacks."42 Facial attacks
"require[ ] the court merely to look and see if [the] plaintiff has sufficiently alleged
a basis of subject matter jurisdiction, and the allegations in his complaint are taken as

40

Id.

41

FED. R. CIV. P. 12(b)(1).

42

Garcia v. Copenhaver, Bell & Assocs., M.D.'s, 104 F.3d 1256, 1261
(11th Cir. 1997); Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990).
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true for the purposes of the motion."43 On a facial attack, therefore, a plaintiff is
afforded safeguards similar to those provided in opposing a Rule 12(b)(6) motion.44
"'Factual attacks,' on the other hand, challenge 'the existence of subject matter
jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings,
such as testimony and affidavits, are considered.'"45 The presumption of truthfulness
does not attach to the plaintiff’s allegations.46 Further, "the existence of disputed
material facts will not preclude the trial court from evaluating for itself the merits of
jurisdictional claims."47
B. Federal Rule of Civil Procedure 12(b)(6)
A complaint should be dismissed under Rule 12(b)(6) only where it appears that
the facts alleged fail to state a “plausible” claim for relief.48 A complaint may survive
a motion to dismiss for failure to state a claim, however, even if it is “improbable” that
a plaintiff would be able to prove those facts; even if the possibility of recovery is

43

Lawrence, 919 F.2d at 1529 (quoting Menchaca v. Chrysler Credit, 613
F.2d 507, 511 (5th Cir. 1980)).
44

Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981).

45

Lawrence, 919 F.2d at 1529 (quoting Menchaca, 613 F.2d at 511).

46

Id.

47

Scarfo v. Ginsberg, 175 F.3d 957, 960-61 (11th Cir. 1999).

48

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); FED. R. CIV. P. 12(b)(6).

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extremely “remote and unlikely.”49 In ruling on a motion to dismiss, the court must
accept the facts pleaded in the complaint as true and construe them in the light most
favorable to the plaintiff.50 Generally, notice pleading is all that is required for a valid
complaint.51 Under notice pleading, the plaintiff need only give the defendant fair
notice of the plaintiff’s claim and the grounds upon which it rests.52
III. Discussion
A. Subject-matter Jurisdiction
The Defendants contend that the Court lacks subject matter jurisdiction under
the Rooker-Feldman doctrine. The Rooker-Feldman doctrine applies to cases that are
“brought by state-court losers complaining of injuries caused by state-court judgments
rendered before the district court proceedings commenced and inviting district court

49

Bell Atlantic v. Twombly, 550 U.S. 544, 556 (2007).

50

See Quality Foods de Centro America, S.A. v. Latin American
Agribusiness Dev. Corp., S.A., 711 F.2d 989, 994-95 (11th Cir. 1983); see also
Sanjuan v. American Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (7th
Cir. 1994) (noting that at the pleading stage, the plaintiff “receives the benefit of
imagination”).
51

See Lombard’s, Inc. v. Prince Mfg., Inc., 753 F.2d 974, 975 (11th Cir.

1985).
52

See Erickson v. Pardus, 551 U.S. 89, 93 (2007).

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review and rejection of those judgments.”53 “The doctrine applies both to federal
claims raised in the state court and to those ‘inextricably intertwined’ with the state
court’s judgment.”54 “A claim is inextricably intertwined if it would effectively nullify
the state court judgment . . . or if it succeeds only to the extent that the state court
wrongly decided the issues.”55 However, the Rooker Feldman doctrine only applies
“when a plaintiff complains of injury from the state court judgment itself.”56 The
Rooker-Feldman doctrine does not apply to non-judicial acts or where the plaintiff’s
claim is a general challenge to the constitutionality of a state law.57 In determining the
applicability of the Rooker-Feldman doctrine, a court “cannot simply compare the
issues involved in the state-court proceeding to those raised in the federal-court
plaintiff’s complaint,” but rather “must pay close attention to the relief sought by the
federal-court plaintiff.”58

53

Nicholson v. Shafe, 558 F.3d 1266, 1273 (11th Cir. 2009) (quoting
Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284 (2005)).
54

Casale v. Tillman, 558 F.3d 1258, 1260 (11th Cir. 2009) (per curiam).

55

Id.

56

Coles v. Granville, 448 F.3d 853, 858 (6th Cir. 2006).

57

See D.C. Court of Appeals v. Feldman, 460 U.S. 462, 486 (1983).

58

Bianchi v. Rylaarsdam, 334 F.3d 895, 900 (9th Cir. 2003) (quoting
Kenmen Eng’g v. City of Union, 314 F.3d 468, 476 (10th Cir. 2002)).
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Here, the Plaintiff seeks a declaratory judgment based on two alleged
constitutional violations. First, the Plaintiff argues that the Georgia Supreme Court’s
denial of its motion for recusal violated its due process rights.59 However, it is clear
that the Plaintiff’s injury stems from the denial of the motion for recusal itself. In the
motion for recusal, the Plaintiff argued that “[n]o Justice administratively approving
this system can make a fair and impartial decision with regard to the merits when the
consequences may result in whether he or she could be named as a party-defendant
in this action or similar action.”60 Thus, inherent in the Georgia Supreme Court’s
denial of the motion for recusal is that it found the justices could be fair and impartial
to adjudicate the motion. “Because [the Plaintiff] did raise [its] claim in the state court,
allowing a new challenge in federal district court would necessarily require review of
a final state court judgment.”61 Accordingly, the Court finds that the Rooker-Feldman
59

The Plaintiff also contends that it was denied due process because
“Georgia Law does not provide a procedure for an appeal from a Georgia Supreme
Court order denying a Motion to Recuse Justices.” Compl. ¶ 21. This claim fails
because the Plaintiff does have an option to challenge the denial. The Plaintiff could
have filed a writ of mandamus in state court against the justices. See Spencer v.
Johnson, No. 3:14-CV-38-J-20JRK, 2014 WL11428180, at *2 (M.D. Fla. Feb. 4,
2014) (“This Court does not have jurisdiction to issue a writ of mandamus to direct
the state Circuit Court or any of its judges . . . to recuse themselves from the case.”).
And, of course, the Plaintiff could have filed a petition for writ of certiorari from the
U.S. Supreme Court.
60

Compl., Ex. 10, ¶ 6.

61

Howell v. Supreme Court of Tex., 885 F.2d 308, 312 (5th Cir. 1989).

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doctrine deprives it of jurisdiction over the Plaintiff’s due process claim regarding the
motion for recusal.62
Next, the Plaintiff seeks a declaration that the Georgia Supreme Court’s “nonjudicial orders and rules that established the Defendants’ e-filing system” are in
violation of due process.63 The Plaintiff, therefore, is asserting a general challenge of
the Georgia Supreme Court’s rules and orders instead of a challenge to the rules’ and
orders’ application to its particular state court case. The Rooker-Feldman doctrine
does not deprive a federal court of jurisdiction of this general challenge.64
Although the Rooker-Feldman doctrine does not bar the claim, the Court
nevertheless lacks subject-matter jurisdiction over it. The Declaratory Judgment Act
– 28 U.S.C. § 2201 – “is inappropriate to adjudicate past conduct.”65 The Plaintiff’s
62

See Bianchi, 334 F.3d at 901-02 (holding that, under Rooker-Feldman,
the federal court did not have jurisdiction to overturn a state court of appeals’ decision
to deny a motion for recusal); Howell, 885 F.2d at 313 (holding that, under RookerFeldman, the federal court did not have jurisdiction to overturn a state supreme court’s
decision to deny a motion for recusal).
63

Compl. ¶ 22.

64

See Abbott v. Michigan, 474 F.3d 324, 328 (6th Cir. 2007) (holding that
the plaintiff alleged a general challenge regarding whether a state law violated the
Employee Retirement Income Security Act and the Supremacy Clause).
65

American Ins. Co. v. Evercare Co., 699 F. Supp. 2d 1355, 1358 (N.D. Ga.
2010); see also Malowney v. Federal Collection Deposit Grp., 193 F.3d 1342, 1348
(11th Cir. 1999) (“Injury in the past . . . does not support a finding of an Article III
case or controversy when the only relief sought is a declaratory judgment.”).
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Complaint is completely devoid of any allegations relating to ongoing or future
conduct. As a matter of fact, the state of Georgia has now enacted statutes authorizing
e-filing systems for superior and state courts.66 Thus, the Court cannot issue the
Plaintiff’s requested declaratory relief.
B. Failure to State a Claim
The Plaintiff has also failed to state a constitutional claim. First, the Plaintiff
does not allege that either Defendants committed the due process violations at issue.
The Plaintiff is asserting that the Georgia Supreme Court’s rules and orders regarding
the e-filing system violated its due process rights. But as the Defendants correctly
point out in their Reply Brief, the “Plaintiff provides no authority that it can somehow
bring such a claim against private companies . . . that were themselves complying with
the same court orders Plaintiff attacks.”67 The only authority the Plaintiff cites are two
cases brought against the actual courts that issued the challenged orders, not against
a private company or individual.68 In addition, in order to bring a constitutional due

66

See O.C.G.A. §§ 15-6-11, 15-7-5.

67

Defs.’ Reply Br., at 7.

68

See McCorkle v. Judges of Superior Court of Chatham Cnty., 260 Ga.
315 (1990); Angell v. Eighth Judicial Dist. Court, 108 Nev. 923 (1992).
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process claim, the Plaintiff must allege that state action was involved.69 The Plaintiff
has not sued the government or a government official. Both of the Defendants are
business entities, and the Plaintiff does not allege in the Complaint that either
Defendant is a state actor. Accordingly, the Plaintiff’s due process claim based on the
Georgia Supreme Court’s orders and rules must fail against these Defendants.
Finally, the Plaintiff’s claim is also barred by res judicata. “When evaluating
the effect of a state court judgment, [the Eleventh Circuit] appl[ies] the preclusion law
of the rendering state.”70 In Georgia, “[t]he doctrine of res judicata prevents relitigation of matters that were or could have been litigated in a previously-adjudicated
action.”71 “In order for res judicata to bar a subsequent action, it must be established
that an identity of parties and subject matter exist between the two actions, and that
a court of competent jurisdiction entered an adjudication in the earlier action.”72 Here,
the parties in the 2010 state court action are identical to those in the instant action.73

69

See Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 930 (1982) (“[T]he
Due Process Clause protects individuals only from governmental and not from private
action . . . .”).
70

Arthur v. JP Morgan Chase Bank, NA, 569 F. App’x 669, 676 (11th Cir.

2014).
71

Labovitz v. Hopkinson, 271 Ga. 330, 332 (1999).

72

Id.

73

See Compl., Ex. 8.

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The subject matter is also the same. “[I]f a case arises out of the same nucleus of
operative fact, or is based on the same factual predicate, as a former action, [then] the
two cases are really the same ‘claim’ or ‘cause of action’ for purposes of res
judicata.”74 The causes of action in both cases arise out of the same factual predicate,
namely the alleged illegality of Fulton County’s e-filing system.75 The Plaintiff,
therefore, had the opportunity to litigate the issue of whether the Georgia Supreme
Court’s orders and rules violate due process in the 2010 state court action. Finally,
neither party disputes that the Superior Court of Fulton County had jurisdiction over
the 2010 action. Thus, the requirements of res judicata have been met.
In response, the Plaintiff argues that it did not know of the federal due process
claim until 2014 because of the Defendants’ alleged deception as to the existence of
a public contract.76 However, in the Fulton County Superior Court’s 2014 order, the
Superior Court discussed the Plaintiff’s argument that there was no enforceable

74

In re Piper Aircraft Corp., 244 F.3d 1289, 1297 (11th Cir. 2001) (quoting
Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1239 (11th Cir. 1999)); see also Neely
v. City of Riverdale, 298 Ga. App. 884, 887 (2009) (“The doctrine [of res judicata]
applies even if some new factual allegations have been made [or] some new relief has
been requested. It is only where the merits were not and could not have been
determined under a proper presentation and management of the case that res judicata
is not a viable defense.”).
75

See Compl. ¶ 22; id., Ex. 8, at 5.

76

See Pl.’s Resp. Br., at 22.

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contract between Fulton County and the Defendants.77 Thus, it is clear that both the
Plaintiff and the Superior Court were aware in 2014 of the alleged deception as to the
existence of a public contract. The Plaintiff then argues that it “properly reserved and
or not litigated his [sic] federal rights under England v. Louisiana State Bd. of Med.
Examiners.”78 The U.S. Supreme Court in England recognized that a litigant with a
constitutional claim under § 1983 should not be forced via the federal abstention
doctrines to pursue a federal claim in state court.79 The Plaintiff is not bringing a
constitutional claim under § 1983. Moreover, under England, a plaintiff is required to
first file in federal court and then must inform the state court that it may pursue any
federal constitutional claims in federal court following the conclusion of the state
court action.80 The Plaintiff does not assert that it followed England’s requirements.
Accordingly, the Plaintiff cannot claim its protections.
IV. Conclusion

77

See Compl., Ex. 8, at 12.

78

Pl.’s Resp. Br., at 22 (citation omitted).

79

See England v. Louisiana State Bd. of Med. Examiners, 375 U.S. 411,
415-22 (1964).
80

See Fields v. Sarasota Manatee Airport Auth., 953 F.2d 1299, 1304-05
(11th Cir. 1992) (citing England, 375 U.S. at 417-22).
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For these reasons, the Court GRANTS the Defendants Reed Elsevier Inc., a.k.a.
Relx Inc., and File & Servexpress, LLC’s Motion to Dismiss [Doc. 15]. The Plaintiff’s
Motion for Oral Argument [Doc. 25] is DENIED.
SO ORDERED, this 24 day of March, 2017.

/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge

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