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D'Apuzzo v. United States

United States District Court, S.D. Florida

June 27, 2019

Theodore D'Apuzzo, P.A., Individually and on Behalf of All Others Similarly Situated, Plaintiffs,
v.
United States of America, Defendant.

          ORDER ON MOTIONS FOR SUMMARY JUDGMENT

          Robert N. Scola, Jr., United States District Judge

          Plaintiff Theodore D'Apuzzo, P.A. (“D'Apuzzo”) claims the United States Government wrongfully charged him to access two documents (the “Documents”) on the Public Access to Court Electronic Records (“PACER”) system. The issue central to his grievance is the meaning of the term judicial “opinion.” PACER users receive “opinions” for free. But the Documents were not designated “opinions” on PACER. D'Apuzzo believes this was wrong. In his view, the Documents were in fact “opinions” and he should not have been charged to access them. This lawsuit is D'Apuzzo's attempt to recover the 80 cents in PACER fees he incurred as a result.[1]

         The parties now cross-move for summary judgment on the three claims asserted by D'Apuzzo. (the “Motions, ” ECF Nos. 67, 70.) The Court held a hearing on the Motions on June 26, 2019. Having considered the parties' written submissions, the entire record in this case, the parties' arguments and presentations at the hearing, and the applicable law, the Court grants in part and denies in part the Government's motion (ECF No. 67) and grants in part and denies in part D'Apuzzo's motion (ECF No. 70) as follows.

         1. Background

         The material facts in this case are not in dispute. In fact, aside from a single objection to the Government's legal interpretation of the E-Government Act, D'Apuzzo agrees with every fact proffered by the Government to support its entitlement to judgment as a matter of law. (See ECF Nos. 66, 82.) At the hearing, D'Apuzzo's counsel reiterated that there are no material facts in dispute. A summary of those stipulated facts, as well as those proffered by D'Apuzzo, follows.

         A. The Undisputed Material Facts

         The PACER system is a set of software programs, developed and maintained by the Administrative Office of the United States Courts, that allow the public to access court filings and case information residing on court electronic databases. (ECF Nos. 66, 82 at ¶¶ 1; ECF Nos. 69, 77 at ¶¶ 5.) To access this system, prospective PACER users must register for an account. (ECF Nos. 69, 77 at ¶¶ 4.) The registration process is a series of webpages that provide information about the PACER system and request information from registrants. (ECF Nos. 66, 82 at ¶¶ 10-13.)

         The first two pages request “account information” and “user information” from registrants, including names, addresses, usernames and passwords. (Id. at ¶¶ 10; ECF No. 64-1 at pp. 2-22.)

         The third page, titled “Payment Information, ” informs PACER registrants that:

         All registered users will be charged as follows:

• Use of PACER systems will generate a $.10 per-page charge and is capped at $3.00 for single documents and case-specific reports that are more than 30 pages
. . . .
• Judicial opinions accessed via PACER will not generate a charge.
• If your usage does not exceed $15 in a quarter, fees are waived.

(ECF No. 64-1 at p. 25.) That page allows, but does not require, registrants to input their credit card information. (Id.)

         On the fourth and final page, registrants are required to review PACER's policies and procedures (the “Policies and Procedures”). The Policies and Procedures are provided in full on that page by scrollable box and by hyperlink. (Id. at pp. 27-30; ECF Nos. 66, 82 at ¶¶ 12.) Registrants are again informed by the Policies and Procedures that the “[u]se of the PACER system will generate a $.10 per page charge, ” and that “[b]y registering for a PACER account” users “assume responsibility for all fees incurred through the usage of this account.” (ECF No. 64-1 at p. 30.) The term “opinion” is not mentioned in the Policies and Procedures. (Id.) Registrants must click a box on that page “acknowledg[ing]” that they “read and understand” the Policies and Procedures, at which point an account is created and the registrant may access PACER services. (Id. at p. 27; ECF Nos. 66, 82 at ¶¶ 15.)

         In August 2014, D'Apuzzo registered for a PACER account. (ECF No. 65-1 at 29:20-30:11.) Although he does not “really recall” the registration process, D'Apuzzo does not dispute that the process remains the same today as it was in August 2014. (Id. at 30:14; ECF No. 64-1 at p. 2; ECF Nos. 66, 82 at ¶¶ 9.)

         On August 23, 2016, D'Apuzzo accessed an “Order Denying Defendants' Request for Judicial Notice” entered by District Judge James Cohn in Georgian v. Zodiac Group, Inc., No. 10-cv-60037, 2011 WL 3349573, at *1 (S.D. Fla. Aug. 3, 2011) (the “Cohn Order, ” ECF No. 14-1). (ECF Nos. 66, 82 at ¶¶ 30; ECF No. 64-1 at p. 48.) The Cohn Order was not docketed as an opinion and cost 30 cents to access, a fact made known to D'Apuzzo by a transaction receipt reviewed by him prior to downloading that order. (ECF Nos. 66, 82 at ¶¶ 22, 25-26.) On October 5, 2016, D'Apuzzo received an invoice for $66.60 for the billing quarter in which he accessed the Cohn Order. (Id. at ¶¶ 31; ECF No. 64-1 at p. 50.) D'Apuzzo paid that invoice on November 3, 2016. (ECF Nos. 66, 82 at ¶¶ 32; ECF No. 64-1 at p. 51.)

         That same day, D'Apuzzo accessed an order on a preliminary injunction issued by District Judge Richard Jones in Organo Gold International, Inc. v. Ventura, No. 2:16-cv-00487, 2016 WL 1756636, at *1 (W.D. Wash. May 3, 2016) (the “Jones Order, ” ECF No. 14-2). (ECF Nos. 66, 82 at ¶¶ 32.) The Jones Order was not docketed as an opinion and was five pages long. (Id. at ¶¶ 23.) Prior to downloading the Jones Order, D'Apuzzo reviewed a transaction receipt memorializing that the cost of the order was 50 cents. (Id. at ¶¶ 26.) D'Apuzzo downloaded the order on November 3, 2016. (Id. at ¶¶ 32.) He incurred $18.50 in PACER fees for that billing quarter, which he paid on March 29, 2017. (Id. at ¶¶ 36; ECF No. 64-1 at pp. 53-54.)

         B. Procedural History

         D'Apuzzo filed this lawsuit on November 22, 2016. (ECF No. 1.) The operative amended complaint (ECF No. 14) asserts three counts: Count I for breach of contract, claiming that the Government breached a contract with D'Apuzzo by charging him a fee to access the Documents, which he claims should have been designated free judicial “opinions” but were not, (ECF No. 14 at ¶¶ 55-61); Count II for breach of the covenant of good faith and fair dealing, claiming that the Government “breached the implied covenant of good faith and fair dealing in the performance of these PACER contracts by charging users to access judicial opinions, ” and not promulgating sufficient guidance on which orders constitute “opinions, ” (id. at ¶¶ 62-70); and Count III for illegal exaction, claiming that the Government “illegal[ly] exacte[d]” 80 cents in PACER fees from D'Apuzzo, which he argues was “unnecessary, ” “unreasonable” and “in excess of that authorized by the E-Government Act and the Fee Schedule, ” (id. at ¶¶ 71-79).

         The Government moved to dismiss. (ECF No. 16.) The Court denied that motion. (ECF No. 28.) D'Apuzzo then moved for class certification. (ECF No. 37.) The Court denied that motion, too. (ECF No. 47.) At that point, D'Apuzzo petitioned the Eleventh Circuit for leave to take a permissive appeal of the order denying class certification. (ECF No. 48-1.) He further requested and received a stay of this district court proceeding pending the appellate court's decision. (ECF Nos. 48, 49.) The Eleventh Circuit denied the petition on July 24, 2018, and the Court reopened this case on July 31, 2018. (ECF Nos. 50, 51.) Seven days later, and after failing to obtain interlocutory appellate review, D'Apuzzo reasserted his class certification motion before this Court by way of a motion to reconsider “to correct clear error or prevent manifest injustice.” (ECF No. 52.) Thereafter, the parties filed the present motions for summary judgment. (ECF Nos. 67, 70.)

         i. The Government's Motion

          The Government seeks summary judgment on all claims based on waiver and administrative exhaustion theories. As that argument goes, D'Apuzzo waived his right to challenge the charges at issue because he knew the Documents were not designated “opinions” but paid for them anyways. For its exhaustion argument, the Government claims that D'Apuzzo was required to contest any billing errors through an administrative appeal process prior to filing suit, which he did not do. (ECF No. 67 at pp. 11-15, 18, 20; ECF No. 32 at p. 12.)

         Specific to Count I, the breach of contract claim, the Government requests summary judgment in its favor arguing that (1) no valid contract exists because the term “opinion” is inherently subjective and thus insufficiently definite, (ECF No. 67 at pp. 5-8); (2) no valid contract exists because D'Apuzzo gave no consideration for the “opinions” he claims to be entitled to for free, (id. at pp. 9-10); and (3) even if a valid contract exists, Count I still fails because the Government did not breach that contract by charging D'Apuzzo to access the Documents, (id. at pp. 10-11).

         On Count II, for breach of the implied covenant of good faith and fair dealing, the Government claims entitlement to summary judgment on three grounds: (1) that no valid contract exists between D'Apuzzo and the Government, (id. at pp. 15-16); (2) that the Government did not breach an implied covenant of good faith and fair dealing by not adopting a different definition of “opinion” from that which D'Apuzzo agreed to, (id. at p. 16); and, relatedly, (3) that no breach occurs when a judge exercises his or her discretion to label, or not label, an order as an “opinion, ” (id. at pp. 17-18).

         Finally, the Government requests summary judgment on Count III for illegal exaction, arguing (1) that the Court lacks jurisdiction to consider the claim because no statute gives PACER users an express or implied damages remedy for improper PACER charges, (id. at pp. 18-19); (2) that the claim fails because the PACER charges at issue were not improper or illegal, (id. at p. 20); and (3) that D'Apuzzo failed to comply with the administrative process for contesting PACER billing errors.

         ii. D'Apuzzo's Motion

          D'Apuzzo requests partial summary judgment on four issues: (1) that a contract, either express or implied-in-fact, exists between the Government and D'Apuzzo related to his PACER usage, as is necessary to support Counts I and II, (ECF No. 70 at pp. 2-6); (2) that the E-Government Act of 2002 “mandated that federal courts provide the public with free access to their opinions, ” as relevant to Count III for the illegal exaction, (id. at pp. 1, 6-9 (emphasis in original)); (3) that “the Government breached its contractual duty of good faith and fair dealing, and the E-Government Act's mandate, by failing to implement a suitable opinions definition, thereby rendering it liable under Counts II and III, ” (id. at pp. 1, 9-15); and (4) that “the Government's affirmative defenses of exhaustion of administrative remedies and waiver fail as a matter of law, ” (id. at pp. 1, 15-21).

         2. Le ...


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