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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

ST. JOSEPH COUNTY, INDIANA, by and ) 

through its BOARD OF COMMISSIONERS ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) No. 3:13-CV-397-JD-CAN 

 ) 

LPS REAL ESTATE DATA SOLUTIONS ) 

INC. ) 

 ) 

 Defendant. ) 

OPINION AND ORDER 

Now before the Court is Defendant LPS Real Estate Data Solutions Inc.’s Motion for 

Judgment on the Pleadings [DE 12, 13] filed on July 5, 2013. Plaintiff St. Joseph County, 

Indiana, by and through its Board of Commissioners, filed a response to the motion [DE 18] on 

July 18, 2013, and Defendant replied [DE 22] on August 1, 2013. Defendant has also moved for 

a hearing on the motion [DE 23]. For the following reasons, Defendant’s motions are DENIED. 

I. FACTUAL BACKGROUND

The St. Joseph County Recorder (“Recorder”) is responsible for recording various 

instruments such as mortgages, deeds, plats, real estate contracts, liens, etc. [DE 30 ¶ 5]. As a 

public agency, the Recorder has a statutory obligation to allow the public to inspect and copy its 

public records. Ind. Code § 5-14-3-3(a). A county recorder may fulfill this obligation in three 

ways: (1) providing copies of the requested records; (2) allowing the requester to make copies 

either on the agency’s equipment or the requester’s own equipment; or (3) providing “enhanced 

access,” by which a person may inspect and copy records remotely through a computer gateway. 

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Ind. Code § 5-14-3-3(b), (c). A recorder must collect statutorily-prescribed fees for furnishing 

certain copies. [DE 29 ¶ 6]. 

Pursuant to its authority under the “enhanced access” provisions, the Recorder provides 

an internet gateway through which third parties can access its records remotely. [DE 29 ¶ 7]. The 

Recorder provides this service through a system called Laredo, a third party real estate database 

owned by Fidlar Technologies, Inc. [DE 29 ¶ 7]. On November 24, 2011, Defendant LPS Real 

Estate Data Solutions Inc. (“LPS”) entered into an Agreement with the Recorder, whereby they 

agreed to pay a monthly access fee in order to access and abstract documents from the 

Recorder’s databases. [DE 30 ¶¶ 8, 9 and DE 29-1]. The Agreement is attached to the complaint 

as an exhibit. [DE 29-1]. Under the Agreement, LPS paid a $500 monthly fee for unlimited 

access to the Laredo system. [DE 30 ¶¶ 8, 9 and DE 29-1]. The Agreement also contained a 

clause stating that “[c]opies of documents made from the Laredo system shall be charged $1.00 

per page as per statute.” [DE 29-1 ¶ 8A]. 

St. Joseph County alleges that in March 2013, it discovered that LPS downloaded 42,606 

documents or 191,924 pages from the Laredo system without paying for the copies. [DE 29 

¶ 10]. Though LPS had presumably paid its monthly access fees as called for in the Agreement, 

St. Joseph County alleges that LPS breached the Agreement by failing to pay an additional $1.00 

per page copy fee for documents it downloaded from the Laredo system. [DE 29 ¶ 11]. St. 

Joseph County accordingly initiated this action on May 13, 2013 by filing a complaint against 

LPS Real Estate Data Solutions, Inc., and LPS Applied Analytics LLC. [DE 1]. 

Both defendants filed their answers to the complaint and simultaneously moved for 

judgment on the pleadings under Federal Rule of Civil Procedure 12(c), based purely on the 

allegations in the complaint. Upon confirming that LPS Real Estate Data Solutions, Inc. was the 

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proper defendant in this action, St. Joseph County moved to amend its complaint so as to drop 

LPS Applied Analytics LLC as a defendant. This Court granted the motion to amend, but took 

the previous motion for judgment on the pleadings under advisement, as the amended complaint 

was identical with respect to LPS Real Estate Data Solutions, Inc. [DE 25]. 

II. STANDARD OF REVIEW

A Rule 12(c) motion for judgment on the pleadings permits a party to move for judgment 

after the pleadings are closed. Fed. R. Civ. P. 12(c). A motion for judgment on the pleadings 

under Rule 12(c) is subject to the same standard of review as a motion to dismiss under Rule 

12(b)(6). Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009). Therefore, 

the court must take the facts alleged in the complaint as true and draw all reasonable inferences 

in favor of the non-moving party, Matrix IV, Inc. v. Am. Nat.’l Bank and Trust Co. of Chi., 649 

F.3d 539, 547 (7th Cir. 2011), but to survive the motion, the complaint must contain enough 

facts to state a claim for relief that is plausible on its face. Brooks v. Ross, 578 F.3d 574, 580–81 

(7th Cir. 2009) (relying on Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atl. Corp. v. 

Twombly, 550 U.S. 544 (2007)); see McCauley v. City of Chi., 671 F.3d 611, 615 (7th Cir. 2011) 

(explaining that “[a] claim has facial plausibility when the plaintiff pleads factual content that 

allows the court to draw the reasonable inference that the defendant is liable for the misconduct 

alleged.”). The Court need not accept as true legal conclusions or threadbare recitals of the 

elements of a cause of action supported by mere conclusory statements. Id. at 616. 

Additionally, Rule 10(c) describes the type of materials that can be considered to be part 

of a pleading: 

A statement in a pleading may be adopted by reference elsewhere in the same 

pleading or in any other pleading or motion. A copy of a written instrument that 

is an exhibit to a pleading is a part of the pleading for all purposes. 

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Fed. R. Civ. P. 10(c). This means that a court can consider for purposes of a Rule 12(c) motion, 

documents that are referred to in the pleadings and are central to the plaintiff’s claims. Wright v. 

Assoc. Ins. Cos. Inc., 29 F.3d 1244, 1248 (7th Cir. 1994); see Carroll v. Yates, 362 F.3d 984, 986 

(7th Cir. 2004) (dismissal on the basis of facts in a written instrument attached as an exhibit to a 

pleading is proper only if the plaintiff relies upon it to form the basis of his claim or part of a 

claim). Further, when the complaint itself contains everything needed to show that the defendant 

must prevail on an affirmative defense, then the court can resolve the suit on the pleadings under 

Rule 12(c). Edgenet, Inc. v. Home Depot U.S.A., Inc., 658 F.3d 662, 665 (7th Cir. 2011) (citing 

Brooks, 578 F.3d at 579) (ruling on a motion to dismiss which raised the affirmative defense 

based on the statute of limitations where the relevant dates were unambiguously set forth in the 

complaint)); see Thompson v. Ill. Dept. of Prof’l Regulation, 300 F.3d 750, 754 (7th Cir. 2002) 

(where a plaintiff attaches documents and relies upon the documents to form the basis for a 

claim, dismissal is appropriate if the document negates the claim). 

III. DISCUSSION 

LPS has moved for judgment on the pleadings on the narrow ground that the Recorder 

“was not authorized by law” to charge the fees it now seeks to recover. [DE 13 p. 1]. LPS argues 

that Indiana law does not permit the Recorder to charge the fees at issue, and that because the 

contract incorporates Indiana law by reference, such fees would be contrary to the terms of the 

contract. LPS further argues that the contract is void as ultra vires to the extent it imposes fees 

beyond the scope of the Recorder’s authority. LPS’ motion does not address the related but 

distinct question of whether the contract in fact required LPS to pay such fees, but only whether 

the Recorder would have had the authority to do so.1

 In opposition to LPS’ motion and in support 

                                                            

1

 There appears to be some question as to whether the contract contemplates that the $1 per page charge would even 

apply to copies that LPS itself makes through the Laredo system, as opposed to copies that the Recorder produces

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of its authority to charge the fees at issue, St. Joseph County cites the statute governing enhanced 

access to public records, and also relies on Indiana’s Home Rule Act as a source of residual 

authority. For the reasons that follow, the Court concludes that the Recorder’s authority to charge 

the fees at issue depends on factual questions that cannot properly be resolved at the pleading 

stage. While it may ultimately be that the Recorder is without the authority to seek the fees at 

issue, the Court cannot make that determination without a factual basis as to the reasonableness 

of the fees. Therefore, LPS’ motion for judgment on the pleadings must be denied. 

The parties’ dispute centers around the extent of the Recorder’s authority to charge fees 

relating to its provision of enhanced access to its public records. “As an additional means of 

inspecting and copying public records,” Indiana law authorizes any local public agency to 

“provide enhanced access to public records maintained by the public agency.” Ind. Code § 5-14-

3-3.6(b). Enhanced access is defined as the “inspection” of a public record by anyone other than 

the governmental entity and that “(1) is by means of an electronic device other than an electronic 

device provided by a public agency in the office of the public agency; or (2) requires the 

compilation or creation of a list or report that does not result in the permanent electronic storage 

of the information.” Id. § 5-14-3-2(f). The public agency may fulfill its duty of enhanced public 

access by “enter[ing] into a contract with a third party under which the public agency provides 

enhanced access to the person through the third party’s computer gateway or otherwise . . . .” Id.

§ 5-14-3-3.6(c)(2). If the agency contracts with a third party to provide the enhanced access, it 

may charge the individual receiving access a “reasonable fee to either the third party to a contract 

or to the public agency, or both.” Id. § 5-14-3-3.6(e). The statute does not specifically define 

“reasonable.” 

                                                                                                                                                                                               

and provides to LPS. Because the parties’ briefs only referenced this issue in passing, though, the Court expresses no 

opinion as to that question at this time.

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The Agreement here clearly falls within the provisions governing enhanced access, which 

is provided as a means of “inspecting and copying public records,” as the Agreement permitted 

LPS to access the Recorder’s records through the Laredo system. Id. § 5-14-3-3.6(b). Enhanced 

access is the “inspection” of a public record, which in the case of electronically stored data, 

includes the right to “duplicate the data onto a disk, tape, drum, or any other medium of 

electronic storage.” Id. § 5-14-3-2(f), (h). That is precisely what LPS did here by allegedly 

downloading the records, so the question is whether the statute authorizes the Recorder to charge 

the total fees it now seeks for those activities. A public agency that provides enhanced access to 

its records “may require the payment of a reasonable fee.” Id. § 5-14-3-3.6(e) (emphasis added). 

Here, the Recorder qualifies as a “public agency.” See id. at § 5-14-3-2(n)(2)(A). The Court is 

aware of no reported case law addressing what constitutes a reasonable fee in the context of 

enhanced access. 

However, based on a common understanding of the term “reasonable,” and by analogy to 

prescribed copy fees in similar contexts, the Court concludes that reasonable must be 

determined, at least in part, based on the cost to the public agency of providing the services 

rendered. For example, state agencies may charge a “uniform copying fee” set by the state, 

which may not exceed “the average cost of copying records by state agencies or ten cents ($0.10) 

per page, whichever is greater.” Id. § 5-14-3-8(c) (emphasis added). Similarly, public agencies 

may charge a fee for copying documents of “the greater of” ten cents per page or “the actual cost 

to the agency of copying the document.” Id. § 5-14-3-8(d).2

 Where the records in question are in 

                                                            

2

 In an advisory opinion, the Indiana Public Access Counselor relied on this provision to interpret the meaning of 

“reasonable fee” in the context of what a police department may charge to provide hard copies of case reports. 

Formal Complaint 08-FC-40; Alleged Violation of the Access to Public Records Act by the Muncie Police 

Department, Indiana Public Access Counselor (Feb. 18, 2008), available at http://www.in.gov/pac/advisory/files/08-

FC-40.pdf. The opinion stated: 

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electronic form, a public agency may charge a fee of “the agency’s direct cost of supplying the 

information in that form,” or in the case of a legislative services agency, “a reasonable 

percentage of the agency’s direct cost of maintaining the system in which the information is 

stored.” Id. § 5-14-3-8(g). 

Furthermore, for enhanced access programs administered by the state as opposed to third 

party vendors, the Indiana Office of Technology is directed to “establish reasonable fees for 

enhanced access to public records and other electronic records, so that the revenues generated are 

sufficient to develop, maintain, operate, and expand services that make public records available 

electronically.” Id. § 4-13.1-2-4. In addition, public agencies must deposit fees collected for 

providing enhanced access into a dedicated fund whose purpose is “(1) [t]he replacement, 

improvement, and expansion of capital expenditures,” and “(2) [t]he reimbursement of operating 

expenses incurred in providing enhanced access to public information.” Id. § 5-14-3-8.3. These 

provisions indicate that a fee may be reasonable even where it exceeds an agency’s marginal cost 

in providing the services. Further, the reasonableness inquiry could also be informed by the 

amount a party is willing to pay for such services. See id. § 5-14-3-8(h) (stating that a “public 

agency may charge any reasonable fee agreed on in the contract” for providing enhanced access 

(emphasis added)). Thus, the mere fact that a party agreed to pay certain fees in a contract at 

issue could influence the reasonableness of those fees. 

Based on these considerations, the Court simply cannot conclude at the pleading stage, 

without any factual development, whether the fees the Recorder seeks to collect would be 

                                                                                                                                                                                               

Because I.C. § 10-13-2-31(a) does not provide guidance as to what is a reasonable fee for a copy 

of a case report, we must rely on the fee language provided in the APRA. As such, it is my opinion 

the fiscal body of the Department, or the City of Muncie, may enact an ordinance fixing the fee for 

copies of case reports at no more than ten cents per page or the actual cost to the agency, pursuant 

to I.C. § 5-14-3-8(d). 

Id. (emphasis added).

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reasonable. Reasonableness is by its nature a fact-intensive inquiry, and without any information 

as to the actual cost to the Recorder of providing the services at issue or the prices it charges 

other consumers for those same services, and without any case law interpreting the boundaries of 

reasonableness in this context, judgment on the pleadings is not warranted on this basis. 

LPS argues that because a public agency is only permitted to charge “a reasonable fee,” 

id. § 5-14-3-3.6(e), the Recorder cannot charge both an access fee and a copy fee. This argument 

is misplaced, however. There is nothing in the statute that suggests an enhanced access fee must 

be based entirely on either the amount of time a party utilizes its enhanced access or the amount 

of pages it downloads. To the contrary, such a hybrid or bifurcated billing scheme may more 

closely track the costs to the agencies of providing the respective services. Further, there is no 

indication that the monthly access fee LPS paid was meant to encompass the entirety of the 

reasonable fee the Recorder is permitted to collect. Perhaps the monthly access fee only covers a 

nominal portion of the Recorder’s costs, and it recovers the remainder through the per-page copy 

fees. 

LPS also argues that it qualifies as a “bulk user,” which would implicate a statutory cap 

on the amount of fees the Recorder could charge. However, the bulk user provisions are 

expressly inapplicable to enhanced access under Indiana Code § 5-14-3-3, which both parties 

agree governs this dispute. Id. § 36-2-7-10.1(m). Further, it is not apparent from the pleadings 

either that LPS is a bulk user or that the fees would surpass what the statutes authorize. A bulk 

user is defined as someone who purchases “a copy of all recorded documents received by the 

county recorder” over a specified period. Id. § 36-2-7-10.1(a), (b) (emphasis added). However, 

the complaint does not indicate whether LPS downloaded all of the Recorder’s records. To the 

contrary, the Agreement indicates that LPS would be “abstracting selected data elements.” [DE 

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29-1 (emphasis added)]. Further, the Recorder is authorized to charge bulk users the greater of 

seven cents a page or its actual cost. Id. § 36-2-7-10.1(h). Since there is no indication what the 

Recorder’s actual cost was for the copies at issue, the Court cannot conclude that the charges are 

unauthorized. 

St. Joseph County invokes several other sources for the Recorder’s authority to collect 

the fees at issue, but neither properly applies. It suggests that the statute governing the fees a 

county recorder must charge requires the Recorder to charge $1 for each of the copies at issue. 

The specific provision requires a recorder to charge: “[o]ne dollar ($1) per page not larger than 

eight and one-half (8 1/2) inches by fourteen (14) inches for furnishing copies of records and two 

dollars ($2) per page that is larger than eight and one-half (8 1/2) inches by fourteen (14) 

inches.” Id. § 36-2-7-10(b)(5). However, by referencing page sizes, this provision plainly applies 

to paper copies of records that the Recorder “furnish[es],” not to the electronic copies at issue 

here, so this provision does not independently justify the fees in question. 

St. Joseph County further cites the Indiana Home Rule Act as a source of its authority, 

but that is inapplicable as well. Indiana’s Home Rule Act expressly defines the powers of local 

units of government. Under the Act, a “unit has: (1) all powers granted it by statute; and (2) all 

other powers necessary or desirable in the conduct of its affairs, even though not granted by 

statute.” Id. § 36-1-3-4(b). Omission of a power does not imply that the unit lacks that power. Id.

§ 36-1-3-4(c). However, regardless of the Home Rule Act, when the legislature enacts a statutory 

scheme for a specific subject matter, a local unit is required to comply with that scheme. See 

Residential Management Systems, Inc. v. Jefferson County Plan Systems, Inc., 542 N.E.2d 227 

(Ind. Ct. App. 1989) (invalidating a local zoning ordinance that conflicted with a state statute). 

Because the Indiana legislature has expressly regulated the fees that a public agency may charge 

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for providing enhanced access services, the Home Rule Act does not permit the Recorder to 

charge fees that would exceed its statutory authorization. 

In conclusion, the Recorder is authorized to charge a reasonable fee for the enhanced 

access services it provided to LPS. However, the Court cannot conclude on the basis of only the 

pleadings whether the fees at issue are reasonable. Therefore, the Court cannot conclude that the 

Agreement’s incorporation of Indiana law prohibits such charges or that the Agreement is void 

as ultra vires. Accordingly, LPS’ motion for judgment on the pleadings is DENIED. 

IV. CONCLUSION

For the reasons stated herein, Defendant’s Motion for Judgment on the Pleadings [DE 12] 

is DENIED. Further, since the parties’ filings sufficiently addressed the issues raised by the 

pleadings and resolved herein, there is no need to have an oral argument, and therefore, the Court 

DENIES LPS’ motion for a hearing [DE 23]. 

 SO ORDERED. 

 ENTERED: December 4, 2013 

 /s/ JON E. DEGUILIO 

 Judge 

 United States District Court 

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