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FIRST AMERICAN REAL ESTATE SOLUTIONS v. MOORE

September 13, 2005.

FIRST AMERICAN REAL ESTATE SOLUTIONS, L.P., a California Corporation, Plaintiff,
v.
EUGENE "GENE" MOORE, in his capacity as Cook County Recorder of Deeds, Defendant.



The opinion of the court was delivered by: AMY J. ST. EVE, District Judge

MEMORANDUM OPINION AND ORDER

In its Complaint based on diversity jurisdiction, Plaintiff First American Real Estate Solutions, L.P. ("First American") alleges that Defendant Eugene Moore, the Cook County Recorder of Deeds (the "Recorder"), violated the Illinois Counties Code, 55 ILCS 5/5-1106.1 and the Illinois Freedom of Information Act, 5 ILCS 140/6(a). Before the Court is the Recorder's Motion to Dismiss First American's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons discussed below, the Court grants in part and denies in part the Recorder's motion to dismiss.

BACKGROUND

  I. The Parties

  First American is the nation's largest collector and provider of real estate focused public record information. Its coverage extends to more than 95 percent of all real estate in the United States. (R. 1-1, Compl. ¶ 9.) Similar to how LexisNexis and Westlaw compile public legal records, First American amalgamates public real estate transaction records and enhances the information to allow customers to search and organize the records more efficiently. (Id.)

  The Recorder is the duly elected recorder of deeds for Cook County, Illinois. (Id. ¶ 10.)

  II. First American's Relationship with the Recorder

  Prior to January 26, 2005, First American alleges that it regularly obtained from the Recorder copies of public documents recorded and maintained by the Recorder, like deeds and mortgages, in bulk form ("Copies"), without restrictions or duplication fees. (Id. ¶ 11.) From approximately 1988 to approximately December 19, 2003, the Recorder consistently provided First American and its predecessor with Copies in microfilm format, without use restrictions and for a reasonable duplication fee of $15 per microfilm roll. (Id. ¶ 12.) Around December 19, 2003, the Recorder stopped providing First American with Copies in microfilm format, and until November 15, 2004, the Recorder regularly provided First American with Copies in Compact Disc-Read Only Memory ("CD-ROM") format, without use restrictions or any duplication fees. (Id. ¶ 13.)

  On or about November 15, 2004, the Recorder ceased providing Copies in CD-ROM format and began providing First American with Copies in an electronic format through the Internet, via a File Transfer Protocol ("FTP") website, with no use restrictions or duplication fees. (Id. ¶ 14.) Prior to November 15, 2004, the Recorder informed First American that for First American to continue obtaining the Copies by FTP after January 1, 2005, the Recorder would require that First American accept the terms of an agreement (the "Agreement"). (Id. ¶ 16.)

  III. The Agreement

  Under the section titled "Duties and Obligations of the Purchaser," the Agreement requires that:
Purchaser understands and agrees that it in no way acquires rights to other usage of the recorded document copies or disks, or the data contained thereon, and that Compilation Format of Data is the exclusive property of the Recorder and shall not be resold, transferred, or made available by Purchaser to any other person or entity for any purpose whatsoever, other than as described in this Agreement. No duplication or reproduction of the Recorder's work product in any form or manner, including disk format, shall be permitted.
(R. 1-1, Compl. Ex. A ¶ 2.) In addition, the Agreement requires that First American deposit $125,000.00 with the Recorder on a quarterly basis. (Id. ¶ 3.) The deposit suggests a rate of $0.50 per document. If the deposited funds are insufficient to cover the costs due for the actual number of copies requested by First American, the Agreement would obligate First American to pay an additional $0.50 for every document that exceeds the $500,000.00 already deposited. (Id.)

  IV. First American's Refusal to Accept the Agreement

  First American objected to signing the Agreement, alleging that the Recorder is proscribed by law from imposing the fees and restrictions. (R. 1-1, Compl. ¶ 21.) On January 26, 2005, following First American's refusal to accept the Agreement, the Recorder ...


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