           Case: 14-11945   Date Filed: 02/23/2015   Page: 1 of 5


                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT

                       ________________________

                             No. 14-11945
                         Non-Argument Calendar
                       ________________________

                  D. C. Docket No. 1:13-cv-23010-RSR

HERSSEIN LAW GROUP,

                                                            Plaintiff-Appellant,

                                  versus

REED ELSEVIER, INC.,

                                                          Defendant-Appellee.

                       ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     _________________________

                            (February 23, 2015)

Before MARCUS, WILLIAM PRYOR and ANDERSON, Circuit Judges.



PER CURIAM:
              Case: 14-11945     Date Filed: 02/23/2015   Page: 2 of 5




      Herssein Law Group (“HLG”) appeals the dismissal of its complaint against

Reed Elsevier, Inc., the parent company of LexisNexis (“Lexis”). HLG alleged

that Lexis breached an End License User Agreement (“ELUA”) and a

Supplementary Telephonic Technical Support agreement (“STTS”) for the Time

Matters practice management software. The district court concluded that the

EULA permitted Lexis to charge additional amounts for technical support, that the

existence of a contract precluded substitute claims, and that HLG failed to identify

a breached provision of the STTS. We affirm.

      HLG purchased the Time Matters practice management software in 2007

and agreed to be bound by its accompanying EULA. HLG opted to pay a one-time

licensing fee (“OTLF”). In 2008, HLG purchased supplementary technical support

to assist with operation of the software. In 2009, Lexis amended its policy to

require all Time Matters customers to maintain an Annual Maintenance Plan

subscription (“AMP”) or risk disruption to their service. HLG eventually

purchased the AMP, but did so after Lexis’s deadline, and as a result incurred a

reinstatement fee.

      The Court reviews de novo a grant of a motion to dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(6). Mills v. Foremost Ins. Co., 511 F.3d

1300, 1303 (11th Cir. 2008). Questions of contract interpretation are questions of


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law and also subject to de novo review. Gibbs v. Air Canada, 810 F.2d 1529, 1533

(11th Cir. 1987).

          First, HLG argues in Count II that the 2007 EULA does not permit Lexis to

charge additional costs for technical support. The relevant text of the EULA

states:

          LexisNexis may, at its sole option, make available to You technical
          support (“Technical Support”) for error diagnosis purposes . . . . If
          you paid a OTLF for the Software, Service Releases may be included
          with Your purchase of Technical Support service. You are entitled to
          30 days . . . [of] telephone technical support to assist you with
          installation matters. Version Upgrades are available at additional cost
          unless You have licensed the Software within 30 days of a new
          Version Upgrade release and you request the Version Upgrade.

HLG focuses on the “additional cost” and contends that term applies only to

software upgrades and not technical support service; thus, the EULA prohibited

Lexis from charging additional fees for technical support. We disagree. Quite to

the contrary, Lexis reserved the right to make available technical support on its

own terms. Furthermore, Lexis limited to thirty days the support with respect to

installation matters that was included with the EULA, thus expressly indicating

that the EULA did not include perpetual no-additional-cost technical support.

          HLG next argues that it may succeed on a claim of unjust enrichment

notwithstanding the express agreement. In Ohio,1 “absent fraud, illegality, or bad

faith, a party to an express agreement may not bring a claim for unjust

          1
              The contractual relationship dictated choice of Ohio law.
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enrichment.” Urban Assocs., Inc. v. Standex Elecs., Inc., 216 F. App'x 495, 512

(6th Cir. 2007). HLG argues that it is a question of fact whether Lexis’ actions

rose to the level of fraud or bad faith, and therefore that it was inappropriate to

dismiss on the pleadings. However, HLG’s Second Amended Complaint contains

only conclusory allegations as to Lexis’s bad faith, fraud, and illegality, and

conclusory allegations fail the standard of Ashcroft v. Iqbal, 556 U.S. 662, 129 S.

Ct. 1937, 1949 (2009) (“To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to state a claim to relief that is plausible

on its face.” (internal quotations omitted)).

      Finally, HLG argues that its claim for breach of the STTS agreement (Count

I) is sufficiently plead and need not be detailed as the district court required. “It is

a basic tenet of contract law that a party can only advance a claim of breach of

written contract by identifying and presenting the actual terms of the contract

allegedly breached.” Harris v. Am. Postal Workers Union, 198 F.3d 245 (6th Cir.

1999). The Sixth Circuit, in a breach of contract case originating from Ohio,

concluded that a failure to attach the actual contract coupled with a failure to cite to

specific language doomed the claim pursuant to the standards of Ashcroft v. Iqbal,

556 U.S. 662, 129 S. Ct. 1937 (2009), and Bell Atl. Corp. v. Twombly, 550 U.S.

544, 127 S. Ct. 1955 (2007). Northampton Restaurant Grp., Inc. v. FirstMerit

Bank, N.A., 492 F. App’x 518, 521-22 (6th Cir. 2012). A plaintiff may not use


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discovery to locate the contracts in question after filing a suit. Id. at 522. Thus,

HLG has failed to allege its claim for breach of the STTS with sufficient

specificity to survive dismissal pursuant to Federal Rule of Civil Procedure

12(b)(6).

      AFFIRMED.




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