[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 14-11945

Non-Argument Calendar

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

HERSSEIN LAW GROUP,

Plaintiff-Appellant,

versus

REED ELSEVIER, INC.,

Defendant-Appellee.

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Appeal from the United States District Court

for the Southern District of Florida

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(February 23, 2015)

Before MARCUS, WILLIAM PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

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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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