Herrick v. Grindr, LLC

Decision Date24 February 2017
Docket Number17-CV-932 (VEC)
PartiesMATTHEW HERRICK, Plaintiff, v. GRINDR, LLC, Defendant.
CourtU.S. District Court — Southern District of New York
OPINION AND ORDER

VALERIE CAPRONI, United States District Judge:

Before the Court is Plaintiff's application to renew a temporary restraining order entered by the New York State Supreme Court on January 27, 2017. For the reasons that follow, Plaintiff's application is DENIED.1

BACKGROUND

Plaintiff is a former user of Defendant's web-based dating application, "Grindr."2 He alleges that over the past five months, a former love interest, known as "JC," has impersonated him on Grindr by creating profiles bearing Plaintiff's image and personal information, including his home and work address. Compl. (Dkt. 14 Ex. 1) ¶¶ 1, 25. Some of the fake profiles describe Plaintiff as being interested in fetishistic sex, bondage, role playing, and rape fantasies and encourage potential suitors to go to his home or workplace for sex. Id. ¶¶ 33, 45. Plaintiff alleges that dozens3 of men have responded to the profiles, some of whom have physicallyassaulted or threatened Plaintiff and his friends and co-workers. E.g., id. ¶¶ 42, 46, 48-49. According to Plaintiff, he has filed more than fifty complaints with Grindr, but he has received no response other than a form email acknowledging receipt of his complaint. Id. ¶¶ 50, 52.

Plaintiff brings seven claims against Grindr. He asserts claims for negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, and failure to warn, in connection with Grindr's alleged failure to monitor its users, prevent abuse of the Grindr application, or respond adequately to Plaintiff's complaints. Id. ¶¶ 61-63, 69, 102-03, 111, 114, 119-22. Plaintiff also brings claims for false advertising and deceptive business practices under New York General Business Law Sections 349 and 350, and a common law claim for negligent misrepresentation based on Grindr's alleged misrepresentations regarding the safety of the Grindr user community generally and Grindr's alleged knowledge of JC's history of harassment. Id. ¶¶ 20-21, 79, 81, 89, 119-23, 127-28, 130-31, 134.

Plaintiff filed his complaint in New York Supreme Court on January 27, 2017. The Supreme Court entered a TRO the same day, compelling Grindr to "immediately disable all impersonating profiles created under Plaintiff's name or with identifying information relating to Plaintiff, Plaintiff's photograph, address, phone number, email account or place of work." Am. Notice of Removal Ex. 7 at 2. Defendant removed this action on the basis of diversity on February 8, 2017, and filed an amended notice of removal on February 17, 2017. Dkts. 1, 14. On February 21, 2017, Plaintiff moved for an extension of the state court's TRO. Dkts. 16, 18. The Court held a hearing with respect to Plaintiff's application for an extension of the TRO on February 22, 2017.

DISCUSSION

Temporary restraining orders entered prior to removal expire at the earlier of 14 days from the date of removal or the date set by the state court. See Carrabus v. Schneider, 111 F.Supp. 2d 204, 210-11 (E.D.N.Y. 2000); Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers, Local No. 70 of Alameda Cty., 415 U.S. 423, 438 (1974).4 The Court may extend a temporary restraining order for not more than 14 days upon a showing of "good cause." Fed. R. Civ. P. 65(b)(2). Although the Rule does not define "good cause," the Court considers as relevant the same factors as are relevant to whether to grant a TRO in the first place.5 See Flying Cross Check, LLC v. Cent. Hockey League, Inc., 153 F. Supp. 2d 1253, 1261 (D. Kan. 2001); Charles Alan Wright & Arthur R. Miller, 11A Federal Practice & Procedure § 2953 (3d ed. 2016).

"It is well established that in this Circuit the standard for an entry of a TRO is the same as for a preliminary injunction." Andino v. Fischer, 555 F. Supp. 2d 418, 419 (S.D.N.Y. 2008). Under that familiar standard, the movant must "demonstrate '(1) irreparable harm in the absence of the [TRO] and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair grounds for litigation and a balance of hardships tipping decidedly in the movant's favor.'" Id. (quoting MyWebGrocer, LLC v. Hometown Info., Inc., 375 F.3d 190, 192 (2d Cir. 2004)). When the movant seeks affirmativeand not merely prohibitory relief, the plaintiff must make either a heightened showing on the merits or show that "extreme or very serious damage" will flow from denial of an injunction. See Somoza v. N.Y. City Dep't of Educ., No. 06-CV-5025 (VM), 2006 WL 1981758, at *4 (S.D.N.Y. July 10, 2006) (quoting Phillip v. Fairfield Univ., 118 F.3d 131, 133 (2d Cir. 1997)).

The critical question for the Court is whether Plaintiff has adequately demonstrated that there are "sufficiently serious questions going to the merits to make them a fair grounds for litigation." Andino, 555 F. Supp. 2d at 419. The Court assumes for purposes of analysis that Plaintiff's allegations that he is at risk of physical injury unless the TRO is extended satisfy the irreparable harm requirement. The Court also assumes that the balance of equities favors Plaintiff in light of the substantial risk he faces and the fact that Defendant has not asserted any pecuniary burden of compliance.6 "The 'serious questions' standard permits a district court to grant a preliminary injunction in situations where it cannot determine with certainty that the moving party is more likely than not to prevail on the merits of the underlying claims, but where the costs outweigh the benefits of not granting the injunction." Citigroup Glob. Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35-36 (2d Cir. 2010). Plaintiff has not met this standard.

The Communications Decency Act (CDA) immunizes an "interactive computer service" (ICS) from liability for content created and posted by a third party "information content provider." See 47 U.S.C. §§ 230(c)(1), (f)(2)-(3); Fed. Trade Comm'n v. LeadClick Media, LLC, 838 F.3d 158, 173 (2d Cir. 2016). At this early stage, it appears likely to the Court that Section 230 bars many (if not all) of Plaintiff's tort claims. While the CDA may not apply to Plaintiff'sclaims based on false advertising and deceptive business practices (Counts II, III, & VII), Plaintiff has not made an adequate showing of his prospects for success on those claims, and they appear to the Court to be untethered from any of Plaintiff's alleged injuries.

1. Negligence, Failure to Warn, and Infliction of Emotional Distress

Section 230(c) shields a defendant from liability if "the defendant (1) 'is a provider . . . of an interactive computer service, (2) the claim is based on information provided by another information content provider and (3) the claim would treat the defendant as the publisher or speaker of that information.'" LeadClick Media, LLC, 838 F.3d at 173 (quoting Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 19 (1st Cir. 2016)). There does not appear to be any real dispute that Grindr is an "interactive computer service." The Court concludes that there are not serious questions going to the merits whether the second and third elements required for CDA immunity are met in this case as well, at least as to Counts I, IV, V, and VI.

Plaintiff argues that Grindr is not merely a publisher of third-party content but is also a creator of content by virtue of the sorting and matching functions and geo-locational services that it integrated into the Grindr application. While dating applications with Grindr's functionality appear to represent relatively new technological territory for the CDA, past cases suggest strongly that Plaintiff's attempt to artfully plead his case in order to separate the Defendant from the protections of the CDA is a losing proposition. The fact that an ICS contributed to the production or presentation of content is not enough to defeat CDA immunity. Rather, an ICS only loses its immunity if it assists in the "development of what [makes] the content unlawful." LeadClick Media, LLC, 838 F.3d at 174 (quoting FTC v. Accusearch Inc., 570 F.3d 1187, 1197 (10th Cir. 2009)). An ICS may not be held liable for "neutral assistance"—tools and functionality made available equally to malefactors and the application's intended user-base. Id.;see also Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1171-72 (9th Cir. 2008).

Plaintiff has not identified any acts by Grindr—other than "neutral assistance"—that might make Grindr the "provider" of the false profiles created by JC. The Complaint describes the information collected by Grindr to set up an account, such as a profile photograph, name, and "about me" and "I'm looking for" sections. Compl. ¶ 11. Add-on services allow users to block other users, swipe between profiles, and filter by additional categories. Id. ¶ 12. All of these functions appear to be available equally to all Grindr users, and they are quintessential examples of "neutral assistance." See Roommates.Com, LLC, 521 F.3d at 1169 (identifying as an example of neutral assistance a dating site that "requires users to enter their sex, race, religion and marital status through drop-down menus, and that provides means for users to search along the same lines"). The fact that these offerings have been weaponized by a particular Grindr user does not make Grindr the creator of the allegedly tortious content. Moreover, to the extent Grindr has "contributed" to the harassment by providing functionality such as geo-location assistance, that is not what makes the false profiles tortious. See LeadClick Media, LLC, 838 F.3d at 174.7

Although Plaintiff asserts that his claim is like the claim in Roomates.Com, the Court disagrees. In Roommates.Com, the Ninth Circuit concluded that a website that offered to connect individuals looking for housing...

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