Warner v. Tinder Inc.

• Decision Date: 31 July 2015
• Docket Number: CASE NO. CV 15–01668 MMM AJWx
• Citation: 105 F.Supp.3d 1083
• Parties: Billy Warner, individually and on behalf of all others similarly situated, Plaintiff v. Tinder Inc., Defendant.
• Court: U.S. District Court — Central District of California

105 F.Supp.3d 1083

Billy Warner, individually and on behalf of all others similarly situated, Plaintiff

v.Tinder Inc., Defendant.

CASE NO. CV 15–01668 MMM AJWx

United States District Court, C.D. California.

Signed July 31, 2015

Adrian Robert Bacon, Todd M. Friedman, Law Offices of Todd M. Friedman PC, Beverly Hills, CA, for Plaintiff.

Christopher A. Rheinheimer, Manatt Phelps & Phillips LLP, San Francisco, CA, Connie Lam, Donald R. Brown, Robert H. Platt, Manatt Phelps and Phillips LLP, Los Angeles, CA, for Defendant.

ORDER GRANTING DEFENDANT'S MOTIONS TO DISMISS

MARGARET M. MORROW, UNITED STATES DISTRICT JUDGE

On March 6, 2015, Billy Warner filed this putative class action against Tinder Inc. (“Tinder”),¹and on March 11, he filed a first amended complaint.²On April 9, 2015, the court entered an order on the parties' stipulation granting Warner leave to file a second amended complaint.³He did so on April 20, 2015, alleging claims for violation of California's Unruh Civil Rights Act, California Civil Code § 51, et seq.; violation of the Electronic Funds Transfer Act (“EFTA”), 15 U.S.C. § 1693, et seq.; violation of California's Automatic Purchase Renewal Statute (“APRS”), California Business & Professions Code § 17600; violation of California's False Advertising Law (“FAL”), California Business & Professions Code § 17500; and violation of California's Unfair Competition Law (“UCL”), California Business & Professions Code § 17200.⁴

On May 20, 2015, Tinder filed a motion to dismiss the second amended complaint,⁵which Warner opposes.⁶Pursuant to Rule 78 of the Federal Rules of Civil Procedureand Local Rule 7–15, the court finds defendant's motion appropriate for decision without oral argument; the hearing calendared for August 3, 2015, is therefore vacated, and the matter taken off calendar.

I. FACTUAL BACKGROUND

A. The Tinder App

This case involves the online dating application known as Tinder (the “Tinder App”). The Tinder App is available for download from most application “stores” and is commonly used on iPhones and Android cellular telephones.⁷Once downloaded, the application taps into a user's Facebook account and the information contained therein to generate a digital dating profile.⁸A Tinder profile includes the user's first name, age, photographs, and any pages he or she has “liked” on Facebook.⁹After a user's profile is established, he or she may begin “searching” for potential matches.¹⁰Tinder utilizes the user's location, derived from the GPS device built into his or her phone, together with the user's profile, to suggest potential matches within a certain geographical radius.¹¹

The hallmark of the Tinder App is the “swipe” feature, which allows users to swipe their finger either left or right across the screen to indicate their interest, or lack thereof, in potential matches.¹²When Tinder suggests a potential match to a user, the user can swipe left, indicating a “like,” or swipe right, indicating a “pass.”¹³If two users' swipes indicate mutual interest (i.e. both “swiped” left), the application opens a “direct line of communication between the users ... allow[ing] them [to message] one another.”¹⁴Warner asserts that unlimited swiping is “a necessary requirement” to meaningful use of the Tinder App because “the vast majority of users' matches [are] either fake users, escort services, or pornography bots.”¹⁵

Until early March 2015, it was allegedly free to download and use the Tinder App; users purportedly had access to an unlimited number of swipes.¹⁶Thereafter, Tinder allegedly began to charge for unlimited access. Warner asserts it created a “Tinder Plus” option, which gave users unlimited swipes for $2.99 a month.¹⁷He contends Tinder gave users no advance notice of this change.¹⁸Additionally, on or about March 30, 2015, Tinder purportedly increased the price of Tinder Plus, charging $9.99/month for users under thirty years old and $19.99/month for users over thirty years old.¹⁹

B. Warner's Use of Tinder

Warner allegedly began using the Tinder App in early 2014, when he downloaded it to his iPhone via iTunes.²⁰At the time Warner downloaded the application, various advertisements, promotions, and websites, including Tinder's site, advised that Tinder was a “free online dating app.”²¹

Warner purportedly used the Tinder App for free until March 2015.²²On March 5, 2015, Warner was using the Tinder App when a pop-up message appeared on his phone stating: “You're out of likes. Get more likes in 0:00:00. Get unlimited likes with Tinder Plus for $2.99/mo.”²³Warner alleges that he reluctantly paid the monthly fee for a Tinder Plus membership.²⁴Then on March 30, 2015, Warner allegedly received another message from the Tinder App asking if he wanted to “Get Plus for $19.99/mo.”²⁵This pop-up noted that Warner would get several services in addition to unlimited swipes, including the ability to change his location and “match with people anywhere in the world,” to “[r]ewind [his] last swipe,” and to turn off advertisements.²⁶Warner paid the $19.99 fee as well, assuming he would no longer be billed $2.99/month.²⁷Warner alleges instead that on April 9, 2015, the $2.99 membership fee was auto-debited despite the fact that he had “not authorize[d] [d]efendant to continue charging him for $2.99 for Tinder Plus.”²⁸

II. DISCUSSION

A. Tinder's Request for Judicial Notice

Because Rule 12(b)(6) review is confined to the complaint, the court typically does not consider material outside the pleadings (e.g., facts presented in briefs, affidavits, or discovery materials) when deciding such a motion. In re American Continental Corp./Lincoln Sav. & Loan Securities Litig.,102 F.3d 1524, 1537 (9th Cir.1996). It can, however, properly consider exhibits attached to the complaint and documents whose contents are alleged in the complaint but not attached, if their authenticity is not questioned. Lee v. City of Los Angeles,250 F.3d 668, 688 (9th Cir.2001).

In addition, the court can consider matters that are proper subjects of judicial notice under Rule 201 of the Federal Rules of Evidence. Id.at 688–89; Branch v. Tunnell,14 F.3d 449, 454 (9th Cir.1994), overruled on other grounds by Galbraith v. County of Santa Clara,307 F.3d 1119 (9th Cir.2002); Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 1542, 1555 n. 19 (9th Cir.1989); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007)(“[C]ourts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice”).²⁹The court is “not required to accept as true conclusory allegations which are contradicted by documents referred to in the complaint” or documents that are proper subjects of judicial notice. Steckman v. Hart Brewing Inc., 143 F.3d 1293, 1295 (9th Cir.1998); see also Sprewell v. Golden State Warriors,266 F.3d 979, 988 (9th Cir.2001)(“The court need not, however, accept as true allegations that contradict matters properly subject to judicial notice or by exhibit”).

Tinder asks the court to take judicial notice of seven documents.³⁰Specifically, it requests judicial notice of (1) a copy of the iTunes log-in page that appears after a consumer taps either the “Get Plus” or “Get Unlimited Likes” button shown in paragraphs 57 and 41 of the second amended complaint; (2) a copy of the “Confirm Subscription” page that opens after a consumer enter his or her Apple ID and password, which provides certain disclosures, and asks the consumer to either “Confirm” or “Cancel”; (3) a copy of the page that appears after the consumer clicks “Confirm” on Exhibit 2; (4) a true and correct copy of the confirmation email that is sent to the consumer immediately upon subscribing to Tinder Plus; (5) a copy of the page that opens after tapping the “Manage” button on Exhibit 3, which permits the user to turn off auto-renewal; (6) a copy of the pop-up message that appears when a consumer slides the auto-renewal toggle on Exhibit 5 to the right; and (7) a copy of the page that opens after the consumer has turned off auto-renewal.³¹

The court cannot judicially notice any of these documents, because their contents are neither generally known nor capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid.201. As noted, however, “[a] district court ruling on a motion to dismiss may [also] consider a document the authenticity of which is not contested, and upon which the plaintiff's complaint necessarily relies.” Parrino v. FHP, Inc.,146 F.3d 699, 706 (9th Cir.1998), superseded by statute on other grounds as recognized in Abrego Abrego v. The Dow Chemical Co.,443 F.3d 676, 681 (9th Cir.2006). This is so even if plaintiff does not “explicitly allege the contents of th[e] document[s] in the complaint.” Knievel v. ESPN,393 F.3d 1068, 1076 (9th Cir.2005)(“We have extended the ‘incorporation by reference’ doctrine to situations in which the plaintiff's claim depends on the contents of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document, even though the plaintiff does not explicitly allege the contents of that document in the complaint”).

Tinder contends that the second amended complaint necessarily relies on the purported absence of these disclosures in alleging violations of the EFTA and APRS. It asserts that each of the attached exhibits appears after a user sees the screenshots of the Tinder App that are incorporated in the complaint. Even if this is true, the court need not consider the exhibits to grant Tinder's requested relief. The court therefore declines to take the exhibits into account under the incorporation by reference doctrine.

B. Legal Standard Governing Motions to Dismiss Under Rule 12(b)(6)

A Rule...