Jessica Karmasek Feb. 8, 2016, 9:13am


MIAMI (Legal Newsline) - Another class action lawsuit filed against popular dating app Tinder has been dismissed -- this time, by a Florida federal judge.

Judge James Lawrence King for the U.S. District Court for the Southern District of Florida closed the case in a final order of dismissal Jan. 6.

Plaintiff Billy Warner filed the lawsuit against Tinder in October, after a similar case he filed in a California federal court was dismissed.

Warner had filed a class action complaint in the Central District of California in March 2015. As in the Florida lawsuit, he alleged Tinder overcharged its customers.

In July, the Central District of California dismissed Warner’s case without prejudice, allowing the plaintiff to amend his complaint to cure certain pleading defects.

Instead of amending his complaint, Warner filed a notice of voluntary dismissal without prejudice in August. Then, less than two months later, he re-filed his complaint in the Southern District of Florida.

“Under the procedural background of this case, it is clear that the doctrine of first to file and the prohibition against judge shopping applies,” King wrote in a brief, two-page order.

Tinder filed a motion to dismiss Warner’s first amended complaint in December.

Warner, the dating service contends, was “apparently unhappy” that he would have to pay for its premium features, though its underlying service remained free of charge.

“Plaintiff claims that by adding premium features and releasing Tinder Plus for a monthly fee, Defendant is violating Florida’s Free Gift Advertising Law, False Advertising Law, and Deceptive and Unfair Trade Practices Act,” Tinder wrote in its Dec. 14 motion to dismiss. “But there is no basis for Plaintiff’s apparent assumption that he would have unlimited free access to every feature of the Tinder app forever.

“Plaintiff does not allege that Defendant promised or in any way represented to its users that they would have perpetual free access to every feature (current or future) of the app. Because Plaintiff has not identified any misrepresentation that he purportedly relied on to his detriment -- and because the Tinder app was and remains free -- his claims under Florida law fail.”

The dating service contends that Warner’s claim under the federal Electronic Funds Transfer Act, or EFTA, also fails, pointing out that the plaintiff’s identical claim was dismissed in July by the Central District of California.

As in Warner I, Plaintiff both denies and concedes -- in the same pleading -- that he authorized Defendant to collect monthly charges of $2.99 for his Tinder Plus subscription,” Tinder wrote in its 21-page motion. “His denial, however, is facially implausible, as even the Tinder Plus subscription screen shot that Plaintiff includes in his First Amended Complaint (‘FAC’) refers to a monthly charge of $2.99. Plaintiff also claims that after subscribing to Tinder Plus for $2.99, he subscribed again for $19.99 but continued to be charged for his $2.99 subscription as well.

“However, this contention of dual charges does not implicate a violation of the EFTA, as the court in California previously held. In addition, the EFTA claim is deficient because Apple Inc. controls several steps in the subscription process and thus is an indispensable party.”

In his newest lawsuit, Warner added a claim under the Florida Civil Rights Act, or FCRA, for age discrimination regarding pricing for Tinder Plus and gender discrimination regarding access to the app’s “swipe” feature.

But the dating service argues the claim fails because its app is not subject to the FCRA, and because the plaintiff “has failed to exhaust his administrative remedies even if it were.”

Tinder’s motion did not raise what King described in his order as the “obvious issue” of judge shopping.

Nevertheless, the judge granted Tinder’s motion and dismissed the case with prejudice.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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