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Herrick v. Grindr LLC

United States Court of Appeals for the Second Circuit

March 27, 2019, Decided

18-396

Opinion

 [*588]  SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court entered on February 14, 2018 is AFFIRMED.

Matthew Herrick appeals from a judgment of the United States District Court for the Southern District of New York (Caproni, J.) dismissing his claims against Grindr LLC, KL Grindr Holdings, Inc., and Grindr Holding Company (collectively, "Grindr"). We assume the parties' familiarity with the underlying facts, the procedural history, and the issues presented for review.

Grindr is a web-based "hook-up" application [**2]  ("app") that matches users based on their interests and location. Herrick was the victim of a campaign of harassment by his ex-boyfriend, who created Grindr profiles to impersonate Herrick and communicate with other users in his name, directing the other users to Herrick's home and workplace. Herrick alleges that Grindr is defectively designed and manufactured because it lacks safety features to prevent impersonating profiles and other dangerous conduct, and that Grindr wrongfully failed to remove the impersonating profiles created by his ex-boyfriend.

Herrick filed suit against Grindr in New York state court in January 2017, asserting causes of action for negligence, deceptive business practices and false advertising, intentional and negligent infliction of emotional distress, failure to warn, and negligent misrepresentation. On the same day the complaint was filed, the state court  [*589]  entered an ex parte temporary restraining order ("TRO") requiring Grindr to disable all accounts impersonating Herrick. In February 2017, Grindr removed the case to the Southern District of New York. The district court subsequently denied Herrick's motion to extend the state court's TRO, concluding that [**3]  each of his claims was either barred by Section 230 of the Communications Decency Act of 1996 (the "CDA"), 47 U.S.C. § 230, or failed on the merits.

Herrick filed an amended complaint in March 2017, adding causes of action for products liability, negligent design, promissory estoppel, fraud, and copyright infringement.1 Grindr moved to dismiss on the grounds that all the claims other than copyright infringement are barred by CDA § 230, and that the misrepresentation-based claims fail on the merits. KL Grindr Holdings, Inc. ("KL Grindr") and Grindr Holding Company ("Grindr Holding") additionally moved to dismiss for lack of personal jurisdiction.

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765 Fed. Appx. 586 *; 2019 U.S. App. LEXIS 9318 **; 2019 WL 1384092

MATTHEW HERRICK, Plaintiff-Appellant, v. GRINDR LLC, KL GRINDR HOLDINGS INC., GRINDR HOLDING COMPANY, Defendants-Appellees.

Notice: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

Subsequent History: US Supreme Court certiorari denied by Herrick v. Grindr LLC, 205 L. Ed. 2d 135, 2019 U.S. LEXIS 5100 (U.S., Oct. 7, 2019)

Prior History:  [**1] Appeal from a judgment of the United States District Court for the Southern District of New York (Caproni, J.).

Herrick v. Grindr, LLC, 306 F. Supp. 3d 579, 2018 U.S. Dist. LEXIS 12346 (S.D.N.Y., Jan. 25, 2018)

CORE TERMS

users, misrepresentation, impersonating, ex-boyfriend, harassment, infliction, emotional, distress, profiles, advertising, promissory, estoppel

Civil Procedure, Appeals, Standards of Review, Abuse of Discretion, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, De Novo Review, Pleadings, Amendment of Pleadings, Leave of Court, Business & Corporate Compliance, Computer & Internet Law, Content Regulation, Communications Decency Act, Communications Law, Federal Acts, Telecommunications Act, Torts, Products Liability, Types of Defects, Marketing & Warning Defects, Fraud & Misrepresentation, Actual Fraud, Elements