CIAPINSKA v. TINDER, INC. et al

Filing 12

OPINION. Signed by Judge Jamel K. Semper on 8/30/2024. (lag, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SYLVIA CIAPINSKA,

Civil Action No. 23-23115

Plaintiff,
v.

OPINION

TINDER, INC.,
August 30, 2024
Defendant.

SEMPER, District Judge.
In this matter, Plaintiff Sylvia Ciapinksa (“Plaintiff”) filed a putative class action asserting
claims against Defendant Tinder, Inc (“Tinder”), now Match Group, LLC (“Match”) (ECF 3)
under the New Jersey Consumer Fraud Act ("NJCFA”) (ECF 1.) Before the Court is Defendant’s
motion to compel arbitration or in the alternative to transfer the case to the Northern District of
Texas (ECF 6, “Motion.”) Plaintiff filed a brief in opposition to Defendant’s motion. (ECF 10.)
Defendant filed a reply in further support of its motion. (ECF 11.) The Court reviewed the
Complaint, and the parties’ submissions and decided the motion without oral argument pursuant
to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1(b). 1 For the following reasons,
Defendant’s motion to compel arbitration is GRANTED.

Defendant submitted a memorandum in support of their Motion (ECF 6-6, “Def. Br.”) Plaintiff filed
opposition to Defendant’s Motion. (ECF 10, “Pl. Opp.”) Defendant filed a reply in further support of its Motion. (ECF
11, “Def. Reply.”)
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I.

FACTUAL AND PROCEDURAL BACKGROUND 2
In 2018, Plaintiff signed up and created an account on Match’s online dating application

“Tinder.” (ECF 1, Compl. ¶ 6). In or about 2019, Plaintiff contends she was permanently banned
from Tinder without explanation. (Id. ¶ 7). Upon inquiry, Plaintiff claims she discovered that her
likeness was being used without her knowledge or consent for a fake account. (Id. ¶ 12.) After
further review, Plaintiff asserts that the individual who created the fake account was able to take
public photos from Plaintiff’s Instagram account and successfully pass Tinder’s verification
process. (Id. ¶ 17.) Plaintiff argues that Defendant’s Photo Verification process does nothing to
verify the user’s identity—it lacks the capability to detect whether a selfie was actually taken by
the user at the time they seek verification. (Id. ¶ 18.) Rather, as Plaintiff’s experience proved, it
simply compares the stolen public photos against other stolen public photos. (Id.) To date, Plaintiff
claims that unknown individuals continue to use Plaintiff’s photos to match with Defendant’s users
under the false impression that they are Plaintiff. (Id. ¶ 31.)
Plaintiff filed suit in the Superior Court of New Jersey, Law Division, Bergen County.
Match filed a Notice of Removal, properly removing the litigation to this Court. (ECF 1.)
Defendant filed the instant motion seeking to compel arbitration of Plaintiff’s claims and to dismiss
or stay the present proceedings pending the resolution of any arbitration. (ECF 6.)
II.

STANDARD OF REVIEW
When deciding a motion to compel arbitration, a district court should apply one of two

standards, depending on the circumstances. See Guidotti v. Legal Helpers Debt Resol., LLC, 716
F.3d 776, (3d Cir. 2013). “[W]hen it is apparent, based on the face of a complaint, and documents

These facts are drawn from Plaintiff’s Complaint (ECF 1, Ex. A., “Compl.”) This Court also relies on
documents integral to or relied upon by the Complaint. See In Re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,
1426 (3d Cir. 1997) (allowing consideration of exhibits referenced but not explicitly cited in the complaint).
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relied upon in the complaint, that certain of a party’s claims are subject to an enforceable
arbitration clause, a motion to compel arbitration should be considered under a Rule 12(b)(6)
standard without discovery’s delay.” Guidotti, 716 F.3d at 773. However, the “Rule
12(b)(6) standard is inappropriate when the complaint does not contain the requisite clarity to
establish on its face that the parties agreed to arbitrate, or the opposing party has come forth with
reliable evidence that is more than a naked assertion . . . that it did not intend to be bound by the
arbitration agreement[.]” Id. at 774 (internal quotations and citations omitted). Faced with these
circumstances, courts should use the Federal Rule of Civil Procedure 56 (“Rule 56”) summary
judgment standard. 3 Guidotti, 716 F.3d at 774. “Therefore, a court must first determine whether
there is a genuine issue of material fact as to whether a valid arbitration agreement
exists.” Jayasundera, 2015 WL 4623508, at *2. In making this determination, the party opposing
arbitration receives “the benefit of all reasonable doubts and inferences that may arise.” Id.
A. Application of Standard of Review
Here, Plaintiff’s Complaint and supporting documents are unclear regarding the agreement
to arbitrate as Plaintiff’s Complaint does not reference any arbitration agreement. (See ECF 1,
Compl.) Rather, the Defendant first refers to the arbitration agreement set forth in Tinder’s Terms
of Use (“TOU”) in their memorandum supporting the motion herein. (ECF 6-6, Def. Br. at 3-6.)
Accordingly, the Court must go beyond the face of Plaintiff’s pleading to address Defendant’s
argument in favor of compelling arbitration and Plaintiff’s opposition regarding same. In doing so,
the court uses the Rule 56 standard to “ensur[e] that arbitration is awarded only if there is an
express, unequivocal agreement to that effect.” Guidotti, 716 F.3d at 773 (internal quotation
omitted).
The Third Circuit explained in Guidotti that in a situation of “arbitrability not being apparent on the face of
the complaint, “the issue should be judged under the Rule 56 standard.” Giudotti 716 F.3d at 774.
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III.

DISCUSSION
A. State Law Application
“State contract principles apply in ascertaining whether the parties to an action have agreed

to arbitrate.” Sarbak v. Citigroup Glob. Mkts., Inc., 354 F. Supp. 2d 531, 537 (D.N.J. 2004) (first
citing First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995), and then citing Blair v. Scott
Specialty Gases, 283 F.3d 595, 603 (3d Cir. 2002)). “Under New Jersey law, 4 ‘[a]n agreement to
arbitrate, like any other contract, must be the product of mutual assent, as determined under
customary principles of contract law.’” Levy v. AT&T Servs., Inc., Civ. A. No. 21-11758, 2022
WL 844440, at *3 (D.N.J. Mar. 22, 2022) (alteration in original) (quoting James v. Glob. TelLink
Corp., 852 F.3d 262, 265 (3d Cir. 2017)). “Therefore, ‘if parties agree on essential terms and
manifest an intention to be bound by those terms, they have created an enforceable contract.’” Id.
B. Enforceability of Arbitration Agreements Generally
The Federal Arbitration Act, 9 U.S.C. §§ 1, et seq. (“FAA”), provides that “[a] written
provision . . . to settle by arbitration a controversy . . . shall be valid, irrevocable, and enforceable,
save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. §
2. This provision reflects “a strong federal policy in favor of resolving disputes through
arbitration.” Century Indem. Co. v. Certain Underwriters at Lloyd's, London, 584 F.3d 513, 522
(3d Cir. 2009). Thus, “any doubts concerning the scope of arbitrable issues should be resolved in

Defendant does not address which state law should govern contract formation and the interpretation of the
online agreement. However, New Jersey law applies here because the purported agreement was allegedly entered into
in the state of New Jersey, this case concerns violations of New Jersey law, and Plaintiff is a resident of New Jersey.
See, e.g., Kozur v. F/V Atl. Bounty, LLC, No. 18-08750, 2020 U.S. Dist. LEXIS 148633, at *16 (D.N.J. Aug. 18, 2020)
(applying New Jersey state law to determine the enforceability of an arbitration agreement where “Plaintiff's contract
was entered into in New Jersey, between a New Jersey individual and New Jersey companies”). In addition, there is
no conflict between New Jersey and Texas law on the formation of a contract. See Davis v. Dell, Inc., No. 07-630,
2008 WL 3843837, at *5, n.2 (D.N.J. Aug. 15, 2008); see also Beture v. Samsung Electronics America, Inc., No. 175757, 2018 WL 4621586, at *3 (D.N.J. July 18, 2018) (“find[ing] that there is no conflict between applying New
Jersey, [and] Texas . . . substantive law to contract formation, and therefore the laws of New Jersey determine whether
the . . . arbitration provision is enforceable.”)
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favor of arbitration, whether the problem at hand is the construction of the contract language itself
or any allegation of waiver, delay, or a like defense to arbitrability.” Moses H. Cone Mem’l Hosp.
v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983); see also MacDonald v. CashCall, Inc, No.
16-2781, 2017 WL 1536427, at *5 (D.N.J. Apr. 28, 2017), aff’d, 883 F.3d 220 (3d Cir. 2018).
Faced with a motion to compel arbitration, a court must perform “a two-step inquiry into
(1) whether a valid agreement to arbitrate exists and (2) whether the particular dispute falls within
the scope of that agreement.” Trippe Mfg. Co. v. Niles Audio Corp., 401 F.3d 529, 532 (3d Cir.
2005). As discussed supra, the agreement to arbitrate here is not discernable from the face of
Plaintiff’s complaint, and the Court assesses this “renewed motion to compel arbitration . . . under
a summary judgment standard.” Guidotti, 716 F.3d at 776. “In examining whether certain claims
fall within the ambit of an arbitration clause, a court must ‘focus . . . on the “factual allegations in
the complaint rather than the legal causes of action asserted.”’” Jayasundera v. Macy’s Logistics
& Operations, Dep’t of Human Res., No. 14-07455, 2015 WL 4623508, at *2 (D.N.J. Aug. 3,
2015) (alteration in original) (quoting Mut. Benefit Life Ins. Co. v. Zimmerman, 783 F. Supp. 853,
869 (D.N.J. 1992), aff’d, 970 F.2d 899 (3d Cir. 1992)). Generally, if the court determines that the
claims in dispute fall within the scope of the arbitration agreement, the court “must then refer the
dispute to arbitration without considering the merits of the case.” Id.
C. Tinder Terms of Use Arbitration Agreement
Section 1 of the TOU begins with an overview of the agreement and a specific request to
review the agreement’s dispute resolution terms:
By creating a Tinder account or by using any Tinder service, whether through a mobile
device, mobile application or computer (collectively, the “Service”) you agree to be bound
by (i) these Terms of Use, (ii) our Privacy Policy and Safety Tips, each of which is
incorporated by reference into this Agreement, and (iii) any terms disclosed to you if you
purchase or have purchased additional features, products or services we offer on the
Service (collectively, this “Agreement”). If you do not accept and agree to be bound by all
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of the terms of this Agreement (other than the limited one-time opt out right for certain
users provided for in Section 15), you should not use the Service.
(ECF 6-6, Def. Br. at 5; ECF 6-3, Ex. B. ¶ 1.) With respect to mandatory arbitration, the TOU
contains a broad agreement to arbitrate any disputes, which provides in pertinent part:
The exclusive means of resolving any dispute or claim arising out of or relating to this
Agreement (including any alleged breach thereof), or the Service, regardless of the date of
accrual and including past, pending, and future claims, shall be BINDING
ARBITRATION administered by the American Arbitration Association under the
Consumer Arbitration Rules. The one exception to the exclusivity of arbitration is that you
have the right to bring an individual claim against Tinder in a small claims court of
competent jurisdiction in the county in which you reside, or in Dallas County, Texas. Such
arbitration shall be conducted by written submissions only, unless either you or Tinder
elect to invoke the right to an oral hearing before the Arbitrator. But whether you choose
arbitration or small claims court, you agree that you will not under any circumstances
commence, maintain, or participate in any class action, class arbitration, or other
representative action or proceeding against Tinder.
(ECF 6-3, Ex. B. ¶ 15.1.) (emphasis in original).
By accepting this Agreement, you agree to the Arbitration Agreement in this Section 15
(subject to the limited one-time right to opt out within thirty (30) days belonging to users
who first created an account or used the Service prior to May 9, 2018 (such users, “Legacy
Users”), discussed below). In doing so, BOTH YOU AND TINDER GIVE UP THE
RIGHT TO GO TO COURT to assert or defend any claims between you and Tinder (except
for matters that may be properly taken to a small claims court and are within such court’s
jurisdiction). YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS
ACTION OR OTHER CLASS PROCEEDING, including, without limitation, any past,
pending or future class actions, including those existing as of the date of this Agreement .
..
. . . If you assert a claim against Tinder outside of small claims court, your rights will be
determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY. . .
(Id. ¶¶ 15.2, 15.3.)
D. Validity of Arbitration Agreement
The threshold questions the Court now faces are (1) whether a valid agreement to arbitrate
exists and (2) whether the particular dispute falls within the scope of that agreement.” Trippe Mfg.
Co. v. Niles Audio Corp., 401 F.3d 529, 532 (3d Cir. 2005). Therefore, the Court must consider

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first if a valid agreement to arbitrate exists by virtue of Plaintiff’s creation and use of the Tinder
platform and purchased a Tinder Plus subscription.
Defendant contends that Plaintiff created two Tinder accounts in October 2019 using an
Apple iOS device, one on October 13 (which she deleted the next day) and the other on October
15. (ECF 6-6, Def. Br. at 3; ECF 6-1, Declaration of Jennifer Flashman “Flashman Decl.” ¶ 5.)
Before Plaintiff could use Tinder, she was required to log in by tapping on a “Log In” button or
“Create a New Account” link that appeared just below a disclosure stating, “By creating an account
or logging in, you agree to our Terms,” with the word “Terms” underlined to show it was a
hyperlink to the Tinder TOU. (ECF 6-1, Flashman Decl. ¶¶ 5-6; ECF 6-2, Ex. A; ECF 6-3, Ex. B.)
Defendant asserts that Plaintiff could not have created or accessed accounts, or used the Tinder
service, without clicking on the “Log In” button or the “Create a New Account” link. (ECF 6-6,
Def. Br. at 3-4.) Thus, Defendant argues that Plaintiff assented to the Tinder TOU in effect at that
time when she created her accounts and proceeded to “Log In.” (Id. at 4.) Additionally, Defendant
states that after creating her October 13 account, Plaintiff then agreed to the Tinder TOU a second
time on the same day when she purchased a subscription to Tinder Plus. (Id. at 5.) As part of the
subscription process, Plaintiff was presented with a Tinder Plus purchase page (ECF 6-4, Ex. C),
which required her to press a “Continue” button that appeared just above a disclosure stating, “By
tapping Continue, you agree to our Privacy Policy and Terms” in order to purchase the
subscription. (ECF 6-6, Def. Br. at 4-5.) The word “Terms” in this disclosure was bolded to show
it was a hyperlink to Tinder’s complete TOU. (Id. at 5.) As a result, Defendant argues that Plaintiff
agreed to the TOU multiple times. (Id.)
Plaintiff does not dispute that Plaintiff could not have created the Tinder accounts in
question, or used Tinder’s services, without first seeing a page that says “[b]y creating an account

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or logging in, you agree to our Terms and Privacy Policy.” (ECF 11, Def. Opp at 2.) Further,
Plaintiff does not dispute that the “Log In” button or the “Create a New Account” link, which users
must click on to progress, appeared on an uncluttered screen, directly underneath the disclosure
about the Tinder TOU. (Id.) Instead, Plaintiff claims Tinder’s design and content of its website
rendered its TOU “inconspicuous,” thus rendering its “sign-wrap” agreement deficient. (ECF 10,
Pl. Opp. at 17.) In short, the crux of Plaintiff’s argument is that the arbitration provision in question
is not enforceable because Plaintiff did not have reasonable notice of its existence. (ECF 10, Pl.
Opp. at 18-20.)
The Court disagrees. Plaintiff had sufficient opportunity to review Tinder’s TOU when she
created multiple accounts and used the Tinder service. Further, the format and layout of Tinder’s
application and webpage (discussed supra) provided the Plaintiff with reasonable notice of the
TOU before signing up for a Tinder account, as well as before placing an order for the Tinder Plus
subscription. (See ECF 6, Exs. A, C-D.) Indeed, Plaintiff’s distinctions between the terminology
as it relates to browsewraps, clickwraps, scrollwraps, and sign-in wraps are not the pre-eminent
inquiry. Instead, “[a]t bottom, regardless of [terminology], the pertinent inquiry is whether the user
was provided with reasonable notice of the applicable terms, based on the design and layout of the
website.” Mucciariello v. Viator, Inc., No. 18 Civ. 14444, 2019 WL 4727896, at *3 (D.N.J. Sept.
27, 2019) (finding that “hyperlinked terms . . . amount to an enforceable agreement when
‘reasonable notice’ is provided and a button is designated to manifest assent, near a statement
informing the user that, by clicking, he or she is agreeing to be bound by the hyperlinked terms.”)
Here, Plaintiff created numerous accounts and even purchased a subscription indicating her
sufficient opportunity to consult and assent to the TOU before continuing to use the platform. See
D’Ambola v. Daily Harvest, Inc., No. 22-6316, 2023 WL 3720888, at *4 (D.N.J. May 30, 2023.)

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That Plaintiff may have failed to read or review the conspicuously referenced TOU, which Match
made accessible to her via hyperlink, is not a reason to find the arbitration clause unenforceable.
See Home Source Industries, LLC v. Freightquote.com, Inc., No. 14-2001, 2014 WL 6609051 at
*5 (D.N.J. Nov. 19, 2014) (“A failure to read the terms and conditions . . .l does not render the
forum selection clause invalid or diminish its force and effect.”); Toll Brothers, Inc. v. Fields, No.
10-04606, 2011 WL 463090 at *3 (D.N.J. Feb. 4, 2011) (“[F]ailure to ‘read a contract does not
excuse performance unless fraud or misconduct by the other party prevented one from reading.’”)
(citation omitted).
Ultimately, the Court finds that Plaintiff agreed to Tinder’s TOU and arbitration clause by
tapping the “Log In” button and/or “Create a New Account” link and the TOU included a valid
arbitration agreement.
E. Scope of the Agreement
In light of the Court’s determination that the arbitration provision within the TOU is valid,
the Court next turns to the issue of arbitrability, i.e., whether the dispute falls within the scope of
the Arbitration Agreement. See, e.g., Beture v. Samsung Elecs. Am., Inc., No. 17-5757,
2018 WL 4621586, at *3 (D.N.J. My 18, 2018). Critically, “[P]arties can agree to arbitrate
gateway questions of arbitrability, such as whether their agreement covers a particular
controversy.” Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 68-69 (2010) (internal quotations
omitted). “When the parties’ contract delegates the arbitrability question to an arbitrator, the courts
must respect the parties’ decision as embodied in the contract.” Henry Schein, Inc. v. Archer and
White Sales, Inc., 586 U.S. 63, 65 (2019). Indeed, the Court may not decide the issue of arbitrability
if a valid arbitration agreement delegates such issue to an arbitrator. Id. at 69-70.

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Here, the TOU states that a user must arbitrate “any dispute or claim arising out of or
relating to this Agreement (including any alleged breach thereof), or the Service, regardless of the
date of accrual and including past, pending, and future claims.” (ECF 6, Ex. B. ¶ 15.1.)
Specifically, subsection 15.3 of the TOU provides that, “the arbitrator shall determine all claims
and all issues regarding the arbitrability of the dispute.” 5 The Court, therefore, finds the arbitration
provision valid and the scope of that provision an issue for the arbitrator to review. Accordingly,
Defendant’s Motion to Compel Arbitration is GRANTED.
IV.

CONCLUSION
For the reasons stated above, Defendant’s motion to compel arbitration is GRANTED.

This Court will stay the current action pending arbitration. See Smith v. Lindemann, No. 10-33119,
2014 U.S. Dist. LEXIS 27605, at *35 (N.D. Cal. Feb. 20, 2014) (staying judicial proceedings and
compelling arbitration on plaintiff’s claims); Seus v. John Nuveen & Co., 146 F.3d 175, 179 (3d
Cir. 1998) 6 (“If a party to a binding arbitration agreement is sued in a federal court on a claim that
the plaintiff has agreed to arbitrate, it is entitled under the FAA to a stay of the court proceeding
pending arbitration and to an order compelling arbitration” (citing 9 U.S.C. §§ 3,4)). An
appropriate Order follows.
/s/ Jamel K. Semper
.
HON. JAMEL K. SEMPER
United States District Judge
Orig: Clerk
cc:
Leda D. Wettre, U.S.M.J.
Parties
The Court finds that the TOU’s express delegation to the arbitrator is clear on its own. However, in addition,
the TOU states that the arbitration shall be administered by “American Arbitration Association under the Consumer
Arbitration Rules.” (ECF 6, Flashman Decl., Ex. B ¶ 15.1.) AAA Consumer Rule 14(a) states that “[t]he arbitrator
shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence,
scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim.” See Consumer
Arbitration Rules, American Arbitration Association (Sept. 1, 2014), https://adr.org/sites/default/files/ConsumerRules-Web_0.pdf.
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Overruled on other grounds by Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, (2000).
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