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Case 3:18-cv-02578-K Document 32 Filed 11/01/18 Page 1 of 5 PageID 648

UNITED STATES DISTRICT COURT


NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

BUMBLE TRADING, INC. and BUMBLE §


HOLDING, LTD., §
§
Plaintiffs/Counter-Defendants, §
§ C.A. No. 3:18-cv-02578-K
VS. §
§
MATCH GROUP, LLC, §
§
Defendant/Counter-Plaintiff. §
§

MATCH GROUP, LLC’S NOTICE OF NON-OPPOSITION TO PLAINTIFFS’


MOTION TO DISMISS WITHOUT PREJUDICE PURSUANT TO
FEDERAL RULE OF CIVIL PROCEDURE 41

As reflected by its wholesale copying of the Tinder app, Bumble is a marketing company,

not a technology one. Bumble’s marketing strategy has now extended to a misuse of the courts.

On March 16, 2018, Match sued Bumble in the Western District of Texas for a myriad of

violations of Match’s protectable intellectual property related to its Tinder application. This

lawsuit should not have been surprising. As reflected in numerous publications after Bumble’s

release, Bumble is a Tinder copycat in its general premise and look-and-feel. See, Dkt. No. 1-2

at ¶¶ 44-46.

Rather than respond to Match’s lawsuit by answering or asserting counterclaims in the

Western District of Texas—a case pending less than 100 miles from Bumble’s Austin

headquarters—Bumble filed a state court petition in Dallas County on March 28, 2018. Dkt. No.

1-6. After filing the lawsuit, Bumble went on a media barrage in an attempt to control the

narrative related to the lawsuit. Yet although the case was highly publicized in the media (likely

at Bumble’s urging), Bumble did nothing with it. Despite the ease with which it could have done

so, Bumble did not even serve Match.


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On September 5, 2018, recognizing that Bumble’s case sat dormant on his docket for

almost six months, Judge Jim Jordan of the 160th District Court set a hearing for October 12th,

2018 to discuss potential dismissal of Bumble’s lawsuit in light of Bumble’s apparent failure to

prosecute its own case. See Dkt. No. 1-11.

On September 24, 2018, without indicating that its state court petition was about to get

potentially dismissed for want of prosecution, Bumble went on its next media blitz, this time to

claim that it had decided to serve Match (finally) and that it intended to vigorously litigate its

claims. See, e.g., Ex. A. It repeated its false allegations that it had been harmed to the tune of

$400 million. Id. This media barrage—related to the mere service of a lawsuit that had been

filed half a year ago—was used as a hook to begin promoting the fact that Bumble was looking

into conducting an Initial Public Offering on the New York Stock Exchange. Bumble

specifically stated that such an offering would “not be favorable to Match’s stock price.”1

Within days, Match filed counterclaims, removed the case to this Court, and moved to

transfer to the Western District of Texas—where the first-filed, related intellectual property

dispute allegedly giving rise to Bumble’s retaliatory state court claims was already pending. See

Dkt. Nos. 1, 1-16, and 5. Days after its latest media campaign touting its likelihood of success

on its baseless claims—and faced with the specter of actually litigating its own claims in the

single forum of the first-filed case—Bumble filed the instant motion, asking the Court to allow it

to avoid litigating these claims unless and until it decides another lawsuit filing meets its latest

PR strategy.

1
See, e.g., https://www.cnbc.com/2018/09/24/bumble-serves-countersuit-to-match-is-pursing-
ipo.html at 0:00-0:18.
2
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Match is entitled to operate its business and compete in the marketplace without the false

and disparaging cloud Bumble has created by repeating the allegations it raised in its state court

petition. If Bumble wishes to continue to disparage Match in the media with these false and

misleading allegations, it should prove them with evidence in the courts. To remove the cloud,

Match has, pursuant to Fed. R. Civ. P. 15, filed amended counterclaims to include declaratory

judgments of no liability or improper forum related to each of Bumble’s state court allegations.

Regardless of Bumble’s Rule 41 motion, Bumble will now be forced to litigate these claims. In

this way, despite Bumble’s best efforts, this dispute will now be litigated quickly on the merits—

with actual evidence.

In light of that procedural background, Match does not oppose Bumble’s narrow,

procedural request to dismiss is own claims voluntarily without prejudice. To be sure, the Court

has authority to refuse Bumble’s request or to condition it on a restriction that any re-filed

allegations be brought in the Western District of Texas given that Bumble’s present request was

made to avoid an adverse decision related to Match’s pending motion to transfer.2 But Match’s

2
In evaluating whether an opposed voluntary dismissal should be granted, courts in this Circuit
focus on “(1) the defendant's effort and the expense involved in preparing for trial, (2) excessive
delay and lack of diligence on the part of the plaintiff in prosecuting the action, (3)
insufficient explanation of the need to take a dismissal, and (4) the fact that a motion for
summary judgment has been filed by the defendant.” Legacy Separators LLC v. Halliburton
Energy Servs. Inc., No. 4:14-CV-2081, 2015 WL 5093442, at *5 (S.D. Tex. Aug. 28, 2015)
(quoting Elabor v. Tripath Imaging, Inc., 279 F.3d 314, 317 (5th Cir. 2002). Courts also
consider whether the plaintiff seeks to “avoid an imminent adverse ruling.” In re FEMA Trailer
Formaldahyde Prod. Liab. Litig., 628 F.3d 157, 162 (5th Cir. 2010). Here, Bumble has offered
the Court no explanation at all for its desire to voluntarily dismiss its case. Moreover, the
circumstances of its request—which not coincidentally occurred after it discovered it had no
basis to legitimately oppose Match’s motion to transfer—strongly suggest that it was made to
avoid an imminent adverse ruling on the transfer motion. This is a legitimate basis for denying
dismissal or at least requiring that any future lawsuit be filed in the Western District of Texas,
Waco Division. See Bechuck v. Home Depot U.S.A., Inc., 814 F.3d 287, 296 (5th Cir. 2016)
(indicating that re-filing restriction appropriate where case had been previously transferred);
Legacy Separators, 2015 WL 5093442, at *5 (denying request for voluntary dismissal when it
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amended declaratory judgment claims—which can and should be transferred to the Western

District of Texas—largely mitigate Match’s concerns. Thus, Match does not oppose Bumble’s

narrow requested relief for a Rule 41(a)(2) dismissal.

Dated: November 1, 2018 Respectfully submitted,

CALDWELL CASSADY CURRY P.C.

/s/ Bradley W. Caldwell


Bradley W. Caldwell
Texas State Bar No. 24040630
Email: bcaldwell@caldwellcc.com
John F. Summers
Texas State Bar No. 24079417
Email: jsummers@caldwellcc.com
CALDWELL CASSADY CURRY P.C.
2101 Cedar Springs Road, Suite 1000
Dallas, Texas 75201
Telephone: (214) 888-4848
Facsimile: (214) 888-4849

Marc Wolinsky (Admitted Pro Hac Vice)


Stephen R. DiPrima (Admitted Pro Hac Vice)
Nathaniel D. Cullerton (Admitted Pro Hac Vice)
Jonathan Siegel (Admitted Pro Hac Vice)
WACHTELL, LIPTON, ROSEN & KATZ
51 West 52nd Street
New York, NY 10019
Telephone: 212-403-1000
Facsimile: 212-403-2000

ATTORNEYS FOR
MATCH GROUP, LLC

was clear that the voluntary dismissal rested exclusively on an efficient and duplicative “attempt
to avoid federal court”).
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CERTIFICATE OF SERVICE

I hereby certify that on November 1, 2018 a copy of the foregoing documents was served

upon all counsel of record through the Court’s CM/ECF system.

/s/ Bradley W. Caldwell