     Case: 12-11123      Document: 00512396097   Page: 1   Date Filed: 10/03/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                  FILED
                                                                October 3, 2013

                                  No. 12-11123                   Lyle W. Cayce
                                                                      Clerk

NANCY MALSOM; CLAIRE KILCOYNE; MARY ANNE BURGAN; MIKE
CIPRIANI; JESSE KAPOSI; MARK H. HARKEN; KRISTY GAMAYO,
Individuallly and on behalf of all others simiarly situated,

            Plaintiffs - Appellants

v.

MATCH.COM, L.L.C.,

            Defendant - Appellee
____________________________________________
GUY BARLOW, JR., On behalf of themselves and all similarly situated
persons; MARK H. HARKEN, On behalf of themselves and all similarly
situated persons;
JESSE KAPOSI,

            Plaintiffs
v.

MATCH.COM, L.L.C.

           Defendant
_______________________________
JESSE KAPOSI,

            Plaintiff
v.

MATCH.COM, L.L.C.

           Defendant
_______________________________
     Case: 12-11123      Document: 00512396097   Page: 2   Date Filed: 10/03/2013




                                  No. 12-11123

KRISTY GAMAYO, Individually and on behalf of all others similarly
situated,

            Plaintiff
v.

MATCH.COM, L.L.C.

           Defendant
______________________________
NANCY MELUCCI, Individually and on behalf of all others similarly
situated,

            Plaintiff

v.

MATCH.COM, L.L.C.

           Defendant
______________________________
GAIL FITZPATRICK; Et Al

            Plaintiffs

v.

MATCH.COM, L.L.C.

            Defendant



                Appeal from the United States District Court
                     for the Northern District of Texas
                          USDC No. 3:10-CV-2651



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                                       No. 12-11123

Before HIGGINBOTHAM, CLEMENT, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:*
       A putative class of plaintiffs filed suit against Match.com, L.L.C., the
operator of a dating website, alleging breach of contract, breach of the duty of
good faith and fair dealing, and unconscionable conduct. After dismissing the
first two claims, the district court dismissed with prejudice the unconscionability
claim. This appeal, challenging the dismissal of the unconscionability claim,
followed. For the reasons that follow, we affirm the district court’s dismissal and
the decision to dismiss with prejudice.
                                              I
       This case is a consolidated putative class action suit brought by Nancy
Malsom, Claire Kilcoyne, Mary Anne Burgan, Mike Cipriani, Jesse Kaposi, Mark
H. Harken, and Kristy Gamayo on behalf of all similarly situated individuals
(“Appellants”) against Match.com, L.L.C. (“Match”), the owner of a dating
website. Appellants allege that Match uses a variety of misleading tactics to
give prospective and paying users of the website an inflated sense of the number
of active users on the website. The allegations include, but are not limited to,
the following claims: Match does not vet new profiles, allowing fake profiles to
proliferate; Match does not remove inactive or duplicate profiles; Match does not
accurately disclose the size of the reachable membership base; and Match does
not block profiles known to be connected with scams. After the district court
consolidated six putative class action suits, Appellants filed a consolidated
amended complaint that alleged causes of action for breach of contract, breach

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

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                                  No. 12-11123

of the duty of good faith and fair dealing, and unconscionable conduct under the
Texas Deceptive Trade Practices Act (“DTPA”), Tex. Bus. & Com. Code
§ 17.50(a)(3). Appellants sought compensatory damages in the amount of fees
paid for subscriptions to Match.com, injunctive relief, and costs and fees. With
regard to the unconscionable conduct claim, Appellants alleged that Match “took
advantage of their lack of knowledge, ability, experience and/or capacity to a
grossly unfair degree.”
      Match moved to dismiss Appellants’ claims for breach of contract and
breach of the duty of good faith and fair dealing, and the district court granted
the motion on August 10, 2012. In addition to granting Match’s motion, the
district court initiated proceedings to dismiss the remaining unconscionability
claim sua sponte.    After further briefing by the parties, the district court
dismissed the unconscionability claim with prejudice in an order dated October
17, 2012. This appeal followed.
                                        II
      This Court reviews de novo a district court’s dismissal under Rule 12(b)(6),
“accepting all well-pleaded facts as true and viewing those facts in the light most
favorable to the plaintiff.” Toy v. Holder, 714 F.3d 881, 883 (5th Cir. 2013)
(quoting Bustos v. Martini Club Inc., 599 F.3d 458, 461 (5th Cir. 2010)).
However, “[t]his court . . . ‘will not strain to find inferences favorable to the
plaintiff.’” Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008)
(quoting Southland Sec. Corp. v. INSpire Ins. Solutions Inc., 365 F.3d 353, 361
(5th Cir. 2004)). “Because the district court is best situated to determine when
plaintiffs have had sufficient opportunity to state their best case, we review the
district court’s decision to grant a motion to dismiss with or without prejudice


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                                  No. 12-11123

only for abuse of discretion.” Club Retro L.L.C. v. Hilton, 568 F.3d 181, 215 n.34
(5th Cir. 2009).
                                       III
                                        A
      The district court dismissed Appellants’ unconscionable conduct claim for
failure to state a claim under the DTPA. “[I]t has long been the rule in Texas
that mere nonfeasance under a contract creates liability only for breach of
contract.” Crawford v. Ace Sign, Inc., 917 S.W.2d 12, 13 (Tex. 1996); accord Tony
Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 304 (Tex. 2006). However, courts
“have struggled to clarify the boundary between contract claims and other
causes of action.” Crawford, 917 S.W.2d at 13. To that end, the Texas Supreme
Court has reiterated that the relevant inquiry involves an examination of “both
the source of the defendant’s duty to act (whether it arose solely out of the
contract or from some common law duty) and the nature of the remedy sought
by the plaintiff.” Id.
      In Crawford, a business owner sued a phonebook company for breach of
contract, negligence, and unconscionable conduct under the DTPA when the
phonebook company failed to run an advertisement for which the business owner
had paid. Id. at 12–13. The Texas Supreme Court held that the plaintiff could
not maintain an unconscionability claim under the DTPA because the facts of
the claim involved “nothing more than representations that the defendants
would fulfill their contractual duty to publish, and the breach of that duty
sounds only in contract.” Id. at 14. The allegedly unconscionable statements
themselves did not cause harm; it was the failure to print the advertisement
promised, i.e., the breach of contract, that caused the damages claimed. Id. at


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                                      No. 12-11123

14–15. An allegation of a breach of contract, without more, does not amount to
a false, misleading, or deceptive act under the DTPA. Id. at 14.
       By contrast, the Texas Supreme Court has held that an individual may
maintain claims for both breach of contract and a violation of the DTPA when
the plaintiff alleges not only a breach of contract, but also that the other party
“never intended” to fulfill the contract in the first place. Chapa, 212 S.W.3d at
304. In Chapa, plaintiff claimed that a car dealership represented that she
would receive one model of car “when in fact she was going to get another.”1 Id.
at 305. Recognizing that “[a] contractual promise made with no intention of
performing may give rise to an action for fraudulent inducement,” id. at 304, the
Court allowed both claims to proceed, holding that“[w]hile failure to comply
would violate only the contract, the initial misrepresentation violates the
DTPA.” Id. at 305.
       Here, Appellants’ claims amount to allegations of breach of contract alone,
thereby rendering the DTPA inapplicable. Appellants’ complaint alleges a
variety of improper conduct, but none of the conduct alleged would constitute
separate unconscionable conduct under the DTPA. Appellants’ complaint alleges
conduct that suggests Match did an insufficient job of fulfilling its contract with
members by: leaving inactive profiles visible on the site; falsely labeling inactive
profiles as recently active; notifying users of romantic matches that were in fact
inactive profiles; failing to vet new profiles for authenticity; and failing to
remove fake or duplicate profiles. Appellants have not alleged “an act or practice
which [took] advantage of [their] lack of knowledge, ability, experience, or


       1
         The plaintiff in Chapa alleged a variety of other facts in support of her DTPA claim
as well. See 212 S.W.3d at 305–06.

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                                  No. 12-11123

capacity . . . to a grossly unfair degree,” Tex. Bus. & Com. Code § 17.45(5), that
“could have resulted in liability even in the absence of a contract between the
parties,” Crawford, 917 S.W.2d at 13. Their allegations are essentially, as in
Crawford, that (1) Match represented that it would perform under the contract,
and (2) nonperformance means they misrepresented that they would perform
under the contract. See id. at 14. Thus, the conduct alleged amounts to a breach
of contract claim because the duties allegedly violated by Match arose solely out
of the parties’ contracts. See id. at 13. To hold Appellants’ claims actionable
under the DTPA “would convert every breach of contract into a DTPA claim.”
Id. at 14. Nothing in the complaint suggests that Match had no intention of
fulfilling its contract; the complaint instead alleges various ways in which Match
has violated the parties’ contract. See Chapa, 212 S.W.3d at 304–05.
                                        B
      Appellants also challenge the district court’s decision to dismiss their
unconscionable conduct claim with prejudice. The district court dismissed
Appellants’ claim with prejudice on two alternative grounds: (1) Appellants, by
steadfastly asserting that their allegations were sufficient, demonstrated that
further amendments to the complaint would be futile; and (2) further attempts
at amendment would unnecessarily delay resolution of the case.
      This Court has consistently held that, “at some point, a court must decide
that a plaintiff has had fair opportunity to make his case; if, after that time, a
cause of action has not been established, the court should finally dismiss the
suit.” Schiller v. Physicians Res. Grp., Inc., 342 F.3d 563, 567 (5th Cir. 2003).
Here, various related actions against Match have been pending since December
2008. Match has filed numerous motions to dismiss in these suits, and the


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                                  No. 12-11123

various plaintiffs, including Appellants, have filed amended complaints, the
consolidated amended complaint here being the latest iteration. Multiple rounds
of briefing occurred regarding the motions to dismiss in this consolidated action,
giving ample opportunity for Appellants to present their case, and yet
Appellants did not request leave to amend until after the district court’s
dismissal with prejudice on October 17, 2012. Given the length of time these
claims have persisted and the multiple opportunities at amendment that have
passed, the district court did not abuse its discretion when it dismissed
Appellants’ unconscionability claim with prejudice. Appellants have had a “fair
opportunity” to make their case. See id. Therefore, we affirm the district court’s
dismissal with prejudice.
                                       IV
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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