George Kiebala v. Derek Boris ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐3233
GEORGE KIEBALA,
Plaintiff‐Appellant,
v.
DEREK BORIS,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:16‐CV‐7478 — Marvin E. Aspen, Judge.
____________________
ARGUED SEPTEMBER 5, 2018 — DECIDED JULY 1, 2019
____________________
Before EASTERBROOK, HAMILTON, and SCUDDER, Circuit
Judges.
HAMILTON, Circuit Judge. Plaintiff‐appellant George
Kiebala appeals from the dismissal of his complaint against
defendant‐appellee Derek Boris. Kiebala contends the district
court abused its discretion in failing to suggest how Kiebala,
who represented himself in the district court, could amend his
complaint to avoid dismissal. He also argues that the district
2 No. 17‐3233
court erred in holding that his libel claim is barred by the
statute of limitations.
We affirm. District judges do not have an affirmative duty
to coach or second‐guess the choices that parties, even pro se
parties, make about how to litigate their cases. We also agree
with the district court that the applicable Illinois statute of
limitations bars Kiebala’s libel claim.
I. Factual and Procedural Background
A. The Dispute
In reviewing a dismissal for failure to state a claim, we ac‐
cept the facts as alleged by the plaintiff without vouching for
their objective truth. Goldberg v. United States, 881 F.3d 529, 531
(7th Cir. 2018). Kiebala owns a luxury car share service called
Curvy Road Holdings, LLC.1 It allows customers to purchase
time‐ownership rights to high‐end automobiles that are
owned by “investors.” In September 2009, Derek Boris be‐
came a Curvy Road “investor” and received a share of the
rental revenue when customers drove his Lamborghini Gal‐
lardo. All was well for the first few months as Kiebala made
payments to Boris in late 2009 and March 2010.
In May 2010, however, Boris withdrew his car from the
program, and Kiebala’s check for his final payment to Boris
did not clear. Kiebala emailed Boris on July 16, 20, 22, and Au‐
gust 6, 2010, to explain that various medical and business dif‐
ficulties were preventing payment. Boris never received his
1Kiebala also owns a second company, Exotic Car Share, LLC, which
operates on a different business model. Although the filings mention both
companies, defendant Boris contracted only with Curvy Road Holdings.
For ease of reference, we limit our discussion to Curvy Road.
No. 17‐3233 3
final payment, and communications between the two seemed
to come to an end.
After a period of quiet, though, Boris posted angry and
derogatory statements on various websites about Kiebala and
Curvy Road. He did this on at least eight occasions from
December 2010 through July 2011. Sharing his thoughts on
customer review sites such as Scamexposure.com, Private‐
complaints.com, and Ripoffreport.com, Boris allegedly
revealed (we must assume) Curvy Road’s confidential
business information and opined that “it is a FRAUD
company” whose “owner simply cannot be trusted [because]
[h]e has lied repeatedly and he will steal your money.”
Kiebala’s final posting from this period, central to the stat‐
ute of limitations issue here, was made to RipoffReport.com
on July 20, 2011. The subject heading asserted that Kiebala
was a “SCAM and FRAUD!” and “Stole Money!” The mes‐
sage said:
The company rents some of its exotic cars from
individual owners such as myself, and pays out
a commission based off of actual customer use.
However, their excuse for not paying
THOUSANDS of owed commissions to me is
that “my wife took my money”! This from a
supposed ‘professional’ company, makes it
clear that lying and stealing are part of George
Kiebala [and] Curvy Road[’s] … daily manage‐
ment! I would advise EVERYONE, customers
and potential partners, to STAY AWAY from this
thief, or you risk losing everything. This
4 No. 17‐3233
company, and the owners, simply cannot be
trusted!!2
And with that, the dispute went dormant for several years.
In the fall of 2014, Boris again turned his sights on Kiebala.
On October 22, 2014, Boris emailed Kiebala that he wanted to
give him “a chance to make good on our agreement before I
put my review of your company on various websites.” The
parties did not reach a settlement agreement, and Boris
launched a new round of internet postings.
On July 21, 2015, on a new website called scamorg.com,
Boris posted a statement almost identical to his RipoffReport
post of July 20, 2011. And on July 22, 2015, Boris returned to
RipoffReport.com and “updated” his original July 20, 2011
post. According to Kiebala, “No additional information ap‐
pears to have been provided when the post was updated.”
Kiebala claims, and we assume for purposes of the appeal,
that by indicating that his 2011 negative review was “up‐
dated,” Boris caused the post to reflect a date of 2015, making
it more likely to be prioritized in new online search results.
B. The Litigation
Kiebala, representing himself, sued Boris the following
year on July 22, 2016, alleging five Illinois state law claims.
(The district court had jurisdiction under 28 U.S.C. § 1332(a)
based on diversity of citizenship.) Boris moved to dismiss the
complaint. The district court granted the motion and
2 Kiebala submitted a print‐out of this post to the district court and
identified its date as July 20, 2011. Kiebala’s submission, however, is a July
20, 2011 post that is designated “Updated” as of July 22, 2015. Kiebala says
that the text of the original 2011 post was not changed when it was later
“updated” in 2015, and we assume as much for purposes of this appeal.
No. 17‐3233 5
dismissed all counts, noting that: (a) the dismissal as to the
libel and intentional inflection of emotional distress claims
was without prejudice, and (b) the dismissal of claims for
breach of a non‐disclosure agreement, breach of contract, and
tortious interference with business expectancy was without
prejudice because Kiebala sued in his personal capacity and
he was not the real party in interest—his companies were. Kie‐
bala v. Boris, No. 1:16 cv 7478, 2017 WL 590287 (N.D. Ill. Feb.
14, 2017). As for the latter three claims, the court gave Kiebala
thirty days to file an amended complaint that either joined or
substituted his companies as plaintiffs; if he failed to do so,
the latter three claims would be dismissed with prejudice. Id.
at *7.
Kiebala’s claims for libel and intentional infliction of emo‐
tional distress faced different hurdles. The district court held
that Kiebala’s libel claim was barred by Illinois’s one‐year
statute of limitations for defamation claims because the last
“original post” was dated July 21, 2015, i.e., one day outside
the limitations period. Id. at *4. The court concluded that Bo‐
ris’s “updated” post from July 22, 2015 could not extend the
limitations period. Id.
The district court dismissed Kiebala’s claim for intentional
infliction of emotional distress on the merits, holding that the
posts could not be considered objectively as “so extreme as to
go beyond all possible bounds of decency,” but were better
categorized as “[m]ere insults, indignities, threats, annoy‐
ances, petty oppressions or other trivialities.” Id. at *6, quoting
Kolegas v. Heftel Broadcasting Corp., 607 N.E.2d 201, 211 (Ill.
1992). Thus, the district court granted Boris’s motion to dis‐
miss because, “even construing his complaint liberally given
6 No. 17‐3233
his pro se status,” Kiebala’s complaint failed to state a claim
upon which relief could be granted. Id. at *7.
Kiebala filed a motion asking the court to reconsider its
ruling on the claims for tortious interference and intentional
infliction of emotional distress, and to grant him leave to file
an amended complaint. Kiebala made clear that he was not
asking the district court to reconsider its ruling on his libel
claim or to allow him to amend that claim. His motion, sup‐
porting memorandum, and reply memorandum were all con‐
sistent on that score. His only references to his libel claim em‐
phasized that he was not asking the district court to reconsider
its ruling on that claim, nor requesting leave to amend.
The district court denied the motion for reconsideration
but made clear that its dismissal was without prejudice and
that Kiebala could file an amended complaint. Kiebala v. Boris,
No. 1:16 cv 7478, 2017 WL 1161177, at *3 (N.D. Ill. Mar. 29,
2017). Kiebala did so, but Boris again moved to dismiss, this
time seeking sanctions. In opposing the motions, Kiebala
again emphasized that he was not trying to amend his libel
claim.
As relevant to Kiebala’s appeal, the new allegations in‐
tended to buttress the claim for intentional infliction of emo‐
tional distress included several additional instances of alleg‐
edly defamatory posts. Most of these posts still dated from
2011, but some were undated, and one was arguably posted
on March 20, 2017, and we accept that date on appeal. The
newly alleged posts largely tracked the other posts in form,
tone, and substance.
The district court denied Boris’s motion for sanctions but
granted dismissal, this time with prejudice. Kiebala v. Boris,
No. 17‐3233 7
No. 1:16 cv 7478, 2017 WL 4339947, at *1 (N.D. Ill. Sept. 29,
2017). The court held that Kiebala’s attempts to cure the tor‐
tious interference claim were insufficient on the merits. Id. at
*3–4. The court further held that Kiebala’s amended claim for
intentional infliction of emotional distress also failed on the
pleadings. Id. at *5–6. Even considering the newly alleged
post, the alleged conduct did not satisfy the high standard for
such a claim: “beyond all possible bounds of decency” and
“intolerable in a civilized community.” Id. at *6, quoting
Swearnigen‐El v. Cook County Sheriff’s Dep’t, 602 F.3d 852, 864
(7th Cir. 2010). The district court entered judgment for Boris.
II. Analysis
On appeal, Kiebala presents two questions about only his
libel claim. First, he contends that the district court erred by
not allowing him to amend his libel claim. Second, he argues
that the court erred by finding that the statute of limitations
bars the claim.
A. Opportunity to Amend Pleadings
When a district court denies a party’s request to amend his
pleadings, we review under an abuse of discretion standard,
and there is “a presumption in favor of giving plaintiffs at
least one opportunity to amend.” Runnion v. Girl Scouts of
Greater Chicago and Northwest Indiana, 786 F.3d 510, 524, 518
(7th Cir. 2015). Kiebala, however, never sought to amend his
libel claim. Instead, he faults the district court for failing to
“offer” him an opportunity to amend the libel claim. This ap‐
proach is not grounded in the text of Federal Rule of Civil Pro‐
cedure 15, which assumes some agency on the part of the liti‐
gant. Under Rule 15(a)(1), “[a] party may amend its pleading
once as a matter of course” within 21 days after service of the
8 No. 17‐3233
complaint or after a motion to dismiss or other motion requir‐
ing a responsive pleading has been filed. “In all other cases,”
Rule 15(a)(2) explains, “a party may amend its pleading only
with the opposing party’s written consent or the court’s
leave.” The district judge, of course, “should freely give leave
when justice so requires,” but the Rule gives no indication
that a judge is required to offer parties legal guidance on
whether and how to amend their pleadings.
This rule should be different, Kiebala seems to argue, for
a pro se plaintiff. To be sure, we have held that “district courts
have a special responsibility to construe pro se complaints lib‐
erally and to allow ample opportunity for amending the com‐
plaint when it appears that by so doing the pro se litigant
would be able to state a meritorious claim.” Donald v. Cook
County Sheriff’s Dep’t, 95 F.3d 548, 555 (7th Cir. 1996). In addi‐
tion to viewing a “pro se complaint with an understanding
eye,” a district court may point a pro se litigant toward the cor‐
rect procedure or “take appropriate measures to permit the
adjudication of pro se claims on the merits.” Id.
At the same time, we have tried to make clear that a “court
is not to become an advocate.” Id. District courts are not
charged with seeking out legal “issues lurking within the con‐
fines” of the pro se litigant’s pleadings, and the court’s duties
certainly do “not extend so far as to require the court to bring
to the attention of the pro se litigant or to decide the unraised
issues.” Caruth v. Pinkney, 683 F.2d 1044, 1050 (7th Cir. 1982).
Kiebala’s effort to impose such a coaching obligation on
the district court is not tenable. According to Kiebala’s argu‐
ment, the district judge should have: (a) read Kiebala’s filings
expressly disclaiming any interest in reconsideration or
amendment of his libel claim, (b) observed that Kiebala’s
No. 17‐3233 9
amended complaint added, for his intentional infliction of
emotional distress claim, allegations about a recent internet
posting that could have been within the one‐year statute of
limitations for the dismissed libel claim; (c) disregarded Kie‐
bala’s responses to Boris’s second motion to dismiss, in which
he again emphasized that he had no interest in amending his
libel claim; (d) advised Kiebala that the newly alleged post in‐
cluded in his amended claim for intentional infliction of emo‐
tional distress might offer a basis to salvage his untimely libel
claim from the statute of limitations, and then (e) suggested
to Kiebala that he file a second amended complaint following
the judge’s recommendation as to how to plead his libel claim.
Requiring judges to take such affirmative steps to guide
pro se plaintiffs’ pleadings would force them outside the role
of neutral judges. Hamlin v. Vaudenberg, 95 F.3d 580, 583 (7th
Cir. 1996) (courts are not to “fill in all of the blanks in a pro se
complaint”); see also Doherty v. City of Chicago, 75 F.3d 318,
323 n.2 (7th Cir. 1996) (noting the “institutional concerns”
with “impos[ing] on the court the obligation to make argu‐
ments for [a] party that the party has not made for itself”). The
district judge did not abuse his discretion either by failing to
suggest to Kiebala that he amend the libel claim he had re‐
peatedly said he did not want to amend or by failing to advise
Kiebala that a new allegation regarding his intentional inflic‐
tion of emotional distress claim might avoid the statute of lim‐
itations defense to his libel claim.
B. Statute of Limitations
Kiebala’s libel claim under Illinois law is governed by the
one‐year statute of limitations on defamation claims. 735 ILCS
5/13‐201. The district court dismissed Kiebala’s libel claim—
as alleged—as barred by that statute of limitations. We review
10 No. 17‐3233
this ruling de novo. Logan v. Wilkins, 644 F.3d 577, 581 (7th Cir.
2011).3
In his original complaint, the most recent new and alleg‐
edly defamatory statement was made one year and one day
before Kiebala filed the complaint. The issue on appeal boils
down to whether Boris, by marking his 2011 Ripoff Report
post as “updated” on July 22, 2015—exactly one year before
Kiebala filed his complaint—started a new statute of limita‐
tions clock for that alleged libel. Our role in deciding this
question of state law is to predict how we think the Supreme
Court of Illinois would decide the issue. Pippen v. NBCUniver‐
sal Media, LLC, 734 F.3d 610, 615 (7th Cir. 2013).
The question of republication of alleged libels has arisen
often and was the subject of a proposed uniform statute for
states to enact. In relevant part, the Illinois enactment of the
Uniform Single Publication Act does not permit a person to
“have more than one cause of action for damages for libel”
based “upon any single publication or exhibition or utterance,
such as any one edition of a newspaper or book or magazine
or any one presentation to an audience or any one broadcast
over radio or television or any one exhibition of a motion pic‐
ture.” 740 ILCS 165/1. We have explained that the Act was in‐
tended to protect speakers and writers from “repeated
3Kiebala did not waive his right to press this claim on appeal by fail‐
ing to re‐argue it in response to Boris’s second motion to dismiss. To pre‐
serve appellate rights, a party need not repeat challenges to a definitive
interlocutory ruling. See, e.g., Ward v. Soo Line Railroad Co., 901 F.3d 868,
882 (7th Cir. 2018), quoting Wilson v. Williams, 182 F.3d 562, 563 (7th Cir.
1999) (en banc). Kiebala is not entitled, however, to argue in this appeal
grounds for sustaining his libel claim that he did not present to the district
court.
No. 17‐3233 11
litigation arising from a single, but mass‐produced, defama‐
tory publication.” Pippen, 734 F.3d at 615.
The 1959 statute codified a common law rule adopted by
the Illinois courts long before the internet came along. See
Wheeler v. Dell Pub. Co., 300 F.2d 372, 375 & n.4 (7th Cir. 1962).
We have already predicted that “the Supreme Court of Illinois
would deem the single‐publication rule applicable to the In‐
ternet.” Pippen, 734 F.3d at 615 (“Every state court that has
considered the question applies the single‐publication rule to
information online … [a]nd those federal courts that have ad‐
dressed the topic have concluded that the relevant state su‐
preme court would agree.”). We explained that “excluding
the Internet from the single‐publication rule would eviscerate
the statute of limitations and expose online publishers to po‐
tentially limitless liability.” Id.
Illinois courts have not yet considered whether “updat‐
ing” a previously published internet post, without changing
the post’s content or placing the content on a new website, is
sufficient to escape the single‐publication rule. In predicting
how the state’s highest court would answer a question, we
may consider instructive decisions from other jurisdictions.
See Pippen, 734 F.3d at 615; see also, e.g., Community Bank of
Trenton v. Schnuck Markets, Inc., 887 F.3d 803, 811–13 (7th Cir.
2018) (drawing on cases from other states to make Erie Rail‐
road prediction of state law). Relying on analogous Illinois
state cases and treatment of similar conduct by other courts,
we predict the Supreme Court of Illinois would hold that Bo‐
ris’s 2015 marking of his 2011 post as “updated,” is, without
more, not sufficient to treat the 2011 post as newly circulated
or republished such that his claim could avoid the one‐year
statute of limitations.
12 No. 17‐3233
The closest guidance from an Illinois court comes from a
pre‐internet case similar to this one, Founding Church of Scien‐
tology of Washington, D.C. v. American Medical Ass’n, 377
N.E.2d 158 (Ill. App. 1978). There the plaintiff alleged that the
defendant had published a libelous article in its monthly mag‐
azine and then several years later “caused reprints and copies
of the article to be delivered, distributed and published to
three named persons with various newspapers on the east
coast, as well as throughout the United States.” Id. at 159–60.
The court rejected the argument that the later distribution
extended the statute of limitations, describing the defendant’s
action as “nothing more than miscellaneous copies incidental
to the general [earlier] publication.” Id. at 161. The court ex‐
plained:
To conclude otherwise and consider them a “re‐
publication,” would cause havoc with the law
of libel and expose a publisher or author to a
lawsuit years after his article had first been pub‐
lished simply because he or someone else chose
to xerox a copy or two and mail the photocopy
to a friend or, for example, to a magazine as part
of a letter to an editor.
Id. Such an outcome would make no sense, especially “be‐
cause the article in question might well be on file in libraries,
and so open to the public anyway.” Id. Kiebala’s original 2011
post—still available on the same website—could similarly be
considered as “on file” and “open to the public anyway,” with
the later updated‐but‐unaltered post serving as the equivalent
of including the original statement in a “letter to an editor.”
No. 17‐3233 13
Illinois law allows some room to argue that a new publi‐
cation starts a new clock if the content is changed, at least sig‐
nificantly, or if the new publication is addressed to a new au‐
dience. See, e.g., Hukic v. Aurora Loan Services, 588 F.3d 420,
437 (7th Cir. 2009) (single publication rule did not apply to
creditors’ repeated reports of inaccurate information to credit
reporting agencies where “the information conveyed did not
stay the same”); Weber v. Cueto, 624 N.E.2d 442, 452–53 (Ill.
App. 1993) (single publication rule did not apply where orig‐
inal publication was privileged report to government author‐
ities and later publication was not privileged and intended for
general public).
An Illinois court considered the interplay of these different
factors at some length in Blair v. Nevada Landing Partnership,
859 N.E.2d 1188 (Ill. App. 2006). Plaintiff Blair had worked for
several years as an employee of defendant’s steakhouse. Dur‐
ing that time, his photograph was used for promotional pur‐
poses on defendant’s flyers, brochures, signs, billboards, res‐
taurant menus, calendars, postcards, and website. Id. at 1189–
90. Blair later sued the defendant for appropriating his like‐
ness and violating his right to publicity by using his picture.
Id. at 1190. The court held that the suit was barred by the one‐
year statute of limitations because his “cause of action ac‐
crue[d] at the time [his] interest [wa]s invaded,” i.e., upon the
first publication of the photograph. Id. at 1193.
Borrowing from the single publication rule for defamation
claims, the court found that it did not matter that Blair’s pic‐
ture “was displayed via several mediums over a period of
time”; his picture “was used for a single purpose” and to “tar‐
get[] a single audience.” Id. The court acknowledged that a
republication could “constitute a new cause of action if the
14 No. 17‐3233
publication is altered so as to reach a new audience or pro‐
mote a different product.” Id. at 1194. But the court repeated
that, given defendant’s use of an “image [that] remained con‐
stant and was not significantly altered to reach a new audi‐
ence” and that was used for the “same … purpose” (e.g., “to
promote a single product”), it did not matter that it was pub‐
lished multiple times “via several mediums.” Id.
These factors have continued to guide Illinois courts when
considering a later appearance of allegedly defamatory con‐
tent on the internet. We have noted that “passive maintenance
of a web site” is not considered a republication. Pippen, 734
F.3d at 616. Nor have courts been persuaded to start a new
statute of limitations clock when defendants “changed the
URL where statements were posted but left the statements un‐
altered,” or when “defendants added an unrelated story to [a]
web page hosting the allegedly defamatory statement.” Id.,
citing Canatella v. Van De Kamp, 486 F.3d 1128, 1135–36 (9th
Cir. 2007), Yeager v. Bowlin, 693 F.3d 1076, 1083 (9th Cir. 2012),
and Firth v. State, 775 N.E.2d 463, 463–64 (N.Y. 2002).4
We agree with the district court here that a single instance
of Boris marking his original 2011 post as “updated,” at least
4Similarly, a federal district court found that publication of new arti‐
cles and blogposts providing hyperlinks to already‐published defamatory
material did not start a new statute of limitations period, even though the
articles and posts containing the hyperlinks were made in venues that
“appeal[ed] to a different type of audience.” Salyer v. Southern Poverty Law
Center, Inc., 701 F. Supp. 2d 912, 916 (W.D. Ky. 2009) (granting motion to
dismiss). The later publication of such a hyperlink is “simply a new means
for accessing the referenced article … [m]aking access to the referenced
article easier,” while lacking “the critical feature of republication”—
namely, “that the original text of the article was changed or the contents
of the article presented directly to a new audience.” Id. at 917.
No. 17‐3233 15
without anything more, did not start a new statute of limita‐
tions clock for the alleged defamation. The 2015 “update” was
identical in content to the 2011 publication, and the update
was intended to reach the same audience, plaintiff Kiebala’s
potential investors and customers. The single publication rule
applies so that the July 22, 2015 post did not revive Kiebala’s
time‐barred claim for defamation.
The judgment of the district court is therefore
AFFIRMED.