George Kiebala v. Derek Boris
George Kiebala v. Derek Boris
Opinion
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 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 accept the facts as alleged by the plaintiff without vouching for their objective truth.
Goldberg v. United States
,
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 August 6, 2010, to explain that various medical and business difficulties were preventing payment. Boris never received his 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, Privatecomplaints.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 statute 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 message 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 management! I would advise EVERYONE, customers and potential partners, to STAY AWAY from this thief, or you risk losing everything. This 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 Ripoff Report post of July 20, 2011. And on July 22, 2015, Boris returned to Ripoffreport.com and "updated" his original July 20, 2011 post.
*683 According to Kiebala, "No additional information appears 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 "updated," 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
Kiebala's claims for libel and intentional infliction of emotional 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 Boris'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, annoyances, petty oppressions or other trivialities."
Id.
at *6, quoting
Kolegas v. Heftel Broadcasting Corp.
,
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, supporting memorandum, and reply memorandum were all consistent on that score. His only references to his libel claim emphasized 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,
*684 As relevant to Kiebala's appeal, the new allegations intended to buttress the claim for intentional infliction of emotional distress included several additional instances of allegedly 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. 1:16 cv 7478,
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
,
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 liberally and to allow ample opportunity for amending the complaint 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
,
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
*685
lurking within the confines" 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
,
Kiebala's effort to impose such a coaching obligation on the district court is not tenable. According to Kiebala's argument, 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 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 Kiebala'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 included in his amended claim for intentional infliction of emotional 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
,
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 this ruling
de novo
.
Logan v. Wilkins
,
In his original complaint, the most recent new and allegedly 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 limitations 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. NBCUniversal Media, LLC
,
The question of republication of alleged libels has arisen often and was the subject
*686
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 picture." 740 ILCS 165/1. We have explained that the Act was intended to protect speakers and writers from "repeated litigation arising from a single, but mass-produced, defamatory publication."
Pippen
,
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.
,
Illinois courts have not yet considered whether "updating" 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
,
The closest guidance from an Illinois court comes from a pre-internet case similar to this one,
Founding Church of Scientology of Washington, D.C. v. American Medical Ass'n
,
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."
To conclude otherwise and consider them a "republication," would cause havoc with the law of libel and expose a publisher or author to a lawsuit years after his article had first been published 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.
*687
Illinois law allows some room to argue that a new publication starts a new clock if the content is changed, at least significantly, or if the new publication is addressed to a new audience. See, e.g.,
Hukic v. Aurora Loan Services
,
An Illinois court considered the interplay of these different factors at some length in
Blair v. Nevada Landing Partnership
,
Borrowing from the single publication rule for defamation claims, the court found that it did not matter that Blair's picture "was displayed via several mediums over a period of time"; his picture "was used for a single purpose" and to "target[ ] a single audience."
These factors have continued to guide Illinois courts when considering a later appearance of allegedly defamatory content on the internet. We have noted that "passive maintenance of a web site" is not considered a republication.
Pippen
,
*688 We agree with the district court here that a single instance of Boris marking his original 2011 post as "updated," at least without anything more, did not start a new statute of limitations 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.
Kiebala 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.
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.
Kiebala did not waive his right to press this claim on appeal by failing to re-argue it in response to Boris's second motion to dismiss. To preserve appellate rights, a party need not repeat challenges to a definitive interlocutory ruling. See, e.g.,
Ward v. Soo Line Railroad Co.
,
Similarly, a federal district court found that publication of new articles 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.
,
Reference
- Full Case Name
- George KIEBALA, Plaintiff-Appellant, v. Derek BORIS, Defendant-Appellee.
- Cited By
- 82 cases
- Status
- Published