An angry customer of a luxury car rental service posted comments on an internet message board alleging that the service defrauded him out of payments it owed him for the rental of his Lamborghini. The customer posted several times over a period of years, and then went quiet. Four years later, the customer marked a post that he made in 2011 “updated” without including any new content. The owner of the car rental service then sued, arguing that the postings constituted libel, breach of contract, and infliction of emotional distress. The district court dismissed the action. The appellate panel affirmed, finding that the action was untimely and that the act of marking a post as “updated” without actually altering or adding to its content was not sufficient to treat the post as a new publication and reset the statute of limitations.
George Kiebala owns a luxury car share service called Curvy Road Holdings LLC. Curvy Road allows customers to purchase time-ownership rights to high-end automobiles that are owned by “investors.” In September 2009, Derek Boris became a Curvy Road “investor” and received a share of the rental revenue when customers drove his Lamborghini Gallardo. 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 in July and August 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, Boris posted angry and derogatory statements on various websites about Kiebala and Curvy Road. He did this on eight occasions from December 2010 through July 2011. Boris then when dormant for a few years, but resumed his postings regarding Kiebala and Curvy Road in the summer of 2015. The following year, Kiebala, representing himself, sued Boris alleging libel, intentional infliction of emotional distress, breach of a non-disclosure agreement, breach of contract, and tortious interference with business expectancy. Boris moved to dismiss, and the district court granted the motion on all counts. Kiebala then appealed.
On appeal, Kiebala argued that the district court erred in denying him the ability to amend his libel claim and that it erred in its application of the statute of limitations. The appellate panel began by noting that Kiebala never sought to amend his libel claim, rather, he faulted the district court for failing to offer him an opportunity to amend the libel claim. The panel stated that this approach was not grounded within the Federal Rules of Civil Procedure and that the rules do not indicate that a judge is required to offer parties legal guidance on whether and how to amend their pleadings.
The panel then stated that, while the 7th Circuit had emphasized in the past that district courts should liberally construe pro se complaints, and are allowed to point pro se plaintiffs in the right direction, courts are not to become advocates for parties. Citing Caruth v. Pinkney, the panel stated that district courts are not required to bring unraised issues to the attention of the pro se litigant. The panel determined that the district court did not abuse its discretion in declining to advise Kiebala how to salvage his libel claim.
Next, the panel turned to the statute of limitations. The panel stated that the issue was whether Boris extended the statute of limitations by making a post he made in 2011 “updated” in 2015, without including any substantive changes to the content. The panel noted that Illinois courts had not yet considered whether “updating” a previously published internet post, without changing its content, is sufficient to escape the single-publication rule. The panel then found that the Supreme Court of Illinois would hold that Boris’ 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 Kiebala’s claim could avoid the one-year statute of limitations. The panel, therefore, affirmed the decision of the district court.
You can view the full opinion here.
Lubin Austermuehle’s defamation and slander lawyers near Warrenville and Lisle have more than three decades of experience helping business clients unravel the complexities of Illinois and out-of-state defamation, libel and slander laws. We assist businesses and owners who are the victims of defamatory and slanderous attacks on their businesses and reputations.
You can read the Court’s entire opinion here.
Our DuPage County defamation attorneys defend individuals’ First Amendment and free speech rights to post on Facebook, Yelp and other websites information that criticizes businesses and addresses matters of public concern. You can view a federal court decision where we prevailed in a libel per se claim asserting the innocent infringer defense here. Here you can find an arbitration decision where we successfully defended our client’s right to post negative opinions on YouTube about a used car dealer. We recently required a defendant who publicized an allegedly false lawsuit concerning our client to provide an apology and full retraction as part of a confidential financial settlement following our filing of a $16,000,000.00 defamation per se suit in federal district court.
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