### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 3233

G EORGE K IEBALA

, Plaintiff

‐ Appellant

,

v.

D EREK B ORIS

, 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

.

____________________

A RGUED S EPTEMBER 5, 2018

— D ECIDED J ULY 1, 2019

____________________

Before E ASTERBROOK

, H AMILTON

, and S CUDDER

, Circuit

Judges

.

H AMILTON

, Circuit Judge

. Plainti ff‐ 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 district2 No. 17

‐ 3233

court erred in holding that his libel claim is barred by the

statute of limitations.

We a ffi rm. District judges do not have an a ffi rmative 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 plainti ff 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 fi rst 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 fi nal 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

‐

fi culties were preventing payment. Boris never received his

1 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.No. 17

‐ 3233 3

fi nal 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 Ripo ff report.com, Boris allegedly

revealed (we must assume) Curvy Road’s con fi dential

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 fi nal posting from this period, central to the stat

‐

ute of limitations issue here, was made to Ripo ff Report.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 o ff 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. This4 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 se tt lement 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 Ripo ff Report

post of July 20, 2011. And on July 22, 2015, Boris returned to

Ripo ff Report.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 re fl ect 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 fi ve 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 in fl ection 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 la tt er three claims, the court gave Kiebala

thirty days to fi le an amended complaint that either joined or

substituted his companies as plainti ff s; if he failed to do so,

the la tt er three claims would be dismissed with prejudice. Id.

at *7.

Kiebala’s claims for libel and intentional in fl iction of emo

‐

tional distress faced di ff erent 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

in fl iction 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 be tt er

categorized as “[m]ere insults, indignities, threats, annoy

‐

ances, pe tt y 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 given6 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 fi led a motion asking the court to reconsider its

ruling on the claims for tortious interference and intentional

in fl iction of emotional distress, and to grant him leave to fi le

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 fi le 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 bu tt ress the claim for intentional in fl iction 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 a tt empts to cure the tor

‐

tious interference claim were insu ffi cient on the merits. Id. at

*3–4. The court further held that Kiebala’s amended claim for

intentional in fl iction 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 Sheri ff

’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 fi nding 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 plainti ff s 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

“o ff er” 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 ma tt er of course” within 21 days after service of the8 No. 17

‐ 3233

complaint or after a motion to dismiss or other motion requir

‐ ing a responsive pleading has been fi led. “In all other cases,”

Rule 15(a)(2) explains, “a party may amend its pleading only

with the opposing party’s wri tt en 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 o ff er parties legal guidance on

whether and how to amend their pleadings.

This rule should be di ff erent, Kiebala seems to argue, for

a pro se plainti ff

. 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 Sheri ff

’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

‐

fi nes” 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 a tt ention of the pro se litigant or to decide the unraised

issues.” Caruth v. Pinkney

, 683 F.2d 1044, 1050 (7th Cir. 1982).

Kiebala’s e ff ort 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 fi lings

expressly disclaiming any interest in reconsideration or

amendment of his libel claim, (b) observed that Kiebala’sNo. 17

‐ 3233 9

amended complaint added, for his intentional in fl iction 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 in fl iction of emo

‐

tional distress might o ff er a basis to salvage his untimely libel

claim from the statute of limitations, and then (e) suggested

to Kiebala that he fi le a second amended complaint following

the judge’s recommendation as to how to plead his libel claim.

Requiring judges to take such a ffi rmative steps to guide

pro se plainti ff s’ 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 “ fi ll 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 in fl ic

‐

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 review10 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 fi led the complaint. The issue on appeal boils

down to whether Boris, by marking his 2011 Ripo ff Report

post as “updated” on July 22, 2015—exactly one year before

Kiebala fi led 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 u tt erance,

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

3 Kiebala 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 codi fi ed 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

su ffi cient 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 su ffi cient 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 plainti ff 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 fi rst 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 le tt er to an editor.

Id. Such an outcome would make no sense, especially “be

‐

cause the article in question might well be on fi le 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 fi le” and “open to the public anyway,” with

the later updated

‐ but

‐ unaltered post serving as the equivalent

of including the original statement in a “le tt er 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

‐

ni fi cantly, 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 di ff erent

factors at some length in Blair v. Nevada Landing Partnership

,

859 N.E.2d 1188 (Ill. App. 2006). Plainti ff 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 fl yers, 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

fi rst publication of the photograph. Id. at 1193.

Borrowing from the single publication rule for defamation

claims, the court found that it did not ma tt er 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 the14 No. 17

‐ 3233

publication is altered so as to reach a new audience or pro

‐

mote a di ff erent product.” Id. at 1194. But the court repeated

that, given defendant’s use of an “image [that] remained con

‐

stant and was not signi fi cantly 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 ma tt er 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

4 Similarly, 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, plainti ff 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.