Kiebala v. Boris
ORDER Signed by the Honorable Marvin E. Aspen on 2/14/2017: Defendant's motion to dismiss Counts III and V of plaintiff's complaint 7 is granted. Counts I, II, and IV are dismissed, without prejudice. On or before March 16, 2017,Curvy Road and ECS may ratify, join, or be substituted into this action and prosecute their claims for breach of the non-disclosure and revenue share agreements, and for tortious interference with business expectancy. If they fail to do so, Counts I, II, and IV will be dismissed with prejudice.Mailed notice(mad, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
No. 1:16 CV 7478
Hon. Marvin E. Aspen
MEMORANDUM OPINION AND ORDER
Presently before us is Defendant Derek Boris’ motion to dismiss Plaintiff George
Kiebala’s pro se complaint for failure to state a claim upon which relief may be granted.
(Dkt. No. 7.) For the reasons stated below, we grant Boris’ motion to dismiss Counts III and V,
without prejudice. Further, we allow Curvy Road Holdings, LLC (“Curvy Road”) and Exotic
Car Share, LLC (“ECS”), as real parties in interest, thirty days to ratify, join, or be substituted
into this action and prosecute their claims for breach of the non-disclosure and revenue share
agreements, and for tortious interference with business expectancy. If they fail to do so, those
claims are dismissed with prejudice.
At the motion to dismiss stage, we accept all well-pleaded factual allegations as true and
draw all inferences in the plaintiff’s favor. Cole v. Milwaukee Area Tech. Coll. Dist.,
634 F.3d 901, 903 (7th Cir. 2011). Kiebala is the owner of Curvy Road, which “provides time
ownership of high-end automobiles to customers who purchase . . . the right to drive [those]
vehicles for a number of weeks per year.” (Compl. ¶ 8.) Curvy Road’s vehicles are generally
owned by individuals who permit Curvy Road to use them as part of its “time-ownership”
program, in exchange for a “portion of the revenue received by Curvy Road for the use of the
vehicles.” (Id.) Kiebala also owns ECS, a similar business that “offers individual weeks and
weekends of vehicle usage for a fee.” (Id. ¶ 9.) ECS is a “Chicago-only membership club” and,
unlike Curvy Road, generally owns the vehicles offered to customers. (Id.)
In May 2009, Kiebala and Boris began to discuss placing one of Boris’ vehicles into
Curvy Road’s program. (Id. ¶ 11.) Kiebala requested Boris sign a non-disclosure agreement,
which he did on July 29, 2009, “agreeing to keep confidential Curvy Road’s offering materials
and any and all additional information pertaining to Curvy Road, including but not limited to
Curvy Road’s business practices, policies, procedures, strategies and financial information.”
(Id. ¶ 13.) On September 15, 2009, Boris and Kiebala executed a “revenue share agreement,”
providing that Boris would “receive royalty payments based on a portion of the amount paid by
members to Curvy Road for use of [his vehicle].” (Id. ¶¶ 14–15.) The revenue share agreement
further provided that it would renew every six months “unless either party notifies the other party
in writing of their intent not to renew prior to the end of the term.” (Id., Ex. B at Pg. ID#: 23.)
Boris placed his vehicle into Curvy Road’s program on November 18, 2009. (Id. ¶ 17.)
Kiebala alleges that Boris “abruptly withdrew” his vehicle from Curvy Road’s program
in May 2010 without providing notice of his intent not to renew the revenue share agreement.
(Id. ¶¶ 21–22.) After returning Boris’ vehicle, Kiebala issued a final payment to Boris.
(Id. ¶ 25.) Kiebala’s final check to Boris “did not clear,” but Kiebala alleges he “attempt[ed] to
resolve the payment issue” and contacted Boris concerning the final payment, “via email, on
July 16, 2010; July 20, 2010; July 22, 2010; and August 6, 2010.” (Id. ¶ 26.) Kiebala alleges
Boris’ withdrawal without providing advance notice was a breach of their revenue share
agreement. (Id. ¶¶ 66–70.)
Kiebala alleges that Boris subsequently made several internet postings on consumer
review websites containing false and misleading statements concerning Kiebala’s business
practices, and containing proprietary information in violation of the non-disclosure agreement
Boris signed. A February 1, 2011 posting stated that both Curvy Road and ECS lease their cars
from owners for “negotiated commissions,” that Kiebala “neglected to pay thousands of owed
commissions,” and that he attributed his inability to pay those commissions to his “wife
‘running’ his bank account.” (Id. ¶ 29; Id., Ex. C at Pg. ID#: 25.) That post further stated that
Curvy Road “is a FRAUD company,” that Kiebala “cannot be trusted, . . . has lied repeatedly
and . . . will steal your money.” (Id.) Kiebala states that “[t]hese libelous statements also were
posted earlier in December, 2010 on the website scamexposure.com.” (Id. ¶ 39.)
A July 20, 2011 posting stated that Curvy Road and ECS “rents some of its exotic cars
from individual owners, . . . and pays out a commission based off of actual customer use,” that
the companies failed to pay “THOUSANDS of owed commissions” because Kiebala’s wife took
his money, that “lying and stealing are part of George Kiebala, Curvy Road, and Exotic Car
Share’s daily management.” (Id., Ex. E at Pg. ID#: 29.) That posting also referred to Kiebala as
a “thief,” and stated that he and his companies “simply cannot be trusted.” (Id.) Kiebala alleges
that Boris updated this posting with identical information on July 22, 2015 and posted a separate,
but identical, statement on July 21, 2015. (Compl. ¶¶ 41, 49.) Finally, Kiebala alleges that Boris
has “threatened to post further statements on ‘various websites.’” (Id. ¶ 54.)
Kiebala sued Boris on July 22, 2016, alleging Illinois state law claims for breach of the
non-disclosure agreement, breach of contract, libel, tortious interference with business
expectancy, and intentional infliction of emotional distress. Boris moved to dismiss Kiebala’s
complaint on September 19, 2016.
Boris’ motion to dismiss for failure to state a claim upon which relief may be granted is
governed by Rule 12(b)(6) of the Federal Rules of Civil Procedure.1 “The purpose of the motion
to dismiss is to test the sufficiency of the complaint, not decide the merits.” Gibson v. City of
Chi., 910 F.2d 1510, 1520 (7th Cir. 1990) (internal quotation marks omitted) (quoting Triad
Assocs., Inc. v. Chi. Hous. Auth., 892 F.2d 583, 586 (7th Cir. 1989)). Dismissal pursuant to
Rule 12(b)(6) is proper only if a complaint lacks enough facts “to state a claim [for] relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949–50 (2009)
(internal quotation marks omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570,
127 S. Ct. 1955, 1974 (2007)); accord. Killingsworth v. HSBC Bank Nev., N.A.,
507 F.3d 614, 618–19 (7th Cir. 2007). The plausibility standard “is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Ashcroft, 556 U.S. at 678, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555, 127 S. Ct.
at 1964–65). That is, while the plaintiff need not plead “detailed factual allegations,” the
complaint must allege facts sufficient “to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555, 127 S. Ct. at 1964–65.
Breach of Non-Disclosure and Revenue Share Agreements (Counts I and II)
Boris first argues that Kiebala’s claims for breach of the non-disclosure agreement and
breach of the revenue sharing agreement (Counts I and II) must be dismissed because Curvy
Road, but not Kiebala, is a party to those contracts. Kiebala contends, though, that he may
Boris also moved to dismiss pursuant to Rule 12(b)(7) for failure to join indispensable parties.
Because we find Kiebala’s complaint must be dismissed for failure to state a claim under
Rule 12(b)(6), we do not address that motion.
maintain an action for those alleged breaches because they “directly damaged [him] by sharing
his business model online, visible to all competitors, and hurt his personal reputation by causing
him to disappoint customers.” (Pl.’s Resp. (Dkt. No. 16) at 13.)
The Federal Rules of Civil Procedure require “[a]n action must be prosecuted in the name
of the real party in interest.” Fed. R. Civ. P. 17(a)(1). Because Curvy Road is an LLC organized
under Illinois law, we look to Illinois law to determine whether it is a real party in interest.
Kroupa v. Garbus, 583 F. Supp 2d. 949, 952 (N.D. Ill. 2008). “Under Illinois law, a cause of
action based on a contract may be brought only by a party to that contract, by someone in privity
with such a party, . . . or by an intended third-party beneficiary of the contract.” Kaplan v. Shure
Bros., Inc., 266 F.3d 598, 602 (7th Cir. 2001) (citing White Hen Pantry, Inc. v. Cha,
574 N.E.2d 104, 109, 204 Ill. App. 3d. 627, 635 (1st Dist. 1991); Altevogt v. Brinkoetter,
421 N.E.2d 182, 186, 85 Ill. 3d 44, 53 (Ill. 1981)).
Kiebala is not a party to either the non-disclosure agreement or the revenue sharing
agreement. Kiebala signed the revenue sharing agreement as the Chief Executive Officer of
Curvy Road, but not in his individual capacity. (Compl., Ex. B at Pg. ID#: 24). Kiebala is also
not a party to the non-disclosure agreement. Kiebala’s signature appears nowhere on the form.
Rather, it is signed by “Curvy Road Holdings, LLC.” (Id., Ex. A at Pg. ID#: 19.)
Kiebala may thus only bring an action for breach of either the non-disclosure agreement
or revenue sharing agreement if he is in contractual privity with Curvy Road, or was an intended
third-party beneficiary of the contract. Kaplan, 266 F.3d at 602. Privity of contract is a “mutual
or successive relationship to the same rights of property.” Collins Co., Ltd. v. Carboline Co.,
532 N.E.2d 834, 839, 125 Ill. 2d 498, 511 (Ill. 1988). Kiebala and Curvy Road have neither a
mutual nor successive relationship with regards to the contract rights in question. While Kiebala
is managing member of Curvy Road, a “limited liability company is a legal entity distinct from
its members.” 805 ILCS 180/5–1. That Curvy Road may have some contractual rights flowing
from either agreement does not entail its managing members, such as Kiebala, have a mutual
relationship with respect to those contract rights. See Freed v. JPMorgan Chase Bank, N.A.,
No. 12 C 1477, 2012 WL 6193964, at *4 (N.D. Ill. December 12, 2012) (“[T]he claim was
undermined by the legal principle (applicable to LLCs as well as to corporations) that ‘an action
for harm to the corporation must be brought in the corporate name.’” (quoting
Frank v. Hadesman & Frank, Inc., 83 F.3d 158, 160 (7th Cir. 1996)); cf. 805 ILCS 180/10–10
(“[T]he debts, obligations, and liabilities of a limited liability company, whether arising in
contract, tort, or otherwise, are solely the debts, obligations, and liabilities of the company. A
member or manager is not personally liable for a debt, obligation, or liability of the company
solely by reason of being or acting as a member or manager.”).
Neither does Kiebala have a successive relationship with Curvy Road’s contractual rights
flowing from either agreement. For example, there has been no transfer or assignment of Curvy
Road’s contractual rights to Kiebala in his individual capacity. See Kaplan, 266 F.3d at 602–04
(finding a corporation’s assignment of interest in a land trust was not sufficient to establish
privity of contract between the plaintiff and a third party where the assignment did not explicitly
mention those contracts rights, and there was no explicit transfer of those rights by any other
instrument); Collins, 532 N.E.2d at 839, 125 Ill. 2d at 511 (“While ‘privity requires that the party
suing has some contractual relationship with the one sued,’ . . . privity accompanies a valid
assignment of contract.” (citation omitted)). Kiebala instead appears to argue that he is entitled
to sue for Boris’ alleged breach of his contracts with Curvy Road merely because he is a
managing member of and has an ownership interest in that LLC. (Pl.’s Resp. at 13–14.) Given
Illinois law concerning the separate legal identities of limited liability companies and their
members, 805 ILCS 180/5–1, Kiebala’s argument is insufficient to establish he was in privity of
contract with Boris, cf. 805 ILCS 180/10–10 (“[T]he debts, obligations, and liabilities of a
limited liability company, whether arising in contract, tort, or otherwise, are solely the debts,
obligations, and liabilities of the company.”). Because Curvy Road is the only party to the
contract with Boris, it is the real party in interest pursuant to Federal Rule of Civil
Procedure 17(a). However, we “may not dismiss an action for failure to prosecute in the name of
the real party in interest until, after an objection, a reasonable time has been allowed for the real
party in interest to ratify, join, or be substituted into the action.” Fed. R. Civ. P. 17(a)(3); Forza
Tech., LLC v. Premier Research Labs, LP, No. 12 CV 7905, 2013 WL 6355383, at *4 (N.D. Ill.
Dec. 5, 2013). While Kiebala asserts that “Curvy Road and ECS have no intention of pursuing
damages,” we allow them thity days to ratify, join, or be substituted into the action and prosecute
their claims for breach of the non-disclosure and revenue sharing agreement. (Pl.’s Resp. at 15.)
If they fail to do so, those claims as set forth in Counts I and II will be dismissed with prejudice.
Libel (Count III)
Count III of Kiebala’s complaint alleges Boris made several defamatory online
statements about him, including that Kiebala’s company is a fraud, and he is a liar and thief who
cannot be trusted. (Compl. ¶ 72.) Boris contends Kiebala’s libel claim is barred by the one-year
statute of limitations for defamation claims set out in 5/13–201. See Logan v. Wilkins,
644 F.3d 577, 582 (7th Cir. 2011) (“While a statute of limitations defense is not normally part of
a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), when the allegations of the
complaint reveal that relief is barred by the applicable statute of limitations, the complaint is
subject to dismissal for failure to state a claim.”)
While Kiebala lists several specific instances of Boris’ alleged defamatory postings, the
most recent original post was published on July 21, 2015. (Compl. ¶ 49.) The statute of
limitations for Kiebala’s defamation claim flowing from those statements thus expired on
July 21, 2016. Because Kiebala did not file his complaint on July 22, 2016, his claim is
untimely. Kiebala argues, though, that additional statements originally posted on July 20, 2011
have been republished such that his defamation claim flowing from those statements is timely.
(Pl.’s Resp. at 8–10). That post referred to Kiebala as a “thief,” and stated, in relevant part, that
Kiebala failed to pay commissions, and that “lying and stealing are part of George Kiebala,
Curvy Road, and Exotic Car Share’s daily management.” (Compl. ¶ 43.) Because the posting
provides that it was “updated” on July 22, 2015, Kiebala argues it “makes it appear that
additional alleged wrongdoing or new alleged wrongdoing occurred in 2015” and thus the statute
of limitations for his libel claim stemming from his post expired on July 22, 2016, or the date he
filed this action. (Pl.’s Resp. at 8–10.)
The Illinois Uniform Single Publication Act, 740 ILCS 165/1, “provides that a claim for
relief for defamation is complete at the time of first publication; later circulation of the original
publication does not trigger fresh claims.” Pippen v. NBCUniversal Media, LLC,
734 F.3d 610, 615 (7th Cir. 2013), cert. denied, 134 S. Ct. 2829 (2014). The Illinois
single-publication rule applies to internet postings as well as more traditional forms of media.
Id. at 615–16. While “subsequent appearances or distributions of copies of the original
publication are of no consequence to the creation or existence of a cause of action,” a
republication of the allegedly defamatory information “can constitute a new cause of action if the
publication is altered so as to reach a new audience.” Blair v. Nev. Landing P’ship,
859 N.E.2d 1188, 1194, 369 Ill. App. 3d 318, 325 (2d Dist. 2006).
As Kiebala acknowledges, the information in the “updated” July 22, 2015 post was
identical to the information in the July 20, 2011 post. (Compl. ¶ 41.) The updated post also does
not target a new audience. Kiebala argues “the ‘updated’ post means that the post appears closer
to the top of internet searches,” such that it is “now one of the very first things that potential
investors or customers see when they search Mr. Kiebala’s name on the internet.” (Pl.’s
Resp. at 8.) That the internet posting may be more accessible, however, does not re-trigger the
statute of limitations for Kiebala’s libel claim. Rather the “updated” posting was intended to
reach the same audience as the July 20, 2011 posting—Kiebala’s “potential investors or
customers.” (Id.) See Blair, 859 N.E.2d at 1194, 369 Ill. App. 3d at 325 (finding that, even
though a photograph was presented through various mediums at different times over a nine year
span, the republications did not constitute new causes of action because “the purpose of the use
of the photograph” was consistent at all times). Thus, the updated July 22, 2015 post is not a
republication that “would constitute a new cause of action and retrigger the statute of
limitations.” Blair, 859 N.E.2d at 1194, 369 Ill. App. 3d at 325. Accordingly, the one-year
statute of limitations for Kiebala’s libel claim stemming from that post expired on July 20, 2012,
over four years before he filed this action. Likewise, the most recent original post supporting his
libel claim was published on July 21, 2015, one year and one day before he filed his complaint.
(Compl. ¶ 49.) Accordingly, his claim is dismissed as time barred.
Tortious Interference with Business Expectancy (Count IV)
Count IV of Kiebala’s complaint alleges tortious interference with business expectancy.
To state a claim for tortious interference under Illinois law, Kiebala must allege “(1) his
reasonable expectation of entering into a valid business relationship; (2) defendant[’s]
knowledge of his expectancy; (3) purposeful interference by the defendant preventing his
expectancy from being fulfilled; and (4) damages resulting from such interference.”
Hackman v. Dickerson Realtors, Inc., 520 F. Supp. 2d 954, 971 (N.D. Ill. 2007)
(citation omitted). Boris again argues, however, that Kiebala is not the real party in interest
pursuant to Federal Rule of Civil Procedure 17(a) with regard to his tortious interference claim.
We again look to Illinois law to determine whether Curvy Road and ECS, rather than
Kiebala, are the real parties in interest, because Curvy Road and ECS are incorporated under the
laws of Illinois. Kroupa, 583 F. Supp 2d. at 952. In Illinois, an action for harm to an LLC must
be brought by the LLC. Freed, 2012 WL 6193964, at *4 (quoting Frank, 83 F.3d at 160). While
Kiebala may have suffered indirect harm from the actions alleged here, those harms flow only
from his status as a managing member of Curvy Road and ECS. Kiebala’s complaint alleges that
he “had a reasonable expectation of entering into business relationships with other investors and
customers in the ECS and Curvy Road business.” (Compl. ¶ 79.) In his response, Kiebala
further contends “Boris’ posts intentionally and specifically discouraged investors and caused a
drop in clients to the business which have, in turn, damaged Kiebala’s ability to earn an income
through his reasonable expectation of business opportunities through his companies.” (Pl.’s
Resp. at 13.) These business relationships would have belonged to Curvy Road and ECS, not
Kiebala in his individual capacity, and thus they are the real parties in interest.
Forza, 2013 WL 6355383, at *3 (finding that an LLC was the real party in interest for a tortious
interference claim, as opposed to its owner, even though comments giving rise to the claim
targeted the owner, and she was indirectly harmed due to the LLC’s loss of business
relationships). Accordingly we allow Curvy Road and ECS thirty days to ratify, join, or be
substituted into the action and prosecute their claims for tortious interference. If they fail to do
so, that claim will be dismissed with prejudice.
Intentional Infliction of Emotional Distress (Count V)
Count V of Kiebala’s complaint alleges an intentional infliction of emotional distress
claim against Boris stemming from his statements in various internet postings. To sufficiently
state a claim for intentional infliction of emotional distress under Illinois law, Kiebala must
allege Boris’ conduct was “truly extreme and outrageous,” that Boris either intended or knew
there was a high probability his conduct would cause severe emotional distress, and that the
conduct did “in fact cause severe emotional distress.” Feltmeier v. Feltmeier, 798 N.E.2d 75, 80,
207 Ill. 2d 263, 269 (Ill. 2003) (emphasis in original) (internal quotation marks omitted) (quoting
McGrath v. Fahey, 533 N.E.2d 806, 809, 126 Ill. 2d 78, 86 (Ill. 1988)).
We first address Boris’ argument that Kiebala’s claim for intentional infliction of
emotional distress is barred by the two year statute of limitations set out in 735 ILCS 5/13–202.
See Pavlik v. Kornhaber, 761 N.E.2d 175, 186, 326 Ill. App. 3d 731, 744 (2d Dist. 2001) (citing
735 ILCS 5/13–202) (“We agree that the applicable statute of limitations for intentional
infliction of emotional distress is two years.”); see also Logan, 644 F.3d at 582 (“While a statute
of limitations defense is not normally part of a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), when the allegations of the complaint reveal that relief is barred by the
applicable statute of limitations, the complaint is subject to dismissal for failure to state a
In Illinois, a cause of action for intentional infliction of emotional distress “accrues when
the interest is invaded.” Pavlik, 761 N.E.2d at 186, 326 Ill. App. 3d at 745 (citing Hyon Waste
Mgmt. Servs., Inc. v. City of Chi., 574 N.E.2d 129, 132, 214 Ill. App. 3d 757, 762
(2d Dist. 1991)). To the extent Kiebala’s claim stems from the alleged defamatory statements
made in the July 21, 2015 internet post, his claim falls well within the two year statute of
limitations and is timely. Kiebala may not, however, bring an intentional infliction of emotional
distress claim for the statements in the February and July 2011 postings, as the statute of
limitations for each expired more than three years before he filed this action.
Illinois has adopted a “continuing violation” rule, such that “where a tort involves a
continuing or repeated injury, the limitations period does not begin to run until the date of the
last injury or the date the tortious acts cease.” Belleville Toyota, Inc. v. Toyota Motor Sales,
U.S.A., Inc., 770 N.E.2d 177, 190, 199 Ill. 2d 325, 345 (Ill. 2002). Kiebala contends that the
July 20, 2011 posting was updated on July 22, 2015, and so we must determine whether the 2015
“update” constitutes a continuing violation such that it re-triggered the statute of limitations. “A
continuing violation or tort is occasioned by continuing unlawful acts and conduct, not by
continual ill effects from an initial violation.” Feltmeier, 798 N.E.2d at 85, 207 Ill. 2d at 278
(Ill. 2003). Just as we found that the updated July 2015 post was not a republication triggering
the statute of limitations for Kiebala’s defamation claim, so too must we find the post does not
constitute a “continued” unlawful act for the purposes of the continuing violation rule. While the
updated post contains no new information from the original post, (Compl. ¶ 41), Kiebala argues
that it now is more readily accessible via internet searches, (Pl.’s Resp. at 8). Assuming
arguendo that is true, the act from which Kiebala’s intentional infliction of emotional distress
claim flows is the original posting of the statements, not the updating of the post. The harm from
the update, if any, is best characterized as a continual ill effect of the original post, which does
not re-trigger the statute of limitations. Feltmeier, 798 N.E.2d at 85, 207 Ill. 2d at 278.
Kiebala’s intentional infliction of emotional distress claim is thus untimely to the extent it is
based on the July 20, 2011 postings.
Second, Boris argues Kiebala has insufficiently alleged his posting of the statements
online was “extreme and outrageous,” and thus must be dismissed for failure to state a claim.
(Mtn. ¶¶ 51–64.) We look only to the content of the July 21, 2015 posting, as it is the only
posting upon which Kiebala may base a timely intentional infliction of emotional distress claim.
We use an “objective standard based on the facts and circumstances of a particular case” to
determine whether conduct is extreme and outrageous. Graham v. Commonwealth Edison Co.,
742 N.E.2d 858, 866, 318 Ill. App. 3d 736, 745 (1st Dist. 2000). To qualify as “extreme and
outrageous,” Boris’ conduct “must be so extreme as to go beyond all possible bounds of
decency.” Kolegas v. Heftel Broad. Corp., 607 N.E.2d 201, 211, 154 Ill. 2d 1, 21 (Ill. 1992).
“‘[M]ere insults, indignities, threats, annoyances, petty oppressions or other trivialities’ do not
qualify as outrageous conduct.” Id. (quoting McGrath, 533 N.E.2d at 809, 126 Ill. at 86).
Important factors bearing on whether conduct rises to the level of outrageous include whether
Boris misused some authority, actual or apparent, he had over Kiebala, and whether Boris knew
that Kiebala might be particularly susceptible to emotional distress. Id.
The July 2015 posting allegedly made by Boris stated Kiebala failed to pay commissions
owed to vehicle owners, that “lying and stealing are part of George Kiebala, Curvy Road, and
Exotic Care Share’s daily management,” and that Kiebala “simply cannot be trusted.” (Compl.,
Ex. F at Pg. ID#: 31.) Kiebala asserts, in conclusory fashion, that such conduct was “extreme
and outrageous.” (Compl. ¶ 84.) McCauley v. City of Chi., 671 F.3d 611, 616 (7th Cir. 2011)
(“[L]egal conclusions and conclusory allegations merely reciting the elements of the claim” are
not entitled to a presumption of truth, and are not considered when determining the sufficiency of
the complaint). However, even construing his complaint liberally given his pro se status,
Kiebala has failed to adequately allege the conduct is extreme and outrageous.
Anderson v. Hardmon, 241 F.3d 544, 545 (7th Cir. 2001) (“[P]ro se pleadings are held to less
exacting standards than those prepared by counsel and are to be liberally construed.”). He has
provided no allegations sufficient to suggest that “no reasonable man could be expected to
endure” Boris’ alleged internet posts. Harriston v. Chi. Tribune Co., 992 F.2d 697, 703
(7th Cir. 1993) (citation omitted) (affirming dismissal of plaintiff’s intentional infliction of
emotional distress claim and finding the defendant’s extensive discriminatory conduct, including
eavesdropping on her telephone calls and ignoring her concerns that her vehicle was vandalized
on several occasions was not extreme and outrageous); Lane v. Le Brocq, No. 15 C 6177,
2016 WL 5955536, at *1, 7–8 (N.D. Ill. Oct. 12, 2016) (finding defendant’s conduct was not
extreme and outrageous, even though she told multiple agencies and people that plaintiff was a
thief and unfit to practice law). And although Kiebala alleges Boris threatened to continue
making internet postings, (Compl. ¶ 54), he has not alleged Boris has a unique position of power
which “gives him the ability to adversely affect” Kiebala’s interests, Kolegas, 607 N.E.2d at 212,
154 Ill. 2d at 22. Plaintiff has failed to adequately allege Boris’ conduct was extreme and
outrageous, and we therefore grant the motion to dismiss Count V of Kiebala’s complaint.
For the foregoing reasons, we grant Boris’ motion to dismiss Counts III and V of
Counts I, II, and IV are dismissed, without prejudice. On or before March 16, 2017,
Curvy Road and ECS may ratify, join, or be substituted into this action and prosecute their
claims for breach of the non-disclosure and revenue share agreements, and for tortious
interference with business expectancy. If they fail to do so, Counts I, II, and IV will be
dismissed with prejudice. It is so ordered.
Marvin E. Aspen
United States District Judge
Dated: February 14, 2017
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