Kiebala v. Boris

Filing 27

Opinion and Order Signed by the Honorable Marvin E. Aspen on 3/29/2017: Plaintiff's motion for reconsideration 21 is denied. Plaintiff's motion for leave to file an amended complaint 21 is granted. Plaintiff may file an amended complaint by 5/1/2017. Status hearing of 4/20/2017 is stricken and reset to 6/15/2017 at 10:30 a.m.Mailed notice(mad, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GEORGE KIEBALA

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Plaintiff,
v.
DEREK BORIS,
Defendant.

No. 1:16 CV 7478
Hon. Marvin E. Aspen

MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, District Judge:
Presently before us is pro se Plaintiff George Kiebala’s motion to reconsider our
February 14, 2017 Order granting Defendant Derek Boris’ motion to dismiss his complaint for
failure to state a claim upon which relief may be granted. (Dkt. No. 21.) Also before us is
Kiebala’s motion for leave to file an amended complaint. (Id.) For the reasons stated below, we
deny Kiebala’s motion to reconsider and grant his motion for leave to file an amended complaint.
FACTUAL BACKGROUND
We assume familiarity with the relevant facts as detailed in our Order granting Boris’
motion to dismiss and thus do not fully recount them here. Kiebala v. Boris, No. 16 C 7478,
2017 WL 590287, at *1–2 (N.D. Ill. Feb. 14, 2017.) Kiebala sued Boris on July 22, 2016,
alleging Illinois state law claims for breach of a non-disclosure agreement, breach of contract,
libel, tortious interference with business expectancy, and intentional infliction of emotional
distress. According to Kiebala’s complaint, Boris entered into an agreement with one of
Kiebala’s businesses, Curvy Road Holdings, LLC (“Curvy Road”), whereby Boris enrolled his
luxury automobile in a “time-ownership” program in exchange for a “portion of the revenue

received by Curvy Road for the use of the vehicles.” (Compl. ¶ 9.) Kiebala alleged that Boris
violated a revenue sharing agreement by withdrawing his vehicle from the program without
proper notice of his intent not to renew the agreement. (Id. ¶¶ 21–22.) Kiebala further alleged
that Boris subsequently made several internet postings revealing confidential information about
the business practices of Curvy Road and Exotic Car Share, LLC (“ECS”), another of Kiebala’s
businesses, in violation of a non-disclosure agreement Boris signed. (Id. ¶¶ 30–33.) Those
internet postings also formed the basis of Kiebala’s libel, intentional infliction of emotional
distress, and tortious interference with business expectancy claims. (Id. ¶¶ 34–43, 45–55,
71–86.) We granted Boris’ motion to dismiss Kiebala’s complaint on because we found that
Kiebala was not the real party in interest for the breach of non-disclosure, breach of contract, and
tortious interference claims he alleged. (Dkt. No. 19.) We allowed Curvy Road and ECS, the
real parties in interest, until March 16, 2017 to ratify, join, or be substituted in this action and
prosecute those claims, or they will be dismissed with prejudice. Kiebala moved for
reconsideration of our Order and leave to file an amended complaint on February 24, 2017, and
Boris filed a response on March 13, 2017. (Dkt. Nos. 21, 25.)
LEGAL STANDARDS
“A district court may reconsider a prior decision when there has been a significant change
in the law or facts since the parties presented the issue to the court, when the court
misunderstands a party’s arguments, or when the court overreaches by deciding an issue not
properly before it.” United States v. Ligas, 549 F.3d 497, 501 (7th Cir. 2008). However, we will
not consider arguments or evidence the moving party should have made or produced in the first
instance. See In re Prince, 85 F.3d 314, 324 (7th Cir. 1996). Motions to reconsider are
disfavored, as “a redo of a matter than has already received the court’s attention is seldom a

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productive use of taxpayer resources.” Burton v. McCormick, No. 11 C 026, 2011 WL 1792849,
at *1 (N.D. Ill. May 11, 2011) (citation omitted).
Kiebala’s motion for leave to amend his complaint is governed by Federal Rule of Civil
Procedure 15, which permits a party to amend a pleading more than 21 days after service “only
with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P (15)(a)(2). We
have discretion to grant amendments “when justice so requires.” Id. However, we also have
“broad discretion to deny leave to amend where there is undue delay, bad faith, dilatory motive,
repeated failure to cure deficiencies, undue prejudice to the defendants, or where the amendment
would be futile.” Hukik v. Auror Loan Servs., 588 F.3d 420, 432 (7th Cir. 2009) (internal
quotation marks omitted) (quoting Arreola v. Godinez, 546 F.3d 788, 796 (7th Cir. 2008)).
ANALYSIS
I.

Motion to Reconsider
Kiebala first argues we “relied on a legal theory not argued by either party in the briefing

and appear[] to have misunderstood Plaintiff’s allegations” with regard to his intentional
infliction of emotional distress claim. (Pl.’s Mem. ISO of Mot. (Dkt. No. 22) at 2–3.) We
dismissed Kiebala’s intentional infliction of emotional distress claim in part as barred by the two
year statute of limitations set out in 735 ILCS 5/13–202. Kiebala now argues we erroneously
relied on Illinois’ “continuing violation” rule in finding his intentional infliction of emotional
distress claim partially time barred because neither party argued that rule applied. (Pl.’s Mem.
at 3–4.)
In determining whether Kiebala’s claim was untimely, we first found that:
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

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July 2011 postings, as the statute of limitations for each expired more than three
years before he filed this action.
Kiebala, 2017 WL 590287, at *6. Kiebala also alleged in his complaint that on July 22, 2015
Boris affirmatively updated a post first made on July 20, 2011. (Compl. ¶¶ 41–43.) In Illinois, a
cause of action for intentional infliction of emotional distress “accrues when the interest is
invaded.” Pavlik v. Kornhaber, 761 N.E.2d 175, 186, 326 Ill. App. 3d 731, 745 (2d Dist. 2001)
(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)). Accordingly, we determined that Kiebala’s interest
was invaded at the time the post was first published on July 20, 2011, and that the “update” on
July 22, 2015 did not constitute a separate act which invaded Boris’ interest and thus re-triggered
the statute of limitations. Kiebala, 2017 WL 590287, at *6. That is, we understood Kiebala was
alleging that Boris “took affirmative actions to reinjure him” by allegedly updating the
July 20, 2011 posting, (Pl.’s Mem. at 3), but found that “the act from which Kiebala’s intentional
infliction of emotion distress claim flows is the original posting of the statements, not the
updating of the post,” Kiebala, 2017 WL 590287, at *6. We therefore found that the statute of
limitations for Plaintiff’s intentional infliction of emotional distress claim, insofar as it was based
on the July 20, 2011 and July 22, 2015 update, was untimely. Id.
In Illinois, “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). Even though Kiebala is correct that neither party argued Illinois’
continuing violation rule barred his claim for intentional infliction of emotional distress,
(Pl.’s Mem. at 3), we were nonetheless required to determine whether the July 22, 2015 update
constituted a “continuing action” such that the statute of limitations for Kiebala’s intentional

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infliction of emotion distress claim stemming from the original July 20, 2011 posting in fact
began to run after the “update.” See Pavlik, 761 N.E.2d at186, 326 Ill. App. 3d at 744. That is,
our determination of whether the Illinois continuing violation rule applied could only have
helped to extend Kiebala’s statute of limitations for his claim stemming from the July 20, 2011
posting. We thus did not find that the continuing violation “barred” his claim, but rather that the
continuing violation rule did not apply such that it “re-trigger[ed] that statute of limitations” for
his claim. Kiebala, 2017 WL 590287, at *6. Accordingly, we deny Kiebala’s motion for
reconsideration of our determination that his intentional infliction of emotion distress claim was
time barred in part.
Second, Kiebala argues that we incorrectly determined that he failed to adequately allege
that Boris’ conduct was “extreme and outrageous” for the purpose of his intentional infliction of
emotional distress claim. (Pl.’s Mem. at 4–7.) We decline to reconsider that decision, as
Kiebala does not argue that we misunderstood his argument or that there has been some
significant change in the law or facts. Ligas, 549 F.3d at 501. Finally, Kiebala similarly asks
that we reconsider our finding that Curvy Road and ECS are the real parties in interest for the
tortious interference claim he alleged, because “Plaintiff also suffered tortious interference in
business relationships outside of his dealings through his companies.” (Pl.’s Mem. at 7.)
Kiebala again does not argue that we misunderstood his argument or that there has been some
significant change in the law or facts, and we decline to reconsider our decision on the basis of
Kiebala’s new argument. See In re Prince, 85 F.3d at 324. We therefore deny Kiebala’s motion
to reconsider.

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II.

Motion for Leave to Amend the Complaint
With regard to his intentional infliction of emotional distress claim, Kiebala asks that we

grant him leave to amend his complaint to more clearly allege that Boris has “committed new
actions that restarted the statute of limitations” and “to allege the extreme and outrageous nature
of Defendant’s conduct in greater detail or with greater sufficiency.” (Pl.’s Mem. at 4, 7.)
Kiebala also requests leave to amend his complaint and add allegations that he “suffered tortious
interference in business relationships outside of his dealings through his companies.” (Id. at 7.)
Boris argues in response that such amendments would be futile. (Def.’s Resp. (Dkt. No. 25)
at 5–7.)
An amendment is futile if it would not survive a motion to dismiss. Vargas v. Racine
Unified Sch. Dist., 272 F.3d 964, 374–75 (7th Cir. 2001). While Kiebala cannot allege facts that
would bring his intentional infliction of emotional distress claims stemming from the February
and July 2011 postings alone within Illinois’ two-year statute of limitations for personal tort
actions, 735 ILCS 5/13–202, he could allege additional invasions from which independent
intentional infliction of emotional distress claims may flow. Furthermore, Kiebala could feasibly
allege additional information regarding the July 20, 2011 posting and July 22, 2015 “update,” or
additional related postings, which taken together could rise to the level of a timely “continuing
violation.” Finally, to the extent Kiebala can allege a tortious interference with business
expectancy claim that does not “flow only from his status as a managing member of Curvy Road
and ECS,” he would be the real party in interest and thus his amendment would not be futile.
Kiebala, 2017 WL 590287, at *5. We therefore grant Kiebala’s motion for leave to amend his
complaint.

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CONCLUSION
For the foregoing reasons, we deny Kiebala’s motion for reconsideration, and grant his
motion for leave to file an amended complaint. Kiebala may file an amended complaint on or
before May 1, 2017. The status hearing set for April 20, 2017, is continued to June 15, 2017, at
10:30 a.m. It is so ordered.

____________________________________
Marvin E. Aspen
United States District Judge
Dated: March 29, 2017
Chicago, Illinois

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