Kiebala v. Boris

Filing 52

MEMORANDUM Opinion and Order Signed by the Honorable Marvin E. Aspen on 9/29/2017: Defendant's motion to dismiss the amended complaint 32 is granted. Defendant's motion for sanctions 34 is denied. Status hearing of 10/26/2017 is stricken. Case dismissed with prejudice. Civil case terminated.Mailed notice(mad, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GEORGE KIEBALA,
Plaintiff,
v.
DEREK BORIS,
Defendant.

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

MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, District Judge:
Presently before us is Defendant Derek Boris’ motion to dismiss pro se Plaintiff George
Kiebala’s amended complaint. (Dkt. No. 32.) Also before us is Boris’ motion for sanctions
pursuant to Federal Rule of Civil Procedure 11. (Dkt. No. 34.) For the reasons stated below, we
grant Boris’ motion to dismiss the amended complaint with prejudice and deny the motion for
sanctions.
BACKGROUND
We assume familiarity with the basic background facts of this case. See Kiebala v. Boris,
No. 16 C 7478, 2017 WL 590287, at *1–2 (N.D. Ill. Feb. 14, 2017) (Dkt. No. 19);
Kiebala v. Boris, No. 16 C 7478, 2017 WL 1161177, at *1–2 (N.D. Ill. Mar. 29, 2017)
(Dkt. No. 27). 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).
The dispute between the parties concerns a “revenue share agreement” between Kiebala’s
luxury car share business, Curvy Road Holdings, LLC (“Curvy Road”), and Boris. Curvy Road

provides “time ownership of high-end automobiles to members who purchase units of
time-ownership for the right to drive these automobiles for a number of weeks each year.”
(Am. Compl. (Dkt. No. 31) ¶¶ 10, 16.) Pursuant to the agreement, Boris agreed to include his
Lamborghini Gallardo in Curvy Road’s program and to allow other members to drive it in
exchange for royalty payments. (Id. ¶¶ 13–17.) Kiebala alleges Boris “abruptly withdrew” his
vehicle from the program in May 2010 in breach of their agreement. (Id. ¶¶ 23–27.) Kiebala
promptly returned Boris’ vehicle, paid the cost of transporting the vehicle, prepared a “final
recap of usages,” and issued a payment to Boris on June 18, 2010. (Id. ¶¶ 26–28.) However, the
royalty check did not clear, and thereafter, Kiebala communicated to Boris that he had payment
issues along with “both medical and financial challenges.” (Id. ¶¶ 29–33.)
Kiebala alleges Boris then began posting “a number of false and libelous statements”
about Kiebala, Curvy Road, and Kiebala’s other business, Exotic Car Share, LLC (“ECS”), on
various consumer review websites from December 2010 through March 2017. (Id. ¶¶ 35–55.)
Kiebala alleges the postings contained false and misleading statements concerning his business
practices and revealed proprietary information in violation of the non-disclosure agreement Boris
signed. Specifically, Kiebala asserts Boris posted a review on a consumer review website on
December 21, 2010, stating 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. ¶ 36.) That post further stated that Curvy Road “is a FRAUD company,” and that Kiebala
“cannot be trusted, . . . has lied repeatedly and . . . will steal your money.” (Id.) Kiebala alleges
the same information was posted on different websites on December 22, 2010, and again on
January 31, 2011 and February 1, 2011. (Id. ¶¶ 37–39).

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Kiebala alleges that on June 26, 2011 and again on June 27, 2011, “Boris’ campaign
against Kiebala continued” with posts stating Curvy Road, ECS, and Kiebala “NEVER PAID
ME,” calling Kiebala “a lair [sic] and a cheat.” (Id. ¶¶ 40–42.) The reviews further stated
Kiebala “made promises that he did not keep,” alleged he ran a “fraud business,” and warned
“DON’T time share or EVER EVER place your car into the program.” (Id.)
On July 20, 2011, Boris again posted on consumer review websites, stating that Curvy
Road and ECS failed to pay “THOUSANDS of owed commissions” because Kiebala’s wife took
his money and that “lying and stealing are part of George Kiebala, Curvy Road, and Exotic Car
Share’s daily management.” (Id. ¶ 43.) That posting also stated “I would advise EVERYONE,
customers and potential partners, to STAY AWAY from this thief, or you risk losing
everything.” (Id.) Kiebala alleges that Boris “took a break from his attacks” for several years,
but contacted Kiebala by email in 2014, “seeking money and disputing Kiebala’s calculations
regarding the amounts owed,” and threatening Kiebala “in an effort to extort money from him”
by threatening to post “my review of your company on various websites.” (Id. ¶¶ 44–47.) After
Kiebala’s “attempts to reach a settlement with Boris to resolve the parties’ dispute” proved
unsuccessful, Boris updated his July 20, 2011 review by posting identical information on
consumer review websites on July 21, 2015, July 22, 2015, and March 20, 2017. (Id. ¶¶ 48–52.)
Kiebala brought this diversity action on July 22, 2016. On February 14, 2017, we
granted Boris’ motion to dismiss Kiebala’s original complaint, finding his libel and intentional
infliction of emotional distress claims time barred, and concluding Kiebala was not the real party
in interest for his breach of non-disclosure agreement, breach of contract, and tortious
interference claims. (Dkt. No. 19.) We allowed Kiebala’s businesses, Curvy Road and ECS,

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until March 16, 2017 to ratify, join, or be substituted in this action to prosecute the breach of
non-disclosure, breach of contract, and tortious interference claims. (Id. at 14–15.)
Kiebala moved for reconsideration of our February 14, 2017 Order and additionally
sought leave to file an amended complaint. (Dkt. No. 21.) On March 29, 2017, we denied his
motion for reconsideration, but allowed his alternative motion to file an amended complaint
insofar as he could (1) “allege additional invasions from which independent intentional infliction
of emotional distress claims may flow”; (2) allege additional information regarding Boris’
internet postings, “which taken together could rise to the level of a timely ‘continuing
violation’”; and (3) 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,” and instead
establishes he is the real party in interest. (Dkt. No. 27 at 6.)
On May 23, 2017, Kiebala filed an amended complaint. (Am. Compl. (Dkt. No. 31).)
The amended complaint includes the same five counts as the original complaint: (1) breach of
non-disclosure agreement; (2) breach of contract; (3) libel; (4) tortious interference with business
expectancy; and (5) intentional infliction of emotional distress. (Id.) Boris moved to dismiss the
amended complaint on June 13, 2017 and moved for Rule 11 sanctions on June 14, 2017.
(Mot. to Dismiss (Dkt. No. 32); Mot. for Sanctions (Dkt. No. 34).)
ANALYSIS
I.

MOTION TO DISMISS
Federal Rule of Civil Procedure 12(b)(6) governs Boris’ motion to dismiss for failure to

state a claim upon which relief may be granted. In ruling on a 12(b)(6) motion, the court accepts
“the allegations in the complaint as true unless they are ‘threadbare recitals of a cause of action’s
elements, supported by mere conclusory statements.’” Katz-Crank, 843 F.3d 641, 646

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(7th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009)).
The complaint must state a claim that is plausible on its face. Iqbal, 556 U.S. at 678,
129 S. Ct. at 1949; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007);
St. John v. Cach, LLC, 822 F.3d 388, 389 (7th Cir. 2016). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. 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.” Id. 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.
A. Breach of Non-Disclosure Agreement, Breach of Contract, and Tortious
Interference Claims
First, we may quickly dispatch Boris’ motion to dismiss Counts I through III of the
amended complaint, which re-allege Kiebala’s claims for breach of the non-disclosure
agreement, breach of contract, and tortious interference with business expectancy.
Counts I through III are identical to Kiebala’s original pleading, but the amended claims now
include a disclaimer after the heading for each count stating “Dismissed pursuant to Court Order
dated 2/14/17.” (See Am. Compl. at 18–20.) Boris argues that the doctrine of res judicata bars
these claims as we dismissed them in our February 14, 2017 Order. (Mot. to Dismiss at 4–5.)
The dismissal became one with prejudice after the real parties in interest—Curvy Road and
ECS—failed to ratify, join, or be substituted in this action. (Dkt. No. 19 at 7, 14–15.) Kiebala
concedes these counts were dismissed with prejudice and indicates the disclaimers were intended
reflect that understanding. (Pl.’s Resp. (Dkt. No. 49) at 3.) He suggests Boris misunderstood the

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disclaimers and clarifies he is not attempting to “disregard the Court’s orders, ignore the Court’s
authority, [or] reassert causes of action that the Court had plainly said could not go forward,” and
he has “no intention of attempting to revisit the dismissal of those causes of action.” (Id.)
Accordingly, there is no dispute that the breach of the non-disclosure agreement, breach of
contract, and tortious interference with business expectancy claims should be dismissed with
prejudice, as Kiebala did not intend to re-assert them. We therefore grant Boris’ motion to
dismiss Counts I through III of Kiebala’s amended complaint, with prejudice.
B. Tortious Interference with Business Expectancy Claim
Boris next moves to dismiss Kiebala’s tortious interference with business expectancy
claim (Count IV). (Mot. to Dismiss at 12–14.) 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) defendants’ knowledge of his expectancy; (3) purposeful interference by the
defendants 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); Fellhauer v. City of Geneva, 142 Ill. 2d 495, 511, 568 N.E.2d 870, 877–78
(Ill. 1991).
Kiebala alleges he had a reasonable expectation of “entering into business relationships
with other investors and third parties,” as well as “continuing to receive job offers from potential
employers, of continuing to be asked to provide his consulting services, of continuing to be
asked to participate on corporate boards, of continuing to be asked to write for industry
publications, and to speak at business functions.” (Am. Compl. ¶¶ 113–14.) He further alleges
he had a reasonable expectation “to participate in investment opportunities” and “to obtain
personal credit, including credit cards and lines of credit, and of being able to continue to meet

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his home mortgage obligation.” (Id. ¶¶ 115–16.) Kiebala asserts Boris knew of these
expectations and intentionally interfered with his expectations by posting negative statements
about Kiebala on the internet, which “affected his businesses’ ability to operate profitably” and
caused his businesses to lose sales, customers, investors, and income. (Id. ¶¶ 83, 117–19.) As a
consequence of the “loss of income from his businesses,” Kiebala alleges he has suffered
“financially on a personal level,” leading to foreclosure on his home, a “significant drop” in his
personal credit rating; denial of loans, credit card applications, personal checking accounts, and
personal lines of credit; increased cost of borrowing; increased car insurance premiums; lost job
offers, opportunities to participate on corporate boards, and offers for writing and speaking
engagements; and an inability to solicit investments and start new companies.
(Id. ¶¶ 83–91, 119–128.) He also asserts that Boris’ postings have interfered with the trust of
“potential members of Kiebala’s program or potential investors in his business model.”
(Id. ¶¶ 78–79.) Kiebala also contends that Boris’ conduct impacted his physical and emotional
health, causing humiliation, embarrassment, anxiety, emotional distress, and “exacerbation of an
existing medical condition.” (Id. ¶ 92.)
Kiebala’s tortious interference claim still stems from the alleged damage to his businesses
and the resulting loss of income.1 As we have previously explained, he cannot recover for
injuries that are derivative of injuries to his businesses, because he is not the real party in interest
under Federal Rule of Civil Procedure 17(a). See Forza Techs., LLC v. Premier Research Labs,

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We further observe that Kiebala’s complaint indicates elsewhere that his financial woes
predated the allegedly injurious internet posts. (See, e.g., Am. Compl., Ex. C (July 2010 email in
which Kiebala informs Boris about his financial issues, including stating “it’s like I fell into a
(cash) hole and am spinning my wheels really fast, but not getting out” and describing his “big
setback while [he] was in the hospital” causing him to be unable “to get past the crisis bills
(utilities, insurance, fuel) to catch back up”); id., Ex. E (August 2010 email from Kiebala to
Boris stating “I’m sincerely in a terrible cash crisis and I can’t seem to get out.”).)
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LP, No. 12 C 7905, 2013 WL 6355383, at *3 (N.D. Ill. Dec. 5, 2013) (citing
Weissman v. Weener, 12 F.3d 84, 86 (7th Cir. 1993)). Rule 17(a) “is a procedural rule requiring
that the complaint be brought in the name of the party to whom that claim ‘belongs’ or the party
who, ‘according to the governing substantive law, is entitled to enforce the right.’”
Rawoof v. Texor Petrol. Co., 521 F.3d 750, 756 (7th Cir. 2008) (quoting Oscar Gruss & Son,
Inc. v. Hollander, 337 F.3d 186, 193 (2d Cir. 2003)). In Illinois, an action for harm to an LLC
must be brought by the LLC. Freed v. JPMorgan Chase Bank, N.A., No. 12 C 1477,
2012 WL 6193964, at *4 (N.D. Ill. Dec. 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)).
Thus, Kiebala’s allegations asserting harm flowing from his status as a managing
member of Curvy Road and ECS are not actionable. Forza, 2013 WL 6355383, at *3 (allowing
indirectly injured LLC managers to sue in their own names would enable “double counting” as
the company also suffered an injury and managers of an LLC enjoy protections from personal
liability for the debts and liabilities of the LLC). Kiebala cannot recover indirectly for losses
arising from the alleged injury to his companies’ profitability. See Weissman, 12 F.3d at 86
(concluding a corporation was the real party in interest, because even though plaintiff lost his
investment in the corporation as a result of the defendant’s malpractice and misrepresentation,
plaintiff’s injuries “derive from the fact that [the corporation] suffered a loss”); 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 caused her harm due to the LLC’s loss of business relationships).

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Insofar as the amended complaint’s allegations can be construed as personal attacks by
Boris that have caused Kiebala to directly lose job offers, consulting opportunities, writing and
speaking engagements, corporate board invitations, opportunities for “other business
investments,” and the ability to start new companies, Kiebala has also failed to plausibly allege
any basis for his expectation of success in obtaining such opportunities. United States ex rel.
Blaum v. Triad Isotopes, Inc., 104 F. Supp. 3d 901, 931 (N.D. Ill. 2015). “A reasonable
expectancy ‘requires more than the hope or opportunity of a future business
relationship.’” Huon v. Breaking Media, LLC, 75 F. Supp. 3d 747, 775 (N.D. Ill. 2014), rev’d in
part on other grounds (quoting Bus. Sys. Eng’g, Inc. v. Int’l Bus. Machines Corp.,
520 F. Supp. 2d 1012, 1022 (N.D. Ill. 2007)); see also Fredrick v. Simmons Airlines, Inc.,
144 F.3d 500, 503 (7th Cir. 1998) (affirming dismissal of tortious interference claim as plaintiff
failed to allege any reasonable expectation of a business relationship where he did not claim that
he had been offered a job by any other employer, or even that he had interviewed or applied for
such positions, instead asserting conclusory statements that he had suffered a “decline in
prospective business” as a result of allegedly defamatory publications); United States ex rel.
Blaum, 104 F. Supp. 3d at 931 (explaining a plaintiff must show “more than a mere hope” to
establish a tortious interference claim); Pulliam v. Am. Exp. Travel Related Servs. Co. Inc.,
No. 08 C 6690, 2009 WL 1586012, at *6 (N.D. Ill. June 4, 2009) (“Mere hopes of an economic
advantage are insufficient to support a claim of intentional interference.”). Read in the light
most favorable to Kiebala, his allegations establish only that he hoped to obtain various future
opportunities, but his threadbare allegations do not “raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555, 127 S. Ct. at 1964–65. As Kiebala has failed to adequately
allege any reasonable business expectancy, and to the extent his claim is not otherwise

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foreclosed because he is not the real party in interest, his tortious interference claim must be
dismissed.
C. Intentional Infliction of Emotional Distress Claim
Finally, Boris moves to dismiss Kiebala’s remaining claim for intentional infliction of
emotional distress (Count V), arguing it fails to state a claim and is barred by the statute of
limitations under Illinois law. (Mot. to Dismiss at 8–9, 14–15.) Count V of Kiebala’s amended
complaint alleges that Boris, “in a disproportionate response to a financial dispute, engaged in a
concerted pattern of abusive behavior towards Plaintiff,” posting 14 negative reviews on various
websites from December 2010 through March 2017. (Am. Compl. ¶¶ 35, 130.) Kiebala alleges
the postings were “extreme and outrageous” and Boris “knowingly or recklessly disregarded the
high probability that his conduct would inflict severe emotional distress upon Kiebala and his
conduct did, in fact, cause Kiebala severe emotional distress.” (Am. Compl. ¶¶ 141–42.)
Boris first argues the two-year statute of limitations set forth in 735 ILCS 5/13–202 bars
Kiebala’s claim for intentional infliction of emotional distress. See Pavlik v. Kornhaber,
326 Ill. App. 3d 731, 744, 761 N.E.2d 175, 186 (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 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.”). As we have previously explained, a cause of action for intentional infliction of
emotional distress “accrues when the interest is invaded.” Pavlik, 326 Ill. App. 3d at 745,
761 N.E.2d at 186 (citing Hyon Waste Mgmt. Servs., Inc. v. City of Chi.,

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214 Ill. App. 3d 757, 762, 574 N.E.2d 129, 132 (2d Dist. 1991)). Thus, Kiebala’s claim is barred
to the extent he seeks to recover for intentional infliction of emotional distress stemming from
statements made more than two years before Kiebala filed his lawsuit on July 22, 2016. Only
three of the alleged postings occurred within the statute of limitations period.
(Am. Compl. ¶ 35.)
However, Plaintiff argues his claims based on all of Boris’ internet postings are timely
under the continuing violation doctrine. (Pl.’s Resp. at 5.) Under Illinois law, “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., 199 Ill. 2d 325, 345, 770 N.E.2d 177, 190 (Ill. 2002). Kiebala argues
Boris’ 14 alleged internet postings, beginning on December 21, 2010 and continuing through
March 20, 2017, “constitute a continuing pattern that brings all of the internet postings within the
statute of limitations because, under the continuing tort rule, the statute of limitations begins to
run at the time the last injurious act occurs.” (Pl.’s Resp. at 5.) We rejected Kiebala’s similar
argument in our February 14, 2017 Order, and again on reconsideration, but Kiebala argues his
amended complaint includes additional allegations that show a continuing and unrelenting
pattern of abusive internet postings. (Id. at 6–8.)
We need not determine whether the amended allegations bring all of the alleged
defamatory statements within the statute of limitations, because even assuming arguendo that
Kiebala’s claims are timely, he has not sufficiently stated a claim for intentional infliction of
emotional distress. To establish a claim for intentional infliction of emotional distress, Illinois
law requires: (1) “the conduct involved must be truly extreme and outrageous”; (2) the
defendant “must either intend that his conduct inflict severe emotional distress, or know that

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there is at least a high probability that his conduct will cause severe emotional distress”;
and (3) “the conduct must in fact cause severe emotional distress.” McGrath v. Fahey,
126 Ill. 2d 78, 86, 533 N.E.2d 806, 809 (Ill. 1988). “The law intervenes only where the distress
inflicted is so severe that no reasonable man could be expected to endure it. The intensity and
duration of the distress are factors to be considered in determining its severity.” Id. (quoting
Restatement (Second) of Torts § 46, cmt. j, at 77–78 (1965)). Moreover, “the tort does not
extend to ‘mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’”
Id. (quoting Restatement (Second) of Torts § 46, cmt. d, at 73 (1965)). “[T]he distress inflicted
must be so severe that no reasonable man could be expected to endure it.” Layne v. Builders
Plumbing Supply Co., 210 Ill. App. 3d 966, 973, 569 N.E.2d 1104, 1109 (2d Dist. 1991).
Kiebala alleges Boris “acted intentionally to inflict harm and extort money” from him,
and the “cumulative nature of these multiple attacks spanning over six years was extreme and
outrageous.” (Am. Compl. ¶¶ 132–33.) He further alleges “Boris knew that Plaintiff was
struggling emotionally and financially and specifically calculated his repeated attacks to
maximize harm to Plaintiff” both personally and professionally. (Id. ¶ 134.) While the alleged
internet postings may have caused embarrassment and distress, Kiebala has failed to plausibly
allege that Boris’ negative consumer reviews were “truly extreme and outrageous.” Id. Whether
particular conduct is extreme and outrageous is a question of law to be determined based on all
of the facts and circumstances of the case using an objective standard. Ulm v. Mem’l Med. Ctr.,
2012 IL App (4th) 110421, ¶ 39, 964 N.E.2d 632, 641. “To meet the ‘extreme and outrageous’
standard, the defendant’s conduct ‘must be so extreme as to go beyond all possible bounds of
decency, and to be regarded as intolerable in a civilized community.’” Swearnigen-El v. Cook
Cnty. Sheriff’s Dep’t, 602 F.3d 852, 864 (7th Cir. 2010) (quoting Kolegas v. Heftel Broad. Corp.,

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154 Ill. 2d 1, 21, 607 N.E.2d 201, 211 (Ill. 1992)). “It is not sufficient ‘that the defendant has
acted with an intent which is tortious or even criminal, or that he has intended to inflict
emotional distress, or even that his conduct has been characterized by malice, or a degree of
aggravation which would entitle the plaintiff to punitive damages for another tort.’” Cook v.
Winfrey, 141 F.3d 322, 331 (7th Cir. 1998) (quoting Pub. Fin. Corp. v. Davis, 66 Ill. 2d 85, 90,
360 N.E.2d 765, 767 (Ill. 1976)).
Moreover, “[a]s the Seventh Circuit has recognized, Illinois courts have held that a
plaintiff cannot prove a claim for intentional infliction of emotional distress based upon a
defendant’s defamatory statements, because such statements generally do not clear the high
hurdle for extreme and outrageous conduct.” Fields v. Jackson, No. 16 C 1961,
2017 WL 4150682, at *5 (N.D. Ill. Sept. 19, 2017) (finding allegedly defamatory internet posts
claiming the plaintiff owed money to the defendant “may have been offensive or distressing” but
they were “not so extreme and outrageous as to sustain a claim for intentional infliction of
emotional distress”); see also Winfrey, 141 F.3d at 331 (collecting cases). Consistent with these
cases, we cannot conclude Boris’ negative and allegedly defamatory online reviews of Kiebala’s
business practices could plausibly be considered “so extreme as to go beyond all possible bounds
of decency, and to be regarded as intolerable in a civilized community,’” particularly where
Boris did not stand in a position of power over Kiebala. Swearnigen-El, 602 F.3d at 864; see
also Bittman v. Fox, 107 F. Supp. 3d 896, 905 (N.D. Ill. 2015) (granting motion to dismiss
intentional infliction of emotional distress claim where defendants’ conduct, which included
allegedly defamatory internet posts, publishing photos of the plaintiff’s house on the internet to
harass and intimidate her, and creating a social media page to “impersonate and defame”
plaintiff’s business, while “distasteful, mean-spirited, and vindictive,” did not constitute

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sufficiently extreme and outrageous conduct); Tabora v. Gottlieb Mem’l Hosp.,
279 Ill. App. 3d 108, 120, 664 N.E.2d 267, 275 (1st Dist. 1996) (allegations that defendants
attacked plaintiff professionally, including falsely claiming he was incompetent as an
anesthesiologist, revoking his hospital privileges, and causing him to endure “constant berating”
in front of the hospital staff over a five year period did not “rise to the level of extreme and
outrageous conduct and severe emotional distress”); Feltmeier v. Feltmeier, 207 Ill. 2d 263, 273,
798 N.E.2d 75, 82 (Ill. 2003) (“Illinois cases in which the tort of intentional infliction of
emotional distress has been sufficiently alleged have very frequently involved a defendant who
stood in a position of power or authority relative to the plaintiff.”). Accordingly, we grant Boris’
motion to dismiss Count V of the amended complaint, with prejudice.
II.

MOTION FOR SANCTIONS
Finally, Boris has also filed a motion for sanctions pursuant to Federal Rule of Civil

Procedure 11. Boris asserts Kiebala’s amended complaint “constitutes a frivolous filing as well
as an abuse of process meant only to harass, prolong, and unnecessarily increase the cost of
litigation.” (Mot. for Sanctions at 8.) Boris argues the amended complaint seeks to re-litigate
the breach of non-disclosure agreement, breach of contract, and tortious interference claims set
forth in Counts I through III, all of which were previously dismissed with prejudice. (Id.) Boris
additionally argues Kiebala’s claims for intentional infliction of emotional distress and tortious
interference with business expectancy fail to survive a renewed motion to dismiss and are
“repetitive allegations” constituting “an attempt to rehash the same arguments” this court already
decided. (Id.)
Rule 11(b) requires an attorney or unrepresented party to certify that “to the best of the
person’s knowledge, information, and belief, formed after an inquiry reasonable under the

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circumstances” that any pleading presented to the court “is not being presented for any improper
purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.”
Fed. R. Civ. P. 11(b). In addition, the rule requires an unrepresented party to certify that “the
factual contentions have evidentiary support or, if specifically so identified, will likely have
evidentiary support after a reasonable opportunity for further investigation or discovery.” Id.;
see also Jimenez v. Madison Area Tech. Coll., 321 F.3d 652, 656 (7th Cir. 2003); In re Dairy
Farmers of Am., Inc., 80 F. Supp. 3d 838, 859 (N.D. Ill. 2015). “The central goal of Rule 11 is
to deter abusive litigation practices.” Corley v. Rosewood Care Ctr., Inc. of Peoria,
388 F.3d 990, 1013 (7th Cir. 2004) (citing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405,
110 S. Ct. 2447, 2454 (1990)).
However, while “the Rule 11 sanction serves an important purpose, it is a tool that must
be used with utmost care and caution.” Fed. Deposit Ins. Corp. v. Tekfen Const. & Installation
Co., 847 F.2d 440, 444 (7th Cir. 1988); see also In re Dairy Farmers of Am.,
80 F. Supp. 3d at 860 (“To win on a motion for sanctions, the movant must satisfy the ‘high
burden of showing that Rule 11 sanctions are warranted.’” (quoting Lundeen v. Minemyer,
No. 09 C 3820, 2010 WL 5418896, at *3 (N.D. Ill. Dec. 17, 2010)). Sanctions do not inevitably
flow from unsuccessful legal arguments. Harlyn Sales Corp. Profit Sharing Plan v. Kemper Fin.
Servs., Inc., 9 F.3d 1263, 270 (7th Cir. 1993); see also Native Am. Arts, Inc. v. Peter Stone Co.,
U.S.A., 222 F. Supp. 3d 643, 645 (N.D. Ill. 2016) (“Were this long accepted Rule to the contrary,
sanctions would be automatically imposed on the loser in every case. Obviously they are not,
and they are imposed only where they are necessary to deter repetition of the offending
conduct.”). In analyzing whether sanctions are warranted, we “undertake an objective inquiry
into whether the party or his counsel should have known that his position is groundless.” Cuna

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Mut. Ins. Soc. v. Office & Prof’l Employees Int’l Union, Local 39, 443 F.3d 556, 560
(7th Cir. 2006) (quoting Nat’l Wrecking Co. v. Int’l Bhd. of Teamsters, Local 731,
990 F.2d 957, 963 (7th Cir. 1993)). “The Court considers litigants’ pro se status when
determining whether arguments warrant sanctions, but the Court may impose sanctions on pro se
litigants.” Ochs v. Hindman, 984 F. Supp. 2d 903, 912 (N.D. Ill. 2013) (citing
Vukadinovich v. McCarthy, 901 F.2d 1439, 1445 (7th Cir. 1990)).
As set forth above, Kiebala concedes Counts I through III were dismissed with prejudice
and argues the “disclaimers” in the amended complaint were intended reflect that understanding.
While unartfully pled, we cannot agree that Counts I through III constitute a frivolous filing or
“an abuse of process meant only to harass, prolong, and unnecessarily increase the cost of
litigation,” as Boris urges. (Mot. for Sanctions at 8.) Moreover, while we disagree with
Kiebala’s attempt to amend his complaint to state claims for intentional infliction of emotional
distress and tortious interference with business expectancy in Counts IV and V, that does not
mean his amended complaint was frivolous or filed in bad faith without adequate investigation.
Nor do we see a need to deter repetition of improper conduct through the imposition of
sanctions. Although Kiebala’s legal positions were ultimately unsuccessful, they were not
objectively unreasonable. Corley, 388 F.3d at 1014 (“The fact that the underlying claim turned
out to be groundless does not necessarily mean that Rule 11 sanctions are appropriate (much less
required).”). Considering Kiebala’s amended complaint, our previous orders, and the case as a
whole, we can neither conclude Kiebala’s pleading was frivolous, nor filed in bad faith, for an
improper purpose, or without adequate investigation. Id. Accordingly, we deny Boris’ motion
for sanctions.

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CONCLUSION
For the foregoing reasons, we grant Boris’ motion to dismiss, and Kiebala’s amended
complaint is hereby dismissed with prejudice. (Dkt. No. 32.) Boris’ motion for sanctions is
denied. (Dkt. No. 34.) It is so ordered.

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

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