Case Information
*1 Before E ASTERBROOK H AMILTON , S CUDDER , Circuit Judges .
H AMILTON Circuit Judge
. Plainti ff‐ appellant George appeals dismissal complaint against defendant appellee Derek Boris. contends district abused discretion failing suggest how Kiebala, who represented himself court, could amend complaint avoid dismissal. He also argues ‐ erred holding his libel barred by statute limitations.
We a ffi rm. District judges do a ffi rmative duty coach second ‐ guess choices parties, even pro se parties, make about how litigate their cases. We also agree with applicable bars claim. I. Factual and Procedural Background
A. Dispute
In reviewing dismissal failure state claim, we ac cept facts by ff without vouching their objective truth. Goldberg United States 529, Kiebala owns luxury car share service called Curvy Road Holdings, LLC. It allows customers purchase time ownership rights high end automobiles are owned “investors.” In September 2009, Derek Boris came Curvy Road “investor” received share rental revenue when customers drove Lamborghini Gal lardo. All well fi rst few months Kiebala made payments Boris late March
In May 2010, however, Boris withdrew car program, check nal payment Boris clear. emailed Boris July 22, Au gust explain various medical business dif culties were preventing payment. Boris never received fi nal payment, and communications between two seemed come end.
After period quiet, though, Boris posted angry and derogatory statements on various websites about Kiebala and Curvy Road. He this least eight occasions from December through July 2011. Sharing thoughts customer review sites such Scamexposure.com, Private complaints.com, and Ripo ff report.com, Boris allegedly revealed (we must assume) Curvy Road’s con dential business information and opined “it FRAUD company” whose “owner simply cannot trusted [because] [h]e has lied repeatedly and will steal your money.” nal posting from this period, central stat ute issue here, made Ripo Report.com July subject heading asserted “SCAM FRAUD!” “Stole Money!” mes sage said: company rents some exotic cars from
individual owners myself, pays out commission based o ff actual customer use. However, their excuse paying THOUSANDS owed commissions me “my wife took my money”! This from supposed ‘professional’ company, makes it clear lying stealing are part George [and] Curvy Road[’s] … daily manage ment! I advise EVERYONE, customers potential partners, STAY AWAY this thief, you risk losing everything. This 17 3233 company, and owners, simply cannot be trusted!!
And that, dispute went dormant several years.
In fall of 2014, Boris again turned sights on Kiebala. On October 22, 2014, Boris emailed Kiebala wanted give him “a chance make good on our agreement before I put my review of your company on various websites.” parties reach se lement agreement, and Boris launched new round of internet postings.
On July 21, 2015, on new website called scamorg.com, Boris posted statement almost identical Ripo ff Report post July 20, 2011. And July 22, 2015, Boris returned Ripo Report.com “updated” original July 20, post. According Kiebala, “No additional information ap pears been provided when post was updated.” Kiebala claims, we assume purposes appeal, indicating negative review was “up dated,” Boris caused post re fl ect date 2015, making it more likely prioritized online search results.
B. Litigation
Kiebala, representing himself, sued Boris following year July 22, 2016, alleging ve state law claims. (The district had jurisdiction under U.S.C. § 1332(a) based diversity citizenship.) Boris moved dismiss complaint. granted *5 No. ‐
dismissed all counts, noting that: (a) dismissal as libel intentional in fl ection emotional distress claims was without prejudice, (b) dismissal claims for breach non disclosure agreement, breach contract, tortious interference with business expectancy was without prejudice because sued in personal capacity he was real party in interest—his companies were. Kie bala Boris 1:16 cv 7478, WL (N.D. Ill. Feb. 14, 2017). As la tt er three claims, court gave thirty days le amended complaint either joined or substituted companies as ff s; if failed do so, la tt er three claims be dismissed prejudice. Id. at *7.
Kiebala’s claims libel intentional fl iction emo tional distress faced di erent hurdles. district court held claim barred Illinois’s one year limitations defamation claims because last “original post” dated July i.e., day outside limitations period. Id. *4. concluded Bo ris’s “updated” July could extend period. Id. dismissed intentional fl iction emotional distress merits, holding posts could be considered objectively “so extreme as go beyond all possible bounds decency,” but were tt categorized “[m]ere insults, indignities, threats, annoy ances, pe y oppressions other trivialities.” *6, quoting Kolegas Heftel Broadcasting Corp. N.E.2d (Ill. Thus, granted Boris’s dis miss because, “even construing complaint liberally given No. pro se status,” complaint failed to state claim upon which relief could granted. *7.
Kiebala fi led motion asking court to reconsider its ruling on claims tortious interference and intentional in fl iction emotional distress, and to grant him leave to le an amended complaint. Kiebala made clear that he was asking district court reconsider its ruling on libel claim allow him amend that claim. His motion, sup porting memorandum, reply memorandum were all con sistent on that score. His only references libel claim em phasized that he was asking district reconsider its ruling claim, nor requesting leave amend. denied motion reconsideration but made clear dismissal was without prejudice Kiebala could le amended complaint. Kiebala Boris 1:16 cv WL 1161177, *3 (N.D. Ill. Mar. 29, Kiebala so, but Boris again moved dismiss, this time seeking sanctions. In opposing motions, again emphasized trying amend claim.
As relevant appeal, allegations in tended bu ress intentional fl iction emo tional distress included several additional instances alleg edly defamatory posts. Most these posts still dated but some were undated, arguably posted March accept date appeal. newly posts largely tracked other posts form, tone, substance. denied Boris’s sanctions but
granted dismissal, this time prejudice. Boris *7 No. 7 1:16 cv 7478, WL 4339947, at *1 (N.D. Ill. Sept. 29, 2017). court held tt empts cure the tor tious interference claim were insu ffi cient the merits. Id. at *3–4. court further held amended intentional in fl iction of emotional distress also failed the pleadings. Id. at *5–6. Even considering newly alleged post, conduct satisfy high standard claim: “beyond all possible bounds of decency” “intolerable in civilized community.” *6, quoting Swearnigen El Cook County Sheri ff ’s Dep’t F.3d (7th Cir. 2010). district court entered judgment Boris.
II. Analysis
On appeal, presents two questions about only libel claim. First, he contends district court erred by allowing him amend libel claim. Second, he argues erred nding of bars claim.
A. Opportunity Amend Pleadings When denies party’s request amend pleadings, review under an abuse discretion standard, there “a presumption favor giving ff s least opportunity amend.” Runnion Girl Scouts Greater Chicago Northwest Indiana Kiebala, however, never sought amend libel claim. Instead, faults failing “o er” him opportunity amend claim. This ap proach grounded text Federal Rule Civil Pro cedure which assumes some agency part liti gant. Under Rule 15(a)(1), “[a] party may amend pleading once ma course” within days after service complaint or after a 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 pleading only with the opposing party’s wri tt en consent or the court’s leave.” district judge, course, “should freely give leave when justice so requires,” but the Rule gives no indication a judge is required to o ff parties legal guidance whether how to amend their pleadings.
This rule should be di ff erent, seems to argue, a pro se ff . To be sure, we have held “district courts have a special responsibility to construe pro se complaints lib erally to allow ample opportunity amending the com plaint when it appears so doing the pro se litigant able to state meritorious claim.” Donald Cook County Sheri ff ’s Dep’t F.3d (7th Cir. 1996). In addi tion viewing “ pro se complaint with an understanding eye,” district may point pro se litigant toward cor rect procedure or “take appropriate measures permit adjudication pro se claims merits.”
At same time, tried make clear “court become advocate.” Id . District courts are charged seeking out legal “issues lurking within con nes” pro se litigant’s pleadings, court’s duties certainly do “not extend so far require bring ention pro se litigant or decide unraised issues.” Caruth Pinkney
Kiebala’s e ort impose coaching obligation tenable. According Kiebala’s argu ment, judge should have: (a) read lings expressly disclaiming any interest reconsideration amendment claim, (b) observed ‐ amended complaint added, for his intentional in fl iction of emotional distress claim, allegations about recent internet posting that could been within the one ‐ year statute of limitations dismissed libel claim; (c) disregarded Kie ‐ bala’s responses to Boris’s second to dismiss, in which he again emphasized that he had no interest in amending his libel claim; (d) advised Kiebala that newly in cluded in his amended claim intentional in fl iction of emo tional distress might o ff basis to salvage his untimely libel claim statute of limitations, then (e) suggested to Kiebala he le second amended complaint following judge’s recommendation how to plead libel claim.
Requiring judges take ffi rmative steps guide pro se s’ pleadings force them outside role neutral judges. Hamlin Vaudenberg F.3d (7th Cir. 1996) (courts are not “ ll all blanks in pro se complaint”); see also Doherty City Chicago n.2 1996) (noting “institutional concerns” “impos[ing] obligation make argu ments [a] party party has made itself”). judge did abuse discretion either by failing suggest he amend libel claim he had re peatedly said want amend by failing advise allegation regarding intentional fl ic tion emotional distress claim might avoid statute lim itations defense libel claim.
B. Statute Limitations libel under law governed by year statute defamation claims. ILCS 5/13 dismissed claim— alleged—as barred limitations. We review *10 10 17 3233 this ruling de novo . Logan v. Wilkins , 644 F.3d 577, 581 (7th Cir. 2011). [3]
In his original complaint, most recent new alleg ‐ edly defamatory statement was made one year one day before Kiebala led complaint. issue appeal boils down to whether Boris, by marking 2011 Ripo ff Report “updated” July 2015—exactly one year before Kiebala led complaint—started statute of limita tions clock for alleged libel. Our role in deciding this question of state law to predict how think Supreme Court Illinois decide issue. Pippen v. NBCUniver sal Media, LLC , F.3d (7th Cir. question republication libels has arisen
often subject proposed uniform states to enact. In relevant part, enactment Uniform Single Publication Act does not permit person “have more than one cause action damages libel” based “upon any single publication or exhibition or u erance, any one edition newspaper or book or magazine or any one presentation audience or any one broadcast over radio television or any exhibition motion pic ture.” ILCS 165/1. We explained Act in tended protect speakers writers “repeated 17 ‐ 3233 11 litigation arising from single, but mass ‐ produced, defama ‐ tory publication.” Pippen , 734 F.3d at 1959 statute codi ed common law rule adopted by the Illinois courts long before the internet came along. See Wheeler Dell Pub. Co. , F.2d 375 & n.4 (7th Cir. We have already predicted that “the Supreme Court Illinois would deem the single ‐ publication rule applicable the In ‐ ternet.” Pippen F.3d (“Every state that has considered question applies the single ‐ publication rule information online … [a]nd those federal courts have ad dressed topic have concluded relevant state su preme would agree.”). We explained “excluding Internet from single ‐ publication rule would eviscerate statute expose online publishers po tentially limitless liability.”
Illinois courts yet considered whether “updat ing” previously published internet post, without changing post’s content or placing content website, su ffi cient escape single publication rule. In predicting how state’s highest would answer question, we may consider instructive decisions from other jurisdictions. See Pippen F.3d 615; see also, e.g., Community Bank Trenton Schnuck Markets, Inc ., 811–13 2018) (drawing cases other states make Erie Rail road prediction state law). Relying analogous Illinois state cases treatment similar conduct other courts, predict Supreme Court hold Bo ris’s marking post “updated,” is, without more, su ffi cient treat newly circulated republished could avoid year limitations. ‐ closest guidance an comes from a pre ‐ internet case similar to this one, Founding Church Scien tology Washington, D.C. American Medical Ass’n N.E.2d (Ill. App. There the ff the defendant had published a libelous article in monthly mag azine and then several years later “caused reprints and copies the article be delivered, distributed and published to three named persons with various newspapers the east coast, as well as throughout the United States.” Id. 159–60. rejected argument the later distribution extended limitations, describing defendant’s action as “nothing more than miscellaneous copies incidental general [earlier] publication.” Id. ex plained:
To conclude otherwise consider them a “re publication,” would cause havoc with law expose publisher or author lawsuit years after article had fi rst been pub lished simply because or someone else chose xerox copy two mail photocopy friend or, example, magazine as part le tt er an editor. Id. Such an outcome make no sense, especially “be cause article question might well be le in libraries, so open public anyway.” original post—still available same website—could similarly considered “on le” “open public anyway,” later updated but unaltered serving equivalent including original statement “le editor.”
Illinois law allows some room argue that a new publi ‐ cation starts new clock if content changed, at least sig ‐ ni cantly, if new publication addressed new au ‐ dience. See, e.g., Hukic v. Aurora Loan Services , 2009) (single publication rule did not apply creditors’ repeated reports inaccurate information credit reporting agencies where “the information conveyed did not stay same”); Weber Cueto N.E.2d 452–53 (Ill. App. 1993) (single publication rule did apply where orig ‐ inal publication was privileged report government author ‐ ities later publication was privileged intended for general public).
An court considered interplay these di erent factors at some length Blair Nevada Landing Partnership N.E.2d (Ill. App. Plainti ff Blair had worked for several years employee defendant’s steakhouse. Dur ‐ ing time, his photograph used promotional pur ‐ poses defendant’s fl yers, brochures, signs, billboards, res taurant menus, calendars, postcards, website. Id. at 1189– 90. Blair later sued defendant appropriating his like ness violating right publicity by using picture. Id. at 1190. held suit barred year because “cause action ac crue[d] time [his] interest [wa]s invaded,” i.e., upon rst publication photograph. Id.
Borrowing single publication rule defamation claims, found it ma Blair’s pic ture “was displayed via several mediums over period time”; picture “was used single purpose” “tar get[] single audience.” acknowledged republication could “constitute cause action if *14 14 17 3233 publication is altered so reach a new audience or pro ‐ mote a di erent product.” Id. at 1194. But the repeated that, given defendant’s use of an “image [that] remained con stant was not signi cantly altered reach a new audi ence” that was used the “same … purpose” (e.g., “to promote a single product”), it did ma it pub lished multiple times “via several mediums.” Id.
These factors have continued guide courts when considering a later appearance of allegedly defamatory con tent internet. We have noted “passive maintenance of a web site” considered a republication. Pippen , 734 F.3d at 616. Nor courts been persuaded start a new statute of limitations clock when defendants “changed URL where statements were posted but left statements un altered,” or when “defendants added unrelated story [a] web page hosting allegedly defamatory statement.” , citing Canatella v. Van De Kamp , 486 F.3d 1135–36 (9th 2007), Yeager v. Bowlin , Cir. 2012), Firth State N.E.2d 463–64 (N.Y.
We agree here single instance Boris marking original “updated,” least without anything more, did start limita tions clock defamation. “update” identical content publication, update intended reach same audience, ff potential investors customers. single publication rule applies so July revive time barred defamation. judgment therefore
AFFIRMED.
[1] also owns second company, Exotic Car Share, LLC, which operates different business model. Although filings mention both companies, defendant Boris contracted only Curvy Road Holdings. For ease reference, limit our discussion Curvy Road.
[2] submitted print out this post identified date as July 2011. submission, however, July post designated “Updated” July says text original changed when it later “updated” assume much purposes this appeal.
[3] did not waive right press this claim appeal fail ing re argue it response Boris’s second dismiss. To pre serve appellate rights, party need repeat challenges definitive interlocutory ruling. See, e.g., Ward Soo Line Railroad Co. F.3d 2018), quoting Wilson Williams (7th Cir. 1999) (en banc). entitled, however, argue this appeal grounds sustaining present court.
[4] Similarly, federal found publication new arti cles blogposts providing hyperlinks already published defamatory material start new period, even though articles posts containing hyperlinks were made venues “appeal[ed] different type audience.” Salyer Southern Poverty Law Center, Inc. F. Supp. 2d (W.D. Ky. 2009) (granting dismiss). later publication hyperlink “simply new means accessing referenced article … [m]aking access referenced article easier,” while lacking “the critical feature republication”— namely, “that original text article changed contents article presented directly audience.” Id .