United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
E. Aspen United States District Judge.
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.
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.
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.)
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.)
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.)
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.)
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
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. “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)
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 maintain an action for those
alleged breaches because they “directly damaged [him]
by sharing his business model online, visible to all