Law Offices of David Freydin, P.C. v. Chamara

• Decision Date: 28 January 2022
• Docket Number: No. 18-3216,18-3216
• Parties: LAW OFFICES OF DAVID FREYDIN, P.C. and David Freydin, Plaintiffs-Appellants, v. Victoria CHAMARA, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

24 F.4th 1122

LAW OFFICES OF DAVID FREYDIN, P.C. and David Freydin, Plaintiffs-Appellants,

v.Victoria CHAMARA, et al., Defendants-Appellees.

No. 18-3216

United States Court of Appeals, Seventh Circuit.

Submitted September 9, 2021^*

Decided January 28, 2022

Randall Edgar, Timothy Allen Scott, I, Attorneys, Freydin Law Firm, LLP, Skokie, IL, for Plaintiffs - Appellants

Daliah Saper, Daliah Saper, Attorneys, Saper Law Offices, LLC, Chicago, IL, for Defendant - Appellee

Before Kanne, Hamilton, and St. Eve, Circuit Judges.

Hamilton, Circuit Judge.

This appeal presents issues under Illinois defamation law as applied to negative reviews posted on a business's social media pages. The first issue is whether any of the reviews contained statements that are actionable as libel per se under Illinois law. They did not; each statement was an expression of opinion that could not support a libel claim. Second, plaintiffs did not allege viable claims for civil conspiracy because plaintiffs have not linked their civil conspiracy claims to an independently viable tort claim. Third, plaintiffs have not shown that the district court erred by not allowing them to amend their complaint. Plaintiffs did not explain how they thought they could cure the problems with their complaint until their appellate reply brief, which was much too late. We affirm the district court's dismissal of this action under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.

I. Factual Background

A. The Facebook Post and the Responding Reviews

On a late September day in 2017, David Freydin, a Chicago lawyer, posed a question on Facebook: "Did Trump put Ukraine on the travel ban list?! We just cannot find a cleaning lady!" After receiving online criticism for this odd and offensive comment, Freydin doubled down in the comments section:

My business with Ukrainians will be done when they stop declaring bankruptcies. If this offends your national pride, I suggest you look for underlying causes of why 9 out of 10 cleaning ladies we've had were Ukrainian and 9 out of 10 of my law school professors were not. Until then, if you don't have a recommendation for a cleaning lady, feel free to take your comments somewhere else.¹

As sometimes happens on social media, things escalated quickly. People angered by Freydin's comments went to his law firm's Facebook, Yelp, and Google pages. They left reviews that expressed their negative views of Freydin. These reviews ranged from simple one-star ratings to detailed comments about Freydin's "hatred and disrespect towards the Ukrainian nation...."

Defendant Victoria Chamara's one-star rating contained the longest commentary. Chamara called Freydin an "embarrassment and a disgrace to the US judicial system," referred to his comments as "unethical and derogatory," and labeled him a "hypocrite," "chauvinist," and "racist" who "has no right to practice law." Other defendants were more concise. Defendant Tetiana Kravchuk said that Freydin "is not professional" and "discriminates [against] other nationalities," and she told people not to "waste your money," while defendant Anastasia Shmotolokha wrote that "Freydin is biased and unprofessional attorney." These statements from Kravchuk and Shmotolokha also accompanied one-star ratings. Defendant Nadia Romenets gave the Law Offices of David Freydin a one-star rating but did not provide any additional comments. And various one-star ratings from John Doe defendants complained of "terrible experience," "awful customer service," "disrespect[ ]," and "unprofessional[ism]." None of the defendants had previously used Freydin's legal services.

B. Procedural History

Freydin and his law firm sued defendants for these comments and reviews under several legal theories, none of which the district court found viable. Those theories encompassed five torts under Illinois state law: (1) libel per se, (2) "false light," (3) tortious interference with contractual relationships, (4) tortious interference with prospective business relationships, and (5) civil conspiracy. Each theory faced significant hurdles to relief. The district court granted the defendants' motion to dismiss all claims.

On the libel theory, the court deemed the comments "defamatory per se" because they fell under the per se category of "prejudice to a person in his profession." But since the comments were all opinions, they all had the benefit of an affirmative defense and were not actionable under the First Amendment. The next three claims were unsuccessful because essential elements of the claims were missing. Plaintiffs did not allege specific damages necessary for false light invasion of privacy. For tortious interference with contractual and business relationships, plaintiffs did not identify contracts or prospective business relationships damaged by defendants' actions. Plaintiffs' civil conspiracy claims failed because they were not supported by any independent tort. The district court dismissed the complaint but did not enter judgment and dismiss the civil action itself.

Two weeks later, plaintiffs filed a motion asking the district court to clarify whether the dismissal was with or without prejudice. If it was without prejudice, plaintiffs sought the opportunity to amend the complaint to remedy the deficiencies. Plaintiffs did not attach a copy of an amended complaint to the motion to clarify or indicate how an amended complaint would remedy the deficiencies. At a status hearing on the motion, plaintiffs' lawyer said more of the same, with only a slight alteration: he added that plaintiffs wanted to "amend our pleading" with information from a parallel state court action that would "add some ... additional factual allegations." Again, plaintiffs did not indicate what those additional factual allegations would entail.

At the status hearing, the district judge denied plaintiffs' request to amend the complaint. He said: "I think that this case should end now, so the motion is denied." The judge later clarified in a written docket entry that this decision on the motion to amend was the final decision that started the clock for filing a timely appeal. The district court never issued a separate Rule 58 final judgment ending the case.

Plaintiffs Freydin and his law firm now appeal the district court's dismissal of their claims for libel per se and civil conspiracy, and they challenge the denial of their motion to amend the complaint.

II. Appellate Jurisdiction

Before reaching the merits, we must address our appellate jurisdiction. "The lack of a separate, final Rule 58 judgment makes the appellate jurisdiction picture messier than necessary." Sterling National Bank v. Block , 984 F.3d 1210, 1216 (7th Cir. 2021). Federal Rule of Civil Procedure 58(a) requires: "Every judgment and amended judgment must be set out in a separate document ...." As a formal matter, a separate Rule 58 judgment "keeps jurisdictional lines clear." Wisconsin Central Ltd. v. TiEnergy, LLC , 894 F.3d 851, 854 (7th Cir. 2018). But it is not a "prerequisite to appealing" if "the judgment really is final within the meaning of 28 U.S.C. § 1291." Borrero v. City of Chicago , 456 F.3d 698, 699–700 (7th Cir. 2006). A judgment is final within the meaning of 28 U.S.C. § 1291 "if the district court has otherwise indicated its intent to finally dispose of all claims." Wisconsin Central , 894 F.3d at 854 ; see also Chase Manhattan Mortgage Corp. v. Moore , 446 F.3d 725, 726 (7th Cir. 2006) ("The test is not the adequacy of the judgment but whether the district court has finished with the case.").

Here, the district judge signaled sufficiently his intent to be finished with this case. For one, when ruling on the motion to amend at the status hearing, he said: "I think that this case should end now, so the motion is denied." He continued: "as of right now, I'll dismiss [the case] with prejudice as of now so that—just to clarify your appeal period." The docket entry summarizing these proceedings said: "Plaintiff's request to file an amended complaint is denied. Plaintiff's complaint is dismissed with prejudice as of September 26, 2018," which was the date of the status hearing. The reference to dismissal of the complaint rather than the entire civil action was imprecise, but all of these statements, together with the district court's earlier opinion granting the motion to dismiss, lead us to the "common sense conclusion that the district court intended to enter a final judgment." Sterling National Bank , 984 F.3d at 1216 (internal quotation marks omitted). We have jurisdiction over this appeal.

III. The Motion to Dismiss

Turning now to the merits, we review de novo a grant of a motion to dismiss for failure to state a claim. Warciak v. Subway Restaurants, Inc. , 949 F.3d 354, 356 (7th Cir. 2020). To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain enough factual content to "state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In Iqbal , the Court emphasized that "[t]he 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. We review the complaint in the light most favorable to plaintiffs and accept all well-pleaded facts as true. Huon v. Denton , 841 F.3d 733, 738 (7th Cir. 2016). This case falls within the federal courts' diversity jurisdiction over state-law claims since the parties served with process satisfy the complete-diversity and amount-in-controversy requirements, see 28 U.S.C. § 1332, and Illinois law governs. Huon , 841 F.3d at 738 (applying Illinois law to defamation claim in federal...