Law Offices of David Freyd v. Victoria Chamara ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-3216
LAW OFFICES OF DAVID FREYDIN, P.C.
and DAVID FREYDIN,
Plaintiffs-Appellants,
v.
VICTORIA CHAMARA, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:17-cv-08034 — Harry D. Leinenweber, Judge.
____________________
SUBMITTED SEPTEMBER 9, 2021 * — DECIDED JANUARY 28, 2022
____________________
Before KANNE, HAMILTON, and ST. EVE, Circuit Judges.
HAMILTON, Circuit Judge. This appeal presents issues un-
der 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
* We granted the parties’ joint motion to waive oral argument for this case.
2 No. 18-3216
actionable as libel per se under Illinois law. They did not; each
statement was an expression of opinion that could not sup-
port 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. Plain-
tiffs 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 offen-
sive comment, Freydin doubled down in the comments sec-
tion:
My business with Ukrainians will be done when
they stop declaring bankruptcies. If this offends
your national pride, I suggest you look for un-
derlying causes of why 9 out of 10 cleaning la-
dies 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
No. 18-3216 3
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 re-
views that expressed their negative views of Freydin. These
reviews ranged from simple one-star ratings to detailed com-
ments 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 “embar-
rassment 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
1 This comment and Freydin’s initial question are not included in plain-
tiffs’ complaint. We may still consider them in reviewing the grant of a
motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Parts of
the complaint referred to these comments. For instance, one review left by
a defendant said: “His unethical and derogatory comments, which target
one particular nation–Ukrainians, show who he really is …. He does not
hide his hatred and disrespect towards the Ukrainian nation on his per-
sonal FB page.” Given this reference and others, we include Freydin’s
comments for the sake of completeness. Just as a plaintiff cannot prevent
a court from considering parts of a contract that doom her claim by in-
cluding in the complaint only the parts of a contract that support her side,
a party’s selection of part of a chain of communication does not prevent
the court from considering the entire chain. Cf. Community Bank of Trenton
v. Schnuck Markets, Inc., 887 F.3d 803, 809 n.2 (7th Cir. 2018) (in reviewing
grant of motion to dismiss, “we cannot consider in isolation just those con-
tractual provisions that plaintiffs find helpful”); Fed. R. Evid. 106 (rule of
completeness). In addition, plaintiffs did not object on appeal to the con-
sideration of these two comments by Freydin, and even incorporated the
comments in their reply brief.
4 No. 18-3216
right to practice law.” Other defendants were more concise.
Defendant Tetiana Kravchuk said that Freydin “is not profes-
sional” and “discriminates [against] other nationalities,” and
she told people not to “waste your money,” while defendant
Anastasia Shmotolokha wrote that “Freydin is biased and un-
professional 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 com-
plained of “terrible experience,” “awful customer service,”
“disrespect[],” and “unprofessional[ism].” None of the de-
fendants had previously used Freydin’s legal services.
B. Procedural History
Freydin and his law firm sued defendants for these com-
ments and reviews under several legal theories, none of
which the district court found viable. Those theories encom-
passed five torts under Illinois state law: (1) libel per se,
(2) “false light,” (3) tortious interference with contractual re-
lationships, (4) tortious interference with prospective busi-
ness relationships, and (5) civil conspiracy. Each theory faced
significant hurdles to relief. The district court granted the de-
fendants’ motion to dismiss all claims.
On the libel theory, the court deemed the comments “de-
famatory per se” because they fell under the per se category
of “prejudice to a person in his profession.” But since the com-
ments were all opinions, they all had the benefit of an affirm-
ative defense and were not actionable under the First Amend-
ment. The next three claims were unsuccessful because essen-
tial elements of the claims were missing. Plaintiffs did not al-
lege specific damages necessary for false light invasion of
No. 18-3216 5
privacy. For tortious interference with contractual and busi-
ness relationships, plaintiffs did not identify contracts or pro-
spective business relationships damaged by defendants’ ac-
tions. 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 dis-
trict court to clarify whether the dismissal was with or with-
out prejudice. If it was without prejudice, plaintiffs sought the
opportunity to amend the complaint to remedy the deficien-
cies. Plaintiffs did not attach a copy of an amended complaint
to the motion to clarify or indicate how an amended com-
plaint 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 ac-
tion that would “add some … additional factual allegations.”
Again, plaintiffs did not indicate what those additional fac-
tual 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 con-
spiracy, and they challenge the denial of their motion to
amend the complaint.
6 No. 18-3216
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 neces-
sary.” 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 Cen-
tral 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 Man-
hattan 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 impre-
cise, but all of these statements, together with the district
No. 18-3216 7
court’s earlier opinion granting the motion to dismiss, lead us
to the “common sense conclusion that the district court in-
tended to enter a final judgment.” Sterling National Bank, 984
F.3d at 1216 (internal quotation marks omitted). We have ju-
risdiction 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 (2007). A claim is facially plausible “when the plain-
tiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the mis-
conduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (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 unlaw-
fully.” 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-di-
versity 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 diversity
action). We first address the plaintiffs’ claims for libel per se
and then their civil conspiracy claims.
8 No. 18-3216
A. Libel Per Se
To state a claim for defamation, a “plaintiff must present
facts showing that the defendant made a false statement
about the plaintiff, the defendant made an unprivileged pub-
lication of that statement to a third party, and that this publi-
cation caused damages.” Solaia Technology, LLC v. Specialty
Publishing Co., 852 N.E.2d 825, 839 (Ill. 2006). There are five
categories of statements that are defamatory per se, where
harm or damages are presumed without specific proof. Those
are words imputing to a person: (1) commission of a crime,
(2) a “loathsome communicable disease,” (3) a person’s ina-
bility to perform or lack of integrity in performing employ-
ment duties, (4) adultery or fornication, and last, (5) that the
person lacks ability in his profession or the words otherwise
prejudice the person in his profession. Id. If a statement falls
into any one of those categories, it is considered defamatory
per se. Here, all the reviews in question fall under the fifth
category—prejudice to a person in his profession—and the
district court correctly deemed them defamatory per se.
A statement may be defamatory per se and still not be ac-
tionable if an affirmative defense applies. Illinois law has four
affirmative defenses, one of which is relevant here: the expres-
sion of an opinion. See, e.g., Solaia Technology, 852 N.E.2d at
839 (a defamatory per se statement “may enjoy constitutional
protection as expression of opinion”). Defendants assert that
all of their comments were statements of opinion that are not
actionable. We agree. 2
2 Since we agree with defendants that their comments are non-actionable
statements of opinion, we decline to decide whether any of their com-
ments are protected under the innocent-construction rule.
No. 18-3216 9
B. Statements of Opinion
The comments made by defendants are not actionable be-
cause they were statements of opinion. Whether a statement
is an opinion or assertion of fact is a question of law. Moriarty
v. Greene, 732 N.E.2d 730, 740 (Ill. App. 2000), citing Owen v.
Carr, 497 N.E.2d 1145, 1148 (Ill. 1986). To aid in this legal de-
termination, courts ask: (1) whether the statement “has a pre-
cise and readily understood meaning;” (2) whether the state-
ment is factually verifiable; and (3) whether the “literary or
social context signals that [the statement] has factual content.”
Solaia Technology, 852 N.E.2d at 840. “The test is restrictive: a
defamatory statement is constitutionally protected only if it
cannot be reasonably interpreted as stating actual fact.” Id.,citing Kolegas v. Heftel Broadcasting Corp., 607 N.E.2d 201, 208
(Ill. 1992). “[B]ut if it is plain that the speaker is expressing a
subjective view, an interpretation, a theory, conjecture, or sur-
mise, rather than claiming to be in possession of objectively
verifiable facts, the statement is not actionable.” Haynes v. Al-
fred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir. 1993), citing
Milkovich v. Lorain Journal Co., 497 U.S. 1, 17–21 (1990).
Plaintiffs Freydin and his law firm point to “terrible expe-
rience,” “awful customer service,” and “don’t waste your
money” as examples of implied statements of fact contained
in the reviews. We do not read them that way. First, the state-
ments do not have precise and readily understood specific
meanings. Granted, they are easily understood phrases in the
English language. But there are numerous reasons why some-
one may have had a “terrible experience” or suggest that a
product or service would be a “waste of money.” Without ad-
ditional details, the use of these phrases cannot be understood
to be “precise.” Cf. Hopewell v. Vitullo, 701 N.E.2d 99, 104 (Ill.
10 No. 18-3216
App. 1998) (“‘[I]ncompetent’ is an easily understood term,
[but] its broad scope renders it lacking the necessary detail for
it to have a precise and readily understood meaning.”).
Second, none of the statements can be objectively verified
as true or false. How could a third-party observer gauge
whether the commentator received awful customer service,
for instance, by just reading a one-star review that says “Ter-
rible experience. Awful customer service”? What objective in-
dicator defines whether a given customer service experience
was good or bad? Or whether a service or good was worth the
money? Cf. Sullivan v. Conway, 157 F.3d 1092, 1097 (7th Cir.
1998) (“It would be unmanageable to ask a court, in order to
determine the validity of the defendants’ defense of truth, to
determine whether ‘in fact’ Sullivan is a poor lawyer.”). This
review, like the others, stated a non-actionable opinion.
More fundamental, we must consider the particular social
context of these online reviews and what it may signal about
their contents. The defendants posted their reviews on
Freydin’s Law Office’s Facebook, Yelp, and Google pages,
which invite unfiltered comments. We trust that readers of
online reviews are skeptical about what they read, both posi-
tive and negative. But it is enough in this case that these short
reviews did not purport to provide any factual foundation
and were clearly meant to express the opinions of the defend-
ants in response to Freydin’s insults to Ukrainians generally.
Plaintiffs challenge this conclusion by arguing that the de-
fendants’ reviews falsely implied that the reviewers had actu-
ally used Freydin’s legal services. In plaintiffs’ view, leaving
a review in these internet forums implies that the reviewer
had a direct consumer relationship with the reviewee (or here,
a client-lawyer interaction). To put it differently, plaintiffs
No. 18-3216 11
argue we should determine that a defendant did not actually
receive “awful customer service” because she never received
any services at all.
This approach conflicts with how courts typically think of
libel per se claims. The point is not whether the individual
commentator had a direct consumer relationship with the
business that she reviewed. Rather, we ask if a reader could
understand whether the reviewer was expressing opinions or
facts. The comments in this case fall clearly on the side of
opinion. There may be several reasons why someone had a
bad experience with a business that have nothing to do with
a direct-consumer relationship. Here, some of the defendants
were responding to Freydin’s personal Facebook posts and
chose to express these views on his law office’s pages. Next
time it could be an opposing lawyer who chose to review
Freydin in a negative light because of a bad experience against
him in court. We do not see a reason why the comments from
defendants in this case or the hypothetical opposing lawyer
should be construed as actionable libel merely because they
did not have a direct consumer relationship with Freydin or
his firm (assuming the three opinion factors did not indicate
otherwise).
Along this line, plaintiffs contend that “hypocrite,” “chau-
vinist,” and “racist” as used here by Chamara were not state-
ments of opinion. We have explained why we view these re-
views as statements of opinion. More generally, Illinois defa-
mation law treats comments of this nature as actionable when
based on identifiable conduct but as non-actionable when
stated in general terms, without asserting specific factual sup-
port. See Solaia Technology, 852 N.E.2d at 841; Pease v. Interna-
tional Union of Operating Engineers Local 150, 567 N.E.2d 614,
12 No. 18-3216
619 (Ill. App. 1991); accord, La Liberte v. Reid, 966 F.3d 79, 93
(2d Cir. 2020) (“[A]ccusation[s] of concrete, wrongful conduct
are actionable while general statements charging a person
with being racist, unfair, or unjust are not.” (internal quota-
tion marks omitted)). “Hypocrite,” “chauvinist,” and “racist,”
as used in these reviews, fit squarely in the second category.
Accordingly, these comments, like the others discussed
above, are non-actionable statements of opinion.
Additional comments made by Chamara in her longer re-
view are closer calls but are ultimately non-actionable opinion
statements when analyzed in the correct context. As ex-
plained above, we consider the social context that these re-
views appeared in to determine whether a reader would in-
terpret the reviews as asserting opinions or facts. But the con-
text analysis is two-fold: courts must also analyze the entirety
of a review a comment appeared in to determine whether the
reviewer expressed a factual assertion or opinion. Cf. Solaia
Technology, 852 N.E.2d at 841 (analyzing the phrase “essen-
tially worthless” in the context of the full letter where it ap-
peared); Flip Side, Inc. v. Chicago Tribune Co., 564 N.E.2d 1244,
1250 (Ill. App. 1990) (“[O]ne cannot select isolated sentences
or statements out of an article or book in an attempt to create
a claim for libel. The whole article or book, just as the entire
episode in an episodic comic strip, must be viewed in order to
determine the context of any statement that is made.”). We
cannot evaluate the defamatory nature of a word or phrase
used in a review and determine whether the word or phrase
is provably false on its own without considering the entire
sentence and review in which it appeared.
An example from this case illustrates the importance of
defining the scope of analysis correctly. Chamara’s review of
No. 18-3216 13
Freydin included the line “he has no right to practice law.”
Taken out of the context of the rest of the review, one might
find this statement to be falsifiable and actually false. No one
disputes that Freydin is a licensed attorney and has a legal
right to practice law. The full context, however, leads to a dif-
ferent conclusion about the nature of this comment. Here is
the full review from Chamara:
David Freydin–is an embarrassment and a dis-
grace to the US judicial system, he has no right
to practice law. His unethical and derogatory
comments, which target one particular nation–
Ukrainians, show who he really is. He portrays
himself as someone, who cares about the inter-
ests of his clients, the majority of which happen
to be Ukrainian, but in reality, he is a complete
hypocrite, chauvinist and racist. He does not
hide his hatred and disrespect towards the
Ukrainian nation on his personal FB page. Such
an attorney–is an embarrassment to any law
firm.
In context, the statement “he has no right to practice law”
was the expression of an opinion. The lynchpin is what
“right” means in this phrase. Plaintiffs argue it refers to the
legal right to practice law, such as whether Freydin is a li-
censed attorney. But it could also easily be understood as re-
ferring to a moral right, such as whether he should be able to
practice law—a judgment about his values. Reading the re-
view as a whole, the “no right to practice law” comment
should not be interpreted as a reference to Freydin’s legal sta-
tus as a member of the bar. The attack is on his values and
opinions. The comment is best understood as an expression
14 No. 18-3216
of Chamara’s opinions about Freydin’s values and opinions,
not as a claim that he was practicing law without a license.
She plainly was not “claiming to be in possession of objec-
tively verifiable facts” regarding his licensure status. As
Chamara wrote before and after the “no right” phrase, she be-
lieved Freydin was “an embarrassment and a disgrace to the
US judicial system,” and a “complete hypocrite, chauvinist
and racist.” This language signals that she was expressing a
protected opinion about Freydin’s values and moral right to
practice law, not his legal right. The comment was a non-ac-
tionable opinion statement protected by the First Amend-
ment.
Plaintiffs make a similar argument for Chamara’s use of
“unethical.” They argue that “‘unethical’ carries a precise and
understandable meaning which would subject the attorney to
the discipline” of the Illinois Attorney Registration and Disci-
plinary Commission. That assertion overlooks the fact that
“unethical” modified “comments” in the sentence:
“[Freydin’s] unethical and derogatory comments, which target
one particular nation–Ukrainians, show who he really is.” It
strains logic to read “unethical” in this context as referring to
whether Freydin was complying with the Rules of Profes-
sional Conduct enforced by Illinois bar authorities. Addition-
ally, even if “unethical” was not in reference to Freydin’s com-
ments, “unethical” is surely meant in the ordinary context
and as synonymous with immoral, nefarious, villainous, or
vile. See Unethical, Merriam-Webster Online,
https://www.merriam-webster.com/dictionary/unethical (last
visited Jan. 26, 2022). In any event, the use of “unethical” here
was a non-actionable expression of an opinion for the reasons
discussed. Cf. Gardner v. Senior Living Systems, Inc., 731 N.E.2d
350, 355 (Ill. App. 2000) (“Merely calling plaintiff ‘unethical’
No. 18-3216 15
here [cannot] be reasonably interpreted as stating actual veri-
fiable facts and therefore falls under a constitutionally pro-
tected opinion.”).
Plaintiffs also contend that a one-star review is, by itself,
defamatory. This would mean the one-star reviews by de-
fendant Romenets and the unidentified John Does that con-
tained only the review and no additional commentary
amounted to defamation per se. We do not see how a one-star
review conveys any objective fact that could be false or true.
A person’s rating reflects her own preferences, and prefer-
ences differ for many reasons. We assume that one-star rat-
ings can cause substantial harm to a business. The power of a
review does not change the fact, however, that there is no
measuring tool to gauge the reliability of a one-star rating or
a five-star rating. As we understand Illinois law on expres-
sions of opinion, an unexplained one-star review simply
could not be actionable as defamatory. Cf. Kimzey v. Yelp! Inc.,
836 F.3d 1263, 1269–70 (9th Cir. 2016) (“Even were we con-
vinced that a one-star rating could be understood as defama-
tory—a premise we do not embrace ….”); Aviation Charter, Inc.
v. Aviation Research Group/US, 416 F.3d 864, 870–71 (8th Cir.
2005) (concluding that ratings are non-actionable opinion
statements), abrogated on other grounds by Syngenta Seeds,
Inc. v. Bunge North America, Inc., 773 F.3d 58 (8th Cir. 2014).
Plaintiffs failed to state viable claims for relief under a theory
of libel per se, and the district court properly dismissed this
count of the complaint.
C. Civil Conspiracy Claims
Plaintiffs also appeal the district court’s dismissal of their
civil conspiracy claims. Civil conspiracy “is not an independ-
ent tort.” Indeck North American Power Fund, L.P. v. Norweb
16 No. 18-3216
PLC, 735 N.E.2d 649, 662 (Ill. App. 2000). When “a plaintiff
fails to state an independent cause of action underlying its
conspiracy allegations, the claim for a conspiracy also fails.”
Id. Since plaintiffs failed to state an independent cause of ac-
tion underlying the alleged conspiracy, their civil conspiracy
claims cannot stand on their own. We affirm the district
court’s dismissal of these claims.
IV. Denial of Leave to Amend
The district court also did not err in denying plaintiffs’ re-
quest to amend their complaint after granting defendants’
motion to dismiss. We review the denial of a motion to amend
for an abuse of discretion. E.g., Runnion ex rel. Runnion v. Girl
Scouts of Greater Chicago & Northwest Indiana, 786 F.3d 510, 524
(7th Cir. 2015). “The general rule is to freely permit plaintiffs
to amend their complaint ‘once as a matter of course.’”Arlin-
Golf, LLC v. Village of Arlington Heights, 631 F.3d 818, 823 (7th
Cir. 2011), quoting Fed. R. Civ. P. 15(a); see also Runnion, 786
F.3d at 518; Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1024
(7th Cir. 2013). The need for the generally “liberal amendment
standard remains in the face of uncertain pleading standards
after Twombly and Iqbal.” Runnion, 786 F.3d at 523.
This general rule has its limits. District courts “may deny
leave to amend … where there is a good reason to do so,” such
as “futility, undue delay, prejudice, or bad faith.” R3 Compo-
sites Corp. v. G&S Sales Corp., 960 F.3d 935, 946 (7th Cir. 2020)
(internal quotation marks omitted). This discretion has its lim-
its, too. An “‘outright refusal to grant the leave without any
justifying reason appearing for the denial,’” for example, “‘is
not an exercise of discretion; it is merely abuse of that discre-
tion and inconsistent with the spirit of the Federal Rules [of
Civil Procedure].’” O’Brien v. Village of Lincolnshire, 955 F.3d
No. 18-3216 17
616, 629 (7th Cir. 2020), quoting Foman v. Davis, 371 U.S. 178,
182 (1962).
When evaluating a decision not to permit an amended
pleading, the analysis is not focused on only the district
court’s actions. We also consider whether the denial of leave
to amend caused prejudice to the appellant. Showing preju-
dice ordinarily requires a party to show how she would have
amended her pleading. And we expect that showing to be
made at an early opportunity—in the district court, unless the
court closed that door, and certainly no later than in an open-
ing brief to this court. E.g., Webb v. Frawley, 906 F.3d 569, 582–
83 (7th Cir. 2018) (losing plaintiff was “not entitled to leave to
amend at this stage” after he failed to request leave to amend
his complaint until it was too late). Failing to include an
amended pleading, for example, “‘may indicate a lack of dili-
gence and good faith.’” Arlin-Golf, 631 F.3d at 823, quoting
Otto v. Variable Annuity Life Insurance Co., 814 F.2d 1127, 1139
(7th Cir. 1986). Delay also makes it difficult to “meaningfully
assess whether [the plaintiff’s] proposed amendment would
have cured the deficiencies in the original pleading.”
Crestview Village Apartments v. U.S. Dep’t of Housing & Urban
Development, 383 F.3d 552, 558 (7th Cir. 2004); see also James
Cape & Sons Co. v. PCC Construction Co., 453 F.3d 396, 401 (7th
Cir. 2006) (“District judges are not mind readers…. Even as-
suming that [plaintiff] properly moved to amend, the district
court did not abuse its discretion in dismissing with preju-
dice, since it had no way of knowing what the proposed
amendment entailed.”).
Plaintiffs here never showed the district court how they
thought they could amend their complaint to cure its deficien-
cies. Even in this court, plaintiffs also did not indicate in their
18 No. 18-3216
opening brief what they would have alleged in an amended
complaint. Not until their reply brief did plaintiffs provide
any concrete information. The reply brief on appeal is too late
in the process to gain the benefit of the general permissive rule
allowing one amended complaint as a matter of course. Con-
sidering this fact, any failure to provide adequate reasoning
on the part of the district court did not amount to reversible
error. E.g., Pension Trust Fund for Operating Engineers v. Kohl's
Corp., 895 F.3d 933, 942 (7th Cir. 2018) (though there were
“problems with the district court’s decision” denying plain-
tiffs’ motion to amend, the court did not commit reversible
error when plaintiffs failed to show what they would have in-
cluded in their amended complaint in the district court or on
appeal).
The judgment of the district court is AFFIRMED.