Fiorito v. Brothers Bar and Grill
- Eric Tostrud
- 0:24-cv-03883
- U.S. District Court · District of Minnesota
- 3
In Fiorito v. Brothers Bar and Grill, Judge Foster denied fee-waiver status and required payment and legal counsel within 60 days.
Michael Fiorito must pay the $405 filing fee within 60 days. The Rochester Chapter of The National Federation of The Blind must obtain representation by a licensed attorney within 60 days or may be dismissed without prejudice.
What happened
In Fiorito v. Brothers Bar and Grill, Michael Fiorito sued on his own behalf, for the Rochester Chapter of The National Federation of The Blind, and for a proposed class of blind people who tried to use Brothers Bar and Grill’s website. He asked to proceed without paying the filing fee.
The court denied that request. It explained that organizations cannot receive this fee waiver and that every plaintiff in a case must qualify. The court also said Fiorito’s financial eligibility was a close question because he had liquid assets and had recently earned enough income to pay the fee.
Judge Dulce J. Foster ordered the $405 filing fee paid within 60 days. The court also required a licensed attorney to appear for the Rochester Chapter within 60 days; otherwise, the court said the case or the organization’s claims may be dismissed without prejudice for failure to prosecute.
The detailed version
- Fiorito v. Brothers Bar and Grill · No. 0:24-cv-03883
- Eric Tostrud
- Oct. 24, 2024
Background
Michael Fiorito filed this action for himself, for the Rochester Chapter of The National Federation of The Blind, and for a proposed class of blind individuals who had attempted to use Brothers Bar and Grill’s website. The defendants are Brothers Bar and Grill, also known as Smoot Family Ventures LLC, and an unknown insurance company that insures the premises.
Fiorito did not pay the filing fee and applied to proceed in forma pauperis, meaning without paying the filing fee because of inability to afford it. The court said it was a close question whether Fiorito personally qualified. He acknowledged having enough liquid assets to pay the fee, had recently earned enough employment income that paying the fee would not ordinarily be an undue hardship, and was waiting for a potential employer to finalize an offer when he filed the case.
Court’s analysis
The court identified a more fundamental problem: the complaint named the Rochester Chapter as a plaintiff, with Fiorito purportedly representing it. The court explained that only natural persons—not organizations—may proceed without paying the filing fee. Because the Rochester Chapter could not receive that status, Fiorito could not receive it in this case either. The court cited the rule that when multiple plaintiffs seek to proceed without paying the fee, each plaintiff must qualify.
The court also stated that Fiorito is not a licensed attorney and therefore cannot prosecute the Rochester Chapter’s claims on the organization’s behalf. The organization must be represented by a licensed attorney authorized to practice in the District of Minnesota.
Order and effect
The court denied Fiorito’s application to proceed without paying the filing fee. It ordered that the $405 filing fee be paid within 60 days of the order. If the fee is not paid, the matter may be dismissed without prejudice for failure to prosecute, meaning dismissal would not bar refiling on that ground.
The court separately ordered that a licensed attorney authorized to practice in the district enter a notice of appearance for the Rochester Chapter within 60 days. If no attorney appears, the Rochester Chapter may be dismissed without prejudice for failure to prosecute. The Clerk of Court was directed to send the order to the National Federation of the Blind of Minnesota.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.