Kelly v. Plaid Moose Inc., The

Background

Stephen P. Kelly sued Plaid Moose Inc., The, over what he described as unauthorized leasing activity and the disclosure of his personal phone number. He alleged that a Plaid Moose employee, Tonya, gave him a leasing application for the Southgate apartment complex, persisted after he initially said he was not interested, and provided his phone number to Southgate without his consent. Kelly also alleged religious discrimination, harassment, unlawful intimidation, and emotional hardship, but the court noted that those allegations concerned conduct by Southgate, which was not a party to this case.

Kelly had applied to proceed without paying filing fees. The court previously dismissed his complaint without prejudice for failing to state a claim on which relief could be granted and denied his initial fee application as moot. Kelly then filed a notice of appeal and applied to proceed without paying the appeal fee. He also filed a motion seeking to redact certain claims or amend his complaint.

Issues Kelly Proposed to Raise on Appeal

Kelly identified three proposed issues: whether the court improperly evaluated the complaint before granting his fee application; whether the court contradicted itself when describing the standard for reviewing complaints filed without a lawyer; and whether the court should have allowed him to amend instead of dismissing the complaint.

Court’s Analysis

Under 28 U.S.C. § 1915, a person who cannot afford an appeal fee may seek permission to proceed without paying it. Even if the person is unable to pay, the court must deny that status if the appeal is not taken in good faith. The court explained that good faith is judged objectively and that an appeal is not taken in good faith when its legal arguments are frivolous, meaning that no legal point is reasonably arguable on its merits.

The court rejected Kelly’s argument that it had to grant his fee application before reviewing the substance of his complaint. It read the statute as requiring dismissal when a complaint fails to state a claim, without requiring the court to grant fee status first. The court also said that taking factual allegations as true and declining to invent legal claims are different steps in reviewing a complaint filed without a lawyer. It found that the complaint did not explain how Plaid Moose or Tonya violated Minnesota law by offering or urging Kelly to accept a leasing application. It further stated that even assuming Tonya disclosed Kelly’s phone number without consent, the alleged disclosure did not meet the required level of publicity for the privacy claim discussed in the opinion.

The court separately ruled that it lacked authority to decide Kelly’s motion to amend because he filed a notice of appeal before the court ruled on that motion. Filing the notice transferred authority over matters involved in the appeal away from the district court. The court also concluded that Kelly’s challenge to the earlier dismissal did not present a good-faith appellate issue because it disagreed only with the legally supported procedure the court had used.

Disposition

The court DENIED Kelly’s Application to Proceed In Forma Pauperis on Appeal. The court did not decide his motion to amend because it no longer had jurisdiction to consider it while the appeal was pending. The court emphasized that the earlier complaint had been dismissed without prejudice, meaning Kelly could correct its deficiencies and refile it without permission from the district court or the Court of Appeals.