Fiorito v. Brothers Bar and Grill

                 UNITED STATES DISTRICT COURT                           
                    DISTRICT OF MINNESOTA                               

Michael Fiorito, for himself and on behalf of                           
the Rochester Chapter of The National                                   

Federation of The Blind, individually and on                            
behalf of all other persons similarly situated,  Case No. 24-CV-3883 (ECT/DJF) 

              Plaintiffs,                                               

v.                                          ORDER                       

Brothers Bar and Grill, also known as Smoot                             
Family Ventures LLC; and Unknown                                        
Insurance Company that insures the premises,                            

              Defendants.                                               


   Plaintiff Michael Fiorito brings this action on his own behalf, on behalf of the Rochester 
Chapter of The National Federation of The Blind, and on behalf of a prospective class of blind 
individuals who have attempted to use the website of defendant Brothers Bar and Grill.  Mr. Fiorito 
did not pay the filing fee for this matter, instead applying for in forma pauperis (“IFP”) status.  
That IFP application is before the Court for review.                      
   It is a close call whether Mr. Fiorito himself qualifies for IFP status.  He admits he has 
sufficient liquid assets to pay the filing fee.  (See ECF No. 2 at 3.)  Until very recently, Mr. Fiorito 
earned sufficient employment income that payment of the filing fee would not be expected to be 
an undue hardship.  (Id. at 2.)  And though Mr. Fiorito was unemployed when he filed this action, 
he was at that time “[w]aiting for [a] potential employer to finalize” an offer of employment.  (Id. 
at 8.)                                                                    
   But  there  is  a  more  fundamental  problem  with  Mr.  Fiorito’s  IFP  application.    The 
Complaint does not name only Mr. Fiorito himself as a defendant, but also the Rochester Chapter 
of The National Federation of The Blind (with Mr. Fiorito as the purported representative of that 
group).  Only natural persons may proceed IFP in federal court.  See Rowland v. California Men’s 
Colony, Unit II Men’s Advisory Council, 

 (1993).  Accordingly, the Rochester 
Chapter of The National Federation of The Blind cannot be granted IFP status.  And if that 

organization cannot be granted IFP status, then neither can Mr. Fiorito, because “if multiple 
plaintiffs seek to proceed in forma pauperis, each plaintiff must qualify for IFP status.”  Anderson 
v. California, No. 10-CV-2216 MMA (AJB), 

, at *1 (S.D. Cal. Oct. 27, 2010). 
   Accordingly, Mr. Fiorito’s IFP application is denied.  The filing fee for this matter must be 
paid within 60 days of the date of this order, failing which this matter may be dismissed without 
prejudice for failure to prosecute.  See Fed. R. Civ. P. 41(b).           
   Finally, the Rochester Chapter of The National Federation of The Blind must be made 
aware that it cannot use Mr. Fiorito—who is not a licensed attorney—to prosecute its claims in 
this lawsuit.  Accordingly, the Clerk of Court will be directed to provide a copy of this Order to 
the National Federation of the Blind of Minnesota1 so that the organization is aware that it must 

be represented by an attorney in order to prosecute claims in this action.  The Court will allow the 
Rochester Chapter of The National Federation of The Blind 60 days in which to retain an attorney 
licensed and authorized to practice in this District.  If no such attorney enters a notice of appearance 
on behalf of the organization within 60 days, then the Rochester Chapter of The National 
Federation of The Blind may be dismissed without prejudice from this action for failure to 
prosecute.                                                                



   1 This Court has been unable to procure a mailing address for the Rochester Chapter of the 
organization.                                                             

   Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS 
HEREBY ORDERED THAT:                                                      
   1.   The application to proceed in forma pauperis of plaintiff Michael Fiorito (ECF No. 

        2) is DENIED.                                                   
   2.   The $405.00 filing fee for this matter must be paid within 60 days of the date of 
        this Order, failing which this matter may be dismissed without prejudice for failure 
        to prosecute.                                                   
   3.   A licensed attorney who is authorized to practice law in this District must enter a 
        notice of appearance on behalf of plaintiff Rochester Chapter of The National 
        Federation of The Blind within 60 days of the date of this order, failing which the 
        Rochester Chapter of The National Federation of The Blind may be dismissed from 
        this action for failure to prosecute.                           
   4.   The Clerk of Court is directed to send a copy of this Order to the following: 

               National Federation of the Blind of Minnesota            
                  2801 Hennepin Avenue South #126                       
                      Minneapolis, MN 55408                             



Dated: October 24, 2024         s/ Dulce J. Foster                      
                                Dulce J. Foster                         
                                United States Magistrate Judge          

                 UNITED STATES DISTRICT COURT                           
                    DISTRICT OF MINNESOTA                               

Michael Fiorito, for himself and on behalf of                           
the Rochester Chapter of The National                                   

Federation of The Blind, individually and on                            
behalf of all other persons similarly situated,  Case No. 24-CV-3883 (ECT/DJF) 

              Plaintiffs,                                               

v.                                          ORDER                       

Brothers Bar and Grill, also known as Smoot                             
Family Ventures LLC; and Unknown                                        
Insurance Company that insures the premises,                            

              Defendants.                                               


   Plaintiff Michael Fiorito brings this action on his own behalf, on behalf of the Rochester 
Chapter of The National Federation of The Blind, and on behalf of a prospective class of blind 
individuals who have attempted to use the website of defendant Brothers Bar and Grill.  Mr. Fiorito 
did not pay the filing fee for this matter, instead applying for in forma pauperis (“IFP”) status.  
That IFP application is before the Court for review.                      
   It is a close call whether Mr. Fiorito himself qualifies for IFP status.  He admits he has 
sufficient liquid assets to pay the filing fee.  (See ECF No. 2 at 3.)  Until very recently, Mr. Fiorito 
earned sufficient employment income that payment of the filing fee would not be expected to be 
an undue hardship.  (Id. at 2.)  And though Mr. Fiorito was unemployed when he filed this action, 
he was at that time “[w]aiting for [a] potential employer to finalize” an offer of employment.  (Id. 
at 8.)                                                                    
   But  there  is  a  more  fundamental  problem  with  Mr.  Fiorito’s  IFP  application.    The 
Complaint does not name only Mr. Fiorito himself as a defendant, but also the Rochester Chapter 
of The National Federation of The Blind (with Mr. Fiorito as the purported representative of that 
group).  Only natural persons may proceed IFP in federal court.  See Rowland v. California Men’s 
Colony, Unit II Men’s Advisory Council, 

 (1993).  Accordingly, the Rochester 
Chapter of The National Federation of The Blind cannot be granted IFP status.  And if that 

organization cannot be granted IFP status, then neither can Mr. Fiorito, because “if multiple 
plaintiffs seek to proceed in forma pauperis, each plaintiff must qualify for IFP status.”  Anderson 
v. California, No. 10-CV-2216 MMA (AJB), 

, at *1 (S.D. Cal. Oct. 27, 2010). 
   Accordingly, Mr. Fiorito’s IFP application is denied.  The filing fee for this matter must be 
paid within 60 days of the date of this order, failing which this matter may be dismissed without 
prejudice for failure to prosecute.  See Fed. R. Civ. P. 41(b).           
   Finally, the Rochester Chapter of The National Federation of The Blind must be made 
aware that it cannot use Mr. Fiorito—who is not a licensed attorney—to prosecute its claims in 
this lawsuit.  Accordingly, the Clerk of Court will be directed to provide a copy of this Order to 
the National Federation of the Blind of Minnesota1 so that the organization is aware that it must 

be represented by an attorney in order to prosecute claims in this action.  The Court will allow the 
Rochester Chapter of The National Federation of The Blind 60 days in which to retain an attorney 
licensed and authorized to practice in this District.  If no such attorney enters a notice of appearance 
on behalf of the organization within 60 days, then the Rochester Chapter of The National 
Federation of The Blind may be dismissed without prejudice from this action for failure to 
prosecute.                                                                



   1 This Court has been unable to procure a mailing address for the Rochester Chapter of the 
organization.                                                             

   Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS 
HEREBY ORDERED THAT:                                                      
   1.   The application to proceed in forma pauperis of plaintiff Michael Fiorito (ECF No. 

        2) is DENIED.                                                   
   2.   The $405.00 filing fee for this matter must be paid within 60 days of the date of 
        this Order, failing which this matter may be dismissed without prejudice for failure 
        to prosecute.                                                   
   3.   A licensed attorney who is authorized to practice law in this District must enter a 
        notice of appearance on behalf of plaintiff Rochester Chapter of The National 
        Federation of The Blind within 60 days of the date of this order, failing which the 
        Rochester Chapter of The National Federation of The Blind may be dismissed from 
        this action for failure to prosecute.                           
   4.   The Clerk of Court is directed to send a copy of this Order to the following: 

               National Federation of the Blind of Minnesota            
                  2801 Hennepin Avenue South #126                       
                      Minneapolis, MN 55408                             



Dated: October 24, 2024         s/ Dulce J. Foster                      
                                Dulce J. Foster                         
                                United States Magistrate Judge