American Dairy Queen Corporation v. Blume et al

Filing 260

ORDER denying 258 Application on Proceed In Forma Pauperis on Appeal. (Written Opinion). Signed by Judge Richard H. Kyle on 11/20/12. (kll)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

American Dairy Queen Corporation,
Plaintiff,

Civil No. 11-358 (RHK/TNL)
ORDER

v.
Guy A. Blume, Blume Investments, LLC, and
Royal Professional Solutions, LLC,
Defendants.

This matter is before the Court on the application of Defendant Guy A. Blume for leave to
proceed in forma pauperis (“IFP”) on appeal. (Doc. No. 258.) For the reasons discussed below,
Defendant’s IFP application will be DENIED.
A litigant who seeks to be excused from paying the $455 filing fee for an appeal in a federal
court case may apply for IFP status under 28 U.S.C. § 1915. To qualify for IFP status, the litigant
must demonstrate that he or she is indigent and cannot pay the full filing fee. 28 U.S.C.
§ 1915(a)(1); Fed. R. App. P. 24(a)(1). Even if a litigant is found to be indigent, IFP status will be
denied if the Court finds that the litigant’s appeal is not taken “in good faith.” 28 U.S.C.
§ 1915(a)(3); Fed. R. App. P. 24(a)(3). An appeal is frivolous, and not taken in good faith, “where
it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
In this case, it appears that Defendant may be financially eligible for IFP status, but the Court
finds that his appeal is not taken in good faith. The appeal is not taken in good faith, because the
order that Defendant is seeking to have reviewed on appeal is not an appealable order.
Defendant is seeking appellate review of an interlocutory order entered by a magistrate
judge, which required him to pay a sanction for violating Rule 11 of the Federal Rules of Civil
Procedure. Defendant was required to pay $1,000.00 to the Clerk of Court as a sanction for

repeatedly making statements to the Court that lacked any credible evidentiary support. (See Order
dated October 19, 2012, [Doc. No. 236].)
An order entered by a magistrate judge is not appealable to the Eighth Circuit Court of
Appeals, unless the parties have consented to have the case heard and decided by a magistrate judge,
rather than a district court judge. LeGear v. Thalacker, 46 F.3d 36, 36–37 (8th Cir.1995) (per
curiam) (dismissing appeal from magistrate judge’s order, for lack of jurisdiction). See also Baccam
v. Ferguson, 427 F. App’x 542, 543 (8th Cir. 2011) (unpublished opinion) (“[b]ecause the parties did
not consent to the jurisdiction of the magistrate judge... [appellant] is required to seek review of the
order in the district court before this court has jurisdiction over an appeal”) (citations omitted);
Kenney v. Swift Transp., Inc., 159 F. App’x 747, 748 (8th Cir. 2012) (unpublished opinion) (absent
consent of the parties, a magistrate judge lacks authority to enter an order that is reviewable in the
Court of Appeals).
Here, the parties have not consented to have the case heard and decided by a magistrate judge
pursuant to 28 U.S.C. § 636(c). Therefore, the order that Defendant is seeking to have reviewed in
the Eighth Circuit Court of Appeals – i.e., the order requiring Defendant to pay Rule 11 sanctions
to the Clerk of Court – is not an appealable order.1 Because Defendant is attempting to appeal a
non-appealable order, his appeal will have to be summarily dismissed for lack of jurisdiction.

2

If Defendant wanted to seek further review of the Magistrate Judge’s sanctions order, he
was required to file written objections asking this Court to review the order. Local Rule 72.2(a).
Any such objections had to be filed within fourteen days after service of the sanctions order. Id.
Because Defendant did not file any such objections in a timely manner, he has now forfeited the
opportunity to seek any further review of the Magistrate Judge’s sanctions order. Id. (“[w]ithin 14
days after being served with a copy of the Magistrate Judge’s order, unless a different time is
prescribed by the Magistrate Judge or a District Judge, a party may file and serve objections to the
order; a party may not thereafter assign as error a defect in the Magistrate Judge’s order to which
objection was not timely made”) (emphasis added).
2

For the reasons cited above, the Court finds that Defendant has no arguable grounds for
taking an appeal at this time, and his current appeal is not taken “in good faith” for purposes of 28
U.S.C. § 1915(a)(3) and Fed. R. App. 24(a)(3). Defendant’s pending application to proceed IFP on
appeal will therefore be denied.
Based upon the foregoing, and all of the files, records and proceedings herein,
IT IS HEREBY ORDERED that Defendant’s application to proceed in forma pauperis on
appeal (Doc. No. 258) is DENIED.

Dated: November 20, 2012
s/Richard H. Kyle
RICHARD H. KYLE
United States District Judge

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