Roy A. Day on behalf of himself and as class action on behalf of others similarly situated, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0611

Roy A. Day on behalf of himself and
as class action on behalf of others similarly situated,
Appellant,

vs.

Target Corporation,
Respondent,

Brian C. Cornell,
Respondent,

Jane Doe,
Respondent,

Starbucks Corporation,
Respondent.

Filed December 24, 2018
Affirmed
Cleary, Chief Judge

Hennepin County District Court
File No. 27-CV-18-5152

Roy A. Day, Tarpon Springs, Florida (pro se appellant)

Target Corporation, Minneapolis, Minnesota (respondent)

Starbucks Corporation, Seattle, Washington (respondent)

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Considered and decided by Cleary, Chief Judge; Bjorkman, Judge ; and Rodenberg,
Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
Roy A. Day appeals the district court’s order denying his in f orma pauperis petition.
The district court did not abuse its discretion in finding the action to be frivolous, and for
that reason we affirm.
FACTS
In his complaint, appellant Roy A. Day alleges the following. Appellant attempted
to deposit five dollars in his Starbucks account at a Starbucks located inside a Target store.
However, when he checked his receipt the next day, he discovered that only one dollar had
been deposited. Appellant believed this to be part of a larger scheme orchestrated by Target
and Starbucks to enable cashiers to steal from consumers. The purported scheme was
relatively simple: when a consumer attempted to deposit five dollars to their account, the
cashier only credited the accoun t one dollar and pocketed the r est. However, appellant
believed, the cashier was only ca pable of carrying out the thef t because Starbucks’s
computer system has a five-dollar minimum per deposit but Targe t’s has a one-dollar
minimum.
Appellant sought to proceed in a class action against Target and Starbucks, arguing
three theories for recovery: fraud, negligence, and intentiona l infliction of emotional
distress. He also filed a petition to proceed in forma pauperi s. The district court denied
appellant’s in forma pauperis pe tition, finding that the action was frivolous. Appellant’s

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case was then closed—presumably without prejudice—for failure to pay the filing fee.1 In
response, appellant filed a motion to disqualify the referee and to vacate the district court’s
order. In the alternative, appellant requested in forma pauper is status for his appeal. The
district court granted this las t request, and appellant now app eals the denial of his first in
forma pauperis petition.
D E C I S I O N
A district court shall allow a litigant to proceed in forma pauperis if it finds that the
person meets financial eligibility requirements and the action is not frivolous. Minn. Stat.
§ 563.01, subd. 3 (2018). A claim is frivolous if it is withou t any reasonable basis in law
or equity and cannot be supported by a good-faith argument for the modification of existing
law. Maddox v. Dep’t of Human Services, 400 N.W.2d 136, 139 (Minn. App. 1987). The
district court has broad discretio n in determining whether an a ction is frivolous, and the
decision will be affirmed absent an abuse of discretion. Id.
Appellant argues that his action is not frivolous because he has sufficiently pleaded
claims for fraud, intentional infliction of emotional distress, a n d n e g l i g e n c e . T o b e
sufficient, pleadings must contain a short and plain statement of each claim showing that
appellant is entitled to relief. Minn. R. Civ. P. 8.01. The court addresses each of appellant’s
theories in turn.

1 Our view of the record is that it remains available to appella nt to file his complaint with
a filing fee or, alternatively, to amend his complaint to properly plead a cause of action and
again petition to proceed in forma pauperis.

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A claim of fraud must be pleaded with specificity that there wa s (1) a false
representation of a past or existing material fact susceptible of knowledge, (2) made with
knowledge of the falsity of the representation or made without knowing whether it was true
or false, (3) with the intention to induce action in reliance o n the representation, (4) the
claimant relied upon the representation, (5) damages, and (6) t he representation was the
proximate cause of the damages. Martens v. Minn. Mining & Mfg. Co., 616 N.W.2d 732,
747 (Minn. 2000). Even generously construed, appellant’s claim of fraud fails. Appellant
has failed to plead with specificity that there was a false statement, he relied upon that false
statement, and his reliance resulted in the loss of his money.
Appellant has also failed to sufficiently plead a claim for int entional infliction of
emotional distress. Intentional infliction of emotional distress has four elements: conduct
that is extreme and outrageous, the conduct must be intentional or reckless, it must cause
emotional distress, and the distress must be severe. Langeslag v. KYMN, Inc., 664 N.W.2d
860, 864 (Minn. 2003). Extreme and outrageous conduct is “so atrocious that it passes the
boundaries of decency and is utte rly intolerable to the civiliz ed community.” Id. at 865.
Although appellant may conclude that the alleged theft of his f our dollars is outrageous,
such an occurrence is not utterl y intolerable to the civilized community. See id.
(“Liability . . . does not extend to insults, indignities, thre ats, annoyances, petty
oppressions, or other trivialities.”) (quotation omitted).
Finally, appellant has failed to properly plead a cause of acti on for negligence. It
appears that he is attempting to m ake a claim for negligent hir ing, negligent training, or
negligent supervision. But Minne sota does not recognize a clai m for negligent training.

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Johnson v. Peterson , 734 N.W.2d 275, 277 (Minn. App. 2007). Furthermore, both
negligent supervision and negligent hiring claims must allege physical harm and appellant
only claims economic and emotional damages. Id. at 277-78 (“[E]motional distress is not
a physical injury.”).
In sum, appellant has failed to plead a cause of action. Accor dingly, the district
court did not abuse its discretion in finding the action frivolous and in denying the petition
to proceed in forma pauperis.
Appellant further asserts that the referee of the district court should be disqualified
because she has conspired with opposing counsel, placed herself in the position of counsel,
and “has a mental attitude of denying the law, facts, and evidence exist when they pertain
to a [pro se litigant].” A judicial officer is disqualified du e to an appearance of partiality
if a reasonable person would question the officer’s impartialit y after reviewing the facts
and circumstances. State v. Finch , 865 N.W.2d 696, 703 (Minn. 2015). Appellant’s
accusations are based solely on the denial of his motion. Because “adverse rulings are not
a basis for imputing bias to a judge,” appellant’s argument fai ls. Ag Servs. of Am., Inc. v.
Schroeder, 693 N.W.2d 227, 236-37 (Minn. App. 2005).
The rest of appellant’s arguments are unavailing. Appellant argues that Minnesota
has established a “two tier system of justice” and that it is “ self-evident” that he is being
denied due process and equal protection. He believes that he is being harassed and forced
to use “piecemeal litigation” sol ely to increase litigations co sts. And finally, appellant
asserts that the district court’s order is “‘vague, ambiguous[,] and overly broad,’ and with
no specificity.” These assertions are not supported by the record. Nor are they supported

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by argument or citation to legal authority. Accordingly, the a ssertions will not be
considered. State v. Bartylla, 755 N.W.2d 8, 22 (Minn. 2008) (Appellate courts “will not
consider pro se claims on appeal that are unsupported by either arguments or citations to
legal authority.”).
Affirmed.