Roman v. Tyco Simplex Grinnell

Filing 12

ORDER: Plaintiff Gilbert Roman's Amended Complaint (Doc. # 10 ) is dismissed. Roman may file a second amended complaint that provides the information described in this Order by February 17, 2017. Failure to do so will result in dismissal of this action without further notice. Signed by Judge Virginia M. Hernandez Covington on 1/18/2017. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
GILBERT ROMAN,
Plaintiff,
v.

Case No. 8:16-cv-3449-T-33AEP

TYCO SIMPLEX GRINNELL,
Defendant.
______________________________/
ORDER
This matter comes before the Court upon sua sponte review
of pro se Plaintiff Gilbert Roman’s Amended Complaint, filed
on January 17, 2017. (Doc. # 10). For the reasons that follow,
the Court dismisses the Amended Complaint and grants Roman
leave to file a second amended complaint by February 17, 2017.
I.

Background
Roman initiated this action on December 19, 2016. (Doc.

# 1). In the original Complaint, Roman stated in full:
While working for Tyco Simplex Grinnell, I was
harassed, eggs, mucus, Grease or tar thrown on
company van. Placed in unfair and unsafe work
Conditions. Causing me high blood pressure. All
because an oral Contract was breached.
I seek 7 million dollars in compensation
punitive damages For the wrong done to me.

1

and

(Id. at 1). Although the Complaint stated that he was harassed
because an oral contract was breached, the attached affidavit
asserted that Roman was also entitled to relief under Title
VII of the Civil Rights Act of 1964, the Occupational Health
and Safety Act (OSHA) of 1970, and a number of Supreme Court
cases. (Doc. # 1-2). The Court dismissed the Complaint on
January 3, 2017, and granted Roman leave to file an amended
complaint that clearly states its claims and establishes the
Court’s jurisdiction over the case. (Doc. # 7).
On January 17, 2017, Roman filed an Amended Complaint
and affidavit. (Doc. ## 10-11). Based on the allegations of
the Amended Complaint and affidavit, it appears that Roman is
attempting to assert only a breach of oral contract claim
against his former employer, Tyco, for failing to assign Roman
to higher-paying assignments as a fire alarm inspector, which
he was promised when he accepted the job. Roman alleges that
Tyco’s refusal to give him higher-paying assignments led to
the failure of Roman’s other business — a tow truck company.
(Doc. # 10 at 1). Additionally, Roman alleges that supervisors
at Tyco placed him in unsafe working conditions despite
Roman’s development of bone spurs. (Id. at 2). According to
Roman, his supervisors harassed and retaliated against him
because he requested higher-paying assignments. (Id.).
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II.

Analysis
The Court construes pro se pleadings liberally and holds

them to a less stringent standard than those drafted by
attorneys. Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir.
2003). But, “a pro se litigant is still required to conform
to procedural rules, and a district judge is not required to
rewrite a deficient pleading.” McFarlin v. Douglas Cty., 587
F. App’x 593, 595 (11th Cir. 2014). A district judge may sua
sponte dismiss a complaint for failure to comply with the
federal rules.

Id. (citations omitted). Likewise, “[t]he

district judge also has the inherent authority sua sponte to
require the plaintiff to file a more definite statement.” Id.
(citing Fikes v. City of Daphne, 79 F.3d 1079, 1083 n.6 (11th
Cir. 1996)).
Pursuant to Rule 8(a), Fed. R. Civ. P., a pleading that
states a claim must contain, among other things, “a short
plain statement of the claim showing that the pleader is
entitled to relief.”

Additionally, Rule 10(b) provides that

“[a] party must state its claims or defenses in numbered
paragraphs, each limited as far as practicable to a single
set

of

circumstances.”

Fed.

R.

Civ.

P.

10(b).

Taken

together, these rules “require the pleader to present his

3

claims discretely and succinctly . . . .” Fikes, 79 F.3d at
1082 (citation omitted).
Although it is an improvement, the Amended Complaint
still contravenes Rules 8(a) and 10(b). In his second amended
complaint,
separate

Roman

should

numbered

separate

paragraphs,

his

rather

allegations

than

including

into
all

allegations in one multi-page paragraph with numbered lines.
It appears that Roman is attempting to bring a single claim
for breach of contract but the allegations supporting that
claim are not laid out clearly. If Roman wishes to bring a
breach

of

contract

claim,

Roman

must

plead

clearly

the

existence of a valid contract, a material breach of that
contract, and damages resulting from the breach. Beck v.
Lazard Freres & Co., LLC, 175 F.3d 913, 914 (11th Cir.
1999)(“The elements of a breach of contract action are (1) a
valid contract; (2) a material breach; and (3) damages.”
(citation omitted)).
Additionally, the Amended Complaint contains factual
allegations unrelated to the elements of a breach of contract
claim,

such

as

allegations

regarding

Roman’s

health

and

perceived retaliation by Tyco employees. (Doc. # 10 at 2). If
Roman wishes to assert additional claims, he should do so in
separate counts that clearly identify the legal basis for
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those claims. If Roman only wishes to bring a breach of
contract claim, he should avoid including unrelated factual
allegations that may confuse the defendant about the claims
brought against it.
As the Court explained in its previous Order, state
causes of action, including breach of contract claims, may be
brought in federal court pursuant to the Court’s diversity
jurisdiction.

To

invoke

a

federal

court’s

diversity

jurisdiction, a complaint must allege that complete diversity
of citizenship exists between the plaintiff and defendant and
that the amount in controversy exceeds $75,000. 28 U.S.C. §
1332(a)(1)(“The

district

jurisdiction

all

of

courts

civil

shall

actions

where

have
the

original
matter

in

controversy exceeds the sum or value of $75,000, exclusive of
interest and costs, and is between . . . citizens of different
States”).
Because
ensure

the

instructs

federal

Roman

to

have

exercise

proper

courts

of

clarify

an

independent

jurisdiction,

the

basis

for

duty

the

to

Court

diversity

jurisdiction in the second amended complaint. Smith v. GTE
Corp., 236 F.3d 1292, 1299 (11th Cir. 2001)(“[B]ecause a
federal court is powerless to act beyond its statutory grant
of

subject

matter

jurisdiction,
5

a

court

must

zealously

[e]nsure that jurisdiction exists over a case, and should
itself raise the question of subject matter jurisdiction at
any point in the litigation where a doubt about jurisdiction
arises.”).
The

Amended

Complaint

states

that

Roman

is

seeking

$7,000,000 in compensatory and punitive damages, which is
above the $75,000 amount in controversy requirement. (Doc. #
10 at 3). But the Amended Complaint still does not explain
Roman’s calculation of damages beyond flatly stating that he
is

seeking

$7,000,000.

Therefore,

although

his

alleged

damages exceed the $75,000 amount in controversy threshold,
Roman should explain how those damages were calculated in his
second amended complaint so that the Court may determine
whether it has jurisdiction. See Morrison v. Allstate Indem.
Co., 228 F.3d 1255, 1272 (11th Cir. 2000)(“While a federal
court must of course give due credit to the good faith claims
of the plaintiff, a court would be remiss in its obligations
if it accepted every claim of damages at face value, no matter
how trivial the underlying injury.” (quoting Diefenthal v.
Civil Aeronautics Bd., 681 F.2d 1039, 1052 (5th Cir. 1982)).
Furthermore, Roman does not allege the citizenships of
either party. On the final page of the Amended Complaint,
Roman lists Tyco as having an address in Harriman, New York,
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and lists himself as residing in Haines City, Florida. (Doc.
# 10 at 3). But it is unclear whether Tyco has its principal
place of business or is incorporated in New York, which is
important because a corporation is deemed a citizen of both
its state of incorporation and principal place of business.
28 U.S.C. § 1332(c)(1)(stating that “a corporation shall be
deemed to be a citizen of every State and foreign state by
which it has been incorporated and of the State or foreign
state

where

it

has

its

principal

place

of

business”).

Additionally, while Roman’s Florida address implies that he
resides in Florida, Roman has not affirmatively alleged that
he is a citizen of Florida. See Molinos Valle Del Cibao, C.
por

A.

v.

Lama,

633

F.3d

1330,

1342

n.12

(11th

Cir.

2011)(“[C]itizenship, not residence, is the key fact that
must be alleged . . . to establish diversity for a natural
person.”). Thus, Roman should affirmatively allege the state
citizenships of each party, rather than listing each party’s
address.
In his second amended complaint, Roman must organize all
his factual allegations clearly and succinctly in numbered
paragraphs that state a claim for breach of contract. Roman
should clearly specify the basis for this Court’s diversity

7

jurisdiction by explaining his calculation of damages and
alleging the citizenships of the parties.
If Roman has questions

regarding the

jurisdictional

issues discussed in this Order and the procedural rules of
federal courts, he may consult with a lawyer for free on a
limited basis at the Legal Information Program operated by
the Tampa Chapter of the Federal Bar Association on Tuesdays
from 11:00 AM to 12:30 PM in the Sam M. Gibbons United States
Courthouse, 801 North Florida Avenue, Tampa, Florida 33602.
Appointments, which are recommended but not required, can be
made by calling [phone].
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
Plaintiff Gilbert Roman’s Amended Complaint (Doc. # 10)
is DISMISSED. Roman may file a second amended complaint that
provides the information described in this Order by February
17, 2017. Failure to do so will result in dismissal of this
action without further notice.
DONE and ORDERED in Chambers in Tampa, Florida, this
18th day of January, 2017.

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