Roman v. Tyco Simplex Grinnell

Filing 15

ORDER: Plaintiff Gilbert Roman's Second Amended Complaint (Doc. # 13 ) is dismissed. Roman may file a third amended complaint that addresses the issues described in this Order by March 7, 2017. Failure to do so will result in dismissal of this action without further notice. Signed by Judge Virginia M. Hernandez Covington on 2/8/2017. (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 Second Amended Complaint,
filed on February 2, 2017. (Doc. # 13). For the reasons that
follow, the Court dismisses the Second Amended Complaint and
grants Roman leave to file a third amended complaint by March
7, 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). 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 appeared that Roman
was 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 alleged 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 alleged that supervisors
at Tyco placed him in unsafe working conditions. (Id. at 2).
According to Roman, his supervisors harassed and retaliated
against him because he requested higher-paying assignments.
(Id.). The Court dismissed the Amended Complaint on January
18,

2017,

advising

Roman

to

“organize

all

his

factual

allegations clearly and succinctly in numbered paragraphs
that state a claim for breach of contract” and to “clearly
specify the basis for this Court’s diversity jurisdiction.”
(Doc. # 12 at 7-8).
2

Roman filed his Second Amended Complaint and an affidavit
with

exhibits

on

February

2,

2017,

alleging

breach

of

contract, as well as violations of the Fair Labor Standards
Act (FLSA), 29 U.S.C. § 201, et seq., and the Occupational
Safety and Health Act (OSHA), 29 U.S.C. § 651, et seq. (Doc.
## 13 at 3; 14). Roman still claims $7,000,000 in damages
because his towing business failed after Tyco failed to pay
him at the hourly rate he was allegedly promised. But, Roman
notes that his losses include: “[$] 19,000 [for] 2 trucks
down payment, [$] 22,000 insurance, [$] 19,000 Truck payments,
[$]

7,000-15,000

future

earning.”

rent,

trailer,

ads,

(Doc.

#

2).

13

at

miscellaneous.
Additionally,

Any

Roman

complains that he was forced to work in confined and nearfreezing spaces, and was not paid for his travel time at the
beginning and end of each day. (Id. at 2-3).
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
3

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
claims discretely and succinctly.” Fikes, 79 F.3d at 1082
(citation omitted).
In his Second Amended Complaint, Roman has not corrected
many of the problems pointed out in the Court’s previous
Orders.

The

allegations

are

organized

as

one

confusing

paragraph spanning three pages with numbered lines. Thus,
Roman has not “separate[d] his allegations into separate
numbered paragraphs, rather than including all allegations in
one multi-page paragraph with numbered lines” as the Court
4

advised him to do to comply with Rule 10(b). (Doc. # 12 at
4).

Additionally,

Roman has

retained

factual allegations

seemingly unrelated to any of his legal claims, specifically
those

regarding

alleged

retaliation

by

Tyco

employees,

including their “[leaving] a pumpkin by my personal car.”
(Doc. # 13 at 3).
And, while it is perfectly acceptable that Roman added
an FLSA claim, Roman did not divide his Second Amended
Complaint into separate counts for each separate cause of
action. See Weiland v. Palm Beach Cty. Sheriff’s Office, 792
F.3d 1313, 1322-23 (11th Cir. 2015)(noting that a complaint
is a shotgun pleading if it does “not separat[e] into a
different count each cause of action or claim for relief”).
Furthermore, Roman’s allegations regarding his FLSA claim are
short and vague: “I believe Tyco should be paying travel time
in the beginning of the day and ending. This covered under
overtime labor law fair labor standard act.” (Doc. #13 at 3).
It is unclear whether Tyco simply did not pay Roman for his
daily commute time to and from work or whether Tyco failed to
pay Roman for other stops he made on behalf of Tyco before or
after his typical work hours. It is important that Roman
clearly plead this claim because ordinary travel time to and
from work is typically not compensable under the FLSA. See
5

Preston v. Settle Down Enters., Inc., 90 F. Supp. 2d 1267,
1279-80

(N.D.

Ga.

2000)(noting

that

“[t]ravel

time

is

compensable . . . only if it is a principal activity of the
employee”

and

thus

“ordinary

home-to-work

travel

is

not

compensable”).
Regarding Roman’s references to OSHA, he may not bring
a claim under that statute because OSHA does not create a
private right of action. Rabb v. Pizza Hut, No. 1:08-CV-1934RWS,

2008

WL

4542639,

at

*1

(N.D.

Ga.

Oct.

8,

2008)(“Plaintiff’s claim for a violation of OSHA is also
futile. There is no private right of action under OSHA.”
(citing Jeter v. St. Regis Paper Co., 507 F.2d 973, 976 (5th
Cir. 1975))). Therefore, Roman cannot bring a claim under
that statute.
As mentioned in a previous Order, if Roman has questions
about the meaning of the Court’s Orders, 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
6

ORDERED, ADJUDGED, and DECREED:
Plaintiff Gilbert Roman’s Second Amended Complaint (Doc.
# 13) is DISMISSED. Roman may file a third amended complaint
that addresses the issues described in this Order by March 7,
2017. Failure to do so will result in dismissal of this action
without further notice.
DONE and ORDERED in Chambers in Tampa, Florida, this
8th day of February, 2017.

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