Roman v. Tyco Simplex Grinnell

Filing 27

ORDER: Defendant Tyco Simplex Grinnell's Motion to Dismiss the Third Amended Complaint (Doc. # 23 ) is GRANTED. Plaintiff Gilbert Roman's Third Amended Complaint (Doc. # 16 ) is DISMISSED with leave to amend. Roman may file a fourth amended complaint by July 5, 2017. Failure to do so will result in dismissal of this action without further notice. Signed by Judge Virginia M. Hernandez Covington on 6/5/2017. (DMD)

Case 8:16-cv-03449-VMC-AEP Document 27 Filed 06/05/17 Page 1 of 19 PageID 171

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 Defendant Tyco
Simplex

Grinnell’s

Motion

to

Dismiss

the

Third

Amended

Complaint, filed on May 9, 2017. (Doc. # 23). Pro se Plaintiff
Gilbert Roman responded on May 26, 2017. (Doc. # 26). For the
reasons that follow, the Court dismisses the Third Amended
Complaint and grants Roman leave to file a fourth amended
complaint by July 5, 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.

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I seek 7 million dollars in compensation
punitive damages For the wrong done to me.

and

(Id. at 1). The Court dismissed the Complaint on January 3,
2017, and granted Roman leave to file an amended complaint
that clearly stated his claims and established the Court’s
jurisdiction. (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 Roman was
attempting to assert only a breach of oral contract claim
against his former employer, Tyco, for failing to assign Roman
to the higher-paying assignments he was promised when he
accepted the job as a fire alarm inspector. 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
and retaliated against him. (Id. at 2). 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).

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Roman then 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; Doc. # 14). Roman still claimed $7,000,000 in
damages because his towing business failed after Tyco refused
to pay him at the promised hourly rate. But, Roman listed his
losses as: “[$] 19,000 [for] 2 trucks down payment, [$] 22,000
insurance, [$] 19,000 Truck payments, [$] 7,000-15,000 rent,
trailer, ads, miscellaneous. Any future earning.” (Doc. # 13
at 2). Additionally, Roman complained that he was forced to
work in confined and near-freezing spaces, and was not paid
for his travel time at the beginning and end of each day.
(Id. at 2-3).
The Court dismissed the Second Amended Complaint on
February 8, 2017, noting that, while the Second Amended
Complaint was an improvement, “Roman has not corrected many
of the problems pointed out in the Court’s previous Orders.”
(Doc. # 15 at 4). That Order explained that the FLSA typically
does not cover daily commuting time for overtime purposes, so
Roman needed to provide more information regarding his travel
to and from work. (Id. at 5). The Court also explained that
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OSHA does not create a private right of action, so Roman
cannot bring a claim under that statute. (Id. at 6).
Roman then filed his Third Amended Complaint. (Doc. #
16). The Third Amended Complaint includes different headings,
including “Breach of Oral Contract,” “Unsafe-Unfair work
conditions,” and “Fair labor standards,” intended to separate
different

claims

for

relief.

Roman

asserts

that

he

is

“entitled to relief under: Breach of oral contracts, 29 USC
fair labor standards, 29 USC sec. 204(a) Creation of wage and
hour division, 29 USC chap. 15 OSHA ACT, 18 USC Sec. 1589
forced labor, standard Diversity jurisdiction, supplemental
jurisdiction.” (Id. at 1). Thus, the Third Amended Complaint
seems to include four different counts: two counts for breach
of

oral

contract,

one

count

for

“Unsafe-Unfair

work

conditions,” which appears to be brought under OSHA and the
Trafficking Victims Protection Act (TVPA), 18 U.S.C. §§ 1581
et seq., and one count brought under the FLSA.
Tyco filed its Motion to Dismiss the Third Amended
Complaint on May 9, 2017. (Doc. # 23). Roman filed a “Motion
to

Dismiss

Complaint,”

Defendant’s
which

the

Motion
Court

to

Dismiss

construes

as

Third
a

Amended

response

opposition to the Motion, on May 26, 2017. (Doc. # 26).

4

in

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II.

Legal Standard
On a motion to dismiss, this Court accepts as true all

the allegations in the complaint and construes them in the
light most favorable to the plaintiff. Jackson v. Bellsouth
Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further,
this

Court

favors

the

plaintiff

with

all

reasonable

inferences from the allegations in the complaint. Stephens v.
Dep’t of Health & Human Servs., 901 F.2d 1571, 1573 (11th
Cir. 1990)(“On a motion to dismiss, the facts stated in [the]
complaint and all reasonable inferences therefrom are taken
as true.”). However,
[w]hile a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal
citations omitted). Courts are not “bound to accept as true
a legal conclusion couched as a factual allegation.” Papasan
v. Allain, 478 U.S. 265, 286 (1986). Furthermore, “[t]he scope
of

review

must

be

limited

to

the

four

corners

of

the

complaint.” St. George v. Pinellas Cty., 285 F.3d 1334, 1337
(11th Cir. 2002).
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III. Analysis
Tyco
dismissed

argues

the

because

it

Third

Amended

violates

Complaint

Federal

Rules

should
of

be

Civil

Procedure 8 and 10, and fails to state plausible claims in
any of the four counts. The Court will address each argument
in turn.
A.

Federal Rules 8 and 10

The Third Amended Complaint is an improvement over the
previous complaints but there are still issues that need to
be addressed. 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 v. City of Daphne, 79 F.3d
1079, 1082 (11th Cir. 1996)(citation omitted).
Although Roman correctly did not include a separate
“affidavit” with factual allegations as he has done before,
the

Third

Amended

Complaint

is

still

composed

of

two

documents. The first document is two pages, including Roman’s
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jurisdictional

allegations

and

a

list

of

the

common-law

claims and statutes under which Roman alleges he is entitled
to relief. (Doc. # 17 at 1-2). That document also includes
Roman’s prayer for relief and ends with Roman’s signature.
(Id.). The second document lists Roman’s four counts and
includes relevant factual allegations under each count. (Id.
at 3-4). The second document ends with Roman’s request for a
jury trial and signature. (Id. at 4). Roman’s fourth amended
complaint should be one continuous document that contains
everything Roman intends to plead.
Also, Roman includes numbered lines in the Third Amended
Complaint, but Rule 10(b) requires that separate paragraphs
be numbered. In his Fourth Amended Complaint, Roman should
only place a number by the first line of each new paragraph
— he should not place numbers beside each line.
B.

Breach of Oral Contract

The

Third

Amended

Complaint’s

first

two

counts

are

breach of oral contract claims. (Doc. # 16 at 3). The first
breach of contract claim asserts that Roman was promised he
would get plenty of prevailing wage work if he signed an
agreement to work for $21 an hour, which he did. (Doc. # 16
at 3). But Roman “got very little [prevailing wage work]”
from October of 2013 until May of 2014, at which time Roman
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“did get plenty of [prevailing wage work]” until November of
2014. (Id.). The second breach of oral contract claim states
in its entirety: “Tyco started a multiple deficiency quoting
program

which

stated

that

it

would

pay

workers

1.5%-3%

commission to inspectors. I have not received any monies to
date. Even though I reached #6 in the nation on mdq.” (Id. at
3).
Roman alleges he entered these oral contracts with Tyco
in New York during his employment with Tyco. Therefore, New
York law likely governs these claims. See Klaxon Co. v.
Stentor Elec. Mfg. Co., 313 U.S. 487, 496–97 (1941)(noting
that a federal court sitting in diversity must apply the
choice-of-law rules of the forum state); Motmanco, Inc. v.
McDonald’s Corp., No. 3:04-cv-270-J-99HTS, 2005 WL 1027261,
at *3 (M.D. Fla. Mar. 30, 2005)(stating that, under Florida
law, oral contracts “are considered ‘made’ in the state in
which the oral agreement was reached”). If the oral contracts
were not entered in New York or Roman has reason to believe
a different state’s law governs the oral contracts, he should
state as much in the fourth amended complaint.
“A breach of contract claim under New York law requires
the plaintiff to allege: (1) the existence of a contract, (2)
performance

by

the

party

seeking
8

recovery,

(3)

non-

Case 8:16-cv-03449-VMC-AEP Document 27 Filed 06/05/17 Page 9 of 19 PageID 179

performance by the other party, and (4) damages attributable
to the breach.” Lamm v. State St. Bank & Tr. Co., 889 F. Supp.
2d 1321, 1327 (S.D. Fla. 2012), aff’d sub nom. Lamm v. State
St.

Bank

&

Tr.,

749

F.3d

938

(11th

Cir.

2014)(quoting

Schlessinger v. Valspar Corp., 817 F. Supp. 2d 100, 105
(E.D.N.Y. 2011)(internal quotation marks omitted)). “To form
a valid contract under New York law, there must be an offer,
acceptance, consideration, mutual assent and intent to be
bound.” Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 427
(2d

Cir.

2004)(citation

and

internal

quotation

marks

omitted).
Regarding the first breach of oral contract claim, Roman
refers

to

his

agreement

with

his

Tyco

supervisor

about

prevailing wage work as an oral contract. But it appears this
oral contract may have been entered into at the same time as
a

written

employment

contract

with

Tyco.

Indeed,

Roman

alleges “[he] was told by Arkie Devenuto inspection manager,
that [he] would get plenty of [prevailing] wage work if [he]
sign[ed] for 21 dollars an hour.” (Doc. # 16 at 3)(emphasis
added). And the subject-matter of the alleged oral contract
also involves the type of work and rate of pay Roman would be
receiving from Tyco. Thus, it is ambiguous whether the alleged

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oral contract was a separate contract or merely an oral
modification of a written employment contract.
The distinction between an oral contract and an oral
modification of a written contract is important because many
written contracts provide that they cannot be altered orally.
See Grandonico v. Consortium Commc’ns Int’l, Inc., 566 F.
Supp. 1288, 1291 (S.D.N.Y. 1983)(“Under New York law, when a
written contract provides that it cannot be altered except in
writing, it cannot be altered except in writing, subject to
the narrow exception that if the parties agree orally to alter
the contract, the oral agreement may be proven by partial
performance of the oral agreement, but only if the performance
is unequivocally referable to the oral agreement to modify.”
(citation and internal quotation marks omitted)). In his
fourth

amended

complaint,

Roman

should

clarify

the

circumstances surrounding when and how he entered the alleged
oral contract about prevailing wage work and whether that
oral agreement was a separate contract with distinct subjectmatter or a verbal modification of a written employment
contract he entered contemporaneously.
Additionally, Roman should plead facts about the oral
contract — details about when and how the oral contract was
entered and the specifics of the agreement itself. In the
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Third Amended Complaint, Roman states vaguely that he was
promised “plenty of [prevailing wage work].” (Doc. # 16 at
3). But, this statement does not clarify how much prevailing
wage work Roman was actually promised, an estimate of what
that prevailing wage would be, or the timeframe for when or
how often Roman would receive prevailing wage assignments.
Also, Roman states that “[f]rom May or June 2014-Nov[ember]
2014 [he] did get plenty of [prevailing wage work].” (Doc. #
16 at 3). This statement seems at odds with Roman’s contention
that Tyco breached its oral contract to give him prevailing
wage assignments generally. Details about the oral contract
are important because “[a]lthough it is not necessary for
each element to be pleaded individually, a claim that fails
‘to allege facts sufficient to show that an enforceable
contract

existed’

between

the

parties

is

subject

to

dismissal.” Berman v. Sugo L.L.C., 580 F. Supp. 2d 191, 202
(S.D.N.Y. 2008)(citation omitted).
Regarding the second breach of oral contract claim,
Roman must allege more facts regarding how and when he entered
the

alleged

oral

contract

to

receive

commissions.

As

currently drafted, it is unclear whether Tyco unilaterally
decided to “start[] a multiple deficiency quoting program,”
rather than bargained with Roman as to the commission he would
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receive for his work. (Doc. # 16 at 3). As a result, it is
uncertain

whether

there

was

any

consideration

exchanged

between Roman and Tyco and, thus, whether there was a valid
oral contract. See Anesthesia Assocs. of Mount Kisco, LLP v.
N. Westchester Hosp. Ctr., 873 N.Y.S. 2d 679, 686 (App. Div.
2009)(“Consideration consists of either a benefit to the
promisor or a detriment to the promisee. It is enough that
something is promised, done, forborne, or suffered by the
party to whom the promise is made as consideration for the
promise made to him.” (citation and internal quotation marks
omitted)). In his fourth amended complaint, Roman should
allege sufficient facts to support that he entered an oral
contract

with

Tyco

to

receive

commissions

through

the

multiple deficiency quoting program.
C.

Unsafe and Unfair Working Conditions

Under the heading “Unsafe-Unfair work conditions,” Roman
alleges:
I was placed in several unsafe and unfair work
conditions, causing me bronchitis, high blood
pressure, bone spurs. [] Covered by standard
diversity
jurisdiction
and
supplemental
jurisdiction. Also harassed. [] And threatened.
(Doc. # 16 at 3).
Although Roman does not list the legal basis for his
unsafe and unfair working conditions claim, Roman’s third

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count appears to be brought under OSHA because Roman earlier
stated that he was entitled to relief under, among other
statutes, “29 USC chap. 15 OSHA ACT.” (Id. at 1). As the Court
explained

in

its

Order

dismissing

the

Second

Amended

Complaint, Roman “may not bring a claim under that statute
because OSHA does not create a private right of action.” (Doc.
# 15 at 6); see also Rabb v. Pizza Hut, No. 1:08-CV-1934-RWS,
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))); Donovan
v. Occupational Safety & Health Review Comm’n, 713 F.2d 918,
926 (2d Cir. 1983)(“[E]mployees have a limited role in the
enforcement of the Act. Under OSHA, employees do not have a
private right of action.”). Therefore, Roman’s claim for
violation of OSHA is dismissed.
And, although the unsafe and unfair working conditions
count does not discuss forced labor, Roman had earlier listed
18 U.S.C. § 1589 of the TVPA as a statute under which he is
entitled to relief. (Doc. # 17 at 1). To the extent Roman is
also trying to bring this claim under § 1589 of the TVPA,
Roman must separate this claim into another count. See Weiland
v. Palm Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1322-23
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(11th Cir. 2015)(stating that a complaint which does “not
separat[e] into a different count each cause of action or
claim for relief” should be dismissed as a shotgun complaint).
There are also substantive problems with Roman’s claim
under the TVPA. Although there is a private right of action
under the TVPA, see 18 U.S.C. § 1595, the Third Amended
Complaint does not state a plausible violation of the Act.
Section 1589(a) provides for punishment of anyone who
knowingly provides or obtains the labor or services
of a person by any one of, or by any combination
of, the following means — (1) by means of force,
threats of force, physical restraint, or threats of
physical restraint to that person or another
person; (2) by means of serious harm or threats of
serious harm to that person or another person; (3)
by means of the abuse or threatened abuse of law or
legal process; or (4) by means of any scheme, plan,
or pattern intended to cause the person to believe
that, if that person did not perform such labor or
services, that person or another person would
suffer serious harm or physical restraint.
18

U.S.C.

§

1589(a).

Section

1589(b)

likewise

creates

liability for anyone who
knowingly benefits, financially or by receiving
anything of value, from participation in a venture
which has engaged in the providing or obtaining of
labor or services by any of the means described in
subsection (a), knowing or in reckless disregard of
the fact that the venture has engaged in the
providing or obtaining of labor or services by any
of such means.
18 U.S.C. § 1589(b).

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The unsafe and unfair working conditions count does not
allege that Roman was forced to work against his will at all.
Nor does that count explain whether Tyco used force or threats
of force to compel Roman’s compliance. The count does state
Roman was “harassed” and “threatened” but does not clarify
who threatened him, how he was threatened, and for what
purpose. Was Roman threatened because he refused to work or
because

he

complained

about

the

alleged

breach

of

oral

contract? Was he threatened with violence, with being fired,
or with something else?
Roman goes into detail about the alleged forced labor he
endured in his response to the Motion to Dismiss. (Doc. # 26
at 4-5). But the Court cannot consider those additional
allegations
Amended

in

determining

Complaint.

See

the

Bruhl

sufficiency
v.

Price

of

the

Third

Waterhousecoopers

Int’l, No. 03-23044-CIV-MARRA, 2007 WL 997362, at *4 (S.D.
Fla.

Mar.

27,

allegations
arguments

of

set

2007)(“The
the
forth

Plaintiffs

[Second
in

Amended

their

cannot

supplant

Complaint]

response

to

a

the

with

new

motion

to

dismiss.”). While the Court appreciates Roman’s attempt to
keep his allegations succinct, Roman must plead sufficient
facts to state a plausible claim under the TVPA in his fourth
amended complaint.
15

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Also, as the Court previously explained, (Doc. # 15 at
5),

Roman’s

allegations

that

he

was

“harassed”

and

“threatened” for complaining about the alleged breach of
contract or unsafe working conditions do not state a separate
claim for relief. (Doc. # 16 at 3). If Roman wishes to state
another cause of action based on this conduct (rather than
use the alleged threats as support for his TVPA claim), he
should separate that claim into a separate count in his fourth
amended complaint. Roman should also state the legal basis
for that claim, i.e. the common law claim or statute that
entitles him to relief, in the count itself.
D.

FLSA Claim

Regarding the FLSA claim, Roman’s entire count states
“Tyco should be paying travel time [f]rom the 1st job and
last job of the day.” (Doc. # 16 at 4). It is unclear what
Roman means by this: did Tyco fail to pay for Roman’s travel
time during the work day when he travelled between job sites?
Or, did Tyco fail to pay Roman for Roman’s travel from his
home to the first job of the day and from the last job of the
day back to Roman’s home? In its previous Order, the Court
advised Roman to clarify what work he believes entitles him
to overtime compensation: “It is important that Roman clearly
plead this claim because ordinary travel time to and from
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work is typically not compensable under the FLSA.” (Doc. # 15
at 5-6)(citing Preston v. Settle Down Enters., Inc., 90 F.
Supp.

2d

1267,

1279-80

(N.D.

Ga.

2000)(“Travel

time

is

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

and

thus

“ordinary

home-to-work

travel

is

not

compensable”)); see also Burton v. Hillsborough Cty., Fla.,
181 F. App’x 829, 834 (11th Cir. 2006)(“‘[N]ormal travel from
home to work [whether at a fixed location or at different job
sites]

is

not

worktime’

because

it

is

‘an

incident

of

employment,’ and is therefore not compensable.” (quoting 29
C.F.R. § 785.35)(alterations original)).
While Roman provides more information regarding his FLSA
claim in his response to the Motion, the Court cannot consider
these

allegations

when

evaluating

the

Third

Amended

Complaint. The Court reiterates that Roman should clearly
allege the facts regarding his FLSA claim in the fourth
amended complaint.
IV.

Conclusion
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
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rewrite a deficient pleading.” McFarlin v. Douglas Cty., 587
F. App’x 593, 595 (11th Cir. 2014). Even construed liberally,
Roman’s Third Amended Complaint fails to state a claim upon
which relief can be granted and is dismissed.
Although Roman’s Third Amended Complaint is dismissed,
the Court grants him leave to amend. But, because Roman has
had four previous opportunities to state a claim and the
benefit of three previous Orders detailing the issues with
his complaints, Roman will not be granted another opportunity
to amend if his fourth amended complaint fails to state a
claim. Thus, it is imperative that Roman read this Order
carefully

before

drafting

and

filing

his

fourth

amended

complaint.
Accordingly, it is
ORDERED, ADJUDGED and DECREED:
(1)

Defendant Tyco Simplex Grinnell’s Motion to Dismiss the
Third Amended Complaint (Doc. # 23) is GRANTED.

(2)

Plaintiff Gilbert Roman’s Third Amended Complaint (Doc.
# 16) is DISMISSED with leave to amend.

(3)

Roman may file a fourth amended complaint by July 5,
2017. Failure to do so will result in dismissal of this
action without further notice.

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DONE and ORDERED in Chambers in Tampa, Florida, this
5th day of June, 2017.

19