United States District Court, M.D. Florida, Tampa Division
VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE
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.
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 and punitive damages
For the wrong done to me.
(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).
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).
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 rent, trailer, ads,
miscellaneous. Any future earning.” (Doc. # 13 at 2).
Additionally, Roman complains 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).
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.
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).
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
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).
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.