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Roman v. Grinnell

United States District Court, M.D. Florida, Tampa Division

June 5, 2017

GILBERT ROMAN, Plaintiff,
v.
TYCO SIMPLEX GRINNELL, Defendant.

          ORDER

          VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE.

         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.

         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 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).

         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 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 Defendant's Motion to Dismiss Third Amended Complaint, " which the Court construes as a response in opposition to the Motion, on May 26, 2017. (Doc. # 26).

         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) .

         Ill. ...


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