United States District Court, M.D. Florida, Tampa Division
VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE.
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.
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.
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. #
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).
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).
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).
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.
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).
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
[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
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) .