           Case: 17-13895   Date Filed: 05/01/2018   Page: 1 of 10


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 17-13895
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:16-cv-03449-VMC-AEP



GILBERT ROMAN,

                                                            Plaintiff-Appellant,

                                  versus

TYCO SIMPLEX GRINNELL,

                                                          Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                              (May 1, 2018)

Before WILSON, MARTIN, and JORDAN, Circuit Judges.

PER CURIAM:
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      Gilbert Roman, a pro se litigant, appeals the district court’s dismissal with

prejudice of his breach of oral contract, breach of implied contract, Trafficking

Victims Protection Reauthorization Act (“TVRPA”), and Fair Labor Standards Act

(“FLSA”) claims. On appeal, Roman argues that the district court denied him due

process and erred in dismissing his complaint. After careful review, we affirm.

                                          I.

      In 2016, Roman brought suit against his former employer, Tyco, alleging

that Tyco breached an oral contract with him, and that he had been harassed and

placed in unsafe conditions while working there. The district court sua sponte

dismissed Roman’s complaint for failure to state a claim but granted him leave to

amend. The court provided Roman guidance on how he could amend his

complaint to comply with the Federal Rules of Civil Procedure. Roman filed three

more amended complaints, all of which the district court dismissed with leave to

amend, providing more direction each time on how Roman should amend his

pleadings.

      In June 2017, Roman filed a Fourth Amended Complaint. In this version of

his complaint, Roman raised four claims: (1) breach of oral contract; (2) breach of

implied contract; (3) violations of the TVPRA; and (4) violations of the FLSA.

Tyco filed a motion to dismiss, arguing that Roman’s complaint still failed to state

a claim for relief. The district court partially granted Tyco’s motion to dismiss,

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concluding that Roman’s first three claims were inadequate. But the court denied

Tyco’s motion to the extent that Roman’s fourth claim alleged he should have been

paid overtime for his time spent commuting between job sites.

      Roman filed a Motion to Appeal and a Motion to Clarify. He sought to

appeal the district court’s dismissal of his three claims. He also clarified that under

count 4, he only asked to be compensated for travel from his home to his first job

of the day, and from his last job of the day back to his home. This meant that the

entirety of Roman’s count 4 claim was also covered by the district court’s order

dismissing his claims with prejudice. The district court construed Roman’s Motion

to Clarify as a notice of voluntary dismissal of any remaining claims and directed

the court to close the case. This appeal followed.

                                          II.

      We review de novo an order granting a motion to dismiss for failure to state

a claim, accepting the facts alleged in the complaint as true and construing them in

the light most favorable to the plaintiff. Harris v. United Auto. Ins. Grp., 579 F.3d

1227, 1230 (11th Cir. 2009) (per curiam). We construe pro se pleadings liberally.

Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (per curiam). “[A] pro se

complaint, however inartfully pleaded, must be held to less stringent standards than

formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.

Ct. 2197, 2200 (2007) (per curiam) (quotation omitted).


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      “To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to state a claim for relief that is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (quotation

omitted). A claim is facially plausible “when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id. “Generally, where a more carefully drafted

complaint might state a claim, a plaintiff must be given at least one chance to

amend the complaint before the district court dismisses the action with prejudice.”

Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001) (per curiam) (quotation

omitted and alteration adopted). A district court need not allow a plaintiff to

amend his complaint if the plaintiff has repeatedly failed to cure previously

identified deficiencies. Id.

                                           III.

      First, Roman argues that he was denied due process of the law because the

district court was not impartial, did not construe his pro se complaint liberally, and

denied him the opportunity to present his case to a jury and enter evidence in the

record. “The fundamental requirement of due process is the opportunity to be

heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge,

424 U.S. 319, 333, 96 S. Ct. 893, 902 (1976) (quotation omitted). In civil actions,

a plaintiff’s right to perform discovery and present his claims to a jury are not


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absolute. In particular, a motion to dismiss for failure to state a claim must be

resolved before discovery begins. That is because “[s]uch a dispute always

presents a purely legal question; there are no issues of fact because the allegations

contained in the pleading are presumed to be true.” Chudasama v. Mazda Motor

Corp., 123 F.3d 1353, 1367 (11th Cir. 1997). As a result, “neither the parties nor

the court have any need for discovery before the court rules on the motion.” Id. In

addition, a party’s right to a trial by jury is not violated when a court dismisses his

case for failure to state a claim. See Garvie v. City of Ft. Walton Beach, 366 F.3d

1186, 1190 (11th Cir. 2004).

      The district court did not violate Roman’s right to due process. Indeed the

district court offered assistance to Roman: it permitted Roman to amend his

complaint four times; it specifically identified deficiencies in the complaints that

needed to be corrected; it informed Roman that he needed to lay out the elements

for any claims he was asserting; and it set out the elements for claims that the court

believed Roman wished to pursue. Roman’s argument that the district court failed

to act impartially and consider his pro se status is therefore unpersuasive. While it

is true that the district court did not permit Roman to enter evidence into the

record, it was not required to do so before ruling on the sufficiency of his

complaint. Chudasama, 123 F.3d at 1367. And it was within the court’s power to




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dismiss Roman’s claims without presenting them to a jury when it decided they

failed as a matter of law. See Garvie, 366 F.3d at 1190.

                                             IV.

      Construing his argument liberally, Roman next asserts that the district court

erred in concluding his claims failed to state a claim for which relief could be

granted. We will address each of his claims in turn.

                                             A.

      A valid contract under New York law requires an offer, acceptance,

consideration, mutual assent, and intent to be bound.1 Kowalchuk v. Stroup, 873

N.Y.S.2d 43, 46 (N.Y. App. Div. 2009). The essential elements of an action for

breach of contract under New York law are: (1) formation of a contract between

the parties; (2) performance by one party; (3) non-performance by the other party;

and (4) resulting damages. Dee v. Rakower, 976 N.Y.S.2d 470, 474

(N.Y. App. Div. 2013). A contract implied-in-fact requires many of the same

elements as any contract, although “the agreement and promise have simply not

been expressed in words.” See Maas v. Cornell Univ., 721 N.E.2d 966, 969 (N.Y.

1999) (quotation omitted). There can be no legally enforceable contract if the

material terms of an agreement are vague and uncertain. Joseph Martin, Jr.,

Delicatessen, Inc. v. Schumacher, 417 N.E.2d 541, 543 (N.Y. 1981). Every


      1
          Roman brought his contract claims under New York law.
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contract includes an implied obligation of good faith that neither party will

intentionally and purposely do anything to stop the other party from carrying out

their part of the agreement. Grad v. Roberts, 198 N.E.2d 26, 28 (N.Y. 1964).

There can be no implied obligation of good faith if no contract exists. Levine v.

Yokell, 685 N.Y.S.2d 196, 196–97 (N.Y. App. Div. 1999).

      Roman raised two claims under a theory of contract: breach of oral contract

and breach of implied contract. First, Roman alleged that Tyco breached an oral

contract with him by promising him substantial prevailing wage work but not

providing it for the first eight months of his employment. However, despite being

warned by the district court, Roman did not state clearly how much prevailing

work he had been promised or how much prevailing work, if any, he was

eventually given. Under New York law, contracts must be reasonably certain in

their material terms to be enforceable. Joseph Martin, Jr., Delicatessen, Inc., 417

N.E.2d at 543–44. The district court did not err in dismissing with prejudice

Roman’s claim for breach of oral contract. See Bryant, 252 F.3d at 1163.

      Roman’s second claim, for breach of an implied contract faces similar

problems. Roman alleged that Tyco breached an implied contract when it

implemented a program to pay inspectors commission. Because Roman alleged a

contract implied-in-fact, under New York law, he was required to allege all of the

elements of a contract. See Maas, 721 N.E.2d at 969–70. But Roman did not


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allege that he entered into any sort of agreement with Tyco, or what type of

consideration was exchanged between the parties. His failure to allege with

specificity that a contract was in fact formed (as opposed to Tyco unilaterally

implementing a commission program) after being warned of his need to do so

supported the dismissal of this claim with prejudice. See Bryant, 252 F.3d at 1163.

                                          B.

      The TVPRA makes it unlawful for any person to “knowingly provide[] or

obtain[] the labor or services of a person . . . by means of serious harm or threats of

serious harm to that person or another person.” 18 U.S.C. § 1589(a)(2). The term

“serious harm” is defined as:

      any harm, whether physical or nonphysical, including psychological,
      financial, or reputational harm, that is sufficiently serious, under all
      the surrounding circumstances, to compel a reasonable person of the
      same background and in the same circumstances to perform or to
      continue performing labor or services in order to avoid incurring that
      harm.

Id. § 1589(c)(2).

      Roman alleged that Tyco violated the TVPRA when it threatened him with

termination for not performing a job about which he expressed safety concerns.

Although Roman argues that the threat of termination qualified as a serious harm

under the TVPRA, he does not explain how the potential financial harm he might

have suffered would be any more serious than the financial harm any employee

encounters when faced with termination. Roman also did not explain how Tyco’s

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threats led to his forced labor. See Headley v. Church of Scientology Int’l, 687

F.3d 1173, 1179 (9th Cir. 2012) (requiring a showing that labor was obtained “by

means of” a threat of serious harm to state a claim under the TVPRA). The district

court pointed out the deficiencies in Roman’s TVPRA claim, so when he failed to

correct those deficiencies, the court did not err in dismissing this claim with

prejudice. See Bryant, 252 F.3d at 1163.

                                          C.

      The FLSA requires employers to pay covered employees for hours worked

in excess of 40 per week at one-and-one-half times the employee’s regular pay

rate. 29 U.S.C. § 207(a)(1). The Portal-to-Portal Act identifies activities that are

not compensable under the FLSA. Bonilla v. Baker Concrete Constr., Inc., 487

F.3d 1340, 1342 (11th Cir. 2007). For example, “traveling to and from the actual

place of performance of the principal activity” of an employee is not compensable.

29 U.S.C. § 254(a)(1).

      In a filing in the district court, Roman made clear he is only seeking

overtime compensation for travel time from his home to his first job site and from

his last job site back to his home. Because such travel is specifically exempted

from FLSA overtime requirements, the district court did not err in dismissing

Roman’s FLSA claim. See Bryant, 252 F.3d at 1163




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                                       V.

      The district court did not deny due process to Roman when it dismissed his

claims in the fourth amended complaint. We therefore affirm its decision.

      AFFIRMED.




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