A federal judge from the Eastern District of North Carolina has granted the U.S. Federal Government’s motion to dismiss in a case in which it, along with United States Amateur Boxing (USAB), was sued by the family of boxer, who died in competition while competing for the All-Marine Amateur Boxing Team (Team).
The court sided with the government because the plaintiff had not “exhausted” its administrative remedies before filing the claim. It left the claim against USAB intact.
The boxer in the case was Limbardo Anthony Jimenez, Jr. II, who was also a Lance Corporal in the United States Marines. After his return from deployment in Iraq in January 2010, he was stationed at Camp Lejeune and decided to apply for membership on the Team. After receiving permission from his unit command, he had to complete an application and “try out” for the Team’s coach, Ronald Simms. Although Jiminez had no previous boxing experience or training, he was accepted on the Team and placed on a 90-day probationary period. Jiminez registered for membership in USAB and paid a registration fee.
On February 27, 2010, Jiminez suffered a nose injury during a Team practice that caused him to experience respiratory problems. Jiminez was seen by several physicians before he was released from sick call and placed on full duty on March 11, 2010. Simms scheduled Jiminez to fight in a Golden Glove tournament on March 25, 2010. On March 20, 2010, Simms subjected Jiminez to an intensive training session in order to prepare for this tournament, according to the court
Jiminez allegedly informed Simms during this practice that he was having trouble breathing, and yet Simms forced Jimenez to continue to train. After Jiminez was allowed to leave the ring, he collapsed on the floor on two occasions, though no medical attention or help was offered from Simms, according to the complaint. Jiminez finally made it back ringside and his condition continued to deteriorate. Simms ignored Jiminez’s complaints and the concerns of his Team members about Jiminez and continued the training session with the other team members.
After Jiminez lost vision and consciousness, his team members, not Simms, called for an ambulance, alleged the plaintiffs. During this period, Coach Simms continued his training practice, allegedly ignoring Jiminez’s dire medical condition. Jiminez was ultimately airlifted to a hospital, where he died on March 28, 2010 from a closed-head injury.
The plaintiffs sued in state court, naming USAB and Simms as defendants. They alleged various negligence claims, wrongful death and breach of fiduciary duty. On May 31, 2012, the government certified that, at the time of the incidents alleged in the complaint, Simms was acting within the scope of his employment on behalf of the United States Marine Corps and substituted itself for Simms as a proper defendant in this action. See 28 U.S.C. § 2679. The government also removed the case to federal court, pursuant to the Federal Tort Claims Act (FTCA).
On June 7, 2012, the government moved to dismiss the claim for the plaintiff’s failure to exhaust administrative remedies as required by the FTCA. On March 11, 2013, the court denied without prejudice that motion and directed the parties to conduct limited discovery as to whether Simms was an employee of the Marine Corps who was acting within the scope of his employment at the time of the underlying incidents in this case. After conducting such discovery, the government filed a motion to dismiss, which is addressed in the instant opinion.
In January 2007, Simms applied for the position of Sports Specialist, Amateur Boxing Coach, a flexible position that included no benefits, as boxing coach of the Team.
The position description called for Simms to administer the All-Marine Boxing Program; provide the Athletic Director with recommendation/suggestions for selection on the All-Marine Boxing Team; coach, plan and organize physical fitness programs that condition the boxing team; and, actively recruit Marine boxers.
On January 31, 2007, an official in the Personal and Family Readiness Division (PFRD) notified Simms that the Semper Fit Branch of the PFRD selected Simms for the position. “Employees of the Semper Fit Branch are considered to be government employees,” according to the court.
Additional factors supported this designation, such as the fact that Human Resources “maintained Simms’s personnel file because it considered him to be a federal employee,” wrote the court. “If Simms were considered an independent contractor, the normal protocol would be for the contracting office to work with Simms and not the human resources office.”
A year later, the Marine Corps informed Simms that as a full-time employee he was eligible to participate in the employee benefit plan, according to the court.
“The government has provided overwhelming evidence as to its employment of Simms,” wrote the court. “It hired Simms, promoted him, provided salary and benefits, and supported the Team.”
Given the determination that both defendants were subject to the FTCA, the court turned to whether the plaintiff had “exhausted her administrative remedies. See 28 U.S.C. § 2401(b) (requiring presentation in writing to appropriate federal agency within two years of claim’s accrual); Gould v. United States Dept. of Health & Human Servs., 905 F.2d 738, 742 (The FTCA ‘specifically requires an initial presentation of a claim to the appropriate federal agency within two years of the accrual of the cause of action and a final denial by that agency as a jurisdictional prerequisite to suit under the Act.’)
“In this case, plaintiff did not file an administrative claim with the Department of the Navy related to the incidents alleged in the complaint within the two year statute of limitations period dictated by the FTCA. In fact, the plaintiff has presented no evidence that she has filed such a claim at any time. Accordingly, the court lacks jurisdiction to hear the plaintiff’s claims against the government, and the government’s motion to dismiss is granted.”
Penny Palmer, executrix for the Estate Of Libardo Anthony Jimenez, JR., Deceased v. United States Amateur Boxing, INC. and United States Of America; E.D.N.C.; NO. 4:12-CV-106-H, 2014 U.S. Dist. LEXIS 27637; 3/4/13
Attorneys of Record: (for plaintiff) E. Bradley Evans, Lynwood P. Evans, Thomas E. Stroud, Jr., LEAD ATTORNEYS, Ward & Smith, P.A., Greenville, NC. (for defendants) Rodney A. Dean, LEAD ATTORNEY, Dean & Gibson, PLLC, Charlotte, NC and Michael James, LEAD ATTORNEY, Raleigh, NC.
