Alonzo, et Al. v. United States, et Al.

MOTION for SUMMARY JUDGMENT

E.D. Cal.June 26, 2017

NOTICE OF MOTION AND UNITED STATES’ MOTION FOR SUMMARY JUDGMENT 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Attorneys for the United States UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA YOLANDA ALONZO, MARIO ALONZO, Plaintiffs, v. UNITED STATES and DOES 1 through 20, Inclusive, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:17-cv-00539-LJO-SKO NOTICE OF MOTION AND UNITED STATES’ MOTION FOR SUMMARY JUDGMENT [Fed. R. Civ. P. 56] Date: August 2, 2017 Time: 8:30 a.m. Ctrm: 4 Hon. Lawrence J. O’Neill TO THE PLAINTIFFS, OTHER PARTIES, AND COUNSEL: PLEASE TAKE NOTICE that on Wednesday, August 2, 2017, at 8:30 a.m., or as soon thereafter as counsel may be heard by the above-entitled Court, located at 2500 Tulare Street, Fresno, California, the United States will and hereby does move the Court for summary judgment. The United States so moves pursuant to Rule 56 of the Federal Rules of Civil Procedure on the grounds that there is no genuine issue as to any material fact. The Plaintiffs have failed to establish any material disputed facts and the plaintiffs’ claims are time barred. This motion is based upon this Notice of Motion and Motion, the Memorandum of Points and Authorities in Support of United States’ Motion for Summary Judgment, the Declaration of James C. Anagnos, the Statement of Undisputed Facts in Support of United States’ Motion for Summary PHILLIP A. TALBERT United States Attorney JEFFREY J. LODGE Assistant United States Attorney 2500 Tulare Street, Suite 4401 Fresno, California 93721 Telephone: (559) 497-4000 Facsimile: (559) 497-4099 Case 1:17-cv-00539-LJO-SKO Document 11 Filed 06/26/17 Page 1 of 2 NOTICE OF MOTION AND UNITED STATES’ MOTION FOR SUMMARY JUDGMENT 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Judgment, all pleadings and papers on file in this action, and upon such other matters as may be presented to the Court at the time of the hearing. Plaintiffs and others are further advised that their opposition, if any, must comply with the Federal Rules of Civil Procedure as well as the Local Rules. Opposition to the granting of the motion shall be in writing and shall be filed and served not less than fourteen (14) days preceding the noticed (or continued) hearing date. No party will be entitled to be heard in opposition to a motion at oral arguments if opposition to the motion has not been timely filed by that party. See Local Rule 230(c) and Rule 260. Factual contentions involved in pretrial motions shall be initially presented and heard upon affidavits. Id. at Rule 260(b). Respectfully submitted, Dated: June 26, 2017 PHILLIP A. TALBERT UNITED STATES ATTORNEY /s/Jeffrey J. Lodge JEFFREY J. LODGE Assistant United States Attorney Attorney for the United States Case 1:17-cv-00539-LJO-SKO Document 11 Filed 06/26/17 Page 2 of 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF UNITED STATES’ MOTION FOR SUMMARY JUDGMENT 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Attorneys for the United States UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA YOLANDA ALONZO, MARIO ALONZO, Plaintiffs, v. UNITED STATES and DOES 1 through 20, Inclusive, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:17-cv-00539-LJO-SKO MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF UNITED STATES’ MOTION FOR SUMMARY JUDGMENT [Fed. R. Civ. P. 56] Date: August 2, 2017 Time: 8:30 a.m. Ctrm: 4 Hon. Lawrence J. O’Neill INTRODUCTION The Federal Tort Claims Act (FTCA) bars actions filed more than six months after the agency acts on the underlying administrative tort claim. 28 U.S.C. § 2401(b). Here, the plaintiffs’ complaint was filed more than six months after their administrative claims were denied and, therefore, is forever barred. BACKGROUND In a prior case, Case No. 16-00266-LJO-SKO, Yolanda and Mario Alonzo, with the assistance of counsel, filed a complaint against Dr. Elizabeth L. Enderton and others alleging she committed medical malpractice by misdiagnosing Yolanda Alonzo with a fibroid uterus condition and negligently performing a hysterectomy, and failing to diagnose and treat her injury. See Docket Case No. 16-00266, Doc. No. 1. The United States removed the case to District Court and filed a motion PHILLIP A. TALBERT United States Attorney JEFFREY J. LODGE Assistant United States Attorney 2500 Tulare Street, Suite 4401 Fresno, California 93721 Telephone: (559) 497-4000 Facsimile: (559) 497-4099 Case 1:17-cv-00539-LJO-SKO Document 11-1 Filed 06/26/17 Page 1 of 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF UNITED STATES’ MOTION FOR SUMMARY JUDGMENT 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 to dismiss the case because the plaintiffs had failed to exhaust their administrative claims. Id. at Doc. No. 4. The United States expressly addressed the requirements of 28 U.S.C. § 2401(b). Id. at 3:22- 25. On March 22, 2016, the case was dismissed. Doc. No. 10. On May 18, 2016, the plaintiffs, with the assistance of counsel, submitted two administrative tort claims to the United States Department of Health and Human Services (HHS). See Declaration of James C. Anagnos (“Anagnos Decl.”), ¶ 2. HHS denied the claims in writing on October 12, 2016. Id. HHS advised the plaintiffs that if they were dissatisfied with the denial, they could “file suit against the United States in the appropriate federal district court within six (6) months from the date of mailing of this determination (28 U.S.C. § 2401(b)).” Id. HHS mailed the denial letter by certified mail with return receipt the same day. Id. Plaintiffs’ counsel acknowledged receipt. Id. at Ex. 2. Six months from the date of the mailing of the letter was April 12, 2017. On April 13, 2017, the plaintiffs filed the complaint in this court with the assistance of counsel. Docket Case No. 17-00539-LKO-SKO, Doc. No. 1. This is more than six months after denial of the administrative claim. LEGAL STANDARDS A. Six-Month Statute of Limitations. The Federal Tort Claims Act (FTCA) provides that a tort claim against the United States “shall be forever barred” unless it is brought to federal court “within six months” after the agency acts on the claim. 28 U.S.C. § 2401(b). The FTCA's six-month limitations period in § 2401(b) is a nonjurisdictional claim-processing rule which is subject to equitable tolling. United States v. Kwai Fun Wong, 135 S. Ct. 1625 (2015). The party seeking equitable tolling “bears a heavy burden to show that [they are] entitled to equitable tolling, ‘lest the exceptions swallow the rule [.]’ ” Rudin v. Myles, 781 F.3d 1043, 1055 (9th Cir. 2014) (quoting Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010)). The Supreme Court has held that the equitable tolling doctrine is “to be applied sparingly.” Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). B. Rule 56 Summary Judgment. Summary judgment is appropriate when "no genuine dispute as to any material fact" requires trial. Fed. R. Civ. P. 56(a). When considering a summary judgment motion, the Court must examine Case 1:17-cv-00539-LJO-SKO Document 11-1 Filed 06/26/17 Page 2 of 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF UNITED STATES’ MOTION FOR SUMMARY JUDGMENT 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 all of the evidence in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). If, as here, the moving party does not bear the burden of proof at trial, it may discharge the burden of showing that no genuine issue of material fact remains by demonstrating that “there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The moving party is entitled to summary judgment if the non- movant fails to make a sufficient showing of an element of his case with respect to which he has the burden of proof. Id. at 323; Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102, 1106 (9th Cir. 2000). Once the United States meets the requirements of Rule 56, the burden shifts to the plaintiffs to “set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). They may not “rest on mere allegations or denials of [their] pleadings.” Anderson, 477 U.S. at 259. Instead, they must go beyond the pleadings to designate specific facts showing the existence of genuine issues for trial. Celotex, 477 U.S. at 324-25. A genuine issue exists only when a reasonable jury could return a verdict for the non-moving party. Anderson, 477 U.S. at 247-49. To demonstrate a genuine issue, the plaintiffs “must do more than simply show that there is some metaphysical doubt as to the material facts. . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 586-87; see Foster v. Arcata Associates, Inc., 772 F.2d 1453, 1459 (9th Cir. 1985) (the role of summary judgment in discrimination cases “is to enable the district courts to identify meritless suits and dispense with them short of trial”). “The moving party is entitled to a judgment as a matter of law” when the nonmoving party fails to make a sufficient showing on an essential element of its case. Celotex, 477 U.S. at 323; Nissan Fire & Marine, 210 F.3d at 1102. ARGUMENT Under 28 U.S.C. § 2401(b), “a tort claim against the United States shall be forever barred ... unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.” 28 U.S.C. § 2401(b). In Case 1:17-cv-00539-LJO-SKO Document 11-1 Filed 06/26/17 Page 3 of 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF UNITED STATES’ MOTION FOR SUMMARY JUDGMENT 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 this case, HHS mailed, by certified mail, the letter denying plaintiffs’ administrative claims on October 12, 2016. Anagnos Decl., ¶ 2. Plaintiffs therefore had until April 12, 2017 to timely file an action asserting their FTCA claims under 28 U.S.C. § 2401(b). Plaintiffs filed the Complaint in this action on April 13, 2017. Therefore, the statute of limitations bars Plaintiffs' claims. The requirements for equitable tolling cannot be satisfied. A party seeking equitable tolling has the burden of establishing two elements: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way [and prevented timely filing].” The diligence requirement is met when the plaintiff establishes that she is “without any fault” in filing a timely claim. Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1052 (9th Cir. 2013), aff'd, Kwai Fun Wong, 135 S. Ct. at 1630. The second requirement of circumstances beyond her control requires more than excusable neglect, such as an attorney’s miscalculation of dates, and requires her to show that the extraordinary circumstances “ma[de] it impossible to file [the document] on time.” Beebe, 732 F.3d at 1052 quoting Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009). It is well established that "once a claimant retains counsel, tolling ceases because she has gained the means of knowledge of her rights and can be charged with constructive knowledge of the law's requirements." Leorna v. U.S. Department of State, 105 F.3d 548, 551 (9th Cir. 1997). Here, the plaintiffs were at all relevant times represented by counsel. They were repeatedly advised that their legal remedies were subject to the FTCA’s requirements, including the six-month filing deadline of 28 U.S.C. § 2401(b). This requirement was briefed in the United States’ motion to dismiss the prior case.1 Docket Case No. 16-00266, Doc. No. 3 at 3:22-25. HHS expressly identified the filing deadline in the letter denying the plaintiffs’ administrative claims. Anagnos Decl., ¶ 2, Ex. 1. Nevertheless, the lawsuit was not timely filed by April 12, 2017, and any claims are now time barred. Miller v. Mayers Memorial Hosp., 2:10-cv-02723 MCE-DAD, 2011 WL 1253838, *6 (E.D. Cal. Mar. 31, 2011) (lawsuit dismissed as “forever barred” because the claims were not re-filed within six 1 The filing of a prior FTCA complaint, subsequently dismissed without prejudice, does not excuse the untimely filing of his second FTCA action. O'Donnell v. Vencor Inc., 466 F.3d 1104, 1111 (9th Cir. 2006); see also Poppe v. United States, No. 15-17132, 2017 WL 1488265 (9th Cir. 2017) (Unpublished case cited pursuant to Fed. R. App. P. 32.1 and 9th Cir. R. 36-3). Case 1:17-cv-00539-LJO-SKO Document 11-1 Filed 06/26/17 Page 4 of 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF UNITED STATES’ MOTION FOR SUMMARY JUDGMENT 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 months after denial of the plaintiff’s administrative claim). Plaintiffs have made no efforts to plead satisfaction of the timing rules under the FTCA. Their claims against the United States are time- barred and should be dismissed. CONCLUSION For the foregoing reasons, plaintiffs’ claims against the United States should be dismissed with prejudice. Respectfully submitted, Dated: June 26, 2017 PHILLIP A. TALBERT UNITED STATES ATTORNEY /s/Jeffrey J. Lodge JEFFREY J. LODGE Assistant United States Attorney Attorney for the United States Case 1:17-cv-00539-LJO-SKO Document 11-1 Filed 06/26/17 Page 5 of 5 STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF UNITED STATES’ MOTION FOR SUMMARY JUDGMENT 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Attorneys for the United States UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA YOLANDA ALONZO, MARIO ALONZO, Plaintiffs, v. UNITED STATES and DOES 1 through 20, Inclusive, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:17-cv-00539-LJO-SKO STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF UNITED STATES’ MOTION FOR SUMMARY JUDGMENT [Fed. R. Civ. P. 56] Date: August 2, 2017 Time: 8:30 a.m. Ctrm: 4 Hon. Lawrence J. O’Neill Pursuant to Local Rule 260(a) of the United States District Court for the Eastern District of California, the United States provides the following Separate Statement of Undisputed Facts in support of its Motion for Summary Judgment. No. Statement of Undisputed Facts Supporting Evidence 1. On May 18, 2016, the plaintiffs, with the assistance of counsel, submitted two administrative tort claims to the United States Department of Health and Human Services (HHS). Declaration of James C. Anagnos (“Anagnos Decl.”), ¶ 2. 2. HHS mailed, by certified mail, the letter denying plaintiffs’ administrative claims on October 12, 2016. Anagnos Decl. ¶ 2, Ex. 1. 3. Six months from the date of the mailing of the HHS letter is April 12, 2017. Id. PHILLIP A. TALBERT United States Attorney JEFFREY J. LODGE Assistant United States Attorney 2500 Tulare Street, Suite 4401 Fresno, California 93721 Telephone: (559) 497-4000 Facsimile: (559) 497-4099 Case 1:17-cv-00539-LJO-SKO Document 11-2 Filed 06/26/17 Page 1 of 2 STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF UNITED STATES’ MOTION FOR SUMMARY JUDGMENT 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 No. Statement of Undisputed Facts Supporting Evidence 4. On April 13, 2017, the plaintiffs filed the complaint in this court with the assistance of counsel. Complaint, Doc. No. 1. Respectfully submitted, Dated: June 26, 2017 PHILLIP A. TALBERT UNITED STATES ATTORNEY /s/Jeffrey J. Lodge JEFFREY J. LODGE Assistant United States Attorney Attorney for the United States Case 1:17-cv-00539-LJO-SKO Document 11-2 Filed 06/26/17 Page 2 of 2 1 2 3 4 5 6 7 I 9 10 LL t2 13 L4 15 t6 t7 18 L9 20 2L 22 23 24 2S 26 27 28 PHILLP A. TALBERT United States Attorney JEFFREY J. LODGE Assistant United States Attorney 2500 Tulare Street, Suite 4401 Fresno, Califomia 93721 Telephone: (559) 497 -4000 Facsimile: (559) 497 -4099 Attorneys for the United States YOLANDA ALONZO, MARIO ALONZO, Plaintiffs, v. UNITED STATES and DOES 1 through 20, lnclusive, Defendants. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA Case No. I : 17-cv-00539-LJO-SKO DECLARATION OF JAMES C. ANAGNOS IN SUPPORT OF UNITED STATES' MOTION FOR SUMMARY JUDGMENT [Fed. R. Civ. P.56] Date: August 2,2017 Time: 8:30 a.m. Ctrm: 4 Hon. Lawrence J. O'Neill DECLARATION OF JAMES C. ANAGNOS IN SUPPORT OF UNITED STATES' MOTION FOR SUMMARY JUDGMENT Case 1:17-cv-00539-LJO-SKO Document 11-3 Filed 06/26/17 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA YOLANDA ALONZO, et al., Plaintiffs, v. UNITED STATES, et al., Defendants. Case No.: 17-00310 DECLARATION OF JAMES C. ANAGNOS 1. I am an Assistant Deputy Associate General Counsel in the General Law Division, Office of the General Counsel, Department of Health and Human Services (HHS). I am familiar with the official records maintained by the Department as well as with the system by which those records are maintained. 2. I have reviewed official agency records and determined that on May 18, 2016, the plaintiffs, with the assistance of counsel, submiued two administrative tort claims to HHS. HHS denied the claims in writing on October 12,2016. HHS advised the plaintiffs that if they were dissatisfied with the denial, they could, "file suit against the United States in the appropriate federal district court within six (6) months from the date of mailing of this determination (28 U.S.C. $ 2401(b)." HHS mailed the denial letter by certified mail the same day. Plaintiffs' counsel acknowledged receipt. Six months from the date of the mailing of the letter is April 12, 20L7. A copy the denial letter and certified mail receipt are attached to this declaration as Exhibit l I declare under penalty of perjury that the foregoing is true and correct. 28 U.S.C. $ 1746.rt -*t*r Dated at Washington, D.C., this ' 40' day of May ,2017. Case 1:17-cv-00539-LJO-SKO Document 11-3 Filed 06/26/17 Page 2 of 6 j*r,a JAMES C. ANAGNOS Assistant Deputy Associate General Counsel Claims and Employment Law Branch General Law Division Office of the General Counsel DeparEnent of Health and Human Services Case 1:17-cv-00539-LJO-SKO Document 11-3 Filed 06/26/17 Page 3 of 6 Exhibit I Case 1:17-cv-00539-LJO-SKO Document 11-3 Filed 06/26/17 Page 4 of 6 DEPARTMENT OF.IIEALTH & I{IIMAN SERVICES ur'FICE OF THE GENERAL COUNSEL General Law Divisiorl CELB 330 C Smeq S.W. Swiuer Building, Suite 2600 WashinelorL D.C. 20201 CERTIFIED . RETT'RN RECEIPT REOUESTED Mark A. Vogt, Esquire Fow]er, HeIseI, Vogt 1401 Fulton Street Suite 802 Fresno, CaLifornia 93727 OCT 1 2 20tE RE: Mministrative Claim of : Yolanda Alonzo and Mario Alonzo 2015-0411 & O4L2 Dear Mr. Vogt: On May 18, 2076, you filed two administrative tort cl-aims under the Federal Tort C1aims Act ('FTCA") , 28 lJ.S.C. SS 1346(b), 2401(b) , 25"1L- 2680, on behalf of your client.s, Yolanda Alonzo and Malio Alonzo, alleging, inter a7ia, that on October 2, 20L4, Elizabeth L. Enderton, D.O., and the Family Healthcare Network, in Visalia, California, diagnosed Ms. Alonzo with uterine fibroids and performed a robotic hysterectomy, which caused a blockaqpe of the ureter and resulted in kidney damage, rectal, vaginal and ureterovaginal fistulas, and a large abdominal wound. Mario Alonzo also all-egedly suffered a loss of consortium. The FTCA authorizes the settlement of any claim of money damages against the United States fot, inter alia, injury or death caused by the negligent, or wrongful, act or omission of any employee of the Federal Coveriment, while acting within the scope of employment. Under the FTCA, said act or omission must be such thaE Ehe united states, if a prj-vate person, would be liable to the claimant in accordance with the law of the pt."" where the act or omission occurred, 28 U.S.C. S 2612. This letter constitutes the notice of fi-nal determination on these claims, as required by 28 U.S.C. S 2401(b), 2675(a). Your clients' administrative tort claims are denied. The evidence fails to establish that the alleged injuries were due to the negligent or wrongful act or omission of a federal employee acting within the scope of employment. If your clients are dissatisfied with this determination, they may: 1. file a written request with the agency for reconsideration of the final determination denying the claims within six (5) months from the date of mailing of this determination (28 C. E. R. S L4 .9) ; or Case 1:17-cv-00539-LJO-SKO Document 11-3 Filed 06/26/17 Page 5 of 6 Mark A. VogL, Esqurre 2016-0411 c 0412 Page 2 Z. file suit against the United States in the appropriate federal district court within six (6) months from the date of mailing of this determination l2B U.S.C. S 2401(b) ) . In the event your clients request reconsideration, the agency will review the claims within six (6) months from the date the reguest is received. If the reconsidered claims are denied, you may file suit within six (6) months from the date of maillng of the final determination. Sincerely, 2{$*ct-v,v, o- '-itliam A. Biglow reputy Associate General Counsel ilaims and Employment Law Branch ev6*l *4 rn JI m m Ln rq rL JI r{1 CBr$lisd Faa EE { r.*#*mniTd,1[fr E $r,j#flf"3i$!ffi,[t: .E rl Total po$hg!€ & Fe$s Poshgs hEHnpi:iiA:.:*-"' at PO Box N$. i$ra"i,i,;/Fir-?*** 1. Article Addr€ssed to: Article Numb€r t"rk A. Vogr, Esquire Fowler, Helset. V6or 1,l()1 Fulton Streei Suite 902 Fresno, CA 9372, 0-(f trt r\- Y"*A.Vogt, Esquar" ?xl"lil,:f"j,,5 _ Suite 802Fresno, CA 9322, 4. Restri ted Delivery? (E_t* F"d gransfer fram $stuico tabd) 7[CI1 ],tfiu i1001 D. ls ;;!:"ffi :"J:,'J"fl::?"3T jiilr ) Form G811, F"b;mA Domestic Return Receipi b?1s 1O25grOp-M-1s4o 33L3 Case 1:17-cv-00539-LJO-SKO Document 11-3 Filed 06/26/17 Page 6 of 6