UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA HAMMOND DIVISION CITY OF WHITING, INDIANA, ) ) Plaintiff, ) ) vs. ) CASE NO. 2:14-cv-440-TLS-PRC ) WHITNEY, BAILEY, COX & ) MAGNANI , LLC, ) ) Defendant. ) CITY OF WHITING’S BRIEF IN SUPPORT OF MOTION TO STRIKE WBCM’S BELATED MOTION FOR SUMMARY JUDGMENT AND TO HOLD SUMMARY JUDGMENT PROCEEDINGS IN ABEYANCE PENDING RESOLUTION OF THE MOTION TO STRIKE The City of Whiting, Indiana (the “City”), by counsel, submits this Brief in support of its Motion to Strike the belated Motion for Summary Judgment [Doc. 50] filed by Defendant Whitney, Bailey, Cox & Magnani, LLC (“WBCM”) and to hold any proceedings on WBCM’s summary judgment motion in abeyance pending resolution of the Motion to Strike. INTRODUCTION AND SUMMARY OF ARGUMENT WBCM filed its Motion for Summary Judgment on May 12, 2017, more than seven months after the dispositive motion deadline expired on October 1, 2016. WBCM did so without explanation, without leave of court, and in clear violation of this Court’s scheduling order and Rules 16 and 6 of the Federal Rules of Civil Procedure. WBCM offers nothing approaching good cause, or even excusable neglect, to justify the untimeliness of its summary judgment motion, and neither USDC IN/ND case 2:14-cv-00440-JTM-PRC document 55 filed 05/19/17 page 1 of 15 2 good cause nor excusable neglect exists to warrant consideration of WBCM’s untimely motion. Indeed, WBCM’s Motion for Summary Judgment is nothing more than a repackaged version of its earlier Motion to Dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, which was denied by this Court on November 5, 2015. There is no reason WBCM could not have conducted the limited written discovery designated in its Motion for Summary Judgment and filed that motion at some point between the Court’s November 5, 2015 ruling and expiration of the dispositive motion deadline on October 1, 2016, nearly one year later. Accordingly, this Court would be well within its discretion to strike WBCM’s Motion for Summary Judgment and hold any proceedings on WBCM’s motion in abeyance pending resolution of the City’s Motion to Strike. FACTUAL BACKGROUND AND PROCEDURAL HISTORY This case centers around revitalization of the Whiting Lakefront Park (the “Project”) and issues that have arisen since the Project’s completion. In 2009, the City contracted with non-party American Structurepoint, Inc. (“Structurepoint”) to serve as the City’s engineer and construction consultant for the Project. In 2010, Structurepoint subcontracted with Defendant WBCM, a Baltimore-based marine engineering firm that agreed to assist with certain water-related aspects of the Project (the “Subcontract”). After the Project experienced multiple failures, Structurepoint assigned any and all claims it may have had against WBCM under the Subcontract to the City (the “Assignment Agreement”). The City filed a Complaint against WBCM in state court on October 30, 2014, alleging both direct USDC IN/ND case 2:14-cv-00440-JTM-PRC document 55 filed 05/19/17 page 2 of 15 3 claims and claims via the Assignment Agreement. [Doc. 3]. On January 23, 2015, following removal to this Court, the City filed a First Amended Complaint against WBCM. [Doc. 10]. On February 6, 2015, WBCM filed a Rule 12(b)(6) Motion to Dismiss the City’s First Amended Complaint. [Doc. 11]. WBCM sought to dismiss the City’s claims on the following grounds: • The City’s negligence claim (Count II) was barred by the economic loss doctrine, in that the City’s only alleged damages involved repair or remediation of the Project itself, and not damages to any “other property.” [Doc. 12, WBCM’s Brief in Support of Motion to Dismiss, pp. 7-11]. • The City could not recover on its third party beneficiary claim (Count III) because the terms of the Subcontract were insufficient to establish that the City was an intended third party beneficiary. [Id. at 12-14]. • The City’s “assigned” claims for breach of contract (Count I), breach of warranty (Count IV), and indemnity (Count V) could not prevail because the City stood in the shoes of Structurepoint via the Assignment Agreement, yet the language of the Assignment Agreement provided that the City would “forego legal action” against Structurepoint. [Id. at 19-24]. In an Opinion and Order entered on November 5, 2015, the Court denied WBCM’s Motion to Dismiss as to all but one of the City’s causes of action. [Doc. 20]. Thus, the City’s claims against WBCM currently stand as follows:1 Count I Breach of contract via the Assignment Agreement Count II Negligence 1 The Court dismissed Count VI of the City’s First Amended Complaint for negligent misrepresentation. [Doc. 20, pp. 14-16]. After re-pleading, the City added a new Count VI to its Second Amended Complaint alleging breach of contract (via the Assignment Agreement) with regard to construction of a breakwater on the Project. [Doc. 29, pp. 10-11]. The First Amended Complaint and Second Amended Complaint are, in all other respects, substantially the same. USDC IN/ND case 2:14-cv-00440-JTM-PRC document 55 filed 05/19/17 page 3 of 15 4 Count III Breach of contract as a third party beneficiary Count IV Breach of warranty Count V Indemnity via the Assignment Agreement Count VI Breach of contract via the Assignment Agreement On December 17, 2015, following its ruling on WBCM’s Motion to Dismiss, the Court entered an Order approving the joint Report of Parties’ Planning Meeting setting various case management deadlines. [Docs. 23, 24]. The Report of Parties’ Planning Meeting approved by the Court directed that “all dispositive motions shall be filed by October 1, 2016.” [Doc. 23, p. 6; Doc. 24]. The Report of Parties’ Planning Meeting approved by the Court contemplated from the outset that discovery would continue past the dispositive motion deadline, such that the “last date to complete all discovery [would be] February 1, 2017.” [Doc. 23, p. 6; Doc. 24]. On April 13, 2016, WBCM served Requests for Production of Documents on the City. On June 17, 2016, the City served its written Responses to WBCM’s Document Requests. [Doc. 51-3]. This was three-and-a-half months before the dispositive motion deadline was set to expire on October 1, 2016. The October 1, 2016 dispositive motion deadline under the Court’s scheduling order came and went. [Docs. 23, 24]. WBCM did not file a summary judgment motion before the dispositive motion deadline expired, nor did it ever request an extension of the dispositive motion deadline. While the parties sought and received several extensions of the discovery and expert witness disclosure deadlines in late 2016 and early 2017, none of those requests, or the Court’s orders extending the discovery and expert witness deadlines, modified the dispositive motion deadline of October 1, 2016. [Docs. 34, 35, 36, 37, 39, 40]. USDC IN/ND case 2:14-cv-00440-JTM-PRC document 55 filed 05/19/17 page 4 of 15 5 On February 2, 2017, nearly fifteen months after the Court denied WBCM’s Motion to Dismiss and a full four months after the dispositive motion deadline had passed, WBCM served Interrogatories on the City intended “to meet the substance of the Court’s ruling [on the Motion to Dismiss].” [Doc. 51, p. 6]. The City responded to WBCM’s Interrogatories on March 17, 2017. [Doc. 51-2]. On May 12, 2017, more than seven months after expiration of the dispositive motion deadline and nearly two months after receiving the City’s Interrogatory Answers, WBCM filed its Motion for Summary Judgment on the City’s Second Amended Complaint. WBCM’s belated Motion for Summary Judgment relies primarily on the facts alleged in the City’s Second Amended Complaint and the contracts attached to the pleading itself. WBCM also designates a handful of the City’s written discovery responses from its Responses to Document Requests (served over three months before the dispositive motion deadline expired) and its (recently-prompted) Answers to Interrogatories. WBCM’s summary judgment motion asserts the very same legal arguments set forth in its previously-denied Motion to Dismiss. WBCM did not move the Court to extend or resurrect the dispositive motion deadline before filing its untimely Motion for Summary Judgment, nor did it seek leave to file its untimely motion. ARGUMENT I. Case Management Deadlines And Untimely Motions. Under Rule 16, “the district judge - or a magistrate judge when authorized by local rule - must issue a scheduling order” that “limit[s] the time to join other USDC IN/ND case 2:14-cv-00440-JTM-PRC document 55 filed 05/19/17 page 5 of 15 6 parties, amend the pleadings, complete discovery, and file motions.” Fed. R. Civ. P. 16(b)(1) and (b)(3)(A). Once a district court issues a Rule 16 scheduling order establishing the time table for filing motions, among other pretrial matters, that rule’s standards control. See Fed. R. Civ. P. 16(b)(3)(A); BKCAP, LLC v. Captec Franchise Trust 2000-1, 3:07-cv-637, 2010 WL 1222187, at *2 (N.D. Ind. Mar. 23, 2010). Rule 16(b)(4) provides that, once set, “[a] schedule may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The “good cause” standard focuses on the diligence of the party seeking modification of the schedule. BKCAP, 2010 WL 1222187 at *2. “[T]o demonstrate good cause, a party must show that despite its diligence, the time table could not reasonably have been met.” Id. “[E]vents occurring after the entry of a scheduling order which were reasonably unforeseeable may suffice to establish good cause.” Corkrey v. Internal Revenue Service, 192 F.R.D. 66, 67 (N.D.N.Y. 2000). Importantly, the absence of prejudice to the other party does not satisfy the good cause requirement of Rule 16. Tschantz v. McCann, 160 F.R.D. 568, 571 (N.D. Ind. 1995). While Rule 16 addresses the specific deadline for filing motions and sets the standard by which that case management deadline can be moved, Rule 6 provides a more general standard for extension of most deadlines, whether specified in the Rules or set by court order. Powell v. Furnish, Cause No. 1:11-CV-88, 2012 WL 2128031, at *2 (N.D. Ind. June 12, 2012). Rule 6(b)(1) states: When an act may or must be done within a specified time, the court may, for good cause, extend the time: USDC IN/ND case 2:14-cv-00440-JTM-PRC document 55 filed 05/19/17 page 6 of 15 7 (A) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or (B) on motion made after the time has expired if the party failed to act because of excusable neglect. Fed. R. Civ. P. 6(b)(1). Under Rule 6, requests to extend a deadline made before the deadline has passed may be granted for “good cause” shown, but requests made after the time has expired may be granted only upon a showing of “excusable neglect.” Powell, 2012 WL 2128031 at *2 (citing Murphy v. Eddie Murphy Prods., Inc., 611 F.3d 322, 324 (7th Cir. 2010)). Excusable neglect for purposes of Rule 6 is “a somewhat elastic concept,” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 391, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), demanding an equitable determination that can “encompass situations in which the failure to comply with a filing deadline is attributable to negligence[.]” Robb v. Norfolk & W. Ry. Co., 122 F.3d 354, 355-56 (7th Cir. 1997) (quoting Pioneer, 507 U.S. at 394). In determining whether excusable neglect exists, the district court takes “account of all relevant circumstances surrounding the party’s omission . . . include[ing] . . . the danger of prejudice to the [other party], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant [seeking the extension], and whether the movant acted in good faith.” Commodity Futures Trading Comm’n v. Lake Shore Asset Mgmt. Ltd., 646 F.3d 401, 404-05 (7th Cir. 2011) (quoting Pioneer, 507 U.S. at 395). “[I]nattentiveness to the litigation is not excusable[,]” and “[m]issing a filing USDC IN/ND case 2:14-cv-00440-JTM-PRC document 55 filed 05/19/17 page 7 of 15 8 deadline because of slumber is fatal.” Matter of Plunkett, 82 F.3d 738, 742 (7th Cir. 1996). There is a difference between the standards for good cause and excusable neglect. Corkrey, 192 F.R.D. at 67. But both standards, at a minimum, require the party attempting to extend a filing deadline to show “an objectively sufficient reason for extending [the] deadline.” Id. “A litigant who ignores case-management deadlines does so at his peril.” Rosario-Diaz v. Gonzalez, 140 F.3d 312, 315 (1st Cir. 1998). II. WBCM’s Belated Motion For Summary Judgment Should Be Stricken Absent Good Cause, Or Even Excusable Neglect, To Justify Its Untimeliness. WBCM presumptuously filed its Motion for Summary Judgment on May 12, 2017, more than seven months after the dispositive motion deadline expired on October 1, 2016. WBCM did so without explanation, without leave of court, and in clear violation of this Court’s scheduling order and Rules 16 and 6 of the Federal Rules of Civil Procedure. WBCM offers nothing approaching good cause, or even excusable neglect, to justify the untimeliness of its summary judgment motion. For this reason alone, WBCM’s belated Motion for Summary Judgment should be stricken outright. See Hartford v. Schindler Elevator Corp., No. 1:09-cv-132, 2011 WL 6026114, *2 (N.D. Ind. Dec. 1, 2011) (denying request for leave to file untimely response to pending motion for summary judgment where request was filed five days late and plaintiff made no effort to explain the untimeliness); Rosario-Diaz, 140 F.3d at 315 (affirming district court’s refusal to consider motions for summary USDC IN/ND case 2:14-cv-00440-JTM-PRC document 55 filed 05/19/17 page 8 of 15 9 judgment filed eight and fifteen weeks after case management deadline without leave of court). Even if WBCM had acknowledged the application of Rule 16 or Rule 6 or tried to comply with their provisions, it could not demonstrate “an objectively sufficient reason” for the untimeliness of its summary judgment motion. See Corkrey, 192 F.R.D. at 67. For starters, “[t]he fact that a dispositive motion may well save time and expense does not provide a reason for needing an extension” of the deadline to file one. Id. at 68 (rejecting as irrelevant argument that untimely motion for summary judgment was likely to prevail, noting “if true, it only makes more regrettable the failure of the [party] to file a timely motion.”). District courts have “formidable case-management authority” to enforce deadlines for filing pretrial motions and may preclude untimely motions for summary judgment. See Rosario-Diaz, 140 F. 3d at 315; see also Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Stop Treaty Abuse-Wisconsin, Inc., 991 F.2d 1249, 1257 (7th Cir. 1993) (reiterating that a “decision to disregard all materials submitted after a reasonable filing deadline is certainly not an abuse of discretion”) (citation omitted). Moreover, the procedural history of this case establishes WBCM’s lack of diligence and forecloses the existence of good cause, or even excusable neglect, to warrant consideration of its belated Motion for Summary Judgment. There is simply no excuse for WBCM’s inexplicable seven-month delay in filing its summary judgment motion. See Corkrey, 192 F.R.D. at 67 (denying motion to extend dispositive motion deadline filed less than a month late; citing cases in which courts USDC IN/ND case 2:14-cv-00440-JTM-PRC document 55 filed 05/19/17 page 9 of 15 10 found no good cause for extension of filing deadline ten days to one year after deadline had passed). WBCM’s delay is even more inexplicable when one considers the substance of its summary judgment motion. On its face, WBCM’s Motion for Summary Judgment is nothing more than a repackaged version of its earlier Motion to Dismiss, which was denied by this Court on November 5, 2015. Indeed, WBCM goes so far as to incorporate into its summary judgment briefing the entirety of its Brief in Support of Motion to Dismiss, so as not to “restate [its] detailed legal arguments[.]” [Doc. 51, footnote 2]. A side-by-side comparison of WBCM’s summary judgment briefing [Doc. 51] and the point headings from its Brief in Support of Motion to Dismiss [Doc. 12] further illustrates the repetitive nature of its Motion for Summary Judgment: WBCM’s Brief in Support of Summary Judgment Motion WBCM’S Brief Argument on Motion to Dismiss The City’s negligence claim (Count II), is barred by the economic loss doctrine because the “product” is the entire lake lakefront park project, and the City has failed to allege damage to any “other property” beyond the Project itself. [Doc. 51, pp. 5-10]. - “[T]he damages sought by the City [as to Count II] relate to either (1)…costs of repairs to the project itself; or (2) economic damages in the form of delay costs. Both categories of damages are “economic losses”, which cannot be recovered under a negligence cause of action.” [Doc. 12, pt. 1.A p. 7]. Three of the City’s “assigned” causes of action (Counts I, IV and VI) fail because the City has not articulated any damages attributable to Structurepoint, indicating the City is using its Assignment Agreement with Structurepoint to improperly “pass through” the City’s own damages against WBCM. [Doc. 51, p. 13]. - “The Amended Complaint is devoid of any allegations of alleged damages to Structurepoint. Having released Structurepoint from any legal action, the City cannot step into Structurepoint’s shoes and now seek damages against WBCM, where those alleged damages are personal to the City and not Structurepoint.” [Doc. 12, pt. II, pp. 23]. USDC IN/ND case 2:14-cv-00440-JTM-PRC document 55 filed 05/19/17 page 10 of 15 11 WBCM’s Brief in Support of Summary Judgment Motion WBCM’S Brief Argument on Motion to Dismiss The City cannot pursue its claim for indemnity (Count V) because the Assignment Agreement provides the City would “forego legal action against” Structurepoint; this phrase operates as a release/waiver of any claims the City might have against Structurepoint. [Doc. 51, p. 16]. - “[I]n exchange for Structurepoint assigning rights of action against WBCM, the City agreed to give up a legal right that it might otherwise have, in the form of an agreement to forego any legal action against Structurepoint for any of the City’s alleged damages. While this de facto release of claims against Structurepoint serves as the City’s consideration for the assignment of claims and rights of action from Structurepoint, this release also effectively destroys the City’s rights to pursue any damages against WBCM. [Doc. 12, pt. I.D, p 20]. “None of [the City’s] contentions confers third- party beneficiary status upon the City.” [Doc. 51, p. 18]. - “[T]he City’s contention that it is an intended third-party beneficiary [of the Subcontract] is refuted by the language of the Subcontract itself.” [Doc. 12, pt. I.B, pp. 12-14]. WBCM’s lack of diligence in meeting the Court’s dispositive motion deadline is underscored not only by the redundant nature of its Motion for Summary Judgment vis-à-vis its previously-denied Motion to Dismiss, but also by the material WBCM designates in support of its Motion for Summary Judgment. Much of WBCM’s summary judgment motion is premised on the facts alleged in the City’s Second Amended Complaint and contracts attached to the pleading itself, not on evidence developed late in the discovery process.2 WBCM’s Motion for Summary Judgment further relies on the City’s Responses to Document Requests, which the City served three-and-a-half months before the dispositive motion deadline expired. 2 For example, in its argument addressing the City’s indemnity claim (Count V), cites only the language of the Assignment Agreement. [Doc. 51, pp. 13-17]. USDC IN/ND case 2:14-cv-00440-JTM-PRC document 55 filed 05/19/17 page 11 of 15 12 This was more than enough time for WBCM to meet the dispositive motion deadline. While WBCM designates the City’s Answers to Interrogatories in support of its summary judgment motion as well, there is no reason WBCM could not have conducted this limited discovery and filed its motion at some point between the Court’s November 5, 2015 denial of WBCM’s Motion to Dismiss and expiration of the dispositive motion deadline on October 1, 2016, nearly one year later. For example, WBCM designates the City’s Answer to Interrogatory No. 2, which was directed in part to the damages to “other property” the City is claiming it sustained. [See Doc. 51, p 6; Doc. 51-2, Ans. to Interrog. No. 2]. Similarly, WBCM designates the City’s Answer to Interrogatory No. 3, which focuses on the damages the City believes Structurepoint has sustained. [See Doc. 51, p. 13; Doc. 51-3, Ans. to Interrog. No. 2]. WBCM also cites the City’s Answer to Interrogatory No. 7 for its argument that there are no facts to support the City’s status as a third party beneficiary. [See Doc. 51, p. 18; Doc. 51-2, Ans. to Interrog. No. 7]. These are all matters WBCM could have easily addressed in Interrogatories served days after the Court denied its Motion to Dismiss on November 5, 2015, and should have come as no surprise long before the dispositive motion deadline was set to expire on October 1, 2016.3 Despite knowing exactly what discovery it would 3 Case in point, the so-called “facts” in the City’s Answer to Interrogatory No. 7 regarding the bases for its third party beneficiary claim have been well-known to WBCM since the inception of this lawsuit. In its own Motion to Dismiss, WBCM recognized that “the City alleges it was an intended third-party beneficiary by virtue of the fact that it was ‘specifically named in the Subcontract’ and that the Subcontract ‘specifically identifies the USDC IN/ND case 2:14-cv-00440-JTM-PRC document 55 filed 05/19/17 page 12 of 15 13 need from the moment the Court issued its Opinion and Order on November 5, 2015, WBCM simply delayed - in serving the discovery designated in its Motion for Summary Judgment and in filing the motion itself. Under these circumstances, WBCM cannot “show that despite its diligence, the time table [for filing a dispositive motion] could not reasonably have been met.” See BKCAP, 2010 WL 1222187 at *2; see also Brosted v. Unum Life Ins. Co. of America, 421 F.3d 459, 464 (7th Cir. 2005) (affirming district court’s decision not to extend discovery deadline when party waited until one month after deadline expired to file a motion to extend it, failed to claim excusable neglect for missing deadline, and did not contend he was unable to conduct the depositions requested within the allotted discovery time period). On the contrary, having sat on its hands and waited, WBCM cannot show that it was diligent at all with respect to the filing of its Motion for Summary Judgment. WBCM’s failure to meet the dispositive motion deadline is a situation entirely of its own making. See Spears v. City of Indianapolis, 74 F.3d 153, 157-58 (7th Cir. 1996) (affirming denial of plaintiffs’ Contract and the Project.’” [Doc. 12, p. 13]. The City’s Response to WBCM’s Motion to Dismiss set forth a series of additional reasons why the City was an intended beneficiary: [T]he terms and conditions of the prime agreement, including Structurepoint’s responsibilities to the City, are incorporated into the subcontract. [Doc. 10-2], Amended Complaint, Exhibit B, §56. Furthermore WBCM had actual knowledge its work was intended to benefit the City. As illustrated in the Complaint and exhibits thereto, WBCM attended meetings with the City, made representations and recommendations to the City, and understood the City was relying on their professional opinions. The City, the prime contract, and the city park that is to be the finished product of the work are all specifically named in the subcontract. [Doc. 13]. The City’s Answer to Interrogatory No. 7 is merely a reassertion of the previously-articulated factors supporting its third party beneficiary status. USDC IN/ND case 2:14-cv-00440-JTM-PRC document 55 filed 05/19/17 page 13 of 15 14 request for one-day extension of deadline to respond to summary judgment motion where circumstance was “of the Plaintiffs’ own making” and problem was really that counsel “waited until the last minute” to get his materials together); see also Hartford, 2011 WL 6026114 at *2 (“Plaintiff makes no effort to explain the untimeliness of the filing . . . , much less show that the reasons for its delay were outside of its control.”). Absent good cause, or even excusable neglect, to justify the untimely filing of a dispositive motion, WBCM’s belated Motion for Summary Judgment should be stricken. CONCLUSION For all these reasons, the Court should strike WBCM’s belated Motion for Summary Judgment and hold any proceedings on WBCM’s motion in abeyance pending resolution of the City’s Motion to Strike. See Rosario-Gonzalez, 140 F.3d at 316 (“So long as the district court properly refused to entertain the [untimely] motions [for summary judgment], it had no need to consider the underlying merits [of those motions].”). USDC IN/ND case 2:14-cv-00440-JTM-PRC document 55 filed 05/19/17 page 14 of 15 15 Respectfully submitted, /s/ Robert S. Schein Robert S. Schein, Atty. No. 20357-49 Blake P. Holler, Atty. No. 30676-84 KRIEG DeVAULT LLP 12800 North Meridian Street, Ste. 300 Carmel, Indiana 46032 (317) 636-4341; FAX: (317) 636-1507 Shannon L. Noder, Attorney No. 29410-64 KRIEG DeVAULT LLP 8001 Broadway, Suite 400 Merrillville, IN 46410 (219) 227-6088; FAX: (219) 227-6101 Attorneys for Plaintiff City of Whiting, Indiana CERTIFICATE OF SERVICE I hereby certify that on this 19th day of May, 2017, a copy of the foregoing was filed electronically. Service of this filing will be made on all ECF-registered counsel by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system. William E. Kelley, Jr. Sean T. Devenney Drewry Simmons Vornheim, LLP Carmel City Center 736 Hanover Place, Suite 200 Carmel, IN 46032 /s/ Robert S. Schein KD_8858953_2.docx USDC IN/ND case 2:14-cv-00440-JTM-PRC document 55 filed 05/19/17 page 15 of 15
