Bonner v. Triple-S Vida, Inc. ( 2023 )

United States Court of Appeals
For the First Circuit
No. 22-1066
DORA L. BONNER,
Plaintiff, Appellant,
v.
TRIPLE S MANAGEMENT CORPORATION, TRIPLE-S VIDA, INC.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Bruce J. McGivern, U.S. Magistrate Judge]
Before
Montecalvo and Lipez, Circuit Judges.
Burroughs, District Judge.
Monica A. Santiago Vazquez and Dora L. Bonner for appellant.
María D. Trelles-Hernández, with whom Jorge I. Peirats,
Julián R. Rodríguez-Muñoz, and Pietrantoni Méndez & Álvarez LLC
were on brief, for appellees.
May 19, 2023
 Of the District of Massachusetts, sitting by designation.
Burroughs, District Judge. This appeal follows a grant
of summary judgment by the district court against Appellant Dora
L. Bonner and in favor of Appellees Triple-S Management Corporation
("TSM") and Triple-S Vida, Inc. ("TSV") (collectively "Appellees"
or "Triple-S").1 In the underlying action, Bonner brought several
claims alleging that Triple-S denied her millions of dollars of
proceeds from certain certificates, which TSM allegedly invested,
and devised a scheme to defraud her by requiring Bonner to pay
management fees that purportedly were necessary to release the
proceeds to Bonner. Bonner now challenges the district court's
(i) denial of her motion to compel discovery and extend the
discovery deadline, as well as the motion for reconsideration of
that denial, and (ii) determination that Triple-S was entitled to
summary judgment because Triple-S had established as a matter of
law that the individuals behind the fraudulent scheme were not
related to Triple-S. Finding that the district court did not abuse
its discretion in denying Bonner's discovery-related motions and
properly considered the evidence at the summary judgment stage, we
affirm.
I. Background
A. Facts
TSM is an independent licensee of the Blue Cross Blue
1 The parties consented to proceed before a magistrate
judge. See 28 U.S.C. § 636(c).
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Shield Association and a holding company for several insurance
companies that offer health, life, and property casualty insurance
in Puerto Rico, including TSV, which offers life insurance. In
2013, TSV acquired Atlantic Southern Insurance Company ("ASI"),
which sells health, life, and cancer insurance.
In March 2015, Bonner was contacted by an individual who
introduced himself as Albert Gamboa Spencer ("Gamboa") and stated
that he was an employee at TSV who previously worked at ASI.2
Gamboa said that he was reaching out to Bonner because someone had
attempted to change the beneficiary designation on an investment
certificate held by TSV in Bonner's name that was worth more than
$8 million.3
Following this initial discussion, Bonner undertook to
retrieve the funds referenced by Gamboa. To this end, from March
2015 through approximately August 2015, Bonner participated in
many phone calls and over one hundred emails with Gamboa and other
individuals who claimed to be Triple-S employees, including people
who claimed the following names and titles: Feliciano Zelaya, a
Financial Manager at TSM; Ramon Ruiz, Chief Executive Officer for
TSM; Eugenio Cerra, Jr., "chairman" for TSM; and Emilio Aponte,
2 Gamboa's initial emails to Bonner following the call
identified him as the Head of Legal Department, Country Director
for Triple-S. His later emails identified him as a Policy Manager.
3 Bonner was later informed that there were multiple
investment certificates in her name.
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a TSM board member.
In April 2015, Zelaya instructed Bonner to pay a
management fee of $65,438.50 to someone named Maria Elena Ramos de
Chang for the funds to be released. Bonner alleges that she paid
the fee, but that the funds were nonetheless not released to her.
The individuals communicating with Bonner repeatedly claimed
various issues prevented them from transferring the funds and
directed her to pay more management fees to secure their release.
Ultimately, Bonner, after never receiving any funds back from TSM
or the people who had identified themselves to her as affiliated
with TSM, claimed damages of over $1 million.
B. Procedural History
In June 2019, Bonner filed an Amended Complaint against
Triple-S in the United States District Court for the District of
Puerto Rico alleging fraud, breach of contract, and breach of
fiduciary duty under Texas state law, as well as violations of the
Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18
U.S.C. §§ 1961 et seq., all predicated on her belief that TSM and
its employees refused to transfer investment proceeds to her, and
solicited and received funds from her as a prerequisite for the
transfer.
On May 14, 2020, Triple-S filed its Answer to the Amended
Complaint raising several affirmative defenses, including that:
(1) Triple-S does not invest assets on behalf of individuals; (2)
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TSM has no record of ever producing a certificate for over $8
million to Bonner; (3) the individuals who contacted Bonner about
the certificate were not then and had never been employees or
agents of Triple-S; and (4) Bonner was the victim of an advanced-
fee scam by individuals impersonating Triple-S's employees and
executives in aid of their fraud.
On February 18, 2021, Bonner served Triple-S with her
First Set of Interrogatories and a Request for the Production of
Documents ("First Set"). The district court granted Triple-S an
extension to April 10, 2021, to respond to the First Set. On April
20, 2021, Triple-S noticed its Responses and Objections to Bonner's
First Set, in which it objected to a significant portion of the
discovery requests as being overly broad, vague, unduly
burdensome, irrelevant, and in some instances, seeking privileged
or confidential information.
On July 6, 2021, Bonner filed a "Motion to Compel
Defendants to Respond to Interrogatories and Request for
Production of Documents, and for an Extension of Discovery
Deadline" ("Motion to Compel"), in which she asserted that Triple-
S's responses to the First Set were untimely and inadequate, and
requested at least a 90-day extension of the discovery deadline
from the date of the court's hearing on the motion. Triple-S
opposed the motion.
On September 9, 2021, while the Motion to Compel was
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still pending, Triple-S filed a Motion for Summary Judgment,
arguing that the uncontested facts showed that Bonner was never in
contact with actual Triple-S employees or executives, but was
instead the victim of a fraud perpetrated by third parties
unrelated to TSM.
On September 21, 2021, the district court denied most of
Bonner's Motion to Compel with prejudice, with the exception of
three interrogatories and two requests for production ("RFPs").
As to those, the district court denied the motion without prejudice
and gave the parties ten days to exhaust efforts to resolve the
dispute.
About two weeks later, on October 6, 2021, Bonner filed
a "Motion for Reconsideration of Order Denying Motion to Compel
Discovery" ("Motion for Reconsideration"), maintaining that
Triple-S had waived its right to object to the interrogatories and
RFPs by failing to answer in a timely manner and by not properly
objecting. The district court denied Bonner's Motion for
Reconsideration on November 17, 2021.
On December 17, 2021, finding no genuine issue of fact
as to whether those behind the fraud were actually associated with
TSM, the district court granted summary judgment in favor of
Triple-S and dismissed the case.
This appeal followed.
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II. Discussion
Bonner seeks review of (i) the district court's denial
of her Motion to Compel and the Motion for Reconsideration of that
denial and (ii) the district court's grant of summary judgment in
favor of Triple-S. We address each in turn.
A. Motion to Compel and Motion for Reconsideration
"The trial court has 'broad discretion in ruling on pre-
trial management matters,' and we review the court's denial of
[the] motion to compel 'for abuse of its considerable discretion.'"
Wells Real Estate Inv. Tr. II, Inc. v. Chardon/Hato Rey P'ship,
S.E., 615 F.3d 45, 58 (1st Cir. 2010) (quoting Ayala-Gerena v.
Bristol Myers-Squibb Co., 95 F.3d 86, 91 (1st Cir. 1996)). "This
standard of review is 'not appellant-friendly,' and we 'will
intervene in such matters only upon a clear showing of manifest
injustice, that is, where the lower court's discovery order was
plainly wrong and resulted in substantial prejudice to the
aggrieved party.'" Id. (quoting Dennis v. Osram Sylvania, Inc.,
549 F.3d 851, 860 (1st Cir. 2008)).
On appeal, with regard to both the district court's
denial of her Motion to Compel and Motion for Reconsideration,
Bonner largely relies on the argument made in the Motion for
Reconsideration, namely that Triple-S waived its right to object
to the discovery (1) by providing untimely responses to the First
Set after the April 10, 2021 deadline and (2) by failing to
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properly object to the interrogatories and RFPs.
As to timeliness, "[i]f the responding party fails to
make a timely objection, or fails to state the reason for an
objection, he may be held to have waived any or all of his
objections." Marx v. Kelly, Hart & Hallman, P.C., 929 F.2d 8, 12
(1st Cir. 1991) (emphasis added). Whether the objections are
waived, however, remains in the court's discretion. See id. at 10("The choice of sanctions for failing to comply with an order of
the district court lies within the sound discretion of the
court."). In this case, where Triple-S noticed its responses and
objections within 10 days of the deadline to respond and Bonner
did not show prejudice from the delay, the district court did not
abuse its discretion in finding that Triple-S did not waive its
objections based on untimeliness.
The district court also did not abuse its discretion in
denying Bonner's Motion to Compel and then the Motion for
Reconsideration based on Triple-S's objections of overbreadth and
lack of relevance. The Federal Rules of Civil Procedure permit
broad discovery, but "discovery, like all matters of procedure,
has ultimate and necessary boundaries." Oppenheimer Fund, Inc. v.
Sanders, 437 U.S. 340, 351 (1978) (quoting Hickman v. Taylor, 329
U.S. 495, 507 (1947)). Although Bonner was no doubt entitled to
discovery related to her claims, "this warranted discovery does
not open the floodgates for cascading discovery of every type and
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kind." Emigrant Residential LLC v. Pinti, 37 F.4th 717, 727 (1st
Cir. 2022).
Federal Rule of Civil Procedure 33(a)(2) provides that
"[a]n interrogatory may relate to any matter that may be inquired
into under [Federal Rule of Civil Procedure] 26(b)." Fed. R. Civ.
P. 33(a)(2). Federal Rule of Civil Procedure 34, which regulates
RFPs, is similarly limited in scope by Rule 26(b). See Fed. R.
Civ. P. 34(a). Rule 26(b), in turn, provides that:
Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any
party's claim or defense and proportional to
the needs of the case, considering the
importance of the issues at stake in the
action, the amount in controversy, the
parties' relative access to relevant
information, the parties' resources, the
importance of the discovery in resolving the
issues, and whether the burden or expense of
the proposed discovery outweighs its likely
benefit. Information within this scope of
discovery need not be admissible in evidence
to be discoverable.
Fed. R. Civ. P. 26(b)(1).
"[T]o be discoverable, information need only appear to
be 'reasonably calculated to lead to the discovery of admissible
evidence.'" Remexcel Managerial Consultants, Inc. v. Arlequin,
583 F.3d 45, 52 (1st Cir. 2009) (quoting Cusumano v. Microsoft
Corp., 162 F.3d 708, 716 n.5 (1st Cir. 1998)). Bonner relies on
the "reasonably calculated" language to argue that her discovery
requests were proper.
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In reviewing the discovery requests in aid of resolving
the Motion to Compel, the district court grouped together
Interrogatory 4 and RFPs 2 through 10 by type of information sought
and then found that all those requests were overly broad and, in
some instances, overly burdensome and not relevant to Bonner's
claims.4 In short, the court equated many of Bonner's discovery
requests to a fishing expedition in contravention of Rule 26(b).
Bonner relies on Hickman v. Taylor, 329 U.S. 495 (1947),
to counter the district court's characterization of her requests.
The issue in that case was "the extent to which a party may inquire
into oral and written statements of witnesses, or other
information, secured by an adverse party's counsel in the course
4 As examples, in RFP 2 and RFP 3, Bonner requested all
call logs, call records, and other evidence of communication, and
all email and text-based chats, respectively, between Triple-S and
its subsidiaries in Costa Rica from March 1 to December 31, 2015.
RFP 7 asked for any call records between Triple-S or ASI and the
FBI, United States Department of the Treasury, United States
Homeland Security, or the Nicaraguan government related to victims
of scams for the same period. The court denied Bonner's motion as
to the three RFPs finding that Bonner could not request "all
communications in all forms without tailoring her request as to
content or to the specific parties in the communication."
Similarly, in RFP 5, Bonner asked for the production of
evidence of all investments that Triple-S or ASI made for its
benefit or on behalf of individual clients from January 1 to
December 31, 2015. In RFP 8, she requested any documents related
to penalties and fines that were imposed by any government entity
on Triple-S or ASI related to wire or ACH transfers during the
period of March 1 to December 31, 2015. The district court found
that these RFPs sought "sweeping categories of Defendants'
financial records" and lacked relevance where Triple-S had
certified that neither it nor ASI invest assets on behalf of
individuals.
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of preparation for possible litigation after a claim has arisen."
Id. at 497. In Hickman, the Court adopted the attorney work
product doctrine, providing for the protection of written
materials obtained or prepared by an attorney, unless such
information was essential to opposing counsel's case and could not
be obtained through other means without an undue burden. See id.
at 511-12. The work product doctrine is not implicated in this
case, and the holding in Hickman has no bearing on the analysis
here. Bonner is correct that, in its discussion of the attorney
work product doctrine, the Hickman Court acknowledged that
"deposition-discovery rules are to be accorded a broad and liberal
treatment," but that Court also stressed that "discovery, like all
matters of procedure, has ultimate and necessary boundaries." Id.And one of those boundaries is Rule 26(b), which provides
limitations "when the inquiry touches upon the irrelevant." Id.
at 508.
Moreover, under a 2000 amendment to Rule 26(b)(1), "when
an objection arises as to the relevance of discovery" it becomes
the job of the court "to determine whether the discovery is
relevant to the claims or defenses and, if not, whether good cause
exists for authorizing it, so long as it is relevant to the subject
matter of the action." In re Subpoena to Witzel, 531 F.3d 113,
118 (1st Cir. 2008) (quoting Fed. R. Civ. P. 26 advisory
committee's note to 2000 amendment). That is precisely what the
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district court did here.
To the extent that Bonner argues that the requests are
relevant based on subject matter, she has not provided the good
cause required under Rule 26(b). For instance, RFP 6 asks that
Triple-S produce all wire transfers and ACH transfers sent from
Triple-S and ASI to any account in the United States, any account
of the United States Treasury, or any account in Costa Rica for
the relevant period. Bonner argues that her claims involve the
same subject matter as the requested materials--that is, wire
transfers--but she offers no explanation, and thus no "good cause,"
for seeking information about such a broad swath of transactions.
Bonner also faults Triple-S for not producing the
records it reviewed to certify that there is no reference to Bonner
at Triple-S or ASI. But to require Triple-S to produce the
documents it identified as unrelated to Bonner's claims in order
to prove the negative to her satisfaction would upend Rule 26(b).
Accordingly, Bonner has not shown that the district
court abused its discretion in denying her Motion to Compel or her
Motion for Reconsideration as to Interrogatory 4 and RFPs 2 through
10 based on overbreadth, burdensomeness, and relevance.
Before the district court, Triple-S in part opposed
Bonner's remaining discovery requests--Interrogatories 1, 2, and
3, and RFPs 1 and 11--on the grounds that Bonner had not met her
obligations under Local Rule 26(b) and Federal Rule of Civil
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Procedure 37(a)(1), which require that the moving party certify
that it has made a good faith effort to resolve the discovery
dispute before seeking court intervention. Finding that Bonner
had not complied with the local or federal meet-and-confer rule
prior to filing her motion, the district court denied without
prejudice Bonner's Motion to Compel as to those five discovery
requests and instructed the parties to meet and confer within ten
days to resolve the dispute. Bonner did not file another motion
to compel either after the mandated meet and confer or once the
ten days had elapsed.
Given that Bonner did not dispute Triple-S's assertion
that she failed to meet her obligations under Local Rule 26(b) and
Federal Rule of Civil Procedure 37(a)(1) for Interrogatories 1, 2,
and 3, and RFPs 1 and 11, the district court did not abuse its
discretion in denying without prejudice Bonner's Motion to Compel
as to those interrogatories and RFPs.5
B. Motion for Summary Judgment
"When reviewing a grant of summary judgment, we often
first consider challenges to the district court's evidentiary
5 Likewise, while Bonner's Motion for Reconsideration
contends that at the June 4, 2021 meet and confer she "discussed
the lack of documents produced," it too fails to assert that she
discussed her specific objections to Triple-S's responses to
Interrogatories 1, 2, and 3, and RFPs 1 and 11. Accordingly, the
district court also did not abuse its discretion in denying her
motion for reconsideration as to those requests.
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rulings, as such rulings define the record on which the summary
judgment rests." Livick v. Gillette Co., 524 F.3d 24, 28 (1st
Cir. 2008). The district court's evidentiary rulings are reviewed
for abuse of discretion. See Vazquez v. Lopez-Rosario, 134 F.3d
28, 33 (1st Cir. 1998) (citing Gen. Elec. Co. v. Joiner, 522 U.S.
136, 141 (1997)). "Under that standard, we will not disturb the
district court's ruling unless the record demonstrates an error of
law or a serious lapse of judgment on the part of the court."
Livick, 524 F.3d at 28. "Once we determine what evidence can
properly be considered, we review the district court's decision to
grant summary judgment de novo." Vazquez, 134 F.3d at 33.
Bonner contends that the affidavits submitted by Triple-
S in support of its motion for summary judgment do not meet the
requirements of Federal Rule of Civil Procedure 56(c)(4) and that
the district court improperly discredited her factual evidence.
a. Triple-S's Affidavits
Rule 56(c)(4) provides that "[a]n affidavit or
declaration used to support or oppose a motion must be made on
personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to
testify on the matters stated." Fed. R. Civ. P. 56(c)(4). "[T]he
requisite personal knowledge must concern facts as opposed to
conclusions, assumptions, or surmise." Perez v. Volvo Car Corp.,
247 F.3d 303, 316 (1st Cir. 2001).
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"As we've explained before, district courts must apply
Rule 56(c)(4) 'to each segment of an affidavit, not to the
affidavit as a whole,' and approach the declaration with 'a
scalpel, not a butcher's knife,' disregarding only those portions
that are inadmissible and crediting the remaining statements."
Rodríguez-Rivera v. Allscripts Healthcare Sols., Inc., 43 F.4th
150, 170 (1st Cir. 2022) (quoting Perez, 247 F.3d at 315).
Consistent with this instruction, the district court
recognized that "Bonner does correctly point out that some of the
purported facts advanced by Triple-S are presented in a wholly
conclusory [manner] or are not fully supported by the evidence on
hand" and then "excised" those supposed facts.6
Reviewing the affidavits at issue, we conclude that the
district court did not abuse its discretion in crediting portions
of the affidavits that were properly based on the affiants'
personal knowledge. For instance, Iraida T. Ojeda-Castro, Vice
President of Human Resources with TSM, swore under oath that she
had reviewed the employment records from Triple-S and ASI and that
6 To the extent that Bonner now complains about portions
of the affidavits that the district court did not rely on, we see
no need to reach the issue as its resolution has no bearing on the
outcome here or below. As we explain infra, if admissible, the
affidavits of Ojeda-Castro and Ruiz-Comas along with Gilberto R.
Negrón-Rivera's December 2015 affidavit provide a sufficient basis
to grant summary judgment to Triple-S. As such, we focus our
discussion on these three affidavits and see no reason to pass on
the admissibility of the other affidavits submitted with Triple-
S's motion for summary judgment.
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there was no record of Cerra, Zelaya, Gamboa, Ramos de Chang,
Aponte, or the other individuals identified by Bonner as having
ever worked at TSM.
Bonner contends that to accept Ojeda-Castro's
attestation as to the employment records would be inconsistent
with our reasoning in Hernández-Santiago v. Ecolab, Inc., 397 F.3d
30 (1st Cir. 2005). That case, however, concerned an affidavit
that was not based on personal knowledge but instead attested only
that a review of the relevant records had taken place, albeit not
by the affiant. Id. at 35. This is not the case here where Ojeda-
Castro, the affiant, had personally reviewed the employment
records. Bonner's contention that Ojeda-Castro does not
sufficiently describe the documents she reviewed is unpersuasive
where Ojeda-Castro attested that she "reviewed the employment
records" for TSM, its subsidiaries, and ASI, and there is "no
record or indication" that such individuals "ever" worked there.
Ojeda-Castro further attested that the position
identified in Gamboa's initial emails, "Head of Legal, Country
Director," does not exist at TSM, ASI, or any of their
subsidiaries. According to the affidavit of Gilberto R. Negrón-
Rivera, an attorney with TSM, as of April 2015, the Vice President
of Finance and CFO for TSM was Amílcar L. Jordán-Pérez, not Zelaya,
and in May 2015, TSM's Chairman of the Board was Luis A. Clavell-
Rodriguez, M.D., not Cerra.
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Although an individual named Ramón M. Ruiz-Comas served
as President and Chief Executive Officer of TSM from May 2002 until
December 2015, Ruiz-Comas stated under oath that he has never met,
spoken, emailed, or corresponded in any way with Bonner or
instructed anyone else to prepare documents or make transfers for
her, nor had he ever met, spoken, or communicated with anyone named
"Feliciano Zelaya," or instructed anyone by that name or anyone
else to prepare a certificate of investment for Bonner. Ruiz-
Comas also swore under oath that the email address used by the
individual who introduced himself to Bonner as Ramon Ruiz was not
Ruiz-Comas's email address at that time and included a domain name
that was not used by TSM.7 Ruiz-Comas also attested that the
"Ramon Ruiz" signature in the evidence put forth by Bonner is not
7 Bonner asserts that the district court improperly
treated a 2015 World Intellectual Property Organization ("WIPO")
Arbitration and Mediation Center proceeding as preclusive. In
that proceeding, TSM filed a complaint against the owner of the
domain name used by the individuals who communicated with Bonner,
and an arbitrator ordered that the disputed domain name be
transferred to TSM. The district court, however, did not rely
upon that proceeding or the arbitrator's findings to resolve a
factual dispute in this case, but merely took judicial notice of
that proceeding, which is permissible. See Kowalski v. Gagne, 914
F.2d 299, 305 (1st Cir. 1990) ("It is well-accepted that federal
courts may take judicial notice of proceedings in other courts if
those proceedings have relevance to the matters at hand."). Bonner
remained free to create a factual dispute by submitting evidence
to suggest that Triple-S had control of the domain name before the
arbitration proceeding. The issue for Bonner is not that the
arbitration decision was given preclusive effect, but rather her
lack of admissible evidence to rebut Triple-S's showing that it
did not have control over the domain name during the relevant time
period.
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actually his handwriting and that it is his "habit and practice"
to sign his full last name, "Ruiz-Comas," and not simply "Ruiz."
Finally, Ruiz-Comas attested that TSM does not invest
funds on behalf of individuals and did not have a corporate account
or corporate credit with the bank used by the individual
identifying himself as Ruiz. See Jefferson Constr. Co. v. United
States ex rel. Bacon, 283 F.2d 265, 267 (1st Cir. 1960) ("We might
be prepared to say that the affidavit of a president of a
corporation that the books and records of the company show certain
facts to be so satisfies [the admissibility and personal-
knowledge] requirements.").
Bonner quotes Poller v. Columbia Broadcasting System,
Inc., 368 U.S. 464, 473 (1962), for the proposition that "[t]rial
by affidavit is no substitute for trial by jury." However, Poller
involved a "complex antitrust litigation where motive and intent
play leading roles," and the Court in that case could not say on
that record that "it is quite clear what the truth is" as there
was "no conclusive evidence supporting the respondents' theory."
Id. at 472–73. Such is not the case here, where the affidavits
establish that the individuals Bonner spoke with did not work at
Triple-S, that no one from Triple-S spoke with Bonner and, finally,
that Triple-S did not have a contract with or do business with
Bonner.
We thus conclude that the district court did not abuse
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its discretion in parsing the affidavits and accepting those
statements in the affidavits that were based on personal knowledge.
b. Bonner's Evidence
Bonner further contends that the district court
improperly discounted her factual evidence, including transcribed
phone conversations and email correspondence with appended
documents, put forth by her to rebut Triple-S's affiants'
statements and establish that she spoke with Triple-S employees.
Relying on Greenburg v. Puerto Rico Maritime Shipping
Authority, 835 F.2d 932 (1st Cir. 1987), Bonner argues that the
district court improperly weighed the parties' evidence rather
than resolving all conflicts in her favor. But Bonner's reliance
on Greenburg is misplaced. In Greenburg, we affirmed the
uncontroversial rule that at summary judgment there is "no room
for credibility determinations, no room for the measured weighing
of conflicting evidence such as the trial process entails, no room
for the judge to superimpose his own ideas of probability and
likelihood (no matter how reasonable those ideas may be) upon the
carapace of the cold record." Id. at 936.
The question here, however, is not whether the district
court weighed evidence, but rather whether it improperly failed to
consider Bonner's evidence. "Evidence that is inadmissible at
trial, such as inadmissible hearsay, may not be considered on
summary judgment." Vazquez, 134 F.3d at 33 (citing Fed. R. Civ.
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P. 56(e) and FDIC v. Roldan Fonseca, 795 F.2d 1102, 1110 (1st Cir.
1986)). Federal Rule of Evidence 801(c) defines "hearsay" as "a
statement that: (1) the declarant does not make while testifying
at the current trial or hearing; and (2) a party offers in evidence
to prove the truth of the matter asserted in the statement." Fed.
R. Evid. 801(c).
As proof that the individuals Bonner communicated with
were employed at Triple-S, Bonner proffered emails, including
those sent to her by the individuals who identified themselves as
Zelaya, Ruiz, and Gamboa, as well as transcribed conversations
between Bonner and various individuals who identified themselves
as Triple-S employees. Such evidence constitutes hearsay and would
therefore only be admissible under an exception to the hearsay
rule.8
Under the Federal Rules of Evidence, admissions by a
party-opponent are not hearsay. See Fed. R. Evid. 801(d)(2). "For
a statement to be an admission under Rule 801(d)(2), the statement
must be made by a party, or by a party's agent or servant within
the scope of the agency or employment." Vazquez, 134 F.3d at 34.
Bonner, however, did not properly authenticate the statements
8 The case Bonner cites--United States v. Doyon, 194 F.3d
207, 212 (1st Cir. 1999)--to assert that the court improperly
considered the admissibility of the transcribed conversations is
inapposite where Doyon considered whether the recording device was
in proper working order and not whether the statements made in the
conversation were true.
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under the Rules of Evidence or establish that any of the statements
were made or adopted by actual Triple-S employees or associates.
Indeed, the district court detailed several ways by which Bonner
could have, but did not, authenticate the statements, including by
providing evidence that the calls were made to the number assigned
to a particular person or business or by authenticating Ruiz's
voice. Despite this guidance, Bonner failed to credibly cite an
applicable exception to the hearsay rule that would have made the
transcriptions, emails, and other documents at issue admissible.
Thus, we conclude that the district court did not abuse
its discretion in determining that a majority of the evidence
offered by Bonner was inadmissible hearsay and therefore could not
be relied upon to establish a material factual dispute.
c. Summary Judgment
"A court may grant summary judgment only if the record,
construed in the light most amiable to the nonmovant, presents no
'genuine issue as to any material fact and reflects the movant's
entitlement to judgment as a matter of law.'" Irobe v. U.S. Dep't
of Agric., 890 F.3d 371, 377 (1st Cir. 2018) (first quoting
McKenney v. Mangino, 873 F.3d 75, 80 (1st Cir. 2017) and then
citing Fed. R. Civ. P. 56(a)). "A fact is 'material' if it 'has
the capacity to change the outcome of the [factfinder's]
determination.'" Id. (alteration in original) (quoting Perez v.
Lorraine Enters., 769 F.3d 23, 29 (1st Cir. 2014)). "An issue is
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'genuine' if the evidence would enable a reasonable factfinder to
decide the issue in favor of either party." Id. (citing Perez,
769 F.3d at 29).
Bonner mistakenly asserts that there is a material
factual dispute because "Triple-S says it is not Triple-S
employees" behind the fraud and "Bonner says, yes it is." As
discussed in detail above, Triple-S provided affidavits, based on
personal knowledge, that supported its position that neither
Triple-S nor its employees were involved in a scheme to defraud
Bonner. On the other hand, Bonner did not provide admissible
evidence in support of her allegation that actual Triple-S
employees were the perpetrators.
We sympathize with Bonner, but her belief that Triple-S
and its employees received her wires or are holding money that is
rightfully hers, without more, does not create a material factual
dispute sufficient to defeat summary judgment. "Although we draw
all reasonable inferences in the nonmovant's favor, we will not
'draw unreasonable inferences or credit bald assertions . . . .'"
López-Hernández v. Terumo P.R. LLC, 64 F.4th 22, 28 (1st Cir. 2023)
(quoting Cabán Hernández v. Philip Morris USA, Inc., 486 F.3d 1,
8 (1st Cir. 2007)). Accordingly, on the record before us, we
detect no genuine dispute of material fact, and the district court
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therefore properly granted summary judgment in favor of Triple-S.9
III. Conclusion
For the reasons given, we conclude that the district
court did not abuse its discretion in denying Bonner's Motion to
Compel and Motion for Reconsideration. And, as noted above, the
court did not err in granting summary judgment for appellees.
Affirmed.
9 Triple-S's request that we sanction Bonner under Rule 38
of the Federal Rules of Appellate Procedure is denied without
prejudice. Rule 38 requires that a party make such a request in
a separately filed motion. Fed. R. App. P. 38; see also Prouty v.
Thippanna, No. 21-1724, 2022 WL 19037643, at *1 (1st Cir. Dec. 15,
2022).
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