Bonner v. Triple-S Vida, Inc.Bonner v. Triple-S Vida, Inc.
Burroughs, District
I. Background
A. Facts
TSM is an independent licensee of the Blue Cross Blue 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 wаs 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 ovеr 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, 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.
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“),
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) 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 still pending, Triple-S filed a Motion for Summary Judgment, аrguing 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 “Mоtion 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.
II. Discussion
Bonner seeks review of (i) the district court‘s denial of her Motion to Comрel and
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 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). Whethеr 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 kind.” Emigrant Residential LLC v. Pinti, 37 F.4th 717, 727 (1st Cir. 2022).
Parties may obtain discovery regarding any nonprivileged matter that is relеvant 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.
“[T]o be discoverable, informаtion 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.
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
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 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
Moreover, under a 2000 amendment to
To the extent that Bonner argues that the requests are relevant based on subject matter, she has not provided the good cause requirеd under
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
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 hаd not met her obligations under Local Rule 26(b) and Federal Rule of Civil 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
B. Motion for Summary Judgment
“When reviewing a grant of summary judgment, we often first consider challenges to the district court‘s evidentiary 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
Bonner contends that the affidavits submitted by Triple-S in support of its motion for summary judgment do not meet the requirements of
a. Triple-S‘s Affidavits
“As we‘ve explained before, district courts must apply
Consistent with this instruction, the district court reсognized 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 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
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.
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 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 aсcount 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
We thus conclude that the district court did not abuse 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 correspondencе 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 mattеr 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
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
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
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 nеither 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 inferenсes 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 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.