Bonner v. Triple-S Vida, Inc.

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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