Bonner v. Triple-s Mgmt. Corp.

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DORA L. BONNER, Plaintiff, v. TRIPLE-S MANAGEMENT CORPORATION and TRIPLE-S VIDA INC., Defendants.

CIVIL No. 19-1228 (BJM)

United States District Court, D. Puerto Rico

December 17, 2021

OPINION & ORDER

BRUCE J. MCGIVERIN, UNITED STATES MAGISTRATE JUDGE

Dora L Bonner (“Bonner”) brought this action against insurance companies Triple-S Management Corporation (“TSM”) and Triple-S Vida Inc. (“TSV”) (collectively “Triple-S”) alleging that Triple-S committed fraud, breach of contract and breach of fiduciary duty under Texas state law, and civil violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961 et seq. Docket Nos. (“Dkts.”) 5, 17. Triple-S has moved for summary judgment, Dkt. 55, supplementing the motion with a statement of purportedly uncontested facts. Dkt. 54. Bonner has opposed the motion, Dkt. 69, and submitted a memorandum in opposition to Triple-S's statement of uncontested facts. Dkt. 70. Triple-S has also submitted a reply in response to Bonner's opposition. Dkt. 76. This case is before me by consent of the parties. Dkts. 39, 40, 44. For the reasons set forth below Triple-S's motion for summary judgment is GRANTED.

APPLICABLE LEGAL STANDARDS

Summary judgment is appropriate when the movant shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. § 56(a). A dispute is “genuine” only if it “is one that could be resolved in favor of either party.” Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir. 2004). A fact is “material” only if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party has the initial burden of “informing the district court of the basis for its motion, and identifying those portions” of the record “which it believes demonstrate the absence” of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may meet its burden by either producing evidence disproving an element of the nonmoving party's case or by pointing out that there is an absence of evidence to support the nonmoving party's case. See id. at 325. Once the moving party shows the absence of any disputed material fact, the burden shifts to the non-moving party to place at least one material fact into dispute. Burgos Martinez v. City of Worcester, 502 F.Supp.3d 606, 614 (D. Mass. 2020).

The court does not act as trier of fact when reviewing the parties' submissions and so cannot “superimpose [its] own ideas of probability and likelihood (no matter how reasonable those ideas may be) upon” conflicting evidence. Greenburg v. P.R. Mar. Shipping Auth., 835 F.2d 932, 936 (1st Cir. 1987). Rather, the court must “view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party's favor.” Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990). And the court may not grant summary judgment “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.

Designed to “relieve the district court of any responsibility to ferret through the record to discern whether any material fact is genuinely in dispute, ” Local Rule 56 requires a party moving for summary judgment to accompany its motion with a brief statement of facts, set forth in numbered paragraphs and supported by citations to the record, which the movant contends are uncontested and material. CMI Capital Market Inv. v. Gonzalez-Toro, 520 F.3d 58, 62 (1st Cir. 2008); D.P.R. L. Civ. R. 56(b), (e). The opposing party must admit, deny, or qualify those facts, with record support, paragraph by paragraph. D.P.R. L. Civ. R. 56 (c), (e). The opposing party may also present, in a separate section, additional facts, set forth in separate numbered paragraphs. Id. 56(c). While the “district court may forgive a party's violation of a local rule, ” litigants ignore the local rule “at their peril.” Mariani-Colón v. Dep't of Homeland Sec. ex rel. Chertoff, 511 F.3d 216, 219 (1st Cir. 2007).

Bonner raises fraud, breach of contract, breach of fiduciary duty, and RICO claims, arguing that Texas state law applies to her claims. In order to successfully bring a fraud claim under Texas state law, a plaintiff must show that “(1) [the defendant] made a material representation that was false; (2) it knew the representation was false or made it recklessly as a positive assertion without any knowledge of its truth; (3) it intended to induce [the plaintiff] to act upon the representation; and (4) [the plaintiff] actually and justifiably relied upon the representation and thereby suffered injury.” Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001). “The elements of a breach of contract claim are: (1) a valid contract; (2) performance or tendered performance; (3) breach of the contract; and (4) damages resulting from the breach.” Myan Mgmt. Grp., L.L.C. v. Adam Sparks Fam. Revocable Tr., 292 S.W.3d 750, 754 (Tex. App. 2009). “Generally, the elements of a claim for breach of fiduciary duty are (1) the existence of a fiduciary duty, (2) breach of the duty, (3) causation, and (4) damages.” First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017). A RICO violation “requires (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985) (footnote omitted).

FACTUAL FINDINGS

The following facts are taken from Triple-S's “Statement of Uncontested Facts, ” Dkt. 54, and accompanying exhibits and affidavits submitted by Triple-S Bonner's amended complaint, Dkt. 17, and accompanying exhibits; and Bonner's memorandum in opposition to Triple-S's Statement of Uncontested Facts, Dkt. 70, and accompanying exhibits at Dkt. 69. I have disregarded statements of fact, denials, and qualifications that were not supported by a record citation. See Davila v. Potter, 550 F.Supp.2d 234, 239 (D.P.R. 2007). Where parties' record citation does not support or exaggerates the corresponding statement of fact, I have disregarded it. I have also disregarded legal conclusions presented as statements of fact.

Bonner purports to contest nearly all of the supposed facts that Triple-S claims are supported by the affidavits, but in practice Bonner almost exclusively contests the facts via references to phone and email conversations she had with individuals claiming to be Triple-S employees or associates. All of the conversations cited by Bonner are fully consistent with the facts and case theory put forth by Triple-S and do not actually serve to contest the facts alleged by Triple-S. However, in certain instances Bonner does correctly point out that some of the purported facts advanced by Triple-S are presented in a wholly conclusory matter or are not fully supported by the evidence on hand. Those supposed “facts” have been excised from the following summary. I have also made reference to allegations raised by Bonner in her amended complaint while generally drawing all reasonable inferences in her favor.

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, a company that offers life insurance. Dkt. 54-1 at ¶ 2. Neither TSM nor its subsidiaries invest assets on behalf of individuals. Id. at ¶ 3; Dkt. 54-6 at 8. TSV does assist individuals with making deposits into an individual retirement account for retirement purposes. Dkt. 54-1 at ¶ 3. However, TSV does not offer other investment services to individuals seeking financial guidance, such as investments of millions of dollars. Id. Management of growth funds and individual investments is outside the scope of Triple-S's business practices, and TSM does not have a “Triple-S Growth Fund.” Id. at ¶¶ 9, 11.

In 2013, TSV acquired Atlantic Southern Insurance Company (“ASI”). Id. at ¶ 4. ASI sells life and cancer insurance to individuals as well as individual and group health insurance. Id. Like TSM and its subsidiaries, Atlantic Southern does not offer investment and financial services to individuals seeking to invest large sums of money. Id. TSV is the direct parent company for ASI. Id. ASI has an office in Costa Rica, but it does not have a Nicaragua location. Id.

The issues before the court first arose in March 2015, when Bonner was contacted by an individual claiming to be associated with Triple-S. During a conversation on March 11, 2015 between Bonner and a person identifying himself as Albert Gamboa Spencer (“Gamboa”), Gamboa said that he was employed by TSV as a lawyer and that TSV had purchased the company he formerly worked for, ASI. Dkt. 17 at ¶ 7, 14. Bonner claims to have previously sent money to ASI. Id. at ¶ 11. Gamboa claimed that he had called Bonner because someone had attempted to change the beneficiary on a certificate held by TSV with Bonner's personal identification attached to it. Id. at ¶ 8. Gamboa told Bonner the account number and the amount of the certificate. Id. He also told her that the money was being held in Costa Rica. Id. Gamboa then told Bonner that he was aware that she had already sent money to ASI and that he would work with her to try to release her funds. Id. at ¶¶ 11, 23. Bonner was eventually told that she actually had two certificates in her name and not just one. Id. at ¶ 15. The funds were allegedly in TSM's “Triple-S Growth Fund.” Dkt. 17-1.

In 2015, Carmen M. Ayala-León (“Ayala”) was employed by TSV as the Executive Assistant to the Vice President of Legal...