Valenti v. Penn Mutual Life Insurance Co.

511 F. App'x 57

• Court: Court of Appeals for the Second Circuit
• Decided: February 6, 2013
• Docket: 12-1732
• Status: Unpublished

Opinion

SUMMARY ORDER

Rose Valenti, her husband, and other associated individuals who participated in an employee benefit plan, appeal from the judgment of the United States District Court for the Southern District of New York (Koeltl, /.), granting summary judgment in favor of Penn Mutual Life Insurance Company and Victor P. Mauro. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

On appeal, Valenti raises a host of discovery issues that were not properly raised below (e.g., Penn Mutual’s failure to produce trade blotters) and that have not been preserved for appeal to this Court. We decline to exercise our discretion to review these unpreserved discovery issues. See Caidor v. Onondaga Cnty., 517 F.3d 601, 608 (2d Cir.2008).

Valenti’s remaining arguments amount to pure speculation that Penn Mutual embezzled funds from the employee benefit plan. In order to defeat summary judgment, a plaintiff “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also McPherson v. N.Y.C. Dep’t of Educ., 457 F.3d 211, 215 n. 4 (2d Cir.2006) (“[Speculation alone is insufficient to defeat a motion for summary judgment.”). Valenti points to no admissible evidence to support her claim of embezzlement. The financial statements produced by Penn Mutual reflect a detailed and proper accounting.

For the foregoing reasons, and finding no merit in Valenti’s other arguments, we hereby AFFIRM the judgment of the district court.