Cotter v. Matthews International Corporation et al

Filing 70

ORDER ADOPTING 63 REPORT AND RECOMMENDATIONS signed by Judge William C Griesbach on 1/19/2024 GRANTING 51 Motion to Dismiss filed by The Board of Directors of Matthews International Corporation, Pension Board of Matthews International Corpo ration, Matthews International Corporation. Plaintiff's 66 Motion for Leave to File Third Amended Complaint is DENIED. This case is DISMISSED. The Clerk shall enter judgment accordingly. Case No Longer Referred. (cc: all counsel)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DEBORAH COTTER, individually and as
representative of a class of participants and
beneficiaries of the Matthews International
Corporation 401(k) Plan,
Plaintiff,
v.

Case No. 20-C-1054

MATTHEWS INTERNATIONAL CORPORATION, et al.,
Defendants.
ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
On August 9, 2023, Magistrate Judge Stephen C. Dries recommended that I grant
Defendants’ motion to dismiss Plaintiff’s second amended complaint and dismiss the case.
Plaintiff filed objections to the Report and Recommendation and, in the alternative, motion for
leave to file a third amended complaint.

After careful consideration of the Report and

Recommendation, Plaintiff’s objections, and the record as a whole, the court adopts the Report
and Recommendation of the Magistrate Judge in its entirety. Plaintiff did not object to the
Magistrate Judge’s recommended dismissal of her investment management fee claims; therefore,
the court dismisses those claims. With respect to Plaintiff’s recordkeeping fee claim, the court
concludes that the Magistrate Judge has correctly analyzed Plaintiff’s purported comparators and
found them to be disparate to the plan at issue. Without any comparators, the complaint contains
no allegations that the amount of recordkeeping and administrative fees paid by the Plan breached
the fiduciary duty of prudence. Finally, Plaintiff’s breach of the duty to monitor claim is derivative

of the breach of fiduciary duty claim. Because Plaintiff failed to state a breach of fiduciary duty
claim, she also failed to state a breach of the duty to monitor claim.
Along with her objections, Plaintiff filed a motion for leave to file a third amended
complaint. While courts should freely grant leave to amend the pleadings, grounds to deny leave
to amend include “undue delay, bad faith, dilatory motive, prejudice, or futility.” Guise v. BWM
Mortg., LLC, 377 F.3d 795, 801 (7th Cir. 2004) (citation omitted). The court will deny the motion.
This case was filed on July 13, 2020, and Defendants have already been through two rounds of
motions to dismiss. Plaintiff seeks to amend the complaint for a third time to add new comparator
plans within a much narrower band based on participant and asset size. But she does not explain
why she could not have included these comparators in an earlier complaint. See Hukic v. Aurora
Loan Servs., 588 F.3d 420, 431 (7th Cir. 2009) (affirming denial of leave to amend complaint
where information on which the proposed amendment was based was publicly “available long
before he sought leave to amend”). Granting leave to amend yet again would require a third round
of briefing on the very same issues and cause undue prejudice to Defendants. At some point, there
must be some endpoint to this time-consuming and expensive cycle of litigation. For these reasons,
Plaintiff’s motion to amend is denied.
IT IS THEREFORE ORDERED that Magistrate Judge Dries’ Report and
Recommendation (Dkt. No. 63) is ADOPTED.
IT IS FURTHER ORDERED that, for the reasons stated in the Report and
Recommendation, Defendants’ motion to dismiss Plaintiff’s second amended complaint (Dkt. No.
51) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s motion for leave to file a second amended
complaint (Dkt. No. 66) is DENIED.

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IT IS FURTHER ORDERED that this case is dismissed. The Clerk is directed to enter
judgment accordingly.
Dated at Green Bay, Wisconsin this 19th day of January, 2024.
s/ William C. Griesbach
William C. Griesbach
United States District Judge

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