Lopez v. Embry-Riddle Aeronautical University, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

GUILLERMINA LOPEZ,

Plaintiff,

v. Case No: 6:22-cv-1580-PGB-LHP

EMBRY-RIDDLE

AERONAUTICAL UNIVERSITY,

INC.,

Defendant.

/

ORDER

This cause comes before the Court upon Defendant Embry-Riddle

Aeronautical University, Inc.’s (“Defendant”) Motion for Summary Judgment.

(Doc. 89 (the “Motion”)). Plaintiff Guillermina Lopez (“Plaintiff” or the “named

Plaintiff”) filed a response in opposition (Doc. 94 (the “Response”)) and

Defendant filed a reply (Doc. 101 (the “Reply”)). The parties filed a Joint

Stipulation of Agreed Material Facts (Doc. 88). Defendant also filed a Notice of

Supplemental Authority. (Doc. 104).1 Upon consideration, the Motion is due to be

granted.

1 The Court notes that, after filing the instant Motion, Defendant also filed a pleading entitled

Objections Pursuant to Federal Rule of Civil Procedure 56(c)(2) and Motion to Exclude Expert

Testimony of Al Otto, Ty Minnich, and Steve Pomerantz. (Doc. 97). To the extent the

aforementioned filing contains objections pursuant to Federal Rule of Civil Procedure

56(c)(2), the Court finds those objections should have been raised in Defendant’s Reply.

However, because the Court nonetheless grants the instant Motion for Summary Judgment,

the objections are moot. Further, because the Court grants Defendant summary judgment

here, the Court does not reach Defendant’s Daubert arguments.

I. BACKGROUND

In this purported class action, Plaintiff alleges that Defendant has breached

its fiduciary duties under provisions of the Employee Retirement Income Security

Act, 29 U.S.C. §§ 1001–1461 (“ERISA”). (Doc. 1 (the “Complaint”)). Defendant

is a university that maintains a retirement plan for its eligible employees (the

“Plan”), which is subject to ERISA’s provisions. (Doc. 88, ¶ 1). Plaintiff is

Defendant’s former employee and is a participant in the Plan (“Plan

participant”). (Id. ¶¶ 10, 12).

Plan participants are permitted to select among forty investment options

under the Plan. (Id. ¶ 3). However, if a Plan participant fails to make a specific

selection of investment(s) under the Plan, contributions to the Plan participant’s

retirement account are automatically placed in the Plan’s Qualified Default

Investment Alternative (“QDIA”). (Id. ¶ 4). The QDIA is the Vanguard target date

retirement fund that corresponds to the employee’s age and expected retirement

date. (Id.).

Since 2014, the Teachers Insurance and Annuity Association of America

(“TIAA”) has been the only recordkeeper for the Plan.2 (Id. ¶ 8). The amount that

each Plan participant pays in recordkeeping fees is “asset-based,” meaning the fees

are dependent upon the amount of assets in the Plan participant’s individual

2 Although Plaintiff’s Complaint alleged that there was a second entity—VALIC—that provided

recordkeeping services for the Plan, the parties have since stipulated that TIAA was the only

recordkeeper for the Plan during the relevant timeframe. (Compare Doc. 1, ¶ 90, with Doc.

88, ¶ 8).

account rather than Plan participants paying identical flat fees for these services.

(See id. ¶ 9).

Plaintiff was hired by Defendant in July 2019. (Id. ¶ 10). Upon becoming a

Plan participant, Plaintiff did not select any specific investment options under the

Plan. (Id.). For that reason, Plaintiff’s funds were placed in the QDIA that matched

her age and likely retirement date, which was the Vanguard Target Date

Retirement 2035 Fund (the “Vanguard Fund”). (Id.). The Vanguard Fund is the

only fund Plaintiff ever invested in during the proposed Class Period.3 (Id. ¶¶ 10,

12). Plaintiff’s employment by Defendant ended in September 2023. (Id. ¶ 12). As

a former employee, Plaintiff may continue as a Plan participant, but is no longer

entitled to certain benefits that are only extended to Defendant’s current

employees.4 (See id. ¶¶ 2, 13).

In the Complaint, Plaintiff asserts that Defendant breached its fiduciary

duties to the Plan and the Plan participants through its mismanagement of the

Plan. (Doc. 1). As a result, Plaintiff contends that Defendant cost Plan participants

millions of dollars in savings. (See id.).

Plaintiff generally criticizes two aspects of Defendant’s management of the

Plan. (See id. ¶¶ 60–109). First, Plaintiff claims that Defendant allowed more

3 As is discussed in more detail infra, Plaintiff sought to certify a class that included “[a]ll

persons, except Defendant’s fiduciaries and their immediate family members, who were

participants in or beneficiaries of the Plan, at any time between August 2016 and the present

(the ‘Class Period’).” (Doc. 1, ¶ 34 (emphasis added)).

4 For example, Plaintiff is no longer entitled to have Defendant “match” up to 4.0% of her

contributions to the Plan. (Doc. 88, ¶¶ 2, 13).

expensive funds to be included in the Plan menu than cheaper available

alternatives. (Id. ¶¶ 60–76). Specifically, Plaintiff alleges that, as to certain mutual

funds, Defendant included more expensive share classes in the Plan than identical,

lower cost share classes. (Id. ¶¶ 60–70). Plaintiff also asserts that Defendant

allowed the Plan to be “dominated by high-cost, actively managed funds,” which

“charged grossly excessive fees” compared with alternative funds of the same type.

(Id. ¶¶ 71–76).

Second, Plaintiff alleges that Defendant failed to monitor and control the

Plan’s recordkeeping fees. (Id. ¶¶ 77–109). Plaintiff asserts that “Defendant should

have been able to negotiate a recordkeeping cost anywhere from $25 per

participant to $30 from the beginning of the Class Period to the present” but

“simply failed to do so.” (Id. ¶ 97). Plaintiff avers that, instead, each Plan

participant paid between $62.46 and $81.48 annually in recordkeeping fees. (Id. ¶

90). Additionally, Plaintiff alleges that Plan participants paid at least $160.00

annually in recordkeeping fees when one considers both direct and indirect

compensation.5 (Id. ¶ 101).

Ultimately, Plaintiff moved for class certification. (Doc. 43). This Court

denied the aforementioned motion, holding that class certification was improper

5 Regarding indirect compensation, Plaintiff alleges that these recordkeepers received “revenue

sharing payments,” wherein payments are derived directly from the Plan’s assets, “typically

[from] mutual funds.” (Doc. 1, ¶ 81). According to Plaintiff, revenue sharing is not equal

among funds: some funds pay nothing for revenue sharing, while others pay a substantial

amount. (Id. ¶ 103). Plaintiff further avers that Defendant permitted TIAA to require that

assets pass through a clearing account before being deposited or withdrawn from a Plan

participant’s individual account. (Id. ¶ 108). Plaintiff asserts that TIAA was permitted to earn

interest on such assets when they were in its clearing account. (Id. ¶ 109).

on multiple grounds, including because Plaintiff lacked individual standing in the

case. (Doc. 78, pp. 4–8). Importantly, the Court emphasized Plaintiff’s failure to

articulate any injury in fact that she suffered as a result of Defendant’s alleged

conduct. (Id. at p. 6). For example, the Court pointed to the lack of evidence to

support that Plaintiff had invested in any of the challenged funds. (Id.). The Court

additionally highlighted Defendant’s evidence that Plaintiff had never paid more

than $18.00 per year in recordkeeping fees. (Id. at p. 5 (citing Doc. 53-2, p. 4)).

The Court also pointed to the absence of credible evidence regarding the amount

of any indirect compensation paid by Plaintiff to TIAA. (Id. at pp. 4–5; see also id.

at n.3). The Court thus concluded that Plaintiff had not demonstrated that she had

herself suffered economic harm caused by Defendant’s imprudence. (See id. at pp.

4–8). The Court thus determined that Plaintiff lacked standing to represent a class

to which she did not belong and denied her request for class certification.6 (See

id.).

Plaintiff subsequently moved to amend the Complaint (Doc. 79 (the

“Motion to Amend”)), in part to add an additional named Plaintiff (“Ms.

Garceau”) who “is invested in at least four (4) of the ‘challenged funds’ at issue”

and who “[t]hus . . . unquestionably has sufficient standing to sue on behalf of the

Plan.” (Id. at pp. 7–8). The Court denied Plaintiff’s Motion to Amend. (Doc. 87).

Consistent with its Order denying class certification, the Court found that Plaintiff

6 The Court also independently found that Plaintiff’s request for class certification should be

denied because the class claims were antagonistic and because common questions of fact did

not predominate in the case. (Doc. 78, pp. 8–9).

lacked standing to amend the Complaint. (Id. at pp. 5–6). The Court additionally

found that Plaintiff lacked good cause for the requested amendment, noting that

the deadline for amending the pleadings had expired more than a year before.7 (Id.

at pp. 3, 6–7).

Now, Defendant moves for summary judgment based upon Plaintiff’s lack of

standing as well as on the merits.8 (Doc. 89). Plaintiff has responded in opposition,

and Defendant has replied. (Docs. 94, 101). The matter is thus ripe for review.

II. LEGAL STANDARD

A. Summary Judgment

A court may only “grant summary judgment if 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). The moving party bears the initial burden

of “citing to particular parts of materials in the record, including depositions,

documents, electronically stored information, affidavits or declarations,

stipulations . . . , admissions, interrogatory answers, or other materials” to support

its position that it is entitled to summary judgment. FED. R. CIV. P. 56(c)(1)(A).

“The burden then shifts to the non-moving party, who must go beyond the

pleadings, and present affirmative evidence to show that a genuine issue of

7 Defendant has represented to the Court that Plaintiff’s counsel in this action have since “filed

the same action with a new named Plaintiff (Karen Garceau), who the Court disallowed as a

new named plaintiff in this Lopez matter.” (Doc. 97, p. 5 n.4).

8 Because the Court finds that Plaintiff has failed to establish standing, it does not reach

Defendant’s arguments for summary judgment on the merits of Plaintiff’s claims.

material fact exists.” Porter v. Ray, 461 F.3d 1315, 1320 (11th Cir. 2006). “The court

need consider only the cited materials” when resolving a motion for summary

judgment. FED. R. CIV. P. 56(c)(3); see also HRCC, LTD v. Hard Rock Café Int’l

(USA), Inc., 703 F. App’x 814, 816–17 (11th Cir. 2017) (per curiam) (holding that a

district court does not err by limiting its review to the evidence cited by the parties

in their summary judgment briefs and the arguments raised therein).9

An issue of fact is “genuine” only if “a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). In determining whether a genuine dispute of material fact exists, the Court

must read the evidence and draw all factual inferences therefrom in the light most

favorable to the non-moving party and must resolve any reasonable doubts in the

non-movant’s favor. Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007).

But, “[a] mere ‘scintilla’ of evidence supporting the opposing party’s position will

not suffice; there must be enough of a showing that the jury could reasonably find

for that party.” Brooks v. Cty. Comm’n of Jefferson Cty., 446 F.3d 1160, 1162 (11th

Cir. 2006) (quoting Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990)); see also

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)

(“When the moving party has carried its burden under Rule 56(c), its opponent

must do more than simply show that there is some metaphysical doubt as to the

material facts.” (citations omitted)).

9 “Unpublished opinions are not controlling authority and are persuasive only insofar as their

legal analysis warrants.” Bonilla v. Baker Concrete Constr., Inc., 487 F.3d 1340, 1345 (11th

Cir. 2007).

B. Standing

Under Article III of the United States Constitution, federal courts’

jurisdiction is limited to cases and controversies. E.g., Clapper v. Amnesty Int’l

USA, 568 U.S. 398, 408 (2013). Indeed, “[n]o principle is more fundamental to the

judiciary’s proper role in our system of government than the constitutional

limitation of federal-court jurisdiction to actual cases or controversies.” Id.

(quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006) (internal

quotation marks omitted)); Spokeo, Inc. v. Robins, 578 U.S. 330, 337 (2016)

(quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)) (same). “‘One element of the

case-or-controversy requirement’ is that plaintiffs ‘must establish that they have

standing to sue.’” Clapper, 568 U.S. at 408 (quoting Raines, 521 U.S. at 818). “The

focus of the standing inquiry is ‘whether the plaintiff is the proper party to bring

the suit.’” Bochese v. Town of Ponce Inlet, 405 F.3d 964, 981 (11th Cir. 2005)

(quoting Raines, 521 U.S. at 818).

To establish standing, the plaintiff—as the party invoking the court’s

jurisdiction—must prove three elements: (1) that the plaintiff “suffered an injury

in fact”; (2) that the injury is “fairly traceable to the challenged conduct of the

defendant”; and (3) that the injury “is likely to be redressed by a favorable judicial

decision.” Spokeo, 578 U.S. at 338 (first citing Lujan v. Defs. of Wildlife, 504 U.S.

555, 560–61 (1992); and then citing Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000)). Importantly:

Since [these elements] are not mere pleading requirements,

but rather an indispensable part of the plaintiff’s case, each

element must be supported in the same way as any other

matter on which the plaintiff bears the burden of proof, i.e.,

with the manner and degree of evidence required at the

successive stages of the litigation.

Lujan, 504 U.S. at 561 (collecting sources). Accordingly, at the summary judgment

stage, a plaintiff cannot rely upon “mere allegations” in order to demonstrate

standing. Id. Instead, the plaintiff must “submit affidavits or other evidence

showing, through specific facts,” that the plaintiff has standing to sue. Id. at 563.

“In the absence of standing, a court is not free to opine in an advisory

capacity about the merits of a plaintiff’s claims.” Bochese, 405 F.3d at 974. Instead,

once the court determines that it lacks subject matter jurisdiction over the case

because the plaintiff lacks standing, “the court is powerless to continue.” Id. at

975–76 (quoting Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir.

1999)).

III. DISCUSSION

In the Motion, Defendant argues that it is entitled to summary judgment

because Plaintiff lacks Article III standing. (Doc. 89, pp. 10–17). Specifically,

Defendant contends that Plaintiff cannot demonstrate two elements of such

standing: injury in fact and redressability. (Id.). The Court analyzes these elements

in turn.

A. Injury in Fact

An injury in fact is the most important element of standing. E.g., Huang v.

TriNet HR III, Inc., No. 8:20-cv-2293-VMC-TGW, 2022 WL 13631836, at *3 (M.D.

Fla. Oct. 21, 2022) (citing Spokeo, 578 U.S. at 338–39). An injury in fact is “an

invasion of a legally protected interest” that is both “(a) concrete and

particularized” and “(b) actual or imminent, not conjectural or hypothetical.”

Luhan, 504 U.S. at 560 (collecting sources) (internal quotation marks omitted).

For an injury to be “concrete,” it must “actually exist.” Spokeo, 578 U.S. at 340

(citing BLACK’S LAW DICTIONARY 479 (9th ed. 2009)). Put differently, an injury is

concrete if it is real rather than abstract. Id. (citation omitted). Further, for an

injury to be “particularized,” it “must affect the plaintiff in a personal and

individual way.” Luhan, 504 U.S. at 560 n.1.

Consistent with these principles, to establish standing, the named

plaintiff(s) in a class action must each demonstrate that “they personally have been

injured, not that injury has been suffered by other, unidentified members of the

class to which they belong.” Spokeo, 578 U.S. at 338 n.6 (quoting Simon v. E. Ky.

Welfare Rts.Org., 426 U.S. 26, 40 n.20 (1976)).

Thus, as the Eleventh Circuit has explained, to demonstrate an injury in fact:

It is not enough [for the plaintiff] to set forth facts from which

we could imagine an injury sufficient to satisfy Article III’s

standing requirements, since [the court] should not speculate

concerning the existence of standing, nor should we imagine

or piece together an injury sufficient to give plaintiff standing

when it has demonstrated none. The plaintiff has the burden

to clearly and specifically set forth facts sufficient to satisfy

[the] Art[icle] III standing requirements. If the plaintiff fails

to meet this burden, th[e] court lacks the power to create

jurisdiction by embellishing a deficient allegation of injury.

Bochese, 405 F.3d at 976 (first quoting Miccosukee Tribe of Indians of Fla. v. Fla.

State Athletic Comm’n, 226 F.3d 1226, 1229–30 (11th Cir. 2000); and then

collecting sources) (internal quotation marks omitted)).

In the instant case, Defendant argues that Plaintiff continues to lack

evidence demonstrating that she suffered “a concrete, particularized, actual, or

imminent injury.” (Doc. 89, p. 17). Although Plaintiff has now disclosed the

opinions of three experts via expert reports, none of these reports mention the

Vanguard Fund, Plaintiff, or the recordkeeping fees paid by Plaintiff during the

Class Period. (Id. at pp. 17–20). As to the issue of recordkeeping fees, Defendant

notes that, consistent with the allegations in the Complaint, Plaintiff’s expert Dr.

Steven Pomerantz (“Dr. Pomerantz”) has opined that $25.00 to $35.00 is the

maximum annual recordkeeping fee that should have been paid per Plan

participant during the Class Period. (Id. at p. 19 (citing Doc. 83-1, pp. 4–5)).

However, Defendant notes that the only evidence concerning what this Plaintiff

actually paid in recordkeeping fees remains the opinion of its own expert, Dr.

Grenadier. (See id. at p. 20 (citing Doc. 53-2, p. 73)). Dr. Grenadier has calculated

that Plaintiff has never paid the purportedly unreasonable amount in

recordkeeping fees, and that she instead paid between $0.76 and $18.00 annually

during the Class Period. (Id. (citing Doc. 53-2, p. 73)). Consequently, Defendant

argues there is no genuine issue of material fact as to Plaintiff’s lack of Article III

standing. (Id. at pp. 20–21).

Defendant has met its burden of “citing to particular parts of materials in

the record” in support of its argument for summary judgment on this ground. See

FED. R. CIV. P. 56(c)(1)(A). Thus, the burden shifts to Plaintiff to “go beyond the

pleadings and present affirmative evidence” showing there is a genuine issue of

material fact as to this element of her standing. See Porter, 461 F.3d at 1320.

In her Response, Plaintiff asserts that “[c]ourts routinely find Article III

standing where plaintiffs allege a reduction, diminution, or loss” of plan assets.

(Doc. 94, p. 14, 14 n.10 (first citing Glass Dimensions, Inc. v. State St. Bank & Tr.

Co., 285 F.R.D. 169 (D. Mass. 2012); and then citing Krauter v. Siemens Corp., 725

F. App’x 102, 109 (3d Cir. 2018)). Plaintiff notes that her expert, Dr. Pomerantz,

has opined that the classwide damages in this case exceed $7,000,000.00. (Id. at

p. 5 (citing Doc. 94-2, p. 12)). Plaintiff additionally asserts that her expert Mr. Ty

Minnich (“Mr. Minnich”) has opined that, as a result of the Plan’s asset-based

fee structure, “all Plan participants paid higher fees during the class period as their

account balances grew.” (Id. at pp. 5–6 (quoting Doc. 94-3, p. 15)). Plaintiff thus

asserts that all the Plan participants—including Plaintiff—suffered economic harm

as a result of Defendant’s imprudence. (Id.).

“There is no ERISA exception to Article III.” Thole v. U.S. Bank N.A., 590

U.S. 538, 547 (2020). Further, as this Court noted in its Order denying class

certification, in Huang, a court in this District held that a named plaintiff lacked

standing to sue in an ERISA case directly analogous to the case at bar. (Doc. 78,

pp. 6–8); see Huang, 2022 WL 13631836, at *3–5. There, the named plaintiffs in

a putative class action alleged the defendants had acted imprudently in managing

their retirement plans. Huang, 2022 WL 13631836, at *2. Specifically, the

plaintiffs averred that the defendants had allowed high cost, actively managed

funds to remain in the investment menu despite the availability of lower cost,

passively managed alternatives. Id. Similarly, the plaintiffs alleged the defendants

had failed to include lower fee share classes than were otherwise available. Id.

Lastly, the plaintiffs alleged that defendants “failed to monitor or control the

[p]lans’ recordkeeping expenses,” including by allowing for revenue sharing

payments to the plans’ recordkeepers. Id.

The Huang court found that one of the named plaintiffs—Mary T. Patterson

(“Ms. Patterson”)—lacked standing, because she failed to demonstrate she had

suffered any injury in fact. Id. at *4. The court explained that Ms. Patterson had

not invested in any of the challenged funds. Id. Further, there was no evidence Ms.

Patterson had paid excessive recordkeeping fees, as the defendants had

demonstrated that “the fees Ms. Patterson actually paid are well below the amount

[plaintiffs’] own expert deems reasonable.”10 Id. As a result, the court dismissed

Ms. Patterson’s claims. Id.; accord Sabana v. CoreLogic, Inc., No. 8:23-cv-00965-

HDV-JDE, 2024 WL 755723, at *1 (C.D. Cal. Jan. 26, 2024) (finding the named

plaintiff in a putative class action brought under ERISA for defendants’

imprudence in managing its retirement plan lacked standing, because the plaintiff

did not invest in any of the challenged funds and had paid less in recordkeeping

fees than the amount plaintiff asserted was reasonable).

10 Specifically, the Huang court explained that the plaintiffs’ expert had opined the reasonable

cost of recordkeeping was $36.00 per participant annually, but “[d]uring . . . the two full years

in which Ms. Patterson was invested in the [] Plan, she paid $25.80 and $25.96 in

recordkeeping fees, respectively.” 2022 WL 13631836, at *4.

Despite what was surely a keen awareness that the Court was concerned

about the named Plaintiff’s standing, Plaintiff’s Response, much like her expert

reports, addresses only the classwide claims.11 (See Docs. 94, 94-2, 94-3, 94-4).

Accordingly, Plaintiff fails to establish that she suffered a concrete and

particularized injury here. See Huang, 2022 WL 13631836, at *4; Sabana, 2024

WL 755723, at *1. Further, as Defendant notes in its Reply, the cases Plaintiff cites

in support of her standing are inapposite. (Doc. 101, p. 5 n.2). Neither Glass

Dimensions nor Krauter stands for the proposition that a plaintiff need not

demonstrate any individualized injury to have Article III standing in a case such

as this one. (See id.).

In Glass Dimensions, a Massachusetts district court held that the named

plaintiff in a putative class action brought under ERISA had standing to sue as to

funds in which the plaintiff had not invested. 285 F.R.D. at 175. However, this was

only after the court reaffirmed the requirement that a plaintiff must suffer an

injury in fact to have standing. Id. at 174. The court found the plaintiff satisfied this

requirement because, although the plaintiff had not invested in every challenged

11 The Court additionally notes that the facts section of Plaintiff’s Response parrots the

recordkeeping fees the Complaint avers were paid on a classwide basis. (Doc. 94, pp. 10, 13–

14). Plaintiff cites to two of her experts’ reports after the sentences containing these references.

(Id. at p. 10 (first citing Doc. 94-2, p. 6; and then citing Doc. 94-4, p. 20); id. at pp. 13–14

(citing Doc. 94-4, pp. 15, 20, 23)). However, a review of the cited pages of Plaintiff’s experts’

reports reveals that they do not contain any mention of the referenced figures. (Doc. 94-2, p.

6; Doc. 94-4, pp. 15, 20, 23). Indeed, the Court’s keyword searches for these figures in the cited

reports resulted in no matches.

fund, the plaintiff had personally invested in three of the challenged funds.12 Id. at

174–175.

By contrast, here, Plaintiff appears to concede that she did not invest in any

of the challenged funds. (Doc. 88, ¶¶ 10, 12; see Doc. 94). Likewise, Plaintiff does

not provide affirmative evidence to demonstrate that she suffered a concrete and

particularized injury caused by paying excessive recordkeeping fees. See Porter,

461 F.3d at 1320; Luhan, 504 U.S. at 560 n.1, 561, 563. To the contrary, the only

evidence before the Court regarding the recordkeeping fees that were paid by the

named Plaintiff are the calculations of defense expert Dr. Grenadier. (Doc. 53-2, p.

73). These calculations suggest that Plaintiff paid an annual recordkeeping fee that

Plaintiff’s expert has deemed reasonable. (See id.); see also Sabana, 2024 WL

755723, at *1 (“Here, as [d]efendants have shown, [p]laintiff paid less in annual

recordkeeping fees than the $40 he considers reasonable. The fact that other plan

participants—perhaps even most—may have paid more than this amount has no

bearing on [p]laintiff’s individual standing.”).

Plaintiff’s citation to Krauter fares no better in helping Plaintiff to establish

her standing. See 725 F. App’x at 109. There, the Third Circuit held that an ERISA

12 Further, the holding in Glass Dimensions is consistent with the holding in Huang. See Huang,

2022 WL 13631836 at *4–5. Huang involved the defendants’ alleged imprudence as to two

retirement plans, the TriNet III Plan and TriNet IV Plan. Id. at *1, 4. Ms. Patterson was the

only named plaintiff who had invested in the TriNet III Plan, although she had not invested

in any of the funds challenged as to that plan. Id. at *4. After dismissing Ms. Patterson’s claims

for lack of standing, the court allowed the remaining named plaintiffs—who “ha[d]

demonstrated an injury in fact by investing in the challenged [TriNet IV Plan] funds and

paying allegedly excessive recordkeeping fees”—to sue as to both of the subject plans. Id. at

*5.

plaintiff had adequately alleged an injury in fact where he averred that his personal

retirement funds had been moved into investments charging “considerably higher

management fees” and which “generated less returns” for the plaintiff than he had

experienced before the transfer. Id. Plaintiff makes no such showing of a concrete

and particularized injury here.13

To the extent Plaintiff merely cites to Glass Dimensions and Krauter to

support her assertion that a loss of plan assets can constitute a concrete injury in

fact, that is true enough. (See Doc. 94, p. 14 n.10). However, Plaintiff nevertheless

fails to point to affirmative evidence demonstrating through specific facts that she

suffered such an injury here. See Porter, 461 F.3d at 1320; Lujan, 504 U.S. at 563.

Finally, although Plaintiff points to her expert Mr. Minnich’s opinion that

the Plan’s asset-based fee structure caused “all Plan participants [to] pa[y] higher

fees during the class period as their account balances grew,” Plaintiff fails to

demonstrate that the asset-based fee structure resulted in her injury by causing her

to pay an unreasonable amount in such fees. (Doc. 94, pp. 4–5 (quoting Doc. 94-

3, p. 15)). Indeed, as Defendant notes in its Reply, this opinion does not establish

that Plaintiff suffered a particularized injury, and instead “simply describes how

all asset-based fees structures work.” (Doc. 101, p. 6).

13 The Court also notes that Krauter was decided at the motion to dismiss stage, and

consequently, the issue concerned only whether the plaintiff had adequately alleged an injury

in fact. 725 F. App’x at 106–07.

As a result of the foregoing, Plaintiff has failed to demonstrate that she

suffered an injury in fact, and Defendant is thus entitled to summary judgment as

to Plaintiff’s lack of standing.

B. Redressability

Because the Court has already found that Defendant is entitled to summary

judgment due to Plaintiff’s failure to demonstrate any injury in fact, the Court need

not go further in its standing analysis. See Bochese, 405 F.3d at 980 (“Because we

conclude that Mr. Bochese has failed to establish an injury in fact, we need not and

do not consider whether the remaining elements of standing are present.”).

However, the Court briefly analyzes the element of redressability and finds that

Plaintiff has failed to establish this additional element of her standing.

The third element of standing, known as “redressability,” requires a plaintiff

to demonstrate that the plaintiff’s injury “is likely to be redressed by a favorable

judicial decision.” Spokeo, 578 U.S. at 338 (first citing Lujan, 504 U.S. at 560–61;

and then citing Friends of the Earth, 528 U.S. at 180–81). Here, Defendant aptly

argues that, even if Plaintiff had established an injury in fact, “she would still have

no evidence that a judicial remedy would make her better off,” and “[i]ndeed, the

opposite [may be] true.” (Doc. 89, p. 21). Because the only evidence before the

Court suggests that Plaintiff paid minimal recordkeeping fees, it is conceivable that

she benefitted from the practices that she purports were imprudent. (See id.).

Further, in her Response, Plaintiff has failed to point to any specific facts

demonstrating otherwise. (See Doc. 94); Lujan, 504 U.S. at 560 n.1, 561, 563. Thus,

Plaintiff has failed to demonstrate that there is a genuine issue of material fact

regarding the element of redressability. See Porter, 461 F.3d at 1320.

Accordingly, Defendant is entitled to summary judgment on Plaintiffs lack

of standing.

IV. CONCLUSION

For these reasons, it is ORDERED and ADJUDGED as follows:

1. Defendant’s Motion for Summary Judgment (Doc. 89) is GRANTED.

2. The Court finds that it lacks subject matter jurisdiction in this action

because Plaintiff lacks standing. Thus, the case is DISMISSED

WITHOUT PREJUDICE. “4

3. The Clerk of Court is DIRECTED to close the file.

DONE AND ORDERED in Orlando, Florida on November 13, 2024.

ce /

PAUL G.

UNITED STATES*DISTRICT JUDGE

Copies furnished to:

Counsel of Record

Unrepresented Parties

44 Plaintiff correctly notes that a finding by this Court that Plaintiff lacks standing should result

in the Court’s dismissal of the case without prejudice rather than a final judgment on the

merits. (Doc. 94, p. 17); see Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1182 (11th

Cir. 2007) (explaining that a court’s finding that it lacks subject matter jurisdiction should

result in dismissal of the case even if the court reaches this decision at the summary judgment

stage); Kennedy v. Floridian Hotel, Inc., 998 F.3d 1221, 1235 (ith Cir. 2021) (“A dismissal

for lack of subject matter jurisdiction is not a judgment on the merits and is entered without

prejudice.” (internal quotation omitted)).