UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

MID-SOUTH IRON WORKERS 

WELFARE PLAN; IRON WORKERS 

MID SOUTH PENSION FUND; 

OKLAHOMA IRON WORKERS’ 

DIRECT CONTRIBUTION PLAN AND 

TRUST; OKLAHOMA IRON 

WORKERS’ APPRENTICESHIP & 

TRAINING FUND LOCAL 48, 

 Plaintiffs - Appellants, 

v. 

RYAN MICHAEL HARMON; KRYSTAL 

DAWN HARMON, husband and wife, 

 Defendants - Appellees. 

No. 15-6064 

(D.C. No. 5:15-CV-00138-C) 

(W.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before GORSUCH, McKAY, and BACHARACH, Circuit Judges. 

_________________________________ 

Plaintiffs, all employee benefit plans under the Employee Retirement Income 

Security Act (ERISA), seek reversal of the district court’s dismissal of their claim 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously to honor the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

submitted without oral argument. This order and judgment is not binding precedent, 

except under the doctrines of law of the case, res judicata, and collateral estoppel. It 

may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 

and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals

Tenth Circuit 

April 13, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

against Defendants Ryan and Krystal Harmon for breach of fiduciary duty. 

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

I 

 Plaintiffs are a group of ERISA funds (the “Funds”) established by a union of 

iron workers in Oklahoma. Angel Erectors LLC, an Oklahoma limited liability 

company, was party to a collective bargaining agreement with Iron Workers Local 84 

and 584. Krystal Harmon was a founding member of Angel Erectors. As is 

customary with these agreements, Angel Erectors was obligated to provide monthly 

reports to the Funds detailing hours worked by union members and to timely pay the 

requisite contributions. Angel Erectors complied with these requirements for a time, 

but eventually stopped. 

 In August 2010, the Funds filed suit in federal court to compel an audit of 

Angel Erector’s books, alleging that Angel Erectors had “failed to submit monthly 

contributions and/or remittance reports as required by the Collective Bargaining 

Agreement.” Aplee. App. at 11. Shortly after service of the complaint, Ryan 

Harmon formed another Oklahoma limited liability company called Harmon Steel 

Constructors LLC. Angel Erectors transferred all of its assets and liabilities to 

Harmon Steel in February 2011 and filed a petition for bankruptcy in March. The 

Funds moved to dismiss the bankruptcy in June 2011, but the motion was denied and 

the bankruptcy closed in August. In February 2012, the Funds amended their 

complaint to add Harmon Steel as a defendant. In August 2012, the audit was 

ordered and, upon completion in September, it showed that substantial contributions 
3 

were owed to the Funds. The district court entered judgment against both Angel 

Erectors and Harmon Steel, jointly and severally, in the amount of $263,142.59, 

which included the unpaid contributions, attorneys’ fees, and audit costs. 

Presumably unable to execute on its judgment against Harmon Steel, the Funds 

filed suit against the Harmons individually in state court in December 2014. In their 

petition, the Funds averred that post-judgment discovery revealed that corporate 

formalities were not observed by either of the Harmons’ companies. In this suit, the 

Funds alleged two causes of action: (1) to pierce the corporate veil of Harmon Steel 

on an alter ego theory; and (2) to recover for breach of fiduciary duty owed the Funds 

under ERISA. The Funds alleged that the particular breach of fiduciary duty in this 

case was the Harmons’ failure “to pay monthly employer contributions resulting in a 

cognizable loss to the plans managed” by the Funds. Aplt. App. at 15. The Harmons 

moved to dismiss the second claim, arguing in relevant part that the Funds’ 

breach-of-fiduciary-duty claim was barred by the three-year statute of limitations 

provided for by ERISA. See 29 U.S.C. § 1113(2) (barring actions three years after a 

party has “actual knowledge” of a breach). Specifically, the Harmons contended that 

the Funds had actual knowledge of the breach in August 2010 when they filed the 

first action. 

Shortly thereafter, the Harmons removed the case to federal court. Addressing 

the Harmons’ motion to dismiss filed in state court, the district court found the Funds 

“knew long ago about the duty and the alleged breach, because it was on that basis 

that they sued Angel Erectors” in the first place. Aplt. App. at 91–92. The court also 
4 

stated that, as the Harmons noted in their motion, the Funds “were also aware of 

Harmon Steel’s relationship to Angel Erectors and any wrongdoing . . . at least by 

June 6, 2011, when they filed a Motion to Dismiss in Angel Erectors’ bankruptcy 

case.” 1 Id. at 92. On those bases, the court concluded that the Funds had “actual 

knowledge of all the material facts necessary to pursue a breach of fiduciary claim 

against the [Harmons] at least as early as June of 2011.” Id. Accordingly, the court 

dismissed the breach-of-fiduciary-duty claim under Federal Rule of Civil Procedure 

12(b)(6) as untimely and remanded the alter-ego claim to state court, declining to 

exercise supplemental jurisdiction. 

II 

 The Funds appeal the district court’s dismissal on three grounds: (1) they did 

not have actual knowledge of the Harmons’ breach of fiduciary duty until the 

completion of the audit in September 2012, so the second action was timely under 

ERISA’s three-year statute of limitations; (2) alternatively, the district court should 

have applied ERISA’s six-year statute of limitations for fraud and concealment; and 

(3) the district court improperly relied on the Funds’ motion to dismiss in the 

bankruptcy proceeding, a matter “outside of the pleadings,” Opening Br. at 25. We 

review a district court’s application of Rule 12(b)(6) de novo. Trentadue v. Integrity 

Comm., 501 F.3d 1215, 1236 (10th Cir. 2007). 

 1

 In that motion to dismiss, the Funds included a footnote that read: “Krystal 

Harmon is the managing member of Angel Erectors. Her husband, Ryan Harmon, is 

the sole member of Harmon Steel Construction, LLC, the entity to which 

substantially all assets of Angel Erectors were transferred.” Aplt. App. at 39 n.1. 
5 

A 

As an initial matter, the Funds did not properly preserve all of their issues for 

our review. Many years ago, the Supreme Court held “that a federal appellate court 

does not consider an issue not passed upon below.” Singleton v. Wulff, 428 U.S. 106, 

120 (1976). In the years since, we have fleshed out the reasons for this rule. For 

example, “review of issues not raised below would require us to frequently remand 

for additional evidence gathering and findings.” Lyons v. Jefferson Bank & Trust, 

994 F.2d 716, 721 (10th Cir. 1993) (alteration and internal quotation marks omitted). 

We have “repeatedly stated that a party may not lose in the district court on one 

theory of the case, and then prevail on appeal on a different theory.” Id. Issues 

addressed in a “perfunctory manner, unaccompanied by some effort at developed 

argumentation, are deemed waived.” Hardeman v. City of Albuquerque, 377 F.3d 

1106, 1122 (10th Cir. 2004); see also Lyons, 994 F.2d at 721 (“The touchstone on 

this issue is that vague, arguable references to a point in the district court proceedings 

do not preserve the issue on appeal.” (alterations omitted)). 

Here, the Funds made a single reference to ERISA’s six-year statute of 

limitations before the district court. In their response to the Harmons’ motion to 

dismiss, which sought dismissal based only on the three-year statute of limitations, 

the Funds mentioned the six-year statute of limitations in conjunction with quoting 

29 U.S.C. § 1113. Aplt. App. at 73. Thereafter, the Funds never mentioned the sixyear statute of limitations again and instead pursued their argument solely on the 

basis of the three-year statute of limitations. The Funds never attempted to apply the 
6 

six-year statute of limitations to the facts of this case. Thus, the Funds’ perfunctory 

“analysis” of the six-year statute of limitations was a “vague, arguable reference” 

before the district court, where the theory pursued was different from the theory 

advanced on appeal. See Lyons, 994 F.2d at 721. Accordingly, the Funds did not 

preserve the issue for our review. 

B 

ERISA bars any claim for breach of fiduciary duty after “three years after the 

earliest date on which the plaintiff had actual knowledge of the breach or violation.” 

29 U.S.C. § 1113(2). We have yet to define the phrase “actual knowledge,” but our 

sister circuits have, falling for the most part into two schools of thought: those that 

require some understanding that the conduct is unlawful under ERISA and those that 

merely require knowledge of the conduct itself. The Seventh Circuit has held that “it 

is not necessary for a potential plaintiff to have knowledge of every last detail of a 

transaction, or knowledge of its illegality”; rather, the plaintiff “must know the 

essential facts of the transaction or conduct constituting the violation.” Martin v. 

Consultants & Adm’rs, Inc., 966 F.2d 1078, 1086 (7th Cir. 1992); accord Wright v. 

Heyne, 349 F.3d 321, 329–30 (6th Cir. 2003). On the other hand, the Third Circuit 

has held that the plaintiff must not only know of events that constitute the breach, but 

also know that those events support a claim under ERISA. Int’l Union v. Murata 

Erie N.A., Inc., 980 F.2d 889, 900 (3d Cir. 1992);2

 accord Caputo v. Pfizer, Inc., 

 2

 The district court applied the Third Circuit’s approach in the order the Funds 

appeal to us. 
7 

267 F.3d 181, 193 (2d Cir. 2001); Maher v. Strachan Shipping Co., 68 F.3d 951, 

955–56 (5th Cir. 1995); Brock v. Nellis, 809 F.2d 753, 755 (11th Cir. 1987); see also 

Waller v. Blue Cross of Cal., 32 F.3d 1337, 1339, 1341 (9th Cir. 1994) (holding 

plaintiffs lacked actual knowledge that a retirement plan used an infirm bidding 

process to select annuity providers where the plaintiffs merely knew of the annuities’ 

purchase). 

We need not adopt one of these constructions of the statute because the district 

court’s ruling is sound under any of them. The Funds’ claim is covered by § 1113(2) 

and the specific breach they seek redress for is the failure “to pay monthly employer 

contributions resulting in a cognizable loss to the plans managed” by the Funds. 

Aplt. App. at 15. The Funds stated in their petition in the first action that the 

Harmons and their companies “failed to submit monthly contributions and/or 

remittance reports as required by the Collective Bargaining Agreement.” Aplee. 

App. at 11. This statement evidences the Funds’ knowledge in August 2010 that the 

Harmons had failed to contribute, which is the only basis for their 

breach-of-fiduciary-duty claim in the second action. Though the Funds attempt to 

paint the compulsion of an audit as their true motive in filing the first action — 

essentially arguing that they merely knew “something was awry,” see Martin, 

966 F.2d at 1086 (internal quotation marks omitted) — it is clear that they knew 

contributions were not being made. Accordingly, the Funds had actual knowledge of 

the Harmons’ alleged breach of fiduciary duty, under any other circuit’s definition, in 
8 

August 2010. The statute of limitations ran in August 2013. The breach claim, filed 

in December 2014, is thus time-barred. 

C 

 Facts “subject to judicial notice may be considered in a Rule 12(b)(6) motion 

without converting the motion to dismiss into a motion for summary judgment.” Tal 

v. Hogan, 453 F.3d 1244, 1265 n.24 (10th Cir. 2006). Courts may take judicial 

“notice of proceedings in other courts, both within and without the federal judicial 

system, if those proceedings have a direct relation to the matters at issue.” St. Louis 

Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir. 1979). We therefore 

see no error in the district court’s consideration of the Funds’ motion to dismiss filed 

in Angel Erectors’ bankruptcy proceeding. 

III 

 Because we discern no error in the district court’s decision, the judgment of 

the district court is affirmed. 

Entered for the Court 

Monroe G. McKay 

Circuit Judge