UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ MID-SOUTH IRON WORKERS WELFARE PLAN; IRON WORKERS MID SOUTH PENSION FUND; OKLAHOMA IR ON WORKERS’ DIRECT CONTRIBUTION PLAN AND TRUST; OKLAHOMA IRON WORKERS’ APPRENTICESHIP & TRAINING FUND LOCAL 48, Plaintiffs - Appellants,

v. RYAN MICHAEL HA RMON; 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 plan s under the Employee Retirement Income Security Act (ERISA), seek re versal of the district cour t’s dismissal of their claim

* After examining the briefs and appellate record, th is 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 This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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 Court2 against Defendants Ryan and Krystal Ha rmon 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 Erec tors LLC, an Okla homa limited liability company, was party to a collective bargai ning agreement with Iron Workers Local 84 and 584. Krystal Harmon was a founding member of Angel Erectors. As is customary with these agreements, Angel Er ectors was obligated to provide monthly reports to the Funds detailing hours work ed by union members and to timely pay the requisite contributions. Angel Erectors co mplied with these requirements for a time, but eventually stopped. In August 2010, the Fund s filed suit in federal cour t 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 th e complaint, Ryan Harmon formed another Ok lahoma limited liability co mpany called Harmon Steel Constructors LLC. Angel Erectors transferre d all of its assets and liabilities to Harmon Steel in February 20 11 and filed a petition for ba nkruptcy in March. The Funds moved to dismiss the bankruptcy in June 2011, but the mo tion was denied and the bankruptcy closed in August. In February 2012, the Funds amended their complaint to add Harmon Steel as a defe ndant. In August 2012, the audit was ordered and, upon completion in September, it showed that substantial contributions3 were owed to the Funds. The district court entered judgmen t against both Angel Erectors and Harmon Steel, jo intly 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 th at 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 co rporate 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 pa rticular breach of fi duciary duty in this case was the Harmons’ failure “to pay mont hly 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 bre ach in August 2010 when they filed the first action. Shortly thereafter, the Harmons removed th e case to federal court. Addressing the Harmons’ motion to dismiss filed in stat e court, the district court found the Funds “knew long ago about the duty and the a lleged breach, because it was on that basis that they sued Angel Erectors” in the first place. Aplt. App. at 91–92. The court also4 stated that, as the Harmons noted in thei r motion, the Funds “were also aware of Harmon Steel’s relationship to Angel Erectors and any wr ongdoing . . . 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 cour t 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 c ourt, declining to exercise supplementa l jurisdiction.
II The Funds appeal the dist rict court’s dismissal on th ree grounds: (1) they did not have actual knowledge of the Harm ons’ breach of fiduciary duty until the completion of the audit in September 2012 , so the second ac tion was timely under ERISA’s three-year statute of limitations; (2 ) alternatively, the district court should have applied ERISA’s six-y ear 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 appli cation of Rule 12(b)(6) de novo. Trentadue v. Integrity
Comm. , 501 F.3d 1215, 1236 (10th Cir. 2007).

1 In that motion to dism iss, the Funds included a f ootnote that read: “Krystal Harmon is the managing member of Angel Er ectors. Her husband, Ryan Harmon, is the sole member of Harmon Steel Cons truction, LLC, the entity to which substantially all assets of A ngel Erectors were transferred. ” Aplt. App. at 39 n.1.5 A As an initial matter, the Funds did not pr operly preserve all of their issues for our review. Many years ago, the Supreme C ourt held “that a fede ral appellate court does not consider an issue not passed upon below.” Singleton v. Wulff , 428 U.S. 106, 120 (1976). In the years sinc e, we have fleshed out the reasons for this rule. For example, “review of issues not raised be low would require us to frequently remand for additional evidence gathering and findings.” Lyons v. Jeffers on 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 preva il on appeal on a different theory.” Id . Issues addressed in a “perfunctory manner, un accompanied by some effort at developed argumentation, are deemed waived.” Hardeman v. City of Albuquerque , 377 F.3d 1106, 1122 (10t h 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 dist rict court proceedings do not preserve the issue on app eal.” (alterations omitted)). Here, the Funds made a single referenc e to ERISA’s six-year statute of limitations before the district court. In their respons e to the Harmons’ motion to dismiss, which sought dismi ssal based only on the three-ye ar statute of limitations, the Funds mentioned the six-ye ar statute of limitations in conjunction with quoting 29 U.S.C. § 1113. Aplt. App. at 73. Th ereafter, the Funds ne ver mentioned the sixyear statute of limitations again and in stead pursued their ar gument solely on the basis of the three-year statute of limitati ons. The Funds never attempted to apply the6 six-year statute of limitations to the facts of this case. Thus, the Funds’ perfunctory “analysis” of the six-year statute of li mitations 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 fiduc iary duty after “three years after the earliest date on which the plaintiff had actu al knowledge of the breach or violation.” 29 U.S.C. § 1113(2). We have yet to de fine 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 potentia l plaintiff to have knowledge of every last detail of a transaction, or knowledge of its illegality ”; rather, the plai ntiff “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 kno w of events that cons titute 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 Ci rcuit’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 (9 th Cir. 1994) (holding plaintiffs lacked actual knowledge that a retirement plan used an infirm bidding process to select annuity providers where th e plaintiffs merely knew of the annuities’ purchase). We need not adopt one of these constructio ns of the statute because the district court’s ruling is sound under any of them. The Funds’ cl aim is covere d by § 1113(2) and the specific breach they seek redress for is the failu re “to pay monthly employer contributions resulting in a cognizable loss to the pl ans managed” by the Funds. Aplt. App. at 15. The Funds stated in their petition in the fi rst action that the Harmons and their companies “failed to submit monthly cont ributions and/or remittance reports as requi red by the Collective Bargai ning Agreement.” Aplee. App. at 11. This statemen t evidences the Funds’ knowle dge in August 2010 that the Harmons had failed to contribute, which is the only basis for their breach-of-fiduciary-duty claim in the sec ond action. Though th e Funds attempt to paint the compulsion of an audit as thei r true motive in filing the first action — essentially arguing that they me rely 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. Accord ingly, the Funds had actual knowledge of the Harmons’ alleged breach of fiduciary dut y, under any other circ uit’s definition, in8 August 2010. The statute of limitations ran in August 2013. Th e 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 ot her courts, both within and w ithout the federal judicial system, if those proceedings have a dire ct relation to the matters at issue.” St. Louis Baptist Temple, Inc. v. FDIC , 605 F.2d 1169, 1172 (10th Ci r. 1979). We therefore see no error in the district court’s consider ation of the Funds’ motion to dismiss filed in Angel Erectors’ bankruptcy proceeding.
III Because we discern no error in the dist rict court’s decision, the judgment of the district court is affirmed.

Entered for the Court
Monroe G. McKay Circuit Judge