* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 20 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

JOHN S. KARLS,

Plaintiff - Appellant,

v. TEXACO, INC.,

Defendant - Appellee. No. 04-4110 (D.C. No. 2:03-CV-775-TS)

(D. Utah)

ORDER AND JUDGMENT *

Before SEYMOUR , McCONNELL , and TYMKOVICH , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Plaintiff John S. Karls appeals the district court’ s order dismissing this action for failure to allege exhaustion of administrative remedies, as required for-2-

claims under the Employee Retirement Income Security Act (ERISA). Mr. Karls also objects to the district court’s threshold ruli ng that ERISA preempted the tort claims he asserted, which the district court accord ingly refused to remand to state court where he originally filed them. We review these matters de novo , Allison v. UNUM Life Ins. Co. of Am. , 381 F.3d 1015, 1025 (10 th Cir. 2004); Kinkead v. S.W. Bell Corp. Sickness & Accident Disability Benefit Plan , 111 F.3d 67, 68 (8 th Cir. 1997), and affirm for the reasons explained be low. The complaint alleged that Mr. Karls worked for def endant Texaco, Inc. from May 1974 to December 1987 and, as part of his remuneration, he was promised a pension. In January 2003, Mr. Karls tel ephoned the agent administering Texaco’s pension obligations to reque st payment of his monthly pension benefit beginning March 1, 2003. By the ti me Mr. Karls obtained the requisite application forms, he had been told the e arliest start date he could expect was May 1. A disagreement arose subsequently over the proper amount of monthly benefit to be paid. Mr. Karls requested ad ditional information about the expected benefit, but received no response. When h e had not received any payments by the first of August, he filed suit in s tate court in Utah. The complaint asserts Texaco “breached its employme nt contract with the plaintiff and committed fraud” by specifying a bene fit start-date of May 1, 2003, rather than March 1, 2003; refusing to explain why the monthly benefit, after1 These objections do not deny the existence of an ERISA plan. But, with

respect to the exhaustion ruling we consider later, Mr. Karls does challenge, for lack of authentication, the particular plan attache d to Texaco’s motion to dismiss. Such an evidentiary challenge is, however, irrelevant to the pleading issues raised here. See Settles v. Golden Rule Ins. Co. , 927 F.2d 505, 508 (10 th Cir. 1991) (affirming ERISA preemption ruling at pleading stag e, and explaining (continued...) -3- reduction for a “QDRO” (qualified domestic relation s order), would be $495.97 rather than the $552.75 Mr. Karls thought it shouldbe; and failing to commence monthly benefit payments by the time suit was filed . R. vol. I, doc. 1, ex. A, Complaint at 10. Texaco removed the case to federa l court on the ground that it was preempted by ERISA, which provided federal ques tion jurisdiction for removal under 28 U.S.C. §1441(b). Texaco then move d to dismiss for failure to exhaust administrative remedies, a prerequisite to suit under ERISA. See generally Whitehead v. Okla. Gas & Elec. Co. , 187 F.3d 1184, 1190 (10 th Cir. 1999) (explaining judicially-created exhaustion doc trine in ERISA context). Mr. Karls moved to remand, arguing that his complaint d id not mention a specific pension plan to which ERISA could apply, and that, in any event, he was hired and promised a pension benefit before ERISA took effect on January 1, 1975. See 29 U.S.C. § 1144(a), (b)(1). The district court de nied the motion for remand and granted the motion to dismiss in a single order. T his appeal followed. Mr. Karls objects to the denial of his motion for r emand for two related reasons: “Even if an ERISA plan is involved,” 1 (1) “ERISA pre-emption does not1 (...continued)

immateriality of lack of evidence where “complaint alleged sufficient facts for the district court to determine whether it gave rise to the defense of ERISA preemption”). The issue we must decide is whether the complaint alleges an ERISA plan – i.e., sets out factual circumstances f rom which a benefit, beneficiary, source, and procedure can be reasonabl y ascertained. Mr. Karls’ complaint, which alleges a monthly pension benefit to be paid to him as a former employee by Texaco’s pension administrator upon sub mission of application forms provided to him in May 2003, suffices to set out the elements of an ERISA plan. See Sipma v. Mass. Cas. Ins. Co. , 256 F.3d 1006, 1012 (10 th Cir. 2001). Mr. Karls cannot sidestep the legal consequences of his substantive allegations simply by avoiding explicit reference to a particul ar ERISA plan in his pleadings. -4- apply retroactively to ‘any cause of action’ arisin g prior to January 1, 1975”; and (2) “ERISA pre-emption does not apply retroactivelyto ‘any act’ which occurred prior to January 1, 1975.” Aplt. Br. at 14, 17 (qu oting 29 U.S.C. § 1144(b)(1)). The district court rejected both contentions becaus e the only relevant event that took place before January 1, 1975, i.e., Mr. Karls’ employment with a promise of pension benefits by Texaco in 1974, “while signific ant, did not give rise to the causes of action at hand. Instead, the causes of a ction accrued when Texaco committed its alleged frauds and breaches of contra ct, which the Complaint places around 2003.” R. vol. I, doc. 23, at 4. We affirm that determination. Courts applying § 1144(b)(1) have agreed that a cau se of action does not arise until a claim for benefits under the plan has been formally made and denied.
See Stevens v. Employer-Teamsters Joint Council No. 84 Pension Fund , 979 F.2d 444, 450-51 (6 th Cir. 1992) (citing Rodriguez v. MEBA Pension Trust , 872 F.2d-5-

69, 72 (4 th Cir. 1989), which cites cases from four other c ircuits). Thus, Mr. Karls’ cause of action clearly arose in 2003, long after ERISA became effective. That leaves Mr. Karls’ second contention, that ERIS A does not apply because the case rests on predicate acts taken prio r to 1975. The courts have not agreed on the proper analysis of this point: some hold that the relevant act is the denial of benefits, which essentially collapses the claim-accrual and predicate-act provisos of § 1144(b)(1) into a single inquiry; oth ers hold that if the operative act underlying the cause of action occurred before the effective date, ERISA does not apply even if the cause of action accrued later. See Stevens , 979 F.2d at 451-52 (discussing rival views). This court has not addre ssed the matter in a published decision. We need not resolve the larger question here because even under the latter approach, this case falls within the preempt ive scope of ERISA. The breach of contract/fraud allegations asserted b y Mr. Karls relate to the administration of his benefit request in 2003 : the confusion surrounding, and ultimate postponement, of the start date he request ed; Texaco’s refusal to explain (through its agent administering the pension plan) why his monthly benefit was to be $495.97 instead of $552.75; and Texaco’s failure to commence payment of the monthly benefit by the time suit was filed. On app eal, Mr. Karls alludes to his claims at times as if they involved fraud in the in ducement and, thus, related to the time of the induced action (his acceptance of e mployment with Texaco) rather-6-

than the time the fraudulent nature of the induceme nt came to light (when the promised benefit failed to materialize). But that is simply not what he pled. The complaint is devoid of any allegations that Texaco contemporaneously intended to renege on the pension promised at the time of his h ire. Rather, the complaint focuses solely on objections to the administration of his pension claim after he requested the benefit in 2003. Thus, the factual a nd legal bases of this case clearly place it within the temporal reach of ERISA

. Turning to the dismissal of the action on exhaustio n grounds, Mr. Karls advances two objections to the district court’s dis position. First, he argues that the ERISA exhaustion requirement is inapplicable be cause he did not assert any ERISA claims. This argument rests primarily on the success of his position with respect to the preemption/retroactivity issue, whic h we have already rejected. He also appears to contend that his claims did not imp licate ERISA in the first place, because he alleged fraud and breach of contract und er state law, not the violation of ERISA duties. It is well-established, however, that “common law tort and breach of contract claims are preempted by ERISA if the factual basis of the cause of action involves an employee benefit plan.” Settles v. Golden Rule Ins.
Co. , 927 F.2d 505, 509 (10th Cir. 1991); see, e.g. , Milton v. Scrivner, Inc. , 53 F.3d 1118, 1121 n.3 (10 th Cir. 1995) (holding claims “alleging fraud withintent to deprive plaintiff of retirement benefits . . . preempted by ERISA”); Pacificare2 We do not wish to give the impression that Mr. Karl s would have prevailed

if the plan submitted by Texaco had been consideredand the dismissal proceeding converted to summary judgment. On the contrary, th e plan specifies a claim and review procedure that had not been completed by Mr. Karls when he filed suit.

3 We deny Mr. Karls’ “Motion to Strike Copy of Allege d Retirement Plan and References Thereto” as moot. We likewise deny Mr. Karls’ “Motion to Strike (continued...) -7- of Okla., Inc. v. Burrage , 59 F.3d 151, 155 (10 th Cir. 1995) (holding claim “alleging negligent or fraudulent administration of [benefit] plan is preempted by ERISA”). Second, Mr. Karls argues that the exhaustion ruling was predicated on unproven facts, because the only evidence of Texaco ’s pension plan and the remedies it afforded was the unauthenticated docume nt referred to in footnote 1 above. As explained there, however, this evidentiary issue is beside the point in reviewing a dismissal on the pleadings – the distri ct court held that Mr. Karls had failed even to allege exhaustion (or cure the omiss ion following Texaco’s motion to dismiss), not that exhaustion had been alleged b ut tested on summary judgment and affirmatively disproven. See R. vol. I, doc. 23, at 5 (“Mr. Karls neither alleges in his Complaint that he did [exhaust], norrefutes the charge [of this omission] in his Opposition to the Motion to Dismis s”). Under the circumstances, the matter was properly decided on the pleadings. 2 See, e.g., Byrd v. MacPapers,
Inc. , 961 F.2d 157, 160-61 (11 th Cir. 1992); Potter v. ICI Ams., Inc. , 103 F.Supp.2d 1062, 1065-67 & n.2 (S.D. Ind. 1999). 33 (...continued)

False Statement Regarding Payments,” which refers t o a statement in Texaco’s brief indicating post-suit commencement of his monthly pension benefit with a lump sum payment for benefits accrued since May 200 3. That statement is irrelevant to this appeal.

-8- The judgment of the district court is AFFIRMED

.

Entered for the Court

Stephanie K. Seymour Circuit Judge