UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-2024

RANDY BARRON CLARK,

Plaintiff - Appellant,

versus

BASF CORPORATION, Salaried Employees’ Pension

Plan,

Defendant - Appellee.

Appeal from the United States District Court for the Western

District of North Carolina, at Asheville. Lacy H. Thornburg,

District Judge. (CA-03-213-1)

Submitted: February 23, 2005 Decided: June 15, 2005

Before MOTZ, GREGORY, and SHEDD, Circuit Judges.

Affirmed as modified by unpublished per curiam opinion.

Phyllis A. Palmieri, LAW OFFICE OF PHYLLIS A. PALMIERI, Morganton,

North Carolina, for Appellant. Louis A. Bledsoe, III, Julian H.

Wright, Jr., ROBINSON, BRADSHAW & HINSON, P.A., Charlotte, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Randy Barron Clark appeals the district court’s order and

judgment dismissing his complaint and first amended complaint with

prejudice and denying his motions for oral argument and for

discovery. Clark argues on appeal that he stated a claim for which

relief can be granted under the Employee Retirement Income Security

Act (ERISA), 29 U.S.C. §§ 1132(a) (2000), and pursuant to

principles of equitable estoppel due to an alleged breach of

fiduciary duty. Clark further argues that the district court erred

(1) in considering the pension plan document (Plan document)

attached to the BASF Corporation, Salaried Employees’ Pension

Plan’s (the Plan) motion to dismiss and in not granting Clark oral

argument on the matter; and (2) in concluding the documents

provided to Clark by the Plan were benefits projections rather than

plan amendments.

The district court generally took judicial notice of all

the documents attached to the Plan’s motion to dismiss,

constituting the various documents given to Clark by the Plan and

the written Plan document, “to the extent that they were part of

the public record from [Clark’s] previous action . . . .” Clark v.

BASF Salaried Employees’ Pension Plan, No. CA-03-213-1, at p. 4-5

(W.D.N.C. July 8, 2004) (District Court’s Mem. and Order). On

appeal, Clark only challenges the district court’s consideration of

the Plan document, apparently conceding that the other documents
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were part of the public record in his prior action. However, an

examination of the district court’s opinion reveals that the

district court did not merely rely upon judicial notice to consider

the Plan document. Rather, the district court considered the Plan

document because there was no dispute as to its authenticity, the

document was referenced in the complaint, and the document was

central to Clark’s claims. 

We find the district court properly considered the Plan

document on the motion to dismiss. See, e.g., 5A Charles Alan

Wright & Arthur R. Miller, Federal Practice and Procedure § 1327

(3d ed. 2004) (“[W]hen the plaintiff fails to introduce a pertinent

document as part of her pleading, a significant number of cases

from throughout the federal court system make it clear that the

defendant may introduce the document as an exhibit to a motion

attacking the sufficiency of the pleading; that certainly will be

true if the plaintiff has referred to the item in the complaint and

it is central to the affirmative case.”). Accordingly, we also

find the district court properly denied (a) Clark’s motion for oral

argument regarding the court’s consideration of the Plan document;

and (b) Clark’s motion for discovery, made on the assertion that

the district court would convert the motion into one for summary

judgment if it considered the Plan document.

Clark challenges as impermissible fact-finding the

district court’s reasoning that the documents provided to him by
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the Plan “were not the actual pension plan documents but

projections provided to [Clark] by the Plan about his estimated

pension benefits.” (District Court’s Mem. and Order at 7). On

their face, these various documents purport to be mere projections

of estimated pension benefits and refer to a separate written

pension plan document as controlling Clark’s actual benefits.

Accordingly, we find no error.

The district court assessed the Plan document and the

plan statements given to Clark and reasoned that Clark was not

entitled to the benefits projected in several plan statements. The

district court noted the plan statements erred to varying degrees

in crediting Clark for time that he was not vested in the Plan and

for an eleven-year period in which Clark was not employed by BASF.

The district court noted that the only relief Clark sought in his

complaint and amended complaint was for pension benefits in

accordance with the erroneous pension plan projections. The

district court found that such relief was unavailable under ERISA,

even on an equitable estoppel theory, as the relief would

effectively vary the terms of the formal plan by informal

communications. We find the district court properly concluded

Clark had failed to state a claim under ERISA.

We therefore affirm the district court’s order on the

reasoning of the district court. See Clark v. BASF Salaried

Employees’ Pension Plan, No. CA-03-213-1 (W.D.N.C. July 8, 2004).
*

The court expresses no opinion as to the propriety or merits

of any potential claim for recessionary relief under ERISA.

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We modify the judgment, however, to reflect that the dismissal is

without prejudice. See Griggs v. E.I. DuPont de Nemours & Co., 385

F.3d 440 (4th Cir. 2004).* Thus, we affirm the district court’s

order as modified. We dispense with oral argument because the

facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the

decisional process. 

AFFIRMED AS MODIFIED