F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             MAY 20 2005
                             FOR THE TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

    JOHN S. KARLS,

                Plaintiff - Appellant,

    v.                                                     No. 04-4110
                                                    (D.C. No. 2:03-CV-775-TS)
    TEXACO, INC.,                                           (D. Utah)

                Defendant - Appellee.


                             ORDER AND JUDGMENT             *




Before SEYMOUR , McCONNELL , and TYMKOVICH , Circuit Judges.



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

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The 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



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
claims under the Employee Retirement Income Security Act (ERISA). Mr. Karls

also objects to the district court’s threshold ruling that ERISA preempted the tort

claims he asserted, which the district court accordingly 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. , 

, 1025 (10 th Cir. 2004); Kinkead v.

S.W. Bell Corp. Sickness & Accident Disability Benefit Plan     , 

, 68 (8 th

Cir. 1997), and affirm for the reasons explained below.

      The complaint alleged that Mr. Karls worked for defendant Texaco, Inc.

from May 1974 to December 1987 and, as part of his remuneration, he was

promised a pension. In January 2003, Mr. Karls telephoned the agent

administering Texaco’s pension obligations to request payment of his monthly

pension benefit beginning March 1, 2003. By the time Mr. Karls obtained the

requisite application forms, he had been told the earliest 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 additional information about the

expected benefit, but received no response. When he had not received any

payments by the first of August, he filed suit in state court in Utah.

      The complaint asserts Texaco “breached its employment contract with the

plaintiff and committed fraud” by specifying a benefit start-date of May 1, 2003,

rather than March 1, 2003; refusing to explain why the monthly benefit, after


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reduction for a “QDRO” (qualified domestic relations order), would be $495.97

rather than the $552.75 Mr. Karls thought it should be; 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 federal court on the ground that it

was preempted by ERISA, which provided federal question jurisdiction for

removal under 28 U.S.C. §1441(b). Texaco then moved to dismiss for failure to

exhaust administrative remedies, a prerequisite to suit under ERISA.     See

generally Whitehead v. Okla. Gas & Elec. Co.     , 

, 1190 (10 th Cir.

1999) (explaining judicially-created exhaustion doctrine in ERISA context). Mr.

Karls moved to remand, arguing that his complaint did 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 denied the motion for remand and

granted the motion to dismiss in a single order. This appeal followed.

      Mr. Karls objects to the denial of his motion for remand for two related

reasons: “Even if an ERISA plan is involved,”     1
                                                      (1) “ERISA pre-emption does not


1
       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 attached 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. , 

, 508 (10 th Cir. 1991)
(affirming ERISA preemption ruling at pleading stage, and explaining
                                                                        (continued...)

                                           -3-
apply retroactively to ‘any cause of action’ arising prior to January 1, 1975”; and

(2) “ERISA pre-emption does not apply retroactively to ‘any act’ which occurred

prior to January 1, 1975.” Aplt. Br. at 14, 17 (quoting 29 U.S.C. § 1144(b)(1)).

The district court rejected both contentions because 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 significant, did not give rise to the

causes of action at hand. Instead, the causes of action accrued when Texaco

committed its alleged frauds and breaches of contract, 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 cause 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      , 

, 450-51 (6 th Cir. 1992) (citing   Rodriguez v. MEBA Pension Trust   , 

 (...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 from which a benefit,
beneficiary, source, and procedure can be reasonably 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 submission 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. , 

, 1012 (10 th Cir. 2001).
Mr. Karls cannot sidestep the legal consequences of his substantive allegations
simply by avoiding explicit reference to a particular ERISA plan in his pleadings.

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69, 72 (4 th Cir. 1989), which cites cases from four other circuits). Thus, Mr.

Karls’ cause of action clearly arose in 2003, long after ERISA became effective.

       That leaves Mr. Karls’ second contention, that ERISA does not apply

because the case rests on predicate acts taken prior 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; others 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 addressed 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 preemptive scope of ERISA.

       The breach of contract/fraud allegations asserted by Mr. Karls relate to the

administration of his benefit request     in 2003 : the confusion surrounding, and

ultimate postponement, of the start date he requested; 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 appeal, Mr. Karls alludes to his

claims at times as if they involved fraud in the inducement and, thus, related to

the time of the induced action (his acceptance of employment with Texaco) rather


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than the time the fraudulent nature of the inducement 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 hire. Rather, the complaint

focuses solely on objections to the administration of his pension claim after he

requested the benefit in 2003. Thus, the factual and legal bases of this case

clearly place it within the temporal reach of ERISA.

       Turning to the dismissal of the action on exhaustion grounds, Mr. Karls

advances two objections to the district court’s disposition. First, he argues that

the ERISA exhaustion requirement is inapplicable because he did not assert any

ERISA claims. This argument rests primarily on the success of his position with

respect to the preemption/retroactivity issue, which we have already rejected. He

also appears to contend that his claims did not implicate ERISA in the first place,

because he alleged fraud and breach of contract under 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. , 

, 509 (10th Cir. 1991);    see, e.g. , Milton v. Scrivner, Inc. , 

, 1121 n.3 (10 th Cir. 1995) (holding claims “alleging fraud with intent

to deprive plaintiff of retirement benefits . . . preempted by ERISA”);       Pacificare


                                            -6-
of Okla., Inc. v. Burrage , 

, 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 document 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 district court held that Mr. Karls had

failed even to allege exhaustion (or cure the omission following Texaco’s motion

to dismiss), not that exhaustion had been alleged but 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], nor refutes the charge [of this

omission] in his Opposition to the Motion to Dismiss”). Under the circumstances,

the matter was properly decided on the pleadings.     2
                                                          See, e.g., Byrd v. MacPapers,

Inc. , 

, 160-61 (11   th Cir. 1992); Potter v. ICI Ams., Inc. , 

, 1065-67 & n.2 (S.D. Ind. 1999).       3




2
       We do not wish to give the impression that Mr. Karls would have prevailed
if the plan submitted by Texaco had been considered and the dismissal proceeding
converted to summary judgment. On the contrary, the 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 Alleged Retirement Plan
and References Thereto” as moot. We likewise deny Mr. Karls’ “Motion to Strike
                                                                (continued...)

                                            -7-
      The judgment of the district court is         AFFIRMED .



                                         Entered for the Court



                                         Stephanie K. Seymour
                                         Circuit Judge




3
 (...continued)
False Statement Regarding Payments,” which refers to 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 2003. That statement is
irrelevant to this appeal.


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