                            UNPUBLISHED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Affirmed as modified by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).
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).


                                        - 4 -
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




        *
      The court expresses no opinion as to the propriety or merits
of any potential claim for recessionary relief under ERISA.

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