                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a1027n.06

                                           No. 11-1824                                 FILED
                                                                                   Sep 25, 2012
                          UNITED STATES COURT OF APPEALS                     DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


JOHN LOFFREDO, et al.,                           )
                                                 )
       Plaintiffs-Appellants,                    )
                                                 )
v.                                               )   ON APPEAL FROM THE UNITED
                                                 )   STATES DISTRICT COURT FOR THE
DAIMLER AG,                                      )   EASTERN DISTRICT OF MICHIGAN
                                                 )
       Defendant-Appellee,                       )
                                                 )
STATE STREET BANK AND TRUST                      )
COMPANY,                                         )
                                                 )
       Defendant-Appellee,                       )
                                                 )
DIETER ZETSCHE,                                  )
                                                 )
       Defendant-Appellee,                       )
                                                 )
THOMAS LASORDA,                                  )
                                                 )
       Defendant-Appellee.                       )


       Before: MOORE, SUTTON and STRANCH, Circuit Judges.


       SUTTON, J., delivered the opinion of the court except for Section II through II.A.

STRANCH, J., joined in all parts except Section II through II.A and delivered a separate concurring

opinion (p. 17). MOORE, J., concurred in the judgment and delivered a separate opinion (pp.

18–23), in which STRANCH, J., joined and which constitutes the opinion of the court.
No. 11-1824
Loffredo v. Daimler AG

       John Loffredo and his co-plaintiffs are former Chrysler executives. When the company went

bankrupt in 2009, they lost most, in some cases all, of their benefits under its Supplemental

Executive Retirement Plan. Claiming that the Plan would have survived the bankruptcy had it been

properly managed, they sued Chrysler’s former parent company, several of Chrysler’s (other) former

executives and the trustee responsible for managing the retirement funds. The district court

dismissed the claims, holding that the federal Employee Retirement Income Security Act, 29 U.S.C.

§ 1001 et seq., preempted plaintiffs’ state-law claims: age discrimination, breach of fiduciary duty,

promissory estoppel and silent fraud. We affirm the dismissal of all of the claims, save the age-

discrimination claim.


                                                  I.


       At various times before 2007, John Loffredo and other Chrysler executives participated in

the company’s Supplemental Executive Retirement Plan. To facilitate benefit payments, Chrysler

established a trust, held by State Street Bank and Trust Company as trustee, in which it deposited

assets intended to cover the Plan benefits. The trust document provided that Chrysler could use trust

funds to pay benefits under the Plan and related expenses, except that “[i]n the event of Insolvency

of [Chrysler], all money or other property contributed to the Trust . . . shall be available to pay the

claims of any general creditor” of Chrysler. R. 25-3 at 8, PageID 290. The Plan also authorized

Chrysler to buy out an employee’s right to benefits by creating an annuity paying an equivalent

stream of income.




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        In 1998, Chrysler discussed a merger with Daimler. When some Chrysler executives

expressed concern over the merger’s implications for their supplemental benefits, Daimler’s Chief

Financial Officer told them that “it has always been the understanding that as long as [Daimler] is

a majority stakeholder of any affiliate, [Daimler] internally sees to it that the affiliate has sufficient

assets to meet its obligations with a third party.” R. 31-2 at 9, PageID 462. Plaintiffs remained

employed with Chrysler. The companies merged later that year, producing a new company, Daimler

Chrysler AG, in which Chrysler became a wholly owned subsidiary.


        Jump forward a few years. By 2005 or 2006, plaintiffs claim, the defendants knew Chrysler’s

financial situation was precarious and that the company might need to file for bankruptcy. Based

on this knowledge, the defendants allegedly used trust assets to purchase annuities for some active

Chrysler executives, as well as some selected retirees (not including the plaintiffs).               This

securitization protected the selected beneficiaries from any future shortfalls in the trust account,

while the remaining participants continued to depend on the trust for their monthly benefits checks.

The defendants allegedly hid the true state of Chrysler’s finances from the remaining trust

beneficiaries, preventing them from cashing in their own benefits for annuities.


        In 2007, Daimler Chrysler AG sold its majority interest in Chrysler to Cerberus Capital

Management, L.P. Chrysler eventually became insolvent and filed for bankruptcy in 2009.

Consistent with the terms of the Plan, the remaining assets of the Plan became part of Chrysler’s

bankruptcy estate. Had the Plan been fully funded, plaintiffs allege, the federal government (which




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participated in the bankruptcy proceedings) would have ensured the Plan survived the bankruptcy

intact. The Plan’s unsecured beneficiaries instead lost most of their benefits.


       The plaintiffs (on behalf of a class) sued Daimler, Cerberus and State Street Bank, as well

as Dieter Zetsche and Thomas LaSorda, both of whom served as Chrysler executives before the sale

to Cerberus, in state court. They alleged state-law claims of promissory estoppel, breach of fiduciary

duty, age discrimination, fraud and statutory conversion. Because the plaintiffs did not contest the

dismissal of their conversion claim against State Street, we will not address that claim.


       The defendants removed the case to federal court. Once there, the plaintiffs agreed to dismiss

Cerberus. Loffredo v. Cerberus Capital Mgt., No. 10-14214, ECF #17 (E.D. Mich. Feb. 14, 2011).

The remaining defendants filed motions to dismiss, arguing that ERISA preempted the state-law

claims. The district court granted the motions.


                                                  II.


       ERISA has competing objectives: to enforce employers’ retirement-related promises without

discouraging employers from making the promises in the first place. See Pilot Life Ins. Co. v.

Dedeaux, 481 U.S. 41, 54 (1987). Striking a balance, Congress created a robust enforcement regime

under which employees could vindicate these federal rights and a robust preemption regime to

protect employers from a patchwork of additional state-by-state requirements. See Aetna Health Inc.

v. Davila, 542 U.S. 200, 208 (2004).




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       Congress also recognized that the optimal equilibrium between protection and promotion

falls in different places for different groups of workers. While some workers need the protection of

expansive fiduciary duties, others do not, including some management executives. See Bakri v.

Venture Mfg. Co., 473 F.3d 677, 678 (6th Cir. 2007). For the latter group, Congress created a

retirement-plan option that “cuts a swath through [ERISA’s] regulatory thicket,” removing many

of the employer requirements, including its fiduciary duty and minimum funding obligations.

Alexander v. Brigham & Women’s Physicians Org., Inc., 513 F.3d 37, 43 (1st Cir. 2008); see also

Bakri, 473 F.3d at 678. Known as “top-hat” plans, these retirement plans are unfunded, meaning the

employer may not set them up in a separate account insulated from the employer’s creditors in the

case of insolvency and meaning that beneficiaries are not taxed until they receive the benefits. See

In re IT Group, Inc., 448 F.3d 661, 665 (3d Cir. 2006).


       The parties agree that Chrysler’s Supplemental Executive Retirement Plan is a top-hat plan.

As such, many of ERISA’s otherwise-applicable protections (and rights of action) do not apply,

which explains why plaintiffs have largely framed their claims under state law. A threshold question

is whether Congress’s less-intrusive regulation of top-hat plans permits a more-intrusive system of

state regulation. The answer is no. ERISA has one express-preemption provision, see 29 U.S.C.

§ 1144(a), and (with some exceptions not relevant here) it applies equally to all ERISA benefit plans,

preempting all state-law claims that “relate to any employee benefit plan,” id. “The policy choices

reflected in the inclusion of certain remedies and the exclusion of others under the federal scheme

would be completely undermined if ERISA-plan participants . . . were free to obtain remedies under


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state law that Congress rejected in ERISA.” Pilot Life Ins. Co., 481 U.S. at 54. “Preemption thus

applies to every plan covered by ERISA, which necessarily includes top hat plans.” Paneccasio v.

Unisource Worldwide, Inc., 532 F.3d 101, 113 (2d Cir. 2008); see also Cogan v. Phoenix Life Ins.

Co., 310 F.3d 238, 242 (1st Cir. 2002); Olander v. Bucyrus-Erie Co., 187 F.3d 599, 604, 606 (7th

Cir. 1999). “[A]ny state-law cause of action that duplicates, supplements, or supplants the ERISA

civil enforcement remedy conflicts with the clear congressional intent to make the ERISA remedy

exclusive and is therefore pre-empted.”        Aetna Health Inc., 542 U.S. at 209; see also

Penny/Ohlmann/Nieman, Inc. v. Miami Valley Pension Corp., 399 F.3d 692, 698 (6th Cir. 2005)

(holding that ERISA preempts state laws that “provide alternate enforcement mechanisms”).


       ERISA contains just one express-preemption provision, § 1144, but the courts have created

a complete-preemption doctrine to go with it. Complete preemption is “a doctrine only a judge could

love,” Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1075 (7th Cir. 1992), and one only

judges could confusingly name. More productively thought of as a jurisdictional rather than a

preemptive rule, complete preemption amounts to an exception to the well-pleaded complaint rule

that converts a state-law claim that could have been brought under § 1132 into a federal claim, Aetna

Health Inc., 542 U.S. at 209, and makes the recharacterized claims removable to federal court,

Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 67 (1987). Section 1132 creates ERISA’s civil action,

permitting claims by a beneficiary “to recover benefits due to him under the terms of his plan, to

enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the

terms of the plan.” 29 U.S.C. § 1132(a)(1)(B). Complete preemption applies when a plaintiff


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dresses up a claim for benefits under a pension plan in state-law clothing because ERISA has “so

fill[ed] every nook and cranny” of the area “that it is not possible to frame a complaint under state

law.” Bartholet, 953 F.2d at 1075. Put another way, “a complaint reciting that the claim depends

on the common law of contracts is really based on [ERISA] if the contract in question is a pension

plan. Congress has blotted out (almost) all state law on the subject of pensions, so a complaint about

pensions rests on federal law no matter what label its author attaches.” Id.


        The distinction between the two doctrines comes up most frequently in removal cases, where

the jurisdictional import of “complete preemption” applies. Here, however, we face no such

problem, as the federal courts have jurisdiction over the case under another statute, the Class Action

Fairness Act (CAFA). In this instance, all of plaintiffs’ claims, save the age-discrimination claim,

conflict with ERISA in one way or another.


                                                  A.


        Fiduciary Duty. When Congress exempts a plan from ERISA’s fiduciary-duty requirements,

as it did with top-hat plans, plaintiffs may not use state law to put back in what Congress has taken

out. See Pilot Life Ins. Co., 481 U.S. at 54. Even if the facts of a given case make “an ERISA action

[unavailable] against particular defendants, the relief provided by ERISA is the only relief available.”

Smith v. Provident Bank, 170 F.3d 609, 615 (6th Cir. 1999). No one disputes that the plaintiffs are

ERISA beneficiaries and may sue fiduciaries for money damages and non-fiduciaries for equitable

relief under ERISA’s civil enforcement scheme. See 29 U.S.C. § 1132(a). The only question is


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whether plaintiffs may sue non-fiduciaries for money damages—whether state law may create an

alternative to the civil enforcement mechanisms ERISA already provides. Penny/Ohlmann/Nieman,

Inc., 399 F.3d at 698. It may not: ERISA preempts the plaintiffs’ claims for money damages against

the non-fiduciary defendants.

        Our decision in Thurman v. Pfizer, Inc., 484 F.3d 855 (6th Cir. 2007), says nothing to the

contrary. Thurman sued for losses allegedly caused by misrepresentations that pre-dated his

participation in the ERISA plan. Because he fell outside the class of people covered by ERISA,

federal law did not preempt his state-law misrepresentation claim. Id. at 861. The same is not true

here.


        Judge Moore, joined by Judge Stranch, would reject this claim under the doctrine of complete

preemption. The distinction between complete and express preemption matters most when it has

jurisdictional consequences—when, for example, complete preemption creates federal

jurisdiction—and in some instances it may affect the ease with which a complaint may be amended

or indeed whether it needs to be amended. No such issues arise here. We have jurisdiction under

CAFA, eliminating that potential problem. And it would be futile to give plaintiffs an opportunity

to re-file an ERISA claim when the federal statute exempts top-hat plans from its coverage. As our

jurisdiction is certain and as amending the complaint would be futile, I see no need for the court to

resolve whether, as a matter of nomenclature, it is more appropriate to say that the claims are

completely preempted under § 1132 or expressly preempted under § 1144. Judge Moore makes a

plausible case for one tag line: complete preemption. But there is a plausible case to be made for


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the other: Express preemption is the label we gave a similar claim in PONI, and it seems a bit

awkward (though that may not be saying much when it comes to “complete preemption”) to

characterize a state-law claim as a federal claim in disguise when federal law expressly precludes

such a claim, precludes in other words the disguised and undisguised version of the claim.


                                                   B.


        Fraud. The executives also allege that the defendants breached “a legal and equitable duty

to Plaintiffs, as participants in the . . . Trust, to inform them of the precarious financial position of”

Chrysler. R. 31-2 at 20, PageID 473. But a state law that gives ERISA plan participants rights to

information by virtue of their status as participants in the plan conflicts with ERISA’s existing

disclosure requirements and enforcement mechanisms. Aetna Health Inc., 542 U.S. at 209. Section

1144(a) therefore expressly preempts these claims. See id.


        Plaintiffs insist that the claim escapes preemption because it relies on an independent state-

law duty to disclose that goes beyond the ERISA relationship. But state law imposes no such

generalized duty. Under Michigan law, this type of claim, known as “silent fraud,” requires selective

concealment that creates “a representation that what is disclosed is the whole truth. The gist of the

action is fraudulently producing a false impression upon the mind of the other party.” Wolfe v. A.E.

Kusterer & Co., 257 N.W. 729, 730 (Mich. 1934) (emphasis added). “[T]he touchstone of liability

for . . . ‘silent fraud’ is that some form of representation has been made and that it was or proved to

be false.” M&D, Inc. v. W.B. McConkey, 585 N.W.2d 33, 38 (Mich. Ct. App. 1998). In the absence


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of any allegation that the defendants made deceptively partial disclosures (as opposed to remaining

completely silent), state law imposes no legal duty independent of the Plan relationship.


       The executives invoke two cases to support a broader duty to disclose, but neither one does

the trick. In Clement-Rowe v. Michigan Health Care Corp., the court held that a company may not

“avoid liability after omitting to disclose, when asked, known economic instability which later leads

to economically-based layoffs.” 538 N.W.2d 20, 24 (Mich. Ct. App. 1995) (per curiam) (emphasis

added). The executives do not claim they asked about Chrysler’s finances, making Clement-Rowe’s

duty to disclose irrelevant. The other case—an unpublished federal district court opinion—draws

on Clement-Rowe but does not discuss the “when asked” proviso. See Van Vels v. Premier Athletic

Ctr. of Plainfield, Inc., No. 1:97-CV-665, 1998 U.S. Dist. LEXIS 10993, at *22 (W.D. Mich. June

9, 1998).


                                                 C.


       Promissory estoppel. The executives also filed a promissory-estoppel claim stemming from

Daimler’s alleged 1998 commitment to “see[] to it that [Chrysler] has sufficient assets to meet its

obligations.” R. 32-1 at 9, PageID 462. There is some debate whether employees may bring

promissory-estoppel claims directly under ERISA itself, see Bloemker v. Laborers’ Local 265

Pension Fund, 605 F.3d 436, 440 (6th Cir. 2010), but we need not resolve the point. Either way, the

executives face a problem. If ERISA permits such claims directly under the statute, the state-law

promissory estoppel claims impermissibly “duplicate[]” ERISA’s enforcement mechanisms, and


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§ 1132 completely preempts them—and any effort at amendment would be futile. Aetna Health Inc.,

542 U.S. at 209. If ERISA does not permit promissory-estoppel claims, the state-law claims amount

to an impermissible alternative to ERISA’s reticulated enforcement regime, and § 1144 expressly

preempts them. Penny/Ohlman/Nieman, Inc., 399 F.3d at 698; see also Armistead v. Vernitron

Corp., 944 F.2d 1287, 1300 (6th Cir. 1991) (noting that modification of plan terms by promissory

estoppel could jeopardize other participants’ benefits).


        One other problem defeats this theory. Even if the claim could survive preemption (or be

reframed as an ERISA claim), the executives did not adequately plead it. Promissory estoppel

presupposes a broken promise. See Gore v. Flagstar Bank, FSB, 711 N.W.2d 330, 333 (Mich. 2006)

(asking whether “injustice can be avoided only by performance of the promise”); Cohen v. Cowles

Media Co., 501 U.S. 663, 671 (1991). But the executives allege no such thing. They locate

Daimler’s promise in its statement that “as long as [Daimler] is a majority stakeholder of any

affiliate, [Daimler] internally sees to it that the affiliate has sufficient assets to meet its obligations

with a third party.” R. 31-2 at 9, PageID 462. Yet, in discussing Daimler’s breach, they reframe the

obligation, saying the company failed “to make certain that [Chrysler] had sufficient assets to

purchase annuities or otherwise securitize the retirement benefits of the retired employees.” Id. at

13. Ensuring internally that an affiliate has sufficient assets to meet its obligations is distinct from

securitizing those obligations externally. In the context of an unfunded top-hat plan—designed not

to secure benefits for beneficiaries, see Comrie v. IPSCO, Inc., 636 F.3d 839, 840 (7th Cir.

2011)—that difference is significant. Because they do not allege Daimler failed to do what it said


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it would do, only that it failed to do more than it said it would do, the executives fail to state a

cognizable claim for promissory estoppel for this reason as well.


                                                  D.


        Age discrimination. The executives’ age-discrimination claim fares better. ERISA’s saving

clause says that nothing in the statute “shall be construed to alter, amend, modify, invalidate, impair,

or supersede any law of the United States.” 29 U.S.C. § 1144(d). The clause preserves other federal

laws and some state laws that “provide[] a means of enforcing” a federal law’s commands. Shaw

v. Delta Air Lines, Inc., 463 U.S. 85, 102 (1983).


        Shaw illustrates the some-state-laws point. It held that ERISA does not preempt state-law

discrimination claims arising from conduct that is also illegal under Title VII. The Court reasoned

that Title VII relies on state laws to enforce the federal law and that disallowing the parallel state

claims would “impair” federal law in violation of § 1144(d). Id.


        Like Title VII, the Age Discrimination in Employment Act uses state-law counterparts to

bolster enforcement of the federal law. See 29 U.S.C. § 633(b). Section 1144(d) thus preserves

state-law claims from preemption to the extent they mirror ADEA claims. See Devlin v. Transp.

Commc’ns Int’l Union, 173 F.3d 94, 100 (2d Cir. 1999); Hurlic v. S. Cal. Gas Co., 539 F.3d 1024,

1036 (9th Cir. 2008). The plaintiffs’ age-discrimination claim falls into this category. They argue

that securitizing the retirement benefits of active employees but not most retired employees had a

disparate impact on older beneficiaries. The ADEA covers such claims. See Smith v. City of

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Jackson, 544 U.S. 228, 243 (2005). Nor is the claim an implausible one: The securitized

beneficiaries on average were younger than the retirees whose benefits were not secured.


         The defendants offer three counter-arguments, all unavailing at the pleading stage. First, they

point out that the ADEA gives employers an affirmative defense if the disparate impact results from

reliance on “reasonable factors other than age.” See 29 U.S.C. § 623(f)(1); Meacham v. Knolls

Atomic Power Lab., 554 U.S. 84, 87 (2008). True enough. But, as an affirmative defense not

anticipated in the pleadings, it provides no basis for relief on a motion to dismiss, as opposed to a

motion for summary judgment. See Pfeil v. State St. Bank & Trust Co., 671 F.3d 585, 599 (6th Cir.

2012).


         Second, State Street argues that it cannot be subject to an employment-discrimination claim

because it did not employ the plaintiffs. But Michigan and federal law extend liability to an

employer’s “agent,” see Mich. Comp. Laws § 37.2201(a); 29 U.S.C. § 630(b), and the complaint

alleges State Street acted as Chrysler’s agent.


         Third, defendants claim that Michigan’s three-year statute of limitations bars these claims.

See Mich. Comp. Laws § 600.5805(1), (10). Under Michigan law, a claim “accrues at the time the

wrong upon which the claim is based was done regardless of the time when damage results. Id.

§ 600.5827. The Michigan Supreme Court has read this statute to require an “actionable wrong,”

meaning that all of the elements of the claim must be present before the limitations period begins

to run. See Connelly v. Paul Ruddy’s Equip. Repair & Serv. Co., 200 N.W.2d 70, 72–73 (Mich.


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1972). One element of a disparate-impact claim is an adverse impact, which is to say an injury. See

Donnelly v. R.I. Bd. of Governors for Higher Educ., 110 F.3d 2, 5 n.2 (1st Cir. 1997); Coe v. Yellow

Freight Sys., Inc., 646 F.2d 444, 451 (10th Cir. 1981). Yet this impact/injury did not become

actionably adverse here until it was clear that the treatment of the active employees—buying them

taxable annuities in exchange for their right to continue receiving payments from the trust—was

more favorable than the treatment of the retirees because the trust lacked funds to pay out the

remaining claims. The complaint suggests this may have occurred as late as 2009, making the

lawsuit timely, at least according to the pleadings. The age-discrimination claim is remanded for

further proceedings consistent with this opinion.


                                                  III.


        ERISA claims. Having decided that ERISA preempts three of the plaintiffs’ four state-law

claims, we must consider whether the district court erred in denying plaintiffs leave to amend their

complaint to raise new ERISA-based claims. The plaintiffs properly presented just one of those

claims to the district court: that they are entitled to equitable restitution and an accounting under 29

U.S.C. § 1132(a)(3), which authorizes “other appropriate equitable relief.”


        To plead claims for equitable relief, however, the plaintiffs would have to allege either that

the defendants currently (and improperly) possess the assets dispersed from the trust or that they

retain profits generated from that property. See Great-West Life & Annuity Ins. Co. v. Knudson, 534

U.S. 204, 214 (2002) (“[F]or restitution to lie in equity, the action generally must seek not to impose


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personal liability on the defendant, but to restore to the plaintiff particular funds or property in the

defendant’s possession.”); id. at 214 n.2 (discussing equitable accounting). The plaintiffs never

alleged any such facts, and in deciding whether to grant leave to amend the district court was not

required to assume that the plaintiffs would allege new facts to support new claims. Cf. Harvey v.

Great Seneca Fin. Corp., 453 F.3d 324, 328 (6th Cir. 2006) (“[T]his court should not assume facts

that were not pled.”).


        Before the district court, the plaintiffs also argued they could bring claims under 29 U.S.C.

§ 1132(a)(1)(B) “to recover the benefits which they have lost as a . . . result of Defendants’ conduct

in violation of the terms of the” Plan and trust documents. R. 31 at 33, PageID 436. Yet they did

not allege conduct of the defendants that violated provisions of any trust document, and as a result

the district court denied their motion to amend. On appeal, the plaintiffs for the first time point to

particular conduct and particular contractual obligations to support their claim of breach. But

because the plaintiffs did not present these claims to the district court, they cannot do so for the first

time on appeal. See McFarland v. Henderson, 307 F.3d 402, 407 (6th Cir. 2002).


                                                   IV.


        Dismissal of claims against Zetsche. One of the defendants, Dieter Zetsche, is a citizen and

resident of Germany. The parties stipulated in November 2010 that the plaintiffs failed to serve him

with the complaint. When the district court, in June 2011, addressed the other defendants’ motions

to dismiss, it noted that the claims against Zetsche were identical to the claims against LaSorda but


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that Zetsche had not filed a motion to dismiss because he had not been served. The district court

gave the plaintiffs ten days to show cause why Zetsche should not be dismissed from the case on the

same merits-based grounds as LaSorda. The plaintiffs did not respond, and the district court

dismissed their claims against Zetsche in July 2011. Due to their failure to object to Zetsche’s

dismissal in the district court, they have no right to complain about the dismissal now (although, as

noted, the district court should not have dismissed the age-discrimination claim). See McFarland,

307 F.3d at 407.


                                                 V.


       For these reasons, we reverse the district court’s dismissal of the state-law age-discrimination

claim, affirm its dismissal of the other issues and remand.




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        KAREN NELSON MOORE, Circuit Judge, concurring in the judgment. To paraphrase

Tolstoy, each ERISA preemption case is complicated in its own way. Although I agree that

Loffredo’s state-law claims for breach of fiduciary duty and silent fraud are preempted, his age-

discrimination claim is not preempted, and his promissory-estoppel claim was not adequately

pleaded, I write separately in hopes of providing both a degree of clarity to at least one aspect of this

tangled web and a more thorough analysis of the preemption issue as it relates to the case before us.


        ERISA can preempt state-law claims in two ways: complete preemption under 29 U.S.C.

§ 1132(a) and express preemption under 29 U.S.C. § 1144. Normally, the consequence of the former

is that the suit containing those claims can be removed to federal court; a completely preempted

state-law claim “arises under” federal law and thus vests the district court with federal-question

jurisdiction. Wright v. Gen. Motors Corp., 262 F.3d 610, 613 (6th Cir. 2001). By contrast, express

preemption under § 1144 is a defense; it is grounds for dismissal, but not for removal. See id. at

614–15; Warner v. Ford Motor Co., 46 F.3d 531, 533–35 (6th Cir. 1995) (en banc). Our prior

ERISA preemption cases have not always clearly differentiated between the two concepts, but we

should take care to do so in the future.


        In addition to its jurisdictional impact, complete preemption of a state-law claim by ERISA

also affects how the federal court should treat that claim, regardless of how it arrived in federal court.

Because state-law claims that are completely preempted are, in fact, federal claims, the court should

treat them as such, evaluating them as ERISA claims and, unless doing so would be futile, granting

the plaintiff leave to amend the complaint to re-plead those claims to conform with ERISA. The

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question in such situations is whether the plaintiff could state an ERISA claim based on the

allegations underlying his ostensible state-law claim, not whether, looking at the complaint as

pleaded, he has done so; a plaintiff not expecting to find himself with an ERISA claim may not have

pleaded every known fact that could support such a claim (such as identifying specific Plan terms

that the defendants violated in support of an § 1132(a)(1)(B) claim), and should thus have an

opportunity to do so. The plaintiff could also seek to amend the complaint with new ERISA claims,

subject to Federal Rule of Civil Procedure 15. By contrast, state-law claims that are expressly

preempted under § 1144 should be dismissed with prejudice. See Briscoe v. Fine, 444 F.3d 478, 501

(6th Cir. 2006). The difference in treatment stems from the fact that completely preempted claims

“fall within the scope” of ERISA’s civil-enforcement regime, Aetna Health Inc. v. Davila, 542 U.S.

200, 221 (2004), and expressly preempted claims interfere with that regime.


        Daimler argued before the district court that Loffredo’s state-law claims should be dismissed

as completely preempted. The district court correctly recognized that this argument misunderstands

the doctrine of complete preemption. Complete preemption under § 1132(a) is not grounds for

dismissal. See Franciscan Skemp Healthcare, Inc. v. Cent. States Joint Bd. Health & Welfare Trust

Fund, 538 F.3d 594, 596 (7th Cir. 2008) (“Complete preemption [is] really a jurisdictional rather

than a preemption doctrine . . . .”); 13D Charles Alan Wright, Arthur Miller, Edward Cooper &

Richard Freer, Federal Practice & Procedure § 3566 at 297 (3d ed. 2008) (“‘Complete preemption’

. . . is actually a doctrine of subject matter jurisdiction.”). If an ostensible state-law claim is in fact

an ERISA claim, it cannot be dismissed as preempted by ERISA; that is, ERISA cannot preempt an


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ERISA claim. See Ackerman v. Fortis Benefits Ins. Co., 254 F. Supp. 2d 792, 816–17 (S.D. Ohio

2003). A state-law claim that is not completely preempted can nonetheless be expressly preempted,

and thus subject to dismissal, under § 1144. See Thurman v. Pfizer, Inc., 484 F.3d 855, 860–61 (6th

Cir. 2007).


       Just as the results of the two types of preemption are different, so are the analyses. A

plaintiff’s state-law claim is completely preempted “if [he], at some point in time, could have

brought his claim under ERISA” and “there is no other independent legal duty that is implicated by

a defendant’s actions.” Davila, 542 U.S. at 210; see also Montefiore Med. Ctr. v. Teamsters Local

272, 642 F.3d 321, 328 (2d Cir. 2011) (describing complete preemption under ERISA as a “two-part

test”); Marin Gen. Hosp. v. Modesto & Empire Traction Co., 581 F.3d 941, 946 (9th Cir. 2009)

(same); Franciscan Skemp Healthcare, 538 F.3d at 597 (same). A plaintiff “could have brought”

a state-law claim under ERISA if he or she has standing to bring such a claim and if the claim can

be construed as a colorable claim for recovery under ERISA. See Montefiore Med. Ctr., 642 F.3d

at 328 & n.7. When making this determination, we should consider the substance of the state-law

claim, not its label. See Davila, 542 U.S. at 214; Peters v. Lincoln Elec. Co., 285 F.3d 456, 469 (6th

Cir. 2002).


       A claim is expressly preempted, and thus subject to dismissal, if it is based on a state law that

“may now or hereafter relate to any employee benefit plan.” 29 U.S.C. § 1144(a). State-law claims

“relate to” ERISA plans for § 1144 preemption purposes if they “‘(1) mandate employee benefit

structures or their administration; (2) provide alternate enforcement mechanisms; or (3) bind

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Loffredo v. Daimler AG

employers or plan administrators to particular choices or preclude uniform administrative practice,

thereby functioning as a regulation of an ERISA plan itself’” or otherwise seek a remedy that is

“primarily plan-related.” Thurman, 484 F.3d at 861 (quoting Penny/Ohlmann/Nieman, Inc. v. Miami

Valley Pension Corp. (PONI), 399 F.3d 692, 698 (6th Cir. 2005)) (internal quotation marks omitted).


       Applying these standards to the case before us reveals this ERISA preemption case’s own

brand of complication. The allegations underlying Loffredo’s state-law breach-of-fiduciary-duty

claim—misuse of funds, self-dealing, actions not in participants’ best interests—appear to be the

precise type of claim that “could have [been] brought” under § 1132(a)(2). Davila, 542 U.S. at 210;

see also Smith v. Provident Bank, 170 F.3d 609, 613–14 (6th Cir. 1999) (applying the doctrine of

complete preemption to § 1132(a)(2)); 29 U.S.C. §§ 1104, 1109 (describing fiduciary duties under

ERISA). As a beneficiary of the Plan, Loffredo unquestionably would have standing to bring such

a claim. The twist is that ERISA’s fiduciary-responsibility provisions do not apply to top-hat plans.

See 29 U.S.C. § 1101(a)(1). Nonetheless, we have held that “it is the nature of the claim—breach

of fiduciary duty—that determines whether ERISA applies, not whether the claim will succeed.”

Smith, 170 F.3d at 613. To ensure uniformity and consistency, Congress intended fiduciary-duty

claims to proceed through the system established by ERISA, subject to the limitations that ERISA

imposes. As to Davila’s second prong, Daimler’s decision to purchase annuities selectively does

not implicate any duty independent of ERISA; Loffredo does not contend otherwise. Unlike Judge




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Sutton, I believe that this claim was completely preempted.1 This claim clearly cannot succeed as

an § 1132(a)(2) claim, however, so leave to amend would be futile; dismissal would be proper for

failure to state a claim under ERISA, not because it is preempted by ERISA.2


       Loffredo’s silent-fraud claim alleges a failure to disclose information about Chrysler’s

financial situation. Because ERISA does not provide a cause of action for failure to disclose such

information, Loffredo could not have brought this claim under ERISA. Although it is not a direct

claim for benefits, the resulting harm from the alleged fraud was that Loffredo did not take steps to

access those benefits prior to Chrysler’s bankruptcy. By seeking to hold the defendants liable for

conduct that allegedly resulted in lost benefits without challenging the denial of benefits itself,

Loffredo is attempting to create an “alternate enforcement mechanism” to ERISA’s vehicle for

recovery of benefits such that the claim is expressly preempted under § 1144. Thurman, 484 F.3d

at 861 (quoting PONI, 399 F.3d at 698).


       Finally, Loffredo’s failure to plead a claim for promissory estoppel renders unnecessary any

preemption analysis as to that claim. I note only that, as described above, different consequences

follow from preemption under § 1132(a) or § 1144, so we cannot simply state that a state-law claim

       1
        Judge Sutton phrases the question broadly as whether a plaintiff can sue a non-fiduciary for
money damages under state law, but the more precise question is whether the plaintiff can sue
individuals or entities for breach of fiduciary duty under state law when ERISA does not impose
fiduciary duties upon them.
       2
        Even construing this claim somewhat awkwardly as an § 1132(a)(1)(B) claim, in which the
defendants denied Loffredo benefits or violated the Plan by failing to purchase an annuity for him,
granting leave to replead the claim as such appears futile. As the district court concluded, the Plan
authorizes the administrators to purchase annuities on a selective basis.
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is preempted either way and be done with it.


       As the experience of courts around the nation, including this court and even the Supreme

Court, demonstrates, clarity may be a virtue that simply does not “relate to” ERISA preemption.

With these observations, I concur in the judgment remanding the age-discrimination claims and

otherwise affirming the judgment of the district court.




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        JANE B. STRANCH, Circuit Judge. I concur in Judge Sutton’s opinion with the exception

of Sections II. through the conclusion of Section II.A. I join Section II.C. based on the reasoning that

the executives did not adequately plead promissory estoppel. I concur fully in Judge Moore’s

opinion.




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