The case of Mid-S. Iron Workers Welfare Plan v. Harmon, 645 F. App’x 661 (10th Cir. 2016), teaches a valuable, if oft-repeated reminder: undeveloped arguments in the lower court may not be considered on appeal.

Harmon involved a claim under ERISA dismissed as untimely under the three-year statute of limitations provided by ERISA. To establish the untimeliness of the ERISA claim, the defendants cited, and the district court relied upon, extrinsic evidence of a separate, but related bankruptcy proceeding involving the plaintiffs more than three years before filing the ERISA claim.

On appeal, the appellants argued that the district court should have applied ERISA’s six-year statute of limitations for fraud and concealment, rather than its three-year provision. In affirming the dismissal, the Tenth Circuit held that argument had been waived because the appellants’ response to the motion to dismiss made only a single reference to the six-year statute of limitations, without any application to the facts of the case. Their “vague, arguable reference” to the statute of limitations resulted in a waiver of a potentially dispositive argument.

Preservation Issue:

  • Many attorneys do it – they raise an argument in a footnote or in perfunctory fashion because of space limitations or because they are brushing up on a deadline. Don’t do it! You risk waiver by raising an undeveloped argument.


In litigation, there often can be multiple motions. Pressed for time, battling space limitations, and sometimes still formulating a litigation strategy, attorneys may raise undeveloped arguments in footnotes or in perfunctory fashion in the text of the response. All too often a lawyer will “throw in an argument” just to “preserve it” for appeal. Making undeveloped arguments, however, carries a significant risk that an appellate court will deem those arguments waived. The following are a few suggestions that can help attorneys avoid such a waiver.

First, do not lose sight of the forest for the trees. Do not just reflexively respond to your opponent’s arguments, but make your best winning arguments affirmatively. In the case above, the appellants focused on responding directly to the three-year statute of limitations argument and failed to develop the fraud and concealment argument that could have prevented dismissal of the case.

Second, avoid footnotes. They tend to be a haven for undeveloped arguments.

Finally, particularly where space is an issue, be a conscientious editor of your work and do not assume that every word you have written is too critical to delete. This can make all the difference between a vague one-sentence reference to a six-year statute of limitations provision and a proper argument applying the statute to your facts.

Bonus Tip: Courts can consider facts subject to judicial notice in a Fed. R. Civ. P. 12(b)(6) motion to dismiss without converting the motion into a motion for summary judgment. Proceedings in other courts, if those proceedings are directly related to the matter at issue, are subject to judicial notice. This could be helpful to establish certain affirmative defenses not otherwise clearly established from the pleadings alone, such as arguing that the claim is barred by the applicable statute of limitations.