I concur in the result reached by the majority and so much of the opinion as deals with Yoon’s third, fourth, fifth and sixth claims. I respectfully disagree, however, with the treatment of the CPLR § 3003 point and with the majority’s failure to address the merits of the res jtidi-cata issue insofar as it relates to the first five claims.
My first concern is with the majority’s excusal of the plaintiff s failure to raise his CPLR § 3003 argument in the district court, which runs directly contrary to the settled practice of this and, for that matter,-most appellate courts. Mellon Bank N .A. v. United Bank Corp., 31 F.3d 113, 116 (2d Cir.1994) (“We will hear new argument on appeal only when necessary to avoid manifest injustice.”); Accord, e.g., Davenport v. Harry N. Abrams, Inc., 249 F.3d 130, 132 (2d Cir.2001). Consideration of the Section 3003 argument is not necessary to avoid manifest injustice. Moreover, both-litigants and nisi prius judges are entitled to rely on appellate courts deciding appeals on the records and arguments advanced in the courts of first instance. Except in extraordinary cases, neither should be put to the burden and expense of remands necessitated by ideas belatedly advanced for the first time on appeal. In my judgment, nothing about this case warrants departure from this salutary principle. I therefore see no justification for us or, on remand, for the district court' to address the Section 3003 issue.
My second difference with the majority lies in its refusal to decide whether the court below correctly dismissed the first and second claims for relief on the ground of res judicata and its remand of the case on the possibility that plaintiffs claims will fail on the merits, thus avoiding the need to decide the res judicata issues. The doctrine of former adjudication, of which res judicata, or claim preclusion as it often is called, reflects a policy of repose. E.g., Johnson v. Nyack Hospital, 891 F.Supp. 155, 164 (S.D.N.Y.), aff'd, 86 F.3d 8 (2d Cir.1996). Once having litigated a dispute, a party ought not be forced to do so again. While I recognize that courts often do— and in the interest of efficiency frequently should — decide a potentially dispositive issue “out of order” in the sense, for exam-*206pie, that one might dismiss a case on the ground that a plaintiff was not injured without even addressing the question whether the defendant acted improperly, this is not an appropriate situation in which to do so.
Here the district court held that Ford-ham and the Plan, assuming it is in privity with Fordham for former adjudication purposes, have a substantive legal right that prevents them from being forced to litigate Yoon’s latest theories now, Fordham once before having prevailed against him. By remanding for consideration of the merits before reaching the res judicata question, the majority may be abrogating the defendants’ right not to be subjected to any further proceedings. In substance, it is rejecting the res judicata defense without reaching it. Its action is equivalent to refusing to decide a defense of absolute or qualified immunity prior to a decision on the merits on the theory that the plaintiff might lose on the merits and therefore obviate the need to reach the immunity issue. Doing so in the immunity context is inappropriate absent a genuine issue of fact as to the existence of immunity precisely because the official’s immunity is an immunity against having to answer the suit, not merely an immunity against liability. See, e.g., Mitchell v. Forsyth, 472 U.S. 511, 525, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Cuoco v. Moritsugu, 222 F.3d 99, 107 (2d Cir.2000); Boice v. Unisys Corp., 50 F.3d 1145, 1148 (2d Cir.1998); Giacalone v. Abrams, 850 F.2d 79, 84 (2d Cir. 1988). So too here. In both cases, a refusal to decide these particular substantive defenses is not merely a matter of judicial convenience, but runs a substantial risk of trampling on protected rights of parties. Accordingly, I feel obliged to reach the merits of the res judicata question with respect to the first two claims for relief.
As the majority indicates, Yoon’s state court action sought past, present and future salary payments. His first and second claims seek relief under ERISA, 29 U.S.C. § 1001 et seq., in respect of the same employment relationship and events. As those claims spring from the same transactional nexus as his previous state court action, the state court judgment, under settled New York law,1 would bar these claims if they could have been raised in the state court action. See O’Brien v. City of Syracuse, 54 N.Y.2d 353, 357, 445 N.Y.S.2d 687, 688, 429 N.E.2d 1158 (1981). On the other hand, the state court judgment can bar Yoon’s present claims only if they could have been asserted in the previous action — i.e., only if the state court would have had subject matter jurisdiction over them. Marrese v. American Acad. of Orthopaedic Surgeons, 470 U.S. 373, 382, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985); Valley Disposal, Inc. v. Central Vt. Solid Waste Mgmt. Dist., 31 F.3d 89, 98 (2d Cir.1994).
Section 502(e) of ERISA, 29 U.S.C. § 1132(e), provides that federal courts have exclusive jurisdiction of all claims brought under ERISA save that federal and state courts have concurrent jurisdiction over claims pursuant to Sections 502(a)(1)(B) and 502(a)(7), 29 U.S.C. §§ 1132(a)(1)(B), 1132(a)(7). In consequence, the New York State court that entered the default judgment against Yoon could not have entertained Yoon’s present ERISA claims unless those claims fell within Sections 502(a)(1)(B) or 502(a)(7).
*207Yoon’s first claim here seeks relief against Fordham for failure to contribute to the Plan and invokes Sections 502(a)(1)(B) and 502(a)(3) of ERISA, 29 U.S.C. §§ 1132(a)(1)(B), 1132(a)(3). But Section 502(a)(1)(B) is patently inapplicable, as claims under that section may be brought only against “the plan and the plan administrators and trustees ... in their capacity as such ...” Leonelli v. Pennwalt Corp., 887 F.2d 1195, 1199 (2d Cir.1989). Moreover, an employer like Fordham may not be named as a defendant in a Section 502(a)(1)(B) claim on the theory that it exercises control over the plan administrator and therefore is a de facto plan administrator, even where the employer has chosen the plan administrator. See Crocco v. Xerox Corp., 137 F.3d 105, 107 (2d Cir.1998). Accordingly, even assuming that Yoon’s first claim for relief states a legally sufficient cause of action against Fordham, it is a cause of action that does not fall within Section 502(a)(1)(B). It therefore could not have been entertained by the state court in Yoon’s prior case.
Yoon’s second claim seeks relief against the Plan under Section 502(a)(1)(B) for failure to include contributions from the University after September 1, 1983 in the Plan’s calculations of Yoon’s pension benefits. But we have held that “[a] claim under [Section 502(a)(1)(B) ], in essence, is the assertion of a contractual right under a benefit plan. In consequence, to enforce the terms of the plan under [Section 502(a)(1)(B),] ‘the participant must first qualify for the benefits provided in that plan.’ ” Strom v. Goldman, Sachs & Co., 202 F.3d 138, 142 (2d Cir.1999) (quoting Tolle v. Carroll Touch, Inc., 977 F.2d 1129, 1133 (7th Cir.1992)).
In this case, the Plan provides for benefits based only on contributions in respect of periods in which salary was paid. Yoon concedes that Fordham paid no salary for the months in which Yoon claims it should have made contributions to the Plan on his behalf. The Plan thus had no obligation to pay benefits based on assumed contributions in respect of those months. Hence, Yoon has not stated a claim for relief under Section 502(a)(1)(B) that might have been entertained by the state court. The state court judgment therefore does not bar his second claim. While Yoon may have a claim for equitable relief under Section 502(a)(3), a point on which I express no opinion, any such claim would lie within the exclusive jurisdiction of the district court.
In view of the foregoing, I agree that the judgment dismissing the first and second claims for relief must be vacated and the ease remanded for further proceedings. But I would do so on the ground that the state court judgment does not bar those claims because the state court would have lacked jurisdiction over their subject matter.
That leaves the question whether the dismissal of the third and fifth claims for relief, which were disposed of below on the merits, should be affirmed on the ground that they are barred by the state court judgment. But that question need not detain us long. The third and fifth claims are based explicitly on Sections 502(a)(3) and 502(c)(1)(B) of ERISA. 29 U.S.C. §§ 1132(a)(3), 1132(c)(1)(B). They therefore are within the exclusive jurisdiction of the federal courts. The state court judgment is no bar to their consideration by the district court.
. We are obliged by 28 U.S.C. § 1738 to give the prior state court judgment the same effect as would a New York State court. E.g., Kremer v. Chem. Constr. Corp., 456 U.S. 461, 466, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982); Leather v. Eyck, 180 F.3d 420, 424 (2d Cir. 1999).