### The Honorable Michael J. Davis, United States District 1 

### Judge for the District of Minnesota. _____________ No. 95-1355

_____________ Marvin Klehr and Mary Klehr; * * Plaintiffs-Appellants, * * William G. Olson, * * Intervenor, * Appeal from the United States * District Court for the v. * District of Minnesota. * A.O. Smith Corporation; * A.O. Smith Harvestore Products, * Inc., Jointly and Severally, * * Defendants-Appellees. *

___________________________ MVBA Harvestore Systems,

Movant.

_____________

Submitted: October 18, 1995 Filed: June 6, 1996

_____________ Before FAGG, HEANEY, and HANSEN, Circuit Judges.

_____________ HANSEN, Circuit Judge.

Marvin Klehr and Mary Klehr (Klehrs) appeal from the distric t court's entry of summary judgment a gainst them on their various Minnesota

1 state law and Racketeer Influenced and Corrupt

### Some of AOSHPI's promotional materials apparently likened a 2 

### Harvestore silo to a giant sealed fruit jar.
-2- Organizations Act ("RICO") claims. These claims are premised upon alleged misrepresentations made by defendant A.O. Smith Harvestore Products, Inc., a subsidiary of defen dant A.O. Smith Corporation (collectively "AOSHPI"), and AOSHPI's authoriz ed local dealer, MVBA Harvestore Systems, concerning
a Harvestore silo that the Klehrs purchased. The district court ruled tha t the Klehr s' claims were barred by the statute of limitations. Klehr v

. A.O. Smith Corp. , 875 F. Supp. 1342 (D. Minn. 1995). We affirm.

I.
The Klehrs operate a dairy farm in Minnesota. In approximately 1974, theypurchased a Harvestore silo manufactured and marketed by AOSHPI and sold by MVBA. Richard Deutsch, a salesman for MVBA, provided the Klehrs with i nformation about Harvestore silos before and after the Klehr s purchased the Harvestore, and he also served as their local contact when they had problems with the unit.
The fulcrum for the Klehrs' claims relates to certain represent ations made b y AOSHPI concerning a Harvestore silo's unique "oxygen limiting " feature. Marvin Kleh r was an experienced dairy farmer and knew that mold and spoil age in livestock feed are caused due to the feed's exposure t o oxygen, and that moldy and spoiled feed would be harmful to his dairy herd if fed to it. According to the Klehrs, AOSHPI represented that because th e Harvestore silos were sealed, feed stored in the unit would have almost no exposure to oxygen, thereby virtually eliminating problems with moldy or spoiled feed. This would result in higher feed quality, which in tur n 2 would eliminate the need to add protein supplements to the herd's dail y feed ration. It would also improve

### "Haylage" in the context of this case refers to chopped 3 

### alfalfa silage stored in a silo at a designated moisture content to promote fermentation. A Harvestore silo is filled through an open hatch at the 4 

### top of the structure and unloaded by way of a chain-type unloaderat the bottom of the unit. During the unloading process, socalled "breather bags" at the top of the silo expand to prevent oxygen from entering.
-3- the health of the her d and increase milk production at a rate of three to five pounds of milk per cow per day. All of these purported benefits woul d ultimat elyincrease the profitability of the Klehrs' dairy operation

. Althou gh a Harvestore silo was considerably more expensive than a conventional stave silo, which the Klehrs also considered purchasing, it

was ex plained to the Klehrs that Harvestore's unique "oxygen limiting " feature justified the higher cost of the unit and that the unit would pay for itself in four to five years. The Klehrs recognized, however, that al l of the promised virtues of a Harvestore unit hinged upon the efficacy of the structure's "oxygen-limiting" feature.
Despite AOSHPI's representations, th e Klehrs experienced a myriad of problems after the Harvestore unit was installed. In July and August of 1976, Marvin Klehr observed white chunks of mold in the haylage he removed 3 from th e unit. He contacted Deutsch, who assured him that the mold wa s normal and simply the product of a minute quantity of oxygen that entered the t op hatch of the unit when it was being filled. Deutsch explaine d 4 that the Klehrs could expect a thin layer of mol d each time the Harvestore was filled because of the small amount of oxygen that would flow into the unit during the filling process. The Klehrs accepted this explanation.

In the sp ring of 1977, Marvin Klehr again noticed chunks of mold in the feed and also observed that the feed had become unusually dark brown and smelled musty. Marvin Klehr loaded the spoiled feed into a manur e spreader and dumped it on one of his

### The only exception to this process was that in 5 

### approximately the spring of 1982, Marvin Klehr noticed a much greater quantity of moldy and spoiled feed than he had previously observed. The feed was much darker brown and contained significantly more and larger chunks of mold. He immediately ceased feeding his dairy herd feed from the Harvestore unit and subsequently emptied approximately 12 manure spreader loads of spoiled feed from the unit. Deutsch and AOSHPI officials later made repairs to the unit. Thereafter, the process returned to what it had previously been -- one to two manure spreader loads of spoiled or moldy feed emptied from the unit each spring.
-4- fields. Marvin Klehr made the same observations in the spring of 1978 and undertook the same action. This process was repeated each spring, with th e
amo unt of moldy or spoiled feed always ranging from one to two manur e spreader loads. 5

The Klehrs' dairy herd also began suffering from various healt h problems after the Klehrs started feeding the herd haylage stored in the structure. Some of the health problems had not previously afflicted the herd, while other maladies began occurring with much greater frequency

. These ailments includ ed: displaced abomasums or "twisted stomachs," "foot problems," swelling a nd bruises around the joints in the cows' hind legs,
cows "going off feed," unusually thin and unthrifty cows, cows having roug h hair coat s and dull eyes, a higher rate of uterine infections, and mor e dia rrhea and digestive problems than normal. Further, the Klehrs' her d began having certain breeding and reproductive problems, such as poo r conception rates, longer calving intervals, and spontaneous abortions.
Additionally, the Klehrs never reali zed the numerous benefits AOSHPI represented the Harvestore unit would provide, n amely, an increase in milk production, elimination of protein supplements, and ultimately, an increas e in profitability of the dairy operation. In fact, although their dair y operation had been profitable prior to their purchase of the Harvestore, the Klehrs

### -5-

experienced financial hardship after they started using the Harvestore

. Despite all of this, the Klehrs never questioned Deutsch about th e inability to eliminate protein supplements or th e lack of increase in milk production or profitability until 1990. The Klehrs did consult a number of nutritionists and veterinarians during the years after they purchased the Ha rvestore concerning several of the herd's health and reproductiv e proble ms, but they never asked these consultants whether the Harvestor e could have been the source of the problems. Finally, the Klehrs did not examine records which they possessed which would have illustrated to them that their herd's mil k production was below that of other local herds and that the herd's milk production and the profitability of the dair y operation had not increased since the Harvestore was installed.

In 19 91, Marvin Klehr saw an article in a Minneapolis, Minnesota , newspaper regarding a claim concerning a Harvestore unit that had been mad e agains t AOSHPI in Minnesota state court. Marvin Klehr subsequentl y contacted a University of Minnesota veterinarian , Dr. William Olson, about

a healt h problem with his herd; in April of 1991, Dr. Olson visited th e Klehrs' farm. Dr. Olson and Marvin Klehr subsequently looked inside the Harvestore and observed large amounts of moldy a nd spoiled feed. This was the first time that Marvin Klehr had looked inside the Harvestore unit whe n feed was still being stored in the unit.

The Klehr s later commenced this action on August 27, 1993, alleging Minnesota common law fraud and negligent represe ntation claims, violations of certain Minnesota consumer statutes, and violations of RICO. AOSHP I moved for summary judgment on each claim arguing, inter alia, that th e claims wer e barred by the statute of limitations. The district cour t granted AOSHPI's motions. Klehr , 875 F. Supp. at 1345. The Klehrs appeal

.

### With respect to these claims, we review de novo the 6 

### district court's interpretation of Minnesota law

. Michalski v. Bank of America Arizona , 66 F.3d 993, 995 (8th Cir. 1995).
-6- II.

We re view de novo the district court's grant of summary judgment

. Maitland v. University of Minn. , 43 F.3d 357, 360 (8th Cir. 1994). Summar y judg ment is appropriate if the record, when viewed in the light mos t favorable to the nonmoving party, reveals that there is no genuine issue of mate rial fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

A.

We turn our attention first to the Klehrs' Minnesota common law fraud claims, which are governed by a six-year statute of limitations. See Minn

. Stat. Ann. § 541.05(6) (West 1988). Under this statute, the cause o f 6

ac tion accrues, thereby triggering the limitations period, upon "th e discovery by the aggrieved party of the facts co nstituting the fraud." Id.

The Minnesota Supreme Court has construed this statute as imposin g
a s tandard of objective reasonableness upon a plaintiff to discover th e facts constituting the fraud. Bustad v. Bustad , 116 N.W.2d 552, 555 (Minn

. 1962). " [T]he facts constituting the fraud are deemed to have bee n discovered when, with reasonable diligence, they could and ought to have been disc overed." Blegen v. Monarch Life Ins. Co. , 365 N.W.2d 356, 35 7 (Minn. Ct. App. 1985) (quotations omitted). "A plaintiff must exercise
rea sonable diligence when he or she has notice of a possible cause o f action for fraud." Buller v. A.O. Smith Harvestore Prods., Inc. , 51 8 N.W.2d 537, 542 (Minn . 1994). A "`party need not know the details of the evidence establishing a cause of action, only that the cause

### -7-

of action exists'" in order for the limitations period to commence. Id. (quoting Hydra-Mac, Inc. v. Onan Corp. , 450 N.W.2d 913, 919 (Minn

. 1990)). A failure to actually discover the fraud will not toll th e limitations period if such a failure is inconsistent with this reasonable diligence standard. Blegen , 365 N.W.2d at 357.

The Klehr s bear the burden of showing that they did not, and tha t with reasonable dilig ence they could not, discover the facts constituting the fraud earlier than August 27, 1987, six years prior to the time this action wa s filed. Id. A plaintiff's due diligence in the statute o f limitations context is ordinarily a question of fact. Hines v. A.O. Smith Har vestore Prods. Inc. , 880 F.2d 995, 999 (8th Cir. 1989). Where th e evid ence leaves no room for reasonable minds to differ on the issue , how ever, the court may properly resolve the issue as a matter of law

. Miles v. A.O. Smith Harvestore Prods., Inc. , 992 F.2d 813, 817 (8th Cir. 1993).

The Klehrs argue that they did not become aware of the fact s constituting the fraud until April of 1991, whenMarvin Klehr, accompanied by Dr. Olson, looked inside the silo for the first time during feed storag e and obs erved large amounts of mold in the feed. The Klehrs submit tha t they questioned Deutsch about the presence of mold and spoilage in the fee d and th at at various times they consulted numerous veterinarians an d nutritionists concerning the health and reproductive problems that their dairyherd was experiencing. Based on these actions, the Klehrs asser t that a fact question exists concerning whether they exercised reasonable diligence to determine the facts constituting the fraud. We disagree.
Shortly after they began using the H arvestore unit to store haylage, the Kl ehrs encountered problems that were directly contrary to AOSHPI' s representations concerning the benefits a Harvestore unit would provide. AOSHPI represented to the Klehrs

### -8-

that using a Harvestore to store feed for their dairy herd would virtually eliminate problems with moldy and spoiled feed. However, beginning in Jul y of 1976 and continuing each subsequent year, Mar vin Klehr observed mold in the feed which had been extracted from the unit; further, beginning in the spring of 1978, Marvin Klehr annually emptied one to two manure spreader loads of moldy or spoiled feed from the unit. Further, contrary t o AOSH PI's representations of improved herd health, herd health actuall y deteriorated. The herd also began experiencing heretofore unencountered breeding and reproductive problems. The Klehrs consulted with a number of nutritionists and veterinarians over the years, but they never asked any of these consultants whether the feed fed from the Harvestore silo could have been the source of the herd's health and reproductive problems.
Similarly, it was represented to the Klehrs that one of the chie f virtues of a Harvestore was that it would dramat ically improve the quality of the feed such that protein supplements would become unnecessary; th e Klehrs, however, were never able to reduce or eliminate protein supplement s to the herd's daily f eed ration. In addition, promises of increased milk production and profitability of the dairy operation went unfulfilled; in fact, while the Klehrs' dairy operation had been profitable prior to the purchase of the Harvestore, thereafter the Klehrs experienced financia l hardship b ecause the dairy profits were not large enough. The Klehr s failed to examine records in their possession which would have indicated to them that the Harvestore unit was not deliver ing the promised increases in milk production an d profitability, and that the herd's milk production

was subpa r compared to other local dairy herds. The Klehrs did no t ques tion Deutsch or AOSHPI officials until 1990, some 16 years afte r puttin g the Harvestore to use, about the lack of an increase in mil k production and profitability of the dairy operation, and the

### -9-

inabil ityto eliminate protein supplements from the herd's daily fee d ration.

The K lehrs assert that health or reproductive problems in a dair y farming operation can be caused by a myriad of factors inherent in dairy farming and therefore determining the precise source of the problem i s imposs ible. Setting aside the other promised benefits concerning th e Harvestore which neve r came to pass (moldy and spoiled feed, inability to elimin ate protein supplements), in this case the Klehrs' herd suffere d numerous health and reproductive problems shortl y after the Klehrs started to feed the herd haylage stored in the Harvestore unit. After encounterin g these problems, the Klehrs were on notice of a possible cause of action fo r fraud and were requir ed to conduct a reasonably diligent investigation -- perhaps by inspecting the silo during feed stora ge (which they did for the first time in 1991 and observed the prevalence of mold), by questionin g Deutsch or AOSHPI representatives concerning why the dairy operation was not profitable, or by asking a veterinarian or nutritionist whether th e Harvestore could be the source of the problems. Their failure to do so is simply inconsistent w ith Minnesota's inquiry notice standard, under which plaintiffs are required to exercise reasonable diligence to discover the facts which may constitute the fraud. We hold that, as a matter of law, the Klehrs, by exercising reasonable diligence, should have discovered the facts constituting the alleged fraud prior to August 27, 1987.
This case is distinguishable from our holding in Hines , where w e were called upon to decide whether the Missouri statute of limitations barred the pl aintiffs' common law fraud claims in connection with severa l Ha rvestore silos. 880 F.2d at 995. We held in Hines that a factua l disput e existed concerning when the plaintiffs' cause of action accrue d under Missouri law because there was a conflict in the evidence concerning when the plaintiffs

### Both parties cite a number of cases from other 7 

### jurisdictions dealing with the Harvestore litigation. See, e.g. , Horn v. A.O. Smith Corp. , 50 F.3d 1365 (7th Cir. 1995); Mohr v. A.O. Smith, et al. , 1994 WL 178111 (E.D. Mich.); Nelson v. A.O. Smith Harvestore Prod., Inc. , No. 86-4230-R (D. Kan. 1990); Johnston v. AgriStor Credit Corp. , Civ. No. 84-4421-S (D. Kan. 1987). While we find the analysis of these courts to be somewhat helpful, again our analysis is governed by the Minnesota Supreme Court's interpretation of Minnesota's discovery accrual rule applicable to fraud claims.
-10- should have known that the Harvestore silos were not operating as AOSHPI repre sented. Id. at 998. Notwithstanding Hines , our analysis in thi s case, which concerns Minnesota state law claims, is governed by th e teachings of the Minnesota Supreme Court concern ing the interpretation and application of that state's discovery accrual rule; of particular import is that court's recent decision in Buller , which , like this case, involved the application of the statute of limitations involving a claim of fraud in connection with a Harvestore silo. Our analysis is also guided by the Minn esota federal district court's holding in Veldhuizen , wherein tha t court addressed the precise issues in front of us in another case involvin g a Harvestore silo. The analysis expounded in th ese cases makes clear that the Klehrs' cause of action accrued long before August 27, 1987. Thus, ou r Hine s decision, in which we were called upon to interpret Missouri' s discovery rule, is not controlling here.

In any event, to the extent that Hin es applies, there we relied upon evidence that water had leaked into the Harvestore due to cracks in th e structure and had pos sibly come into contact with the feed stored within; thus, the plaintiffs would have been unable to d etermine whether the silo, if it had been properly sealed, nevertheless cou ld not live up to AOSHPI's represe ntations that moldy and spoiled feed would be eliminated. Th e Klehrs, however, have made no similar showing that their silo had cracks that may have permitted water to come into contact with the stored feed, and which would creat e a question of fact as to the cause of the moldy or spoiled feed. 7

### Likewise, we reject as meritless the Klehrs' assertion that 8 

### their "failure to realize non-actionable predictions of future performance" did not trigger the statute of limitations. (Klehrs' brief at 21.) The problems the Klehrs actually experienced shortly after they started using the Harvestore should have put them on notice that AOSHPI's representations concerning the unit were false, regardless of whether other performance benefits would have been independently actionable. While the Klehrs may not have been required to immediately file suit when they realized the representations were not true, they were required to conduct a reasonable further investigation, which, as we have outlined in detail, they failed to do.
-11- The Klehr s also contend that the statute of limitations did no t
commence until they were aware that the Harvestore unit had a design defec t that prevented it from performing as represented. Such a standard , however, is wholly inconsistent with the Minnesota Supreme Court's teachin g that the requirement of reasonable diligence imposes an affirmative duty to investigate upon a party who is aware of facts that might constitute a possible cause of action for fraud. Buller , 518 N.W.2d at 542; Hydra-Mac , 450 N.W.2 d at 919 ("A party need not know the details of the evidenc e establishing the cause of action, only that the cause of action exists."). We find persuasive the following statement from Veldhuizen , where the cour t addressed this precise issue: "The limitations p eriod does not wait to run until the [plaintiffs] were able to make a causal connection between the failure of the silo to perform as promised and a particular design defect. " Veldhuizen v. A.O. Smith Corp. , 839 F. Supp. 669, 676 (D. Minn. 1993)

. Thus, we reject the Klehrs' argument that the limitations period did not
commence until they were able to pinpoint the design flaw that prevented the Harvestore from performing as represented. 8

### -12- B.

The K lehrs contend that AOSHPI fraudulently concealed their frau d cause of action and therefore the statute of lim itations should be tolled. "Fraudulent concealme nt `tolls the statute of limitations until the party discov ers, or has a reasonable opportunity to discover, the conceale d defect.'" Buller , 51 8 N.W.2d at 542 (quoting Hydra-Mac, Inc. , 450 N.W.2d at 918) . The limitations period is tolled, however, "only if it is th e very existence of the facts which establish the cause of action which are fraudulently conceale d." Hydra-Mac, Inc. , 450 N.W.2d at 918-19. "Merely establi shing that a defendant had intentionally concealed the allege d defects is insufficie nt; the claimant must establish that it was actually unaware that the defect existed before a finding of fraudulent concealment
can be sustained." Id. Further, "`there must be something of a n affirmative nature de signed to prevent, and which does prevent, discovery of the cause of action'" for fraudulent concealment to apply. Wild v

. Rarig , 234 N.W.2d 775 , 795 (Minn. 1975) (quoting 54 C.J.S. Limitations of Actions § 206f). The Klehrs bear the burden of showing that AOSHP I concealed the fraud and that the concealment itself could not have bee n discovered sooner by exercising reasonable dilig ence. Buller , 518 N.W. 2d at 542-43.

The Kl ehrs contend that material fact issues remain concernin g whethe r AOSHPI knew that the Harvestore silos were defective an d deliberately concealed the defects from them thr ough oral representations, written materials sent to Harvestore owners, and promotional meetings whic h the K lehrs attended. The Klehrs also contend that suggestions made b y Deutsc h and representatives of AOSHPI concerning methods to improve th e dairy operation served to conceal the defects fr om them. According to the Klehrs, these misrepresentations prevented them from discovering the fraud , and

### We likewise reject the Klehrs' claims that, in the 9 

### alternative, AOSHPI is equitably estopped from asserting the statute of limitations because of the repairs that were made to the Harvestore silo in approximately 1982. There is no evidence that AOSHPI represented that these repairs would cure the myriad of problems outlined above that the Klehrs had been experiencing. In any event, the Klehrs admit that after the repairs were made the same problems which they previously experienced continued. Thus, equitable estoppel is inapplicable in this case.
-13- accordingly the statu te of limitations should be tolled during the period these continuing misrepresentations were made.
These arguments are unpersuasive quite simply because the Klehr s have made no showing that AOSHPI affirmatively concealed from them the existenc e of facts which would have supported their cause of action for fraud. As chronicled in detail above, the Klehrs were aware as early as 1976, when Marvin Klehr saw mold in feed taken from the Har vestore, that the silo was not per forming as promised. The oral and written representations th e Klehrs rely on to support their fraudulent concealment argument did not, and indeed could not, prevent them from discover ing that AOSHPI's promises concerni ng the virtues of a Harvestore unit did not come to pass. Se e Mile s , 992 F.2d at 816 (rejecting claim of fraudulent concealment i n connect ion with Harvestore because of impossibility for defendants t o conceal facts giving rise to cause of action when the evidence was in the plaintiff's own yard); Veldhuizen , 839 F. Supp. at 675 ("providing th e [plaintiffs] with the post-sale materials does not rise to the level o f affirmative concealment necessary to toll the statute of limitations."). Id. See also Buller , 518 N.W. 2d at 543 (reject ing fraudulent concealment claim based on post-sale advertising materials b ecause plaintiff knew that Harvestore was not performing as represented). In short, the Klehrs' lack of diligence precludes us from tolling the statute of limitations due to fraudulent concealment. 9

### The Klehrs assert a claim under 18 U.S.C. § 1962(a) for 10 

### injury resulting from the reinvestment of income from the RICO enterprise in addition to their claim under 18 U.S.C. § 1962(c) based on a pattern of racketeering activity. The Klehrs contend that both claims are governed by the same discovery accrual rule, and we will assume, without deciding, that the same accrual rule applies to both causes of action.
-14- III.
The Klehrs argue that the district c ourt erred by holding that their civil RICO claims were barred by the statute of limitations. Civil RICO claims are governed by a four-year statute of li mitations. Association of Commonwealth Claimants v. Moylan , 71 F.3d 1398, 1402 (8th Cir. 1995). Thi s circuit employs a discovery accrual standard to civil RICO claims; under this standard, such an action begins to accrue "as soon as the plaintiff discov ers, or reasonably should have discovered, both the existence an d
source of his injury and that the injury is part of a pattern." Id. (inne r quotes omitted) The date when the injury and the pattern should hav e 10 been discovered is subject to a standard of reasonableness, id. , not unlik e the standard for frau d claims outlined above. Thus, it is incumbent upon the Klehrs to show th at it would not have been reasonable to discover the existence, source, and pattern of their injury by August 27, 1989.

The Klehrs' RICO claims are premised on allegedly fraudulen t advertising and promo tional materials that they received through the mail from AOSHP I on a continuous basis before and after they purchased th e Harvestore. The Klehrs claim that AOSHPI distri buted similar materials to individuals throughout the United States during this period. They contend that these materials made the same fraudulent misrepresentations concernin g the attributes and the benefits of Harvestore si los that they relied on in deciding to purchase their unit.

### -15- However, we agree with the district court that the facts which should have put the Klehrs on notice of a possible cause of action for frau d should also have alerted them to the existence, source, and pattern of the injury for their RICO claim. As noted above, the Klehrs knew or shoul d have k nown shortly after purchasing the Harvestore that AOSHPI' s representations concerning the silo's attributes were simply not comin g true and thus should have recognized the existence and source of thei r injury

. Likewise, given that the Klehrs received numerous promotiona l materials and advertisements in the mail before and after they purchased the silo, they shouldhave known that the misrepresentations were part of a pattern of suspecte d racketeering activity. We believe that the Klehrs should have determine d that the representations were part of a pattern of racketeering activity when they should have identified the Harvestore as the cause and source of their problems. See Agristor v. Financial Corp. v. Van Sickle , 967 F. 2d 233, 241-42 (6th Cir. 1992) (stating in analogous case that "as a matter of law, [the plaintiff] s hould have determined that the representations were part of a pattern at th e same time it should have discovered that the silos caused the alleged problems on the dairy farm.")

.

The Kle hrs urge us to adopt "a separate accrual rule," which woul d permit them to recover damages for predicate acts that occur within th e limitat ions period, even if their claim for similar damages caused b y simila r predicate acts outside of the four-year period are time-barred

. In essence, then, the Klehrs request that we adopt the "last predicate act " accrual rule outlined by the Third Circuit in Keystone v. Houghton , 86 3 F.2d 1 125, 1126 (3d Cir. 1988), or a variation thereof. However, i n Granite Falls Bank v. Henrikson , 924 F.2d 150, 154 (8th Cir. 1991), w e declined to adopt such an "open-ended" standard, observing that it wa s incons istent with "the underlying policy of a statute of limitation s requiring due diligence on the part of the plaintiff." 924 F.2d at 154.

### We reject the Klehrs' argument that federal equitable 11 

### tolling principles save their claim from being barred by the statute of limitations. The Klehrs' failure to act with due diligence precludes the application of this doctrine. See Johnson v. United States Postal Service , 861 F.2d 1475, 1481 (10th Cir. 1988), cert. denied , 493 U.S. 811 (1989). See also Wilson v. United States Government , 23 F.3d 559, 561 (1st Cir. 1994) ("[f]ederal courts have allowed equitable tolling only sparingly.").
-16- Instead, we adopted a n approach under which a plaintiff has four years to bring his claim from the point in time that he knew, or in exercisin g reasonable diligence should have known, of the e xistence and source of his injuryand that the injury was part of a pattern, or his RICO claims are forever barred. Id. The principles expounded in Granite Falls preclude us from adopting the standard that the Klehrs propose.

We likewise reject the Klehrs' related assertion that their RIC O claims are revived be cause of the "continuing damage" they sustained into the limitations period through the continued use , operation, and repair of the Ha rvestore silo. Again, Granite Falls provides the governin g principle: it makes clear that a civil RICO acti on accrues with respect to "each independent inj ury" to the plaintiff. 924 F.2d at 154. The Klehrs would have us hold that each advertisement or promotional material that wa s sent to them or that they observed constitutes a separate "injury. " However, these injuries are not "independent injuries" because they are al l of the same type, flow from the same source, and are part of one cognizabl e pattern of conduct -- AOSHPI's alleged misrepresentations regarding th e Harvestore unit. We believe that these separate , discrete "injuries" that the Kl ehrs identify are more appropriately categorized as one single , continuous injury that was sustained sometime in the 1970s and for which the limitations period commenced long before August 27, 1989. See Glessne r
v. Kenny , 952 F.2d 702, 708 (3d Cir. 1992) ("the mere continuation o f damages i nto a later period will not serve to extend the statute o f limitations."). Thus, the Klehrs' civil RICO claims are time-barred. 11

### -17- IV.

We have e xamined the Klehrs' numerous other arguments and determine that they lack merit for the reasons given by the experienced distric t judge in his well-reasoned opinion. Accordingly, for the reason s enumerated above, we affirm the district court's grant of summary judgment to AOSHPI.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.