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 district

court's entry of summary judgment against 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.

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Organizations Act ("RICO") claims. These claims are premised upon alleged

misrepresentations made by defendant A.O. Smith Harvestore Products, Inc.,

a subsidiary of defendant A.O. Smith Corporation (collectively "AOSHPI"),

and AOSHPI's authorized local dealer, MVBA Harvestore Systems, concerning

a Harvestore silo that the Klehrs purchased. The district court ruled that

the Klehrs' 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,

they purchased a Harvestore silo manufactured and marketed by AOSHPI and

sold by MVBA. Richard Deutsch, a salesman for MVBA, provided the Klehrs

with information about Harvestore silos before and after the Klehrs

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 representations

made by AOSHPI concerning a Harvestore silo's unique "oxygen limiting"

feature. Marvin Klehr was an experienced dairy farmer and knew that mold

and spoilage in livestock feed are caused due to the feed's exposure to

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 the

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 turn

2

would eliminate the need to add protein supplements to the herd's daily

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 unloader

at the bottom of the unit. During the unloading process, socalled "breather bags" at the top of the silo expand to prevent

oxygen from entering.

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the health of the herd and increase milk production at a rate of three to

five pounds of milk per cow per day. All of these purported benefits would

ultimately increase the profitability of the Klehrs' dairy operation.

Although a Harvestore silo was considerably more expensive than a

conventional stave silo, which the Klehrs also considered purchasing, it

was explained 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 all

of the promised virtues of a Harvestore unit hinged upon the efficacy of

the structure's "oxygen-limiting" feature.

Despite AOSHPI's representations, the 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 the unit. He contacted Deutsch, who assured him that the mold was

normal and simply the product of a minute quantity of oxygen that entered

the top hatch of the unit when it was being filled. Deutsch explained

4

that the Klehrs could expect a thin layer of mold 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 spring 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 manure

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.

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fields. Marvin Klehr made the same observations in the spring of 1978 and

undertook the same action. This process was repeated each spring, with the

amount of moldy or spoiled feed always ranging from one to two manure

spreader loads.5

The Klehrs' dairy herd also began suffering from various health

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 included: displaced abomasums or "twisted stomachs," "foot

problems," swelling and bruises around the joints in the cows' hind legs,

cows "going off feed," unusually thin and unthrifty cows, cows having rough

hair coats and dull eyes, a higher rate of uterine infections, and more

diarrhea and digestive problems than normal. Further, the Klehrs' herd

began having certain breeding and reproductive problems, such as poor

conception rates, longer calving intervals, and spontaneous abortions. 

Additionally, the Klehrs never realized the numerous benefits AOSHPI

represented the Harvestore unit would provide, namely, an increase in milk

production, elimination of protein supplements, and ultimately, an increase

in profitability of the dairy operation. In fact, although their dairy

operation had been profitable prior to their purchase of the Harvestore,

the Klehrs
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experienced financial hardship after they started using the Harvestore.

Despite all of this, the Klehrs never questioned Deutsch about the

inability to eliminate protein supplements or the 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 Harvestore concerning several of the herd's health and reproductive

problems, but they never asked these consultants whether the Harvestore

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 milk production was below that of other local herds and

that the herd's milk production and the profitability of the dairy

operation had not increased since the Harvestore was installed.

In 1991, Marvin Klehr saw an article in a Minneapolis, Minnesota,

newspaper regarding a claim concerning a Harvestore unit that had been made

against AOSHPI in Minnesota state court. Marvin Klehr subsequently

contacted a University of Minnesota veterinarian, Dr. William Olson, about

a health problem with his herd; in April of 1991, Dr. Olson visited the

Klehrs' farm. Dr. Olson and Marvin Klehr subsequently looked inside the

Harvestore and observed large amounts of moldy and spoiled feed. This was

the first time that Marvin Klehr had looked inside the Harvestore unit when

feed was still being stored in the unit.

The Klehrs later commenced this action on August 27, 1993, alleging

Minnesota common law fraud and negligent representation claims, violations

of certain Minnesota consumer statutes, and violations of RICO. AOSHPI

moved for summary judgment on each claim arguing, inter alia, that the

claims were barred by the statute of limitations. The district court

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). 

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II.

We review de novo the district court's grant of summary judgment.

Maitland v. University of Minn., 43 F.3d 357, 360 (8th Cir. 1994). Summary

judgment is appropriate if the record, when viewed in the light most

favorable to the nonmoving party, reveals that there is no genuine issue

of material 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 of

6

action accrues, thereby triggering the limitations period, upon "the

discovery by the aggrieved party of the facts constituting the fraud." Id.

The Minnesota Supreme Court has construed this statute as imposing

a standard of objective reasonableness upon a plaintiff to discover the

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 been

discovered when, with reasonable diligence, they could and ought to have

been discovered." Blegen v. Monarch Life Ins. Co., 365 N.W.2d 356, 357

(Minn. Ct. App. 1985) (quotations omitted). "A plaintiff must exercise

reasonable diligence when he or she has notice of a possible cause of

action for fraud." Buller v. A.O. Smith Harvestore Prods., Inc., 518

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
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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 the

limitations period if such a failure is inconsistent with this reasonable

diligence standard. Blegen, 365 N.W.2d at 357.

The Klehrs bear the burden of showing that they did not, and that

with reasonable diligence they could not, discover the facts constituting

the fraud earlier than August 27, 1987, six years prior to the time this

action was filed. Id. A plaintiff's due diligence in the statute of

limitations context is ordinarily a question of fact. Hines v. A.O. Smith

Harvestore Prods. Inc., 880 F.2d 995, 999 (8th Cir. 1989). Where the

evidence leaves no room for reasonable minds to differ on the issue,

however, 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 facts

constituting the fraud until April of 1991, when Marvin Klehr, accompanied

by Dr. Olson, looked inside the silo for the first time during feed storage

and observed large amounts of mold in the feed. The Klehrs submit that

they questioned Deutsch about the presence of mold and spoilage in the feed

and that at various times they consulted numerous veterinarians and

nutritionists concerning the health and reproductive problems that their

dairy herd was experiencing. Based on these actions, the Klehrs assert

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 Harvestore unit to store haylage,

the Klehrs encountered problems that were directly contrary to AOSHPI's

representations concerning the benefits a Harvestore unit would provide.

AOSHPI represented to the Klehrs
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that using a Harvestore to store feed for their dairy herd would virtually

eliminate problems with moldy and spoiled feed. However, beginning in July

of 1976 and continuing each subsequent year, Marvin 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 to

AOSHPI's representations of improved herd health, herd health actually

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 chief

virtues of a Harvestore was that it would dramatically improve the quality

of the feed such that protein supplements would become unnecessary; the

Klehrs, however, were never able to reduce or eliminate protein supplements

to the herd's daily feed 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 financial

hardship because the dairy profits were not large enough. The Klehrs

failed to examine records in their possession which would have indicated

to them that the Harvestore unit was not delivering the promised increases

in milk production and profitability, and that the herd's milk production

was subpar compared to other local dairy herds. The Klehrs did not

question Deutsch or AOSHPI officials until 1990, some 16 years after

putting the Harvestore to use, about the lack of an increase in milk

production and profitability of the dairy operation, and the
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inability to eliminate protein supplements from the herd's daily feed

ration.

The Klehrs assert that health or reproductive problems in a dairy

farming operation can be caused by a myriad of factors inherent in dairy

farming and therefore determining the precise source of the problem is

impossible. Setting aside the other promised benefits concerning the

Harvestore which never came to pass (moldy and spoiled feed, inability to

eliminate protein supplements), in this case the Klehrs' herd suffered

numerous health and reproductive problems shortly after the Klehrs started

to feed the herd haylage stored in the Harvestore unit. After encountering

these problems, the Klehrs were on notice of a possible cause of action for

fraud and were required to conduct a reasonably diligent investigation --

perhaps by inspecting the silo during feed storage (which they did for the

first time in 1991 and observed the prevalence of mold), by questioning

Deutsch or AOSHPI representatives concerning why the dairy operation was

not profitable, or by asking a veterinarian or nutritionist whether the

Harvestore could be the source of the problems. Their failure to do so is

simply inconsistent with 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 we were

called upon to decide whether the Missouri statute of limitations barred

the plaintiffs' common law fraud claims in connection with several

Harvestore silos. 880 F.2d at 995. We held in Hines that a factual

dispute existed concerning when the plaintiffs' cause of action accrued

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.

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should have known that the Harvestore silos were not operating as AOSHPI

represented. Id. at 998. Notwithstanding Hines, our analysis in this

case, which concerns Minnesota state law claims, is governed by the

teachings of the Minnesota Supreme Court concerning 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

Minnesota federal district court's holding in Veldhuizen, wherein that

court addressed the precise issues in front of us in another case involving

a Harvestore silo. The analysis expounded in these cases makes clear that

the Klehrs' cause of action accrued long before August 27, 1987. Thus, our

Hines decision, in which we were called upon to interpret Missouri's

discovery rule, is not controlling here. 

In any event, to the extent that Hines applies, there we relied upon

evidence that water had leaked into the Harvestore due to cracks in the

structure and had possibly come into contact with the feed stored within;

thus, the plaintiffs would have been unable to determine whether the silo,

if it had been properly sealed, nevertheless could not live up to AOSHPI's

representations that moldy and spoiled feed would be eliminated. The

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 create 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.

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The Klehrs also contend that the statute of limitations did not

commence until they were aware that the Harvestore unit had a design defect

that prevented it from performing as represented. Such a standard,

however, is wholly inconsistent with the Minnesota Supreme Court's teaching

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.2d at 919 ("A party need not know the details of the evidence

establishing the cause of action, only that the cause of action exists.").

We find persuasive the following statement from Veldhuizen, where the court

addressed this precise issue: "The limitations period 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
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B.

The Klehrs contend that AOSHPI fraudulently concealed their fraud

cause of action and therefore the statute of limitations should be tolled.

"Fraudulent concealment `tolls the statute of limitations until the party

discovers, or has a reasonable opportunity to discover, the concealed

defect.'" Buller, 518 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 the

very existence of the facts which establish the cause of action which are

fraudulently concealed." Hydra-Mac, Inc., 450 N.W.2d at 918-19. "Merely

establishing that a defendant had intentionally concealed the alleged

defects is insufficient; 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 an

affirmative nature designed 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 AOSHPI

concealed the fraud and that the concealment itself could not have been

discovered sooner by exercising reasonable diligence. Buller, 518 N.W. 2d

at 542-43.

The Klehrs contend that material fact issues remain concerning

whether AOSHPI knew that the Harvestore silos were defective and

deliberately concealed the defects from them through oral representations,

written materials sent to Harvestore owners, and promotional meetings which

the Klehrs attended. The Klehrs also contend that suggestions made by

Deutsch and representatives of AOSHPI concerning methods to improve the

dairy operation served to conceal the defects from 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.

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accordingly the statute of limitations should be tolled during the period

these continuing misrepresentations were made.

These arguments are unpersuasive quite simply because the Klehrs have

made no showing that AOSHPI affirmatively concealed from them the existence

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 Harvestore, that the silo was

not performing as promised. The oral and written representations the

Klehrs rely on to support their fraudulent concealment argument did not,

and indeed could not, prevent them from discovering that AOSHPI's promises

concerning the virtues of a Harvestore unit did not come to pass. See

Miles, 992 F.2d at 816 (rejecting claim of fraudulent concealment in

connection with Harvestore because of impossibility for defendants to

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 the

[plaintiffs] with the post-sale materials does not rise to the level of

affirmative concealment necessary to toll the statute of limitations.").

Id. See also Buller, 518 N.W. 2d at 543 (rejecting fraudulent concealment

claim based on post-sale advertising materials because 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.

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III.

The Klehrs argue that the district court 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 limitations. Association of

Commonwealth Claimants v. Moylan, 71 F.3d 1398, 1402 (8th Cir. 1995). This

circuit employs a discovery accrual standard to civil RICO claims; under

this standard, such an action begins to accrue "as soon as the plaintiff

discovers, or reasonably should have discovered, both the existence and

source of his injury and that the injury is part of a pattern." Id. (inner

quotes omitted) The date when the injury and the pattern should have

10

been discovered is subject to a standard of reasonableness, id., not unlike

the standard for fraud claims outlined above. Thus, it is incumbent upon

the Klehrs to show that 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 fraudulent

advertising and promotional materials that they received through the mail

from AOSHPI on a continuous basis before and after they purchased the

Harvestore. The Klehrs claim that AOSHPI distributed similar materials to

individuals throughout the United States during this period. They contend

that these materials made the same fraudulent misrepresentations concerning

the attributes and the benefits of Harvestore silos that they relied on in

deciding to purchase their unit.
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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 fraud

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 should

have known shortly after purchasing the Harvestore that AOSHPI's

representations concerning the silo's attributes were simply not coming

true and thus should have recognized the existence and source of their

injury. Likewise, given that the Klehrs received numerous promotional

materials and advertisements in the mail before and after they purchased

the silo, they should have known that the misrepresentations were part of

a pattern of suspected racketeering activity. We believe that the Klehrs

should have determined 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] should have determined that

the representations were part of a pattern at the same time it should have

discovered that the silos caused the alleged problems on the dairy farm.").

The Klehrs urge us to adopt "a separate accrual rule," which would

permit them to recover damages for predicate acts that occur within the

limitations period, even if their claim for similar damages caused by

similar 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, 863

F.2d 1125, 1126 (3d Cir. 1988), or a variation thereof. However, in

Granite Falls Bank v. Henrikson, 924 F.2d 150, 154 (8th Cir. 1991), we

declined to adopt such an "open-ended" standard, observing that it was

inconsistent with "the underlying policy of a statute of limitations

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.").

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Instead, we adopted an approach under which a plaintiff has four years to

bring his claim from the point in time that he knew, or in exercising

reasonable diligence should have known, of the existence and source of his

injury and 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 RICO

claims are revived because of the "continuing damage" they sustained into

the limitations period through the continued use, operation, and repair of

the Harvestore silo. Again, Granite Falls provides the governing

principle: it makes clear that a civil RICO action accrues with respect to

"each independent injury" to the plaintiff. 924 F.2d at 154. The Klehrs

would have us hold that each advertisement or promotional material that was

sent to them or that they observed constitutes a separate "injury."

However, these injuries are not "independent injuries" because they are all

of the same type, flow from the same source, and are part of one cognizable

pattern of conduct -- AOSHPI's alleged misrepresentations regarding the

Harvestore unit. We believe that these separate, discrete "injuries" that

the Klehrs 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 Glessner

v. Kenny, 952 F.2d 702, 708 (3d Cir. 1992) ("the mere continuation of

damages into a later period will not serve to extend the statute of

limitations."). Thus, the Klehrs' civil RICO claims are time-barred.11
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IV.

We have examined the Klehrs' numerous other arguments and determine

that they lack merit for the reasons given by the experienced district

judge in his well-reasoned opinion. Accordingly, for the reasons

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.