1

The Honorable Raymond L. Erickson, then Chief Magistrate Judge for the

District of Minnesota, sitting to hear these pretrial matters pursuant to 28 U.S.C.

§ 636(b)(1)(A).

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 10-2241

___________

Minch Family LLLP, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the 

* District of Minnesota.

Estate of Gladys I. Norby; Robert *

N. Norby, Individually and as *

Personal Representative of the *

Estate of Gladys I. Norby, *

*

Appellees. *

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Submitted: March 15, 2011

Filed: August 29, 2011

___________

Before SMITH, ARNOLD, and SHEPHERD, Circuit Judges.

___________

SMITH, Circuit Judge.

Minch Family LLLP ("Minch Family") sued the Estate of Gladys I. Norby and

Robert N. Norby (collectively, "the Norbys") in diversity, seeking injunctive relief and

damages for flooding of the Minch Family's property, allegedly caused by a field dike

built on the Norbys' land. The magistrate judge1

 denied the Minch Family's motion to
2

The Honorable James M. Rosenbaum, United States District Judge for the

District of Minnesota.

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amend its complaint to add a claim for punitive damages and its motion to amend the

court's scheduling order. Thereafter, the district court2

 granted the Norbys' motion for

summary judgment, concluding that the applicable statute of limitations barred the

Minch Family's claims. The Minch Family appeals, arguing that the district court

erred in concluding that its claims were time-barred and that the magistrate judge

abused his discretion by denying its motion to amend its complaint and its motion to

amend the scheduling order. For the following reasons, we affirm.

I. Background

For many years, the Minch Family, a North Dakota limited liability limited

partnership, and the Norbys, Minnesota residents, have owned adjoining parcels of

farmland in Clay County, Minnesota, near the Buffalo and Red Rivers. An L-shaped

field dike on the Norbys' property borders the Minch Family's property. The evidence

suggests that the field dike was constructed as early as the 1950s. Since 2000, heavy

rainfall or snow melt has occasionally caused flooding on the Minch Family's

property. The Minch Family claims that the field dike interrupts the natural flow of

water and causes water to back up onto the Minch Family's property. The Norbys

contend that the flooding is caused by the Minch Family's failure to clean and

maintain a drainage ditch on the Minch Family's property.

Both properties are situated within the jurisdiction of the Buffalo-Red River

Watershed District (BRRWD). Following a flood in the fall of 2000, the Minch

Family complained to the BRRWD that the Norbys' field dike interrupted the drainage

of water and thus caused the flooding of the Minch Family's property. BRRWD

records indicate that in the spring of 2001, the area flooded again, causing a "washout"

in the field dike. Thereafter, Robert Norby repaired the field dike without BRRWD

approval. The BRRWD and the Minch Family believed that, when making these
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repairs, Robert Norby increased the height of the field dike. Throughout this time, the

Minch Family continued to raise their concerns at BRRWD public meetings about

drainage problems that the field dike caused. In June 2004, the Minch Family notified

the BRRWD, at a public meeting, that recent flooding caused the Minch Family crop

and dollar losses. The Minch Family again alleged that the Norbys' field dike caused

the flooding.

On September 7, 2007, the BRRWD informed the Minch Family that it would

refrain from taking any further action over the field dike on the Norbys' property. On

October 14, 2008, the Minch Family commenced the instant action by filing a

complaint in the district court. The complaint alleged that Robert Norby had

wrongfully altered a natural drainage way and violated the reasonable-use doctrine;

the complaint also asserted claims for trespass, nuisance, strict liability, and deliberate

disregard for the Minch Family's rights. All of the claims arose from Robert Norby's

construction, maintenance, and repair of the field dike, which prevented water

drainage and caused flooding on the Minch Family's property.

On February 25, 2009, the district court entered a pretrial scheduling order,

pursuant to Federal Rule of Civil Procedure 16, setting the deadline to amend the

pleadings for June 1, 2009. On May 1, 2009, the Minch Family filed a motion to

amend its complaint to allege a claim for punitive damages. While that motion was

pending, on June 1, 2009, the Minch Family filed a motion to amend the pretrial

scheduling order to extend the deadline for amending the pleadings until October 1,

2009. The Minch Family argued that it needed additional time to conduct discovery

in support of its claim for punitive damages. The magistrate judge denied the Minch

Family's motion to amend the pretrial scheduling order because the Minch Family had

failed to show good cause for its inability to meet the original deadline to amend its

complaint. Shortly thereafter, the magistrate judge denied the Minch Family's motion

to amend its complaint to allege a claim for punitive damages, concluding that the
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Minch Family had failed to make a prima facie showing that it was entitled to seek

punitive damages under Minnesota law.

The parties subsequently filed cross-motions for summary judgment. The

district court granted the Norbys' motion and denied the Minch Family's motion,

concluding that the Minch Family's claims were barred by the two-year statute of

limitations contained in Minnesota Statutes § 541.051.

II. Discussion

On appeal, the Minch Family argues that the district court erred in concluding

that its claims were time-barred. In addition, the Minch Family asserts that the

magistrate judge abused its discretion in denying the Minch Family's motion to amend

its complaint and its motion to amend the scheduling order. We review each argument

in turn.

A. Statute of Limitations

The Minch Family argues that the district court erroneously concluded that the

Minch Family's claims were barred by the two-year statute of limitations contained

in § 541.051. First, the Minch Family contends that the 15-year statute of limitations

for adverse possession under Minnesota Statutes § 541.02 should apply instead

because the flooding "seized" the Minch Family of its possession and use of its land.

In order to have § 541.02 apply, the Minch Family relies on the private-nuisance-byprescription defense that the Norbys assert in their answer.

Second, the Minch Family contends that the two-year statute of limitations

under § 541.051 does not apply. Section 541.051is the applicable statute for defective

real property improvements. The Minch Family maintains that the field dike is not an

"improvement to real property," nor is it "defective" because it is operating as the

Norbys intended it to operate. The Minch Family argues that its nuisance and

reasonable-use-doctrine claims are grounded in negligence and, therefore, subject to
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the exception under § 541.051, subdivision 1(d). Likewise, the Minch Family asserts

that the two-year period applies to claims seeking only money damages and not to

claims seeking injunctive relief, which the Minch Family also seeks. Finally, the

Minch Family contends that even if the six-year period under § 541.05 applies, its

claim is not barred because it did not suffer "significant and calculable actual crop

damage" until 2004.

The Minch Family raises alternative arguments to avoid application of the twoyear period under § 541.051. Specifically, the Minch Family argues that the flooding

the field dike caused constitutes a continuing trespass, causing injuries to the Minch

Family as late as 2008. The Minch Family maintains that the district court erred by

concluding that no continuing trespass existed because the court did not look to the

nature of the wrong the Minch Family sought to remedy—the repeated flooding. It

contends that the wrong was not the construction of the dike itself. Second, even

absent a continuing trespass, the Minch Family argues that the statute of limitations

was tolled while it sought administrative remedies from the BRRWD. The Minch

Family asserts that once it notified the BRRWD of the flooding in 2000 or 2001, the

BRRWD took exclusive jurisdiction over the issue and did not release its jurisdiction

until September 7, 2007.

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

Grove Partners, L.P. v. Am. Family Mut. Ins. Co., 479 F.3d 949, 951 (8th Cir. 2007).

In doing so, we apply the same standard as the district court and view the record in the

light most favorable to the nonmoving party. Id. Thus, "[s]ummary judgment is

appropriate when no genuine issue of material fact remains and the movant is entitled

to judgment as a matter of law." Id. at 951–52 (quotation and citation omitted). 

Since federal jurisdiction is based on diversity of jurisdiction, we apply

Minnesota substantive law, including Minnesota's applicable statutes of limitations.

Paracelsus Healthcare Corp. v. Philips Med. Sys., Nederland, B.V., 384 F.3d 492, 495
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(8th Cir. 2004). Under Minnesota law, a defendant seeking to apply the statute of

limitations "bears the burden of establishing that the claims are time-barred as a matter

of law." Nolan & Nolan v. City of Eagan, 673 N.W.2d 487, 495 (Minn. Ct. App.

2003) (citing Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988)).

1. Applicable Statute of Limitations

As in the district court, the parties on appeal set forth three different potentially

applicable limitations for the Minch Family's claims. Thus, we will examine each

statute to determine which one controls.

The longest period the Minch Family seeks, Minnesota Statutes § 541.02's 15-

year limitations period, does not apply to their claims. Section 541.02, by its terms,

applies to "action[s] for the recovery of real estate or the possession thereof." It does

not apply to actions for damages and injunctive relief, which the Minch Family seeks.

Moreover, the fact that the Norbys have argued, in their answer to the Minch Family's

complaint, that they acquired a prescriptive easement does not convert the Minch

Family's claims into an action governed by § 541.02.

In the absence of another statute of limitations, the six-year period in Minnesota

Statutes § 541.05 would apply to some, if not all, of the Minch Family's claims.

Section 541.05, subdivision 1(2), covers claims for trespass and "liabilit[ies] created

by statute." Thus, the Minch Family's claims for trespass and nuisance, "a liability

created by" Minnesota Statutes § 561.01, would appear to be subject to the six-year

statute of limitations. Notwithstanding, we agree with the district court that the twoyear statute of limitations, pursuant to § 541.051, applies to all of the Minch Family's

claims because the claims arise from an "improvement to real property," the field dike.

Section 541.051, subdivision 1(a), provides:

Except where fraud is involved, no action by any person in contract, tort,

or otherwise to recover damages for any injury to property, real or
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personal, or for bodily injury or wrongful death, arising out of the

defective and unsafe condition of an improvement to real property, shall

be brought . . . more than two years after discovery of the injury . . . .

Adopting a "common-sense interpretation of the phrase 'improvement to real

property,'" the Minnesota Supreme Court has defined the term as "a permanent

addition to or betterment of real property that enhances its capital value and that

involves the expenditure of labor or money and is designed to make the property more

useful or valuable as distinguished from ordinary repairs." State Farm Fire & Cas. v.

Aquila Inc., 718 N.W.2d 879, 884 (Minn. 2006) (quotations and citations omitted).

Applying this definition, we conclude that the Norbys' field dike is an

improvement to real property under Minnesota law. The record reflects that the field

dike has been in place on the Norbys' property, in some form, for decades. Damage

to the dike during a "wash out" did not convert it to a temporary, as opposed to

permanent, structure. In addition, the field dike was obviously constructed to make the

Norbys' property more valuable and useful, as it is intended to avoid excess water

flow to the property. Finally, its construction almost certainly involved the

"expenditure of labor or money." Cf. Nelson v. Short-Elliot-Hendrickson, Inc., 716

N.W.2d 394, 401 (Minn. Ct. App. 2004) (finding that a sedimentation pond was an

improvement to real property and noting that Minnesota courts have consistently

found that storm-sewer systems are an improvement to real property).

The Minch Family counters that the field dike cannot be an improvement to real

property because the Norbys' never surrendered control over the field dike, citing

Johnson v. Steele-Waseca Coop. Elec., 469 N.W.2d 517, 519–20 (Minn. Ct. App.

1991). The Minnesota Supreme Court, however, has clearly indicated that whether an

object is an "improvement to real property" has nothing to do with its ownership or

control. State Farm, 718 N.W.2d at 884. As the court has explained, "an object is
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either an 'improvement to real property' or it is not." Id. Under the Minnesota Supreme

Court's definition of the term, the field dike is an "improvement to real property."

Moreover, the Minch Family's claims arise from the "defective and unsafe

condition" of the field dike. The Minnesota Supreme Court has explained that the

individual facts and circumstances of the case will determine whether a claim arises

out of a defective and unsafe condition. Griebel v. Andersen Corp., 489 N.W.2d 521,

523 (Minn. 1992). "An improvement to real property is deemed defective and unsafe

if it is incomplete, faulty, dangerous, and/or insecure." Nolan & Nolan, 673 N.W.2d

at 496. Here, whether the Norbys knew or intended it, the field dike caused flooding

to the Minch Family's property; such flooding is likely "faulty" or "dangerous," even

if not from the Norbys' perspective. See id. (finding that flooding caused by a stormsewer system was a defective and unsafe condition); cf. State Farm, 718 N.W.2d at

884 (noting that application of the statute does depend on "a subjective analysis

leading to different results for different owners").

Additionally, the Minch Family's claims do not fall under the exception to the

two-year limitations period. Section 541.051, subdivision 1(d), provides that "actions

for damages resulting from negligence in the maintenance, operation or inspection of

the real property improvement" are not subject to the two-year statute of limitations.

The plaintiff bears the burden of establishing this exception to the statute of

limitations, which "should be used only in exceptional circumstances." State Farm,

718 N.W.2d at 886 (quotation and citation omitted).

The Minch Family has failed to meet this burden. It has not alleged any claims

of negligence on the Norbys' part. Instead, the Minch Family asserts that its nuisance

and reasonable-use-doctrine claims are "grounded" in negligence. To the contrary,

under Minnesota law, "[a]lthough negligence may be the cause of a nuisance, it is not

necessarily an element of a nuisance action." Highview N. Apartments v. Cnty. of

Ramsey, 323 N.W.2d 65, 71 (Minn. 1982). Similarly, the idea of "reasonable use," in
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the reasonable use doctrine, "is not to be confused with 'reasonable care,' a negligence

concept." Id. at 72. None of the Minch Family's claims set forth any of the elements

of a negligence claim. Cf. State Farm, 718 N.W.2d at 887 (holding that the exception

did not apply where complaint alleged that defendant owed a duty but record

contained no evidence that the duty existed or that defendant had breached it). Equally

important, the Minch Family's complaint does not allege damages arising from the

Norbys' maintenance, operation, or inspection of the field dike; it simply alleges that

the very existence of the field dike blocks drainage and causes flooding. Accordingly,

the Minch Family has not shown that the statutory exception to the two-year

limitations period should apply.

Finally, the two-year statute of limitations under § 541.051 applies not only to

the Minch Family's claims for damages, but also to its claims for equitable relief. The

statute itself only mentions claims "to recover damages." Minn. Stat. § 541.051,

subdiv. 1(a). It is silent on the issue of claims for equitable relief. Nonetheless, the

Minnesota Supreme Court, in a recent decision, examined whether claims for damages

and injunctive relief were untimely under § 541.051—without considering whether

the claims for injunctive relief were subject to a different limitations period. Siewert

v. N. States Power Co., 793 N.W.2d 272, 276, 286–88 (Minn. 2011). In fact, the court

held that certain "claims for injunctive relief" were not subject to the exception under

§ 541.051, subdivision 1(d), and were barred by the statute. Id. at 288 n.5. As a result,

we conclude that the two-year statute of limitations under § 541.051 applies to the

Minch Family's claims for damages and equitable relief.

As noted above, both the six-year period, under § 541.05, and the two-year

period, under § 541.051, could conceivably apply to the Minch Family's claims. When

two statutes of limitations potentially apply to the same action and cannot be

reconciled, Minnesota courts will apply the more particular provision over the general

provision. Ford v. Emerson Elec. Co., 430 N.W.2d 198, 200 (Minn. 1982) (citing

Minn. Stat. § 645.26, subdiv. 1). The two-year period in § 541.051 applies to actions
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"in contract, tort, or otherwise . . . arising out of the defective and unsafe condition of

an improvement to real property." Minn. Stat. § 541.051, subdiv. 1(a).

Section 541.051 is a more specific provision for real property improvements than the

more general six-year period for claims under § 541.05. See Nolan & Nolan, 673

N.W.2d at 496–97 ("Claims of nuisance and trespass arising out of a defective

condition of an improvement to real property are governed by the statute of limitations

in Minn. Stat. § 541.051 rather than the six-year statute of limitations in Minn. Stat.

§ 541.05 . . . ."). Thus, the Minch Family's claims are subject to a two-year statute of

limitations.

2. Accrual Date

Under § 541.051, subdivision 1(c), the two-year limitations period begins "upon

discovery of the injury." This means that the limitations period "begins to run when

an actionable injury is discovered, or with due diligence, should have been discovered,

regardless of whether the precise nature of the defect causing the injury is known."

Nolan & Nolan, 673 N.W.2d at 497 (quotation and citation omitted). Under this rule,

the plaintiff need not be aware of the full extent of its injury, so long as it is aware of

some injury. Day Masonry v. Indep. Sch. Dist. 347, 781 N.W.2d 321, 333–34 (Minn.

2010).

Here, the record reflects that the Minch Family experienced flooding as a result

of the field dike as early as November 27, 2000, when the Minch Family first

complained to the BRRWD. The Minch Family argues that the limitations period did

not begin until 2004, when it sustained "significant and calculable crop damage." This

argument, however, relates to the extent of the Minch Family's injuries—not the fact

of the injury. See id. Even viewed in a light most favorable to the Minch Family, the

record shows that the Minch Family first discovered its injury no later than November
3

In its brief, when discussing the accrual date, the Minch Family refers to the

water problems in 2000 and 2001 as a "drainage problem"—in apparent contrast to the

"crop damage" in 2004. At several other points in its brief, however, the Minch

Family refers to the "flooding" in the early 2000s. The record reflects that the Norbys'

field dike did, in fact, cause flooding on the Minch Family's property in 2000 and

2001.

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27, 2000.3

 The Minch Family did not file this suit until September 7, 2007. Thus,

absent an exception to, or tolling of, the statute of limitations, the Minch Family's

complaint is time-barred.

3. Possible Exceptions to, or Tolling of, the Limitations Period

As noted, the Minch Family argues that the continuing trespass rule preserves

its claims despite the statute-of-limitations bar. If applicable, this rule would allow the

Minch Family to seek recovery for damages sustained in the two-year period

immediately preceding the filing of its complaint on October 14, 2008. See Hebert,

744 N.W.2d at 233 (explaining that a continuous trespass would allow the plaintiffs

to recover damages for the interference with their property rights that occurred during

the limitations period immediately preceding the filing of the action). The Minch

Family, however, has not cited any authority to support applying this exception to the

two-year statute of limitations under § 541.051. In contrast, as the district court noted,

the Minnesota Court of Appeals, in a recent unpublished decision, held that the

continuing trespass exception does not apply to § 541.051. Geary v. Miller, No. A08-

1216, 2009 WL 1515505, at *3 (Minn. Ct. App. June 2, 2009) (unpublished), rev.

denied (Minn. Aug. 11, 2009). As the Geary court explained:

Section 541.051 expressly states that, when the other conditions for the

time bars are met, "no action [can be brought] by any person in contract,

tort, or otherwise to recover damages." Id., subd. 1(a) (emphasis added).

This language does not reasonably allow an interpretation that

continuing trespass is exempted from the bar. Likewise, the statute has

specifically delineated exceptions to the time bars, none of which address
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continuing trespass. See id., subd. 1(b)–(e) (defining exceptions or

limitations to time bar in subdivision 1(a)). It would not be reasonable

to infer an exception for continuing trespass when the statute has listed

exceptions that do not include it.

Id.

We find the Minnesota Court of Appeals's reasoning in Geary persuasive. Cf.

Baribeau v. City of Minneapolis, 596 F.3d 465, 475 (8th Cir. 2010) ("Decisions from

the Minnesota Court of Appeals are particularly relevant and we must follow such

decisions when they are the best evidence of Minnesota law." (quotation and citation

omitted)). Thus, we conclude that the possible existence of a continuing trespass

cannot exempt a portion of the Minch Family's claim from the two-year statute of

limitations under § 541.051.

Alternatively, the Minch Family argues that the statute of limitations was tolled

from the early 2000s until September 7, 2007, when it was seeking relief from the

BRRWD. Under Minnesota law, "[t]he plaintiff bears the burden of proving that the

statute of limitations should be tolled." Mercer v. Andersen, 715 N.W.2d 114, 120

(Minn. Ct. App. 2006). 

We conclude that the Minch Family has failed to meet this burden. The Minch

Family cites cases showing that, when challenging the action (or inaction) of an

administrative agency, a plaintiff must first exhaust its administrative remedies before

pursuing relief in court. See, e.g., Zaluckyj v. Rice Creek Watershed Dist., 639 N.W.2d

70, 75 (Minn. Ct. App. 2002) (suit to force watershed district to repair a ditch); see

also Ammon Corp. v. City of Eagan, 348 N.W.2d 66, 71–72 (Minn. 1984) (suit

challenging a zoning decision). These cases demonstrate that the Minch Family would

be required to pursue any available administrative remedies before suing the BRRWD

to get the BRRWD to enforce its drainage rules and regulations. These cases,

however, do not address whether a plaintiff has to seek administrative relief before
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suing a private individual. Although the Minch Family claims that the BRRWD did

not "release [its] jurisdiction" over the Norbys' field dike until September 7, 2007, the

Minch Family has cited no laws, rules, or regulations demonstrating that the BRRWD

has exclusive jurisdiction over private water flow disputes between private

landowners. Moreover, the record belies the Minch Family's assertion that the

BRRWD somehow "accepted" and later "released" jurisdiction over the field dike.

The record merely reflects that the Minch Family complained to the BRRWD, at

public meetings, about the field dike; the BRRWD followed up on those complaints;

and the BRRWD ultimately chose to take no action. The Minch Family has not

demonstrated how it would have been barred from concurrently bringing a private suit

against the Norbys. Accordingly, the Minch Family has failed to meet its burden of

showing that the two-year statute of limitations should be tolled, and its claims are

untimely.

B. Punitive Damages

The Minch Family next contends that the magistrate judge erred in denying its

motion to amend its complaint to allege a claim for punitive damages. Because we

have affirmed the district court's dismissal of the Minch Family's claims as barred by

the statute of limitations, "the issue of punitive damages is moot." Ocean v. Pomeroy,

No. A08-0878, 2009 WL 511757, at *8 (Minn. Ct. App. Mar. 3, 2009) (unpublished)

(citing Obermoller v. Fed. Land Bank of St. Paul, 409 N.W.2d 229, 230–31 (Minn.

Ct. App. 1987)), rev. denied (Minn. May 19, 2009).

C. Scheduling Order

Finally, the Minch Family argues that the magistrate judge abused its discretion

in denying its motion to amend the court's scheduling order. Because the Minch

Family's motion only related to its claim for punitive damages, however, we need not

address this issue.
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III. Conclusion

Accordingly, we affirm the judgment of the district court.

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