1 The Honorable Raymond L. Erickson, th en Chief Magistrate Judge for the District of Minnesota, sitting to hear th ese 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. *

___________ Submitted: March 15, 2011 Filed: August 29, 2011

___________ Before SMITH, ARNOLD, and SHEPHERD, Circuit Judges.

___________ SMITH, Circuit Judge.

Minch Family LLLP ("Minch Family") suedthe 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 judge 1 denied the Minch Family's motion to2 The Honorable James M. Rosenbaum, Un ited States District Judge for the District of Minnesota.

-2- amend its complaint to add a claim for pun itive damages and its motion to amend the court's scheduling order. Thereafter, the district court 2granted 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 re sidents, 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 construc ted 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 th e field dike interrupts the natural flow of water and causes water to back up onto th e 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 th e jurisdiction of the Buffalo-Red River Watershed District (BRRWD). Following a flood in the fall of 2000, the Minch Family complained to the BRRW D that the Norbys' field di ke 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 Fam ily believed that, when making these-3- 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 cause d. In June 2004, the Minch Family notified the BRRWD, at a public meeting, that r ecent flooding caused the Minch Family crop and dollar losses. The Minch Family again a lleged that the Norbys' field dike caused the flooding.

On September 7, 2007, the BRRWD inform ed the Minch Family that it would refrain from taking any furthe r action over the field dike on the Norbys' property. On October 14, 2008, the Minch Family co mmenced the instant action by filing a complaint in the district court. The co mplaint alleged that Robert Norby had wrongfully altered a natural drainage way and violated the reasonable-use doctrine; the complaint also asserted claims for tres pass, nuisance, strict liability, and deliberate disregard for the Minch Family's rights. A ll of the claims aros e from Robert Norby's construction, maintenance, and repair of the field di ke, 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 Proce dure 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 fo r 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 fo r amending the pleadings until October 1, 2009. The Minch Family argued that it n eeded 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 sche duling order because th e 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 clai m for punitive damages, concluding that the-4- 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 add ition, 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 orde r. We review each argument in turn.

A. Statute of Limitations The Minch Family argues that the districtcourt 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 conte nds that the 15-year statute of limitations for adverse possession under Minnesota St atutes § 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 relie s on the private-nuisance-byprescription defense that the Norbys assert in their answer.

Second, the Minch Family contends th at 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 Minc h Family argues that its nuisance and reasonable-use-doctrine claims are grounded in negligence and, therefore, subject to-5- 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 th e Minch Family also seeks. Finally, the Minch Family contends that even if th e six-year period under § 541.05 applies, its claim is not barred because it did not suffe r "significant and calculable actual crop damage" until 2004.

The Minch Family raises alternative argum ents to avoid application of the twoyear period under § 541.051. Specifically, th e Minch Family argues that the flooding the field dike caused constitutes a continui ng 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 th e BRRWD of the flooding in 2000 or 2001, the BRRWD took exclusive jurisdiction over the i ssue 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 th e 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 materi al 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, 495-6- (8th Cir. 2004). Under Minnesota law, a de fendant seeking to apply the statute of limitations "bears the burden of establishing th at the claims are tim e-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 s eeks, 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 r eal estate or the possession thereof." It does not apply to actions for damages and injunc tive relief, which the Minch Family seeks. Moreover, the fact that the Norbys have ar gued, in their answer to the Minch Family's complaint, that they acquired a prescr iptive easement does not convert the Minch Family's claims into an action governed by § 541.02.

In the absence of another statute of lim itations, 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 clai ms for trespass and "liabilit[ies] created by statute." Thus, the Minch Family's clai ms 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 ag ree 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 aris e from an "improvement to r eal property," the field dike. Section 541.051, subdivision 1(a), provides:

Except where fraud is involved, no acti on by any person in contract, tort, or otherwise to recover damages fo r any injury to property, real or-7- 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 af ter discovery of the injury . . . .

Adopting a "common-sense interpretation of the phrase 'improvement to real property,'" the Minnesota S upreme 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 designe d to make the property more useful or valuable as disti nguished from ordinary repairs." State Farm Fire & Cas. v. Aquila Inc. , 718 N.W.2d 879, 884 (Minn. 2006) (quot ations and citations omitted).

Applying this definition, we concludethat the Norbys' field dike is an improvement to real property under Minnesota law. The record refl ects that the field dike has been in place on the Norbys' prope rty, 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 fiel d dike was obviously cons tructed to make the Norbys' property more valuable and useful , as it is intended to avoid excess water flow to the property. Fi nally, its construction almo st 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) (fi nding that a sedimentation pond was an improvement to real property and noting th at 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 surrende red 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 w ith its ownership or control. State Farm , 718 N.W.2d at 884. As the court has explained, "an object is-8- 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 MinnesotaSupreme 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 defec tive and unsafe condition); cf. State Farm , 718 N.W.2d at 884 (noting that application of the st atute 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 th e maintenance, operation or inspection of the real property improvement" are not subjectto the two-year statute of limitations. The plaintiff bears the burden of estab lishing 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 "gr ounded" 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-9- 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 bloc ks drainage and cause s 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 lim itations under § 541.051 applies not only to the Minch Family's claims for damages, but al so 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 cl aims 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 s ubject 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 re lief" 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 c onceivably 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 particul ar 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-10- "in contract, tort, or otherwise . . . arisi ng 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 prope rty 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 Mi nch Family's claims are subject to a two-year statute of limitations.

2. Accrual Date Under § 541.051, subdivision 1(c), the tw o-year limitations period begins "upon discovery of the injury." Th is means that the limitations period "begins to run when an actionable injury is discovered, or withdue 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 c itation omitted). Under this rule, the plaintiff need not be awar e 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 Minc h Family experienced flooding as a result of the field dike as early as November27, 2000, when the Minch Family first complained to the BRRWD. Th e Minch Family argues that the limitations period did not begin until 2004, when it sustained "si gnificant 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 fa vorable to the Minch Family, the record shows that the Minch Family first discovered its injury no later than November3 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 se veral 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.

-11- 27, 2000. 3 The Minch Family did not file th is 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 conti nuous trespass would allow the plaintiffs to recover damages for the interference withtheir property rights that occurred during the limitations period immediately precedi ng the filing of the action). The Minch Family, however, has not cite d 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 reasonabl y 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-12- 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 partic ularly 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 Fam ily's claim from the two-year statute of limitations under § 541.051.

Alternatively, the Minch Family argues th at 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 firs t 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 for ce 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 de monstrate that the Minch Family would be required to pursue any availabl e administrative remedies before suing the BRRWD to get the BRRWD to enforce its draina ge rules and regulations. These cases, however, do not address whether a plaintiff has to seek administrative relief before-13- suing a private individual . Although the Minch Family claims that the BRRWD did not "release [its] jurisdiction" over the Norbys' field dike until Se ptember 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 th e 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 takeno action. The Minch Family has not demonstrated how it would have been barred from concurre ntly bringing a private suit against the Norbys. Accordingly, the Minc h 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 allegea claim for punitive damages. Because we have affirmed the district court's dismissa l of the Minch Family's claims as barred by the statute of limitations, "the i ssue 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.-14- III. Conclusion Accordingly, we affirm the judgment of the district court.

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