United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-3547

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Harry Stephens Farms, Inc.; Harry *

Stephens, individually and as managing *

partner of Stephens Partnership, *

*

Appellants, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas.

Wormald Americas, Inc.; Helena *

Chemical Company, Inc.; Exxon Mobil * [PUBLISHED]

Corporation, Successor to Mobil *

Chemical Company, *

*

Appellees. *

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Submitted: June 4, 2009

Filed: June 19, 2009

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Before WOLLMAN, MURPHY, and MELLOY, Circuit Judges.

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PER CURIAM.

In this environmental-contamination case, plaintiffs Harry Stephens (Stephens)

and two affiliated farming businesses appeal the district court’s adverse grant of

summary judgment, holding that the applicable Arkansas three-year statute of

limitations barred their action for damages, originally filed on June 9, 2006. Upon de

novo review, see Bannister v. Bemis Co., 556 F.3d 882, 884 (8th Cir. 2009), we

reverse the grant of summary judgment and remand the case for further proceedings.
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To begin, we agree with the district court’s application of the Arkansas threeyear statute of limitations and its application of the “discovery rule.” See Highland

Indus. Park, Inc. v. BEI Def. Sys. Co., 357 F.3d 794, 796 (8th Cir. 2004) (in

environmental-contamination action based on diversity jurisdiction, applying law of

forum state, Arkansas, to determine statute-of-limitations issue; concluding Arkansas

three-year statute of limitations applied and Arkansas Supreme Court would use

“discovery rule,” i.e., statute does not begin to run until plaintiff knows, or reasonably

should know, that its land has suffered remediable injury). We also believe that the

district court’s decision to disregard portions of Stephens’s affidavit was warranted.

See Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1365-66 (8th Cir.

1983) (party who has been examined at length on deposition cannot raise issue of fact

simply by submitting affidavit contradicting his own earlier testimony).

For the following reasons, however, we conclude that a genuine issue remains

as to whether plaintiffs knew or reasonably should have known before June 9, 2003,

that their property had suffered a remediable injury as a result of defendants’ actions

on neighboring property. First, Stephens’s undisputed “worry” and “concern” about

possible environmental contamination dating back to the mid-1990s was not proper

evidence on which to rest the summary judgment decision. Cf. O’Connor v. Boeing

N. Am., Inc., 311 F.3d 1139, 1148 (9th Cir. 2002) (rejecting interpretation of federal

discovery rule that would begin limitations period upon mere suspicion of elements

of claim; such standard would result in preventative and often unnecessary claims).

Second, summary judgment was not justified by a 2001 report submitted to a state

agency by an environmental consulting firm. Although the report indicated that

Stephens had been notified of contamination in some of his irrigation wells, no

evidence showed that he had in fact been notified at that time. The only evidence of

such notification was a December 2004 letter from a state agency to Stephens,

informing him of potentially unsafe levels of a contaminant in one of his irrigation

wells and asking him to discontinue using that well until further notice. Cf. Highland

Indus. Park, Inc., 357 F.3d at 797-98 (environmental-contamination action was barred
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by 3-year statute of limitations where, 3 years and 1 month before complaint was

filed, plaintiff had received “the first environmental report” notifying it that

groundwater contamination had exceeded regulatory levels). Finally, although two

of defendants’ witnesses stated in affidavits that Stephens had made statements to

them in 2002 indicating he was aware of contamination on his property, Stephens

provided conflicting deposition testimony. Thus, we conclude that there remains a

genuine issue of material fact, which cannot be resolved without making credibility

determinations, weighing evidence, and drawing inferences against the non-moving

party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (noting that,

for purposes of summary judgment, credibility determinations, weighing of evidence,

and drawing of legitimate inferences are functions of jury, not judge, and all justifiable

inferences are to be drawn in favor of non-moving party). 

Accordingly, the grant of summary judgment is reversed, and the case is

remanded to the district court for further proceedings not inconsistent with this

opinion.

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