*

The Honorable Richard W. Goldberg, Judge, United States Court of

International Trade, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 01-2524

___________

Minnkota Ag Products, Inc. *

*

Appellant, *

* Appeal from the United States

v. * District Court for the District

* of North Dakota.

Norwest Bank North Dakota, *

National Association, * [UNPUBLISHED]

*

Appellee. *

___________

Submitted: March 13, 2002

Filed: March 19, 2002

___________

Before FAGG and BEAM, Circuit Judges, and GOLDBERG,*

 Judge.

___________

PER CURIAM.

Minnkota Ag Products, Inc. (Minnkota) established a 401(k) retirement plan

for its employees in 1988. Norwest Bank North Dakota (Norwest) acted as the plan’s

trustee until 1993, when Minnkota transferred the plan’s assets to First National Bank

of North Dakota (First National). As the new plan trustee, First National requested

Norwest to provide the plan’s accounting and federal tax records, but Norwest did not
**The Honorable Karen Klein, United States Magistrate Judge for the District

of North Dakota, sitting by consent of the parties under 28 U.S.C. § 636(c).

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do so. In 1994, First National inspected Norwest’s files, found them unorganized and

incomplete, and was not able to find any of the information it had requested

earlier–such as forms showing the plan’s compliance with Internal Revenue Service

reporting requirements. (Norwest now admits these documents and others were not

available because they probably were never created.) First National then began both

reconstructing past accounting records for Minnkota’s 401(k) plan and evaluating

Norwest’s accounting methods and legal compliance (the alleged errors and

violations uncovered by First National form the basis of this lawsuit). First National

submitted its final report to Minnkota in 1996. Four years later, Minnkota sued

Norwest, alleging Norwest had violated its ERISA-based fiduciary duty as the trustee

of Minnkota’s 401(k) plan. See 29 U.S.C. § 1104(a) (1994). Minnkota argued

Norwest’s fraud and concealment extended the three-year statute of limitations to six

years after Minnkota’s discovery of the breach. See 29 U.S.C. § 1113 (1994). The

district court** concluded Norwest’s actions did not rise to the level of fraud or

concealment and granted summary judgment to Norwest. Minnkota appeals.

Minnkota contends the district court committed error in granting summary

judgment on the statute of limitations issue because material facts are in dispute about

whether Norwest’s conduct amounted to fraud or concealment. See Mead v. Intermec

Tech. Corp., 271 F.3d 715, 716 (8th Cir. 2001) (de novo review). Having considered

the parties’ arguments on appeal and reviewed the relevant caselaw, we agree with

the district court that Norwest’s “silence, unresponsiveness, stalling, [and]

disorganized file maintenance,” while inappropriate, fall short of the level of

affirmative misrepresentation and active deception necessary to constitute fraud or

concealment. See, e.g., Cont’l Assurance Co. v. Cedar Rapids Pediatric Clinic, 957

F.2d 588, 593 (8th Cir. 1992); Schaefer v. Ark. Med. Soc’y, 853 F.2d 1487, 1491-92

(8th Cir. 1988). Thus, we conclude there is no genuine issue of material fact,
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Minnkota’s claim is barred by the three-year statute of limitations, and the district

court properly granted summary judgment for the reasons stated above. We affirm.

See 8th Cir. R. 47B.

A true copy.

Attest:

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