                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-3547
                                   ___________

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.                *
                                  ___________

                             Submitted: June 4, 2009
                                Filed: June 19, 2009
                                 ___________

Before WOLLMAN, MURPHY, and MELLOY, Circuit Judges.
                         ___________

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.
       To begin, we agree with the district court’s application of the Arkansas three-
year 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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