Lanny J. McCALEB, an individual; Malcom I. Henry, Sr., an individual; Tom Cornelius, an individual,
William Lamar O'Farrell, an individual; Joan O'Farrell, an individual; Alta S. Barnett, an individual, Robert
Vernon Barnett, Jr., an individual; and Jimmy C. Romine, an individual, Plaintiffs-Appellants,

                                                       v.

A.O. SMITH CORPORATION, A.O. Smith Harvestore Products Inc., and A.O. Smith Corporation, d/b/a
A.O. Smith Harvestore Products, Inc., Defendants-Appellees.

                                                No. 99-12901

                                          Non-Argument Calendar.

                                       United States Court of Appeals,

                                              Eleventh Circuit.

                                                Jan. 12, 2000.

Appeal from the United States District Court for the Northern District of Alabama. (No. 98-01431-CV-J-J),
Inge P. Johnson, Judge.

Before BIRCH, CARNES and WILSON, Circuit Judges.

        WILSON, Circuit Judge:

        This is an appeal from the district court's grant of summary judgment for A.O. Smith Corporation and

A.O. Smith Harvestore Products, Inc. For the reasons below, we affirm.

                                             I. BACKGROUND

        Lanny J. McCaleb; Malcom I. Henry, Sr.; Tom Cornelius; William Lamar O'Farrell; Joan O'Farrell;

Alta Barnett; Robert Barnett and Jimmy C. Romine, Appellants, are farmers (hereinafter referred to

collectively as "the farmers"). A.O. Smith Corporation ("A.O.Smith") designs, manufactures and markets

farm equipment and other products. A.O. Smith Harvestore Products, Inc. ("A.O. Smith Harvestore") was

a subsidiary of and is now a division of A.O. Smith.

        The farmers allege that the Appellees contacted them regarding the lease or purchase of Harvestore

silos to store feed for their livestock and represented that the silos were "oxygen limiting." The farmers claim

that these representations were fraudulent, that they purchased or leased Harvestore systems based on these

representations, and that A.O. Smith and A.O. Smith Harvestore engaged in a "pattern of racketeering
activity" in violation of 18 U.S.C. § 1962(c). The farmers allege that as a direct and proximate cause of the

actions of A.O. Smith and A.O. Smith Harvestore they experienced depressed milk production, breeding

problems with their livestock, deteriorated physical condition of the dairy herds, decreased income from

lower production, and added costs of dealing with the developing problems with the herd and the costs of the

Harvestore lease.

        A.O. Smith and A.O. Smith Harvestore moved for summary judgment, and the district court granted

their motion. This appeal followed. The issue on appeal is whether the district court erred in granting

summary judgment because the RICO claims were time-barred and because the record did not contain any

evidence of injury or damages. We determine that the civil RICO actions of all farmers except Jimmy

Romine were time-barred under the applicable statute of limitations. Therefore, we need not reach the issue

of whether the record contains evidence of injury or damage. However, with respect to Romine's action, we

determine that the absence of evidence regarding an essential element of the case supports summary

judgment.

                                               II. DISCUSSION

Standard of Review

         We review a district court's application of a statute of limitations and its grant of summary judgment

de novo. We apply the same standard used by the district court. M.H.D. v. Westminster Schools, 172 F.3d

797, 802 n. 13 (11th Cir.1999). Summary judgment is appropriate when there are no genuine issues of

material fact and the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c).

RICO

        The farmers allege that A.O. Smith and A.O. Smith Harvestore "participated in the conduct of the

affairs of the enterprise through a pattern or [sic] racketeering activity, in violation of 18 U.S.C. § 1962(c)."

Section 1962 is known as the Racketeer Influenced and Corrupt Organizations Act (RICO) and "makes it a

crime 'to conduct' an 'enterprise's affairs through a pattern of racketeering activity.' " Klehr v. A.O. Smith

Corp., 521 U.S. 179, 183, 117 S.Ct. 1984, 138 L.Ed.2d 373 (1997). "Racketeering activity" is any activity
that violates certain enumerated laws, including certain types of fraud. See id. (citing 18 U.S.C. § 1961(1)).

A "pattern" is established by "at least two acts of racketeering activity ... the last of which occurred within

ten years ... after the commission of a prior act of racketeering activity." Klehr, 521 U.S. at 183, 117 S.Ct.

1984 (citing 18 U.S.C. § 1961(5)).

Civil RICO Statute of Limitations

         Section 1964(c) is known as the civil RICO provision. It permits " '[a]ny person injured in his

business or property by reason of a violation' of RICO's criminal provisions to recover treble damages and

attorney's fees." Klehr, 521 U.S. at 183, 117 S.Ct. 1984 (quoting 18 U.S.C. § 1964(c)). The statute of

limitations for civil RICO actions is four years. See Klehr, 521 U.S. at 183, 117 S.Ct. 1984. A civil RICO

action "begins to accrue as soon as the plaintiff discovers, or reasonably should have discovered, both the

existence and source of his injury and that the injury is part of a pattern." Bivens Gardens Office Bldg., Inc.

v. Barnett Bank, Inc., 906 F.2d 1546, 1554-55 (11th Cir.1990). This requirement is in accordance with the

four year statute of limitations established by the United States Supreme Court because it requires "plaintiffs

to pursue the civil RICO remedy within four years of the time when they discovered, or reasonably should

have discovered, that they are entitled to civil RICO damages for their injury." Id. at 1555. The farmers filed

their cause of action on June 4, 1998. To determine whether their cause of action is time-barred because it

began to accrue before June 4, 1994, four years preceding the filing of the action, we must make two

inquiries: (1) when did the farmers discover or when reasonably should they have discovered A.O. Smith

and A.O. Smith Harvestore as the sources of the alleged injuries to their livestock and milk production; and

(2) when did the farmers discover or when reasonably should they have discovered that the alleged

misrepresentations about the oxygen-limiting capabilities of the silos that caused the alleged injuries to their

livestock and milk production were part of a pattern of racketeering activity?

        The farmers contend that they could not ascertain the source of their alleged injuries because of the

misrepresentations of A.O. Smith and A.O. Smith Harvestore. This contention is unpersuasive. It is

undisputed that A.O. Smith and A.O. Smith Harvestore sold the silos to the farmers. Therefore, they can be
the only source to which the alleged injuries can be traced.

         The record demonstrates that each farmer should have known that the alleged misrepresentations

causing their injuries were part of a pattern of racketeering. They allege that they received advertising and

magazines containing representations about the Harvestore silos' oxygen-limiting capabilities. They also

allege that A.O. Smith and A.O. Smith Harvestore repeatedly made fraudulent misrepresentations about the

silos' oxygen-limiting capacities. We agree with the district court that they should have discovered the pattern

upon which their RICO claims are premised at the same time that they should have discovered their alleged

injuries. See, e.g., Klehr v. A.O. Smith Corp., 87 F.3d 231, 239 (8th Cir.1996), aff'd, 521 U.S. 179, 117 S.Ct.

1984, 138 L.Ed.2d 373 (1997) (plaintiffs received "numerous promotional materials and advertisements" that

should have put them on notice that the misrepresentations were part of a pattern of racketeering activity).

        In our inquiry regarding when the source of the alleged injuries and the pattern of racketeering should

have been discovered, we examine the record and consider each farmer individually because each had a

different experience with the Harvestore silos.

         Malcolm Henry testified that he discontinued using the silos in 1983 for reasons unrelated to the

silos. He was satisfied with the silos. In 1983, he knew that oxygen was entering one of the silos after he

discovered that the feed inside was on fire. He reasonably should have discovered the source of his alleged

injuries in 1983. He had until 1987 to file his RICO claim. He failed to do so; thus, his action is time-barred.

         Tom Cornelius testified that he saw blackened corn in his silo in the mid-1980's and a Harvestore

salesman told him that oxygen was entering the silo through the unloader door. Mr. and Mrs. Barnett first

noticed discolored corn from the silo in the mid to late 1980's, perhaps in 1984. Construing the evidence in

the light most favorable to the farmers, if we assume that they first saw the blackened corn in the late 1980's,

for example 1987, then they had until 1991 to file their claim. Their failure to do so renders the claims

time-barred.

         Lanny McCaleb testified that the quality of the feed in the silos met his expectations. He had

mechanical problems with the silo's unloader and steel floor, which were unrelated to the allegations against
the appellants. McCaleb used the silo from 1980-1984. He stopped using the silo in 1984 due to the cost of

repairs. He testified that he did not know that the silo was not oxygen-limiting until he had notice of the

class-action lawsuit. There were never any problems with the quality of his feed, but he noticed mold and

spoilage. The most favorable construction of the evidence suggests that he should have discovered the source

of his alleged injuries in 1984 when he stopped using the silo. He had until 1988 to file his claim. His failure

to do so renders the claim time-barred.

         Mr. and Mrs. O'Farrell used their silos for thirteen years. During this period, they were satisfied with

them. They stopped using them in 1983 or 1984 when they sold their herd. In retrospect, Mr. O'Farrell

believes that problems with the feed may have caused declines in his herd's milk production during the 1970s.

From 1972-1984, he saw some mold coming out of the silo. Even the most generous construction of the

evidence would require the O'Farrells to have discovered their alleged injuries' source and the pattern of

conduct to which it is traced in 1984 when they sold their herd. They had until 1988 to file their action.

Because they did not, it is time-barred.

        The civil RICO claims of all farmers except Jimmy Romine are time-barred. The farmers did not

investigate the problems with the feed or try to ascertain their cause. The limitations period for civil RICO

claims was not tolled because the farmers were not reasonably diligent in trying to discover their cause of

action. See Klehr v. A.O. Smith Corp., 521 U.S. 179, 194, 117 S.Ct. 1984, 138 L.Ed.2d 373 (1997) (lack of

reasonable diligence precludes tolling of statute of limitations based on fraudulent concealment).

         Jimmy Romine used his silo from 1984 until 1998 when he sold his hog business. He was satisfied

with the quality of the feed and even had it tested periodically. The tests never indicated damage to the feed.

He first saw black kernels of corn and water coming out of the silo in 1998. His civil RICO claim was filed

in 1998. Although his claim is not time-barred, the record indicates that he cannot demonstrate an essential

element of the cause of action. Summary judgment is proper when the movant shows an absence of evidence

to support an essential element of the nonmovant's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106

S.Ct. 2548, 91 L.Ed.2d 265 (1986). There is no liability if a RICO violator has not caused injury. See Bivens
Gardens Office Bldg., Inc. v. Barnett Bank, 906 F.2d 1546, 1550 n. 7 (11th Cir.1990) (quoting Sedima,

S.P.R.L. v. Imrex Co., 473 U.S. 479, 496-97, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985)). A civil RICO action

requires a plaintiff to prove more than "but for" causation of injury; it requires proximate causation. See Beck

v. Prupis, 162 F.3d 1090, 1095-96 (11th Cir.1998) (citing Holmes v. Securities Investor Protection Corp.,

503 U.S. 258, 268, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992)), cert. granted, --- U.S. ----, 119 S.Ct. 2046, 144

L.Ed.2d 213 (1999). " '[A] factor is a proximate cause if it is a substantial factor in the sequence of

responsible causation.' " Beck, 162 F.3d at 1096 (quoting Cox v. Administrator United States Steel &

Carnegie, 17 F.3d 1386, 1399 (11th Cir.1994)); see also Bivens Gardens Office Bldg. v. Barnett Banks, Inc.,

140 F.3d 898, 906 (11th Cir.1998) (injuries must be "the direct result of the alleged racketeering activity").

         Romine never saw any mold or spoilage in his feed, and he never had to throw any of it away. He

has no evidence that Harvestore caused damage to his feed or livestock. The record does not contain evidence

of any injury or damage to Romine. Even if it did, Romine cannot prove that the alleged wrongful conduct

of A.O. Smith and A.O. Smith Harvestore proximately caused the injury. He never inspected the silo to

determine what caused the feed to blacken in 1998. He never tested the silo to determine if any problems

could be fixed by routine maintenance. While he used the silo, he performed almost no maintenance on it

and never inspected it for leaks.

                                             III. CONCLUSION

        With the exception of Jimmy Romine, the farmers should have discovered the source of their alleged

injuries and that the actions proximately causing their alleged injuries were part of an alleged pattern of

racketeering before June 4, 1994, four years preceding the filing of the civil RICO action. The civil RICO

claims are time-barred. Summary judgment on Jimmy Romine's claim is appropriate because the record fails

to support the injury and causation elements of his case. For the foregoing reasons, we AFFIRM the district

court's order granting summary judgment to A.O. Smith and A.O. Smith Harvestore.

        AFFIRMED.
