United States District Court, Western District of Arkansas, Texarkana Division
TRI-STATE LODGING, INC. PLAINTIFF
E-Z MART STORES, INC. DEFENDANT STATE OF ARKANSAS INTERVENOR
Susan O. Hickey United States District Judge
Before the Court is Defendant E-Z Mart Stores, Inc.’s (“E-Z Mart”) Motion for Summary Judgment. (ECF No. 26). Plaintiff Tri-State Lodging, Inc. (“Tri-State”) has filed a response. (ECF No. 29). E-Z Mart has filed a reply. (ECF No. 34). The Court finds this matter ripe for its consideration.
E-Z Mart owns and operates an underground storage tank (UST) system in Texarkana, Arkansas for the purpose of selling gasoline to the public. Tri-State owns a parcel of land to the South of the E-Z Mart store and operates a motel on this property. On or about July 22, 2002, Tri-State alleges that a petroleum release was recorded with E-Z Mart’s UST system and a site assessment was done on and around the property to determine the presence of petroleum substances. On or about June 10, 2010, an additional site assessment was conducted. It indicated that Tri-State’s property had a contaminate concentration exceeding the Arkansas Department of Environmental Quality’s (“ADEQ”) risk-based screening level. Tri-State alleges that the contamination was caused by E-Z Mart and has caused it damages.
Tri-State filed a Complaint on August 16, 2013. The Complaint alleges negligence, trespass, nuisance, and violations of the Arkansas Solid Waste Management Act. E-Z Mart asserts that the undisputed material facts establish that all claims are barred by the applicable statutes of limitations. E-Z Mart asserts that for each claim, the statute of limitations in Arkansas is three years. Tri-State disputes that the statute of limitations for the Arkansas Solid Waste Management Act is three years, and it asserts that the statute of limitations on the claims are tolled because of the continuing nature of the violations. Tri-State does not dispute that the statute of limitations bars the negligence claim; thus, that claim is dismissed as untimely.
A. Summary Judgment Standard
A motion for summary judgment will be granted if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). A motion for summary judgment is an appropriate method for raising a statute of limitations defense. Morris v. Stifel, Nicolaus & Co., Inc., 600 F.2d 139 (8th Cir. 1979). If there is any reasonable doubt as to the application of the statute of limitations, this Court will resolve the question in favor of the Complaint standing and against the challenge. Dunlap v. McCarty, 678 S.W.2d 361 (Ark. 1984).
When the running of the statute of limitations is raised as a defense, the defendant has the burden of affirmatively pleading this defense. Chalmers v. Toyota Motor Sales, USA, Inc., 935 S.W.2d 258 (Ark. 1996). Once it is clear from the face of the complaint that the action is barred by the applicable limitations period, the burden shifts to the plaintiff to prove by a preponderance of the evidence that the statute of limitations was in fact tolled. Id.
B. Statute of Limitations Length
The parties agree that the appropriate statutes of limitations on the trespass and nuisance claims under Arkansas law are three years. See Ark. Code. Ann. § 16-56-105. The Arkansas Supreme Court has not determined which statute of limitations applies to actions brought under the Arkansas Solid Waste Management Act (“ASWMA”). Defendant argues that the logic applied by the Eighth Circuit Court of Appeals in Highland Indus. Park, Inc. v. BEI Defense Sys. Co., 357 F.3d 794 (8th Cir. 2004) in determining the limitations period for the Arkansas Hazardous Waste Management Act should also apply to the ASWMA. The Court agrees.
When the forum state’s highest court has not decided an issue, federal courts sitting in diversity must attempt to predict how the state’s highest court would resolve the question. United Fire & Cas. Ins. Co. v. Garvey, 328 F.3d 411, 413 (8th Cir. 2003). The Highland Court reasoned that because Arkansas law provides a three-year statute of limitations to “[a]ll actions founded on any . . . liability, expressed or implied, ” Ark. Code Ann. § 16-56-105, the statute of limitations for the Arkansas Hazardous Waste Management Act is three years. Similarly, the Court finds that the statute of limitations for the ASWMA is three years.
The Complaint was filed August 16, 2013. Tri-State’s claims are untimely if the statute of limitations began to run on or before August 15, 2010. E-Z Mart asserts that Tri-State should have discovered, through the exercise of reasonable diligence, that it had a claim against E-Z Mart before August 15, 2010. E-Z Mart claims that Tri-State was aware of the ADEQ investigation of the gasoline release and knew that release forms had been signed allowing access to the Tri-State property. E-Z Mart asserts that ...