Charles Summerhill (Summerhill), the named plaintiff in a purported class action lawsuit against Terminix, 1 appeals the district court’s 2 dismissal of his first amended complaint as time-barred becausе Summerhill failed to sufficiently plead that the Arkansas doctrine of fraudulent concealment saves his otherwise stale claims. We affirm.
I. BACKGROUND
On June 16, 2008, Summerhill, on behalf of himself and a proposed class of Arkansas Terminix customers, filed suit against Terminix in the Circuit Court of Lonoke County, Arkansas, alleging breaсh of contract and warranty obligations, failure to warn, negligence, and violation of the Arkansas Deceptive Trade Practices Act. The claims were based on Terminix’s alleged failure, before 1996, to provide services necessary to protect the structures of its Arkansas customers from termite infestation. The case was removed to federal district court where Terminix filed a motion to dismiss, asserting, among other theories, that the suit was time-barred because applicable limitation periods had run and Summerhill failed to adequately plead that the Arkаnsas doctrine of fraudulent concealment tolled such limitation periods. The district court agreed with Terminix and determined that Summerhill failed to meet his burden of pleading fraudulent concealment “with particularity.” See Fed.R.Civ.P. 9(b) (“In alleging fraud ... a party must state with particularity the circumstances constituting fraud.... ”). The district court then granted Summerhill permission to file an amended complaint to cure this and other pleading deficiencies.
Summerhill filed his first аmended complaint (FAC) on April 1, 2009. The FAC alleged, with some greater specificity, the same claims as the original complaint. Essentially, the FAC allеged that (1) Arkansas law required Terminix to erect complete chemical barriers around the perimeter of its customers’ structures; (2) this obligation was implied-in-law into every customer’s contract between 1978 and early 1996; and (3) Terminix only erected a partial chemical barrier around the perimeter of its customers’ structures, which inadequately protected its customers’ structures from termites. To support his claim that fraudulent сoncealment tolled applicable statutes of limitations, Summer-hill alleged that Terminix failed to disclose to its customers that Arkansas law required a complete chemical termite barrier and, because chemical termite barriers are invisible, it was impossible for Summerhill, a layman, to discover that Terminix failed to erect a complete barrier. Terminix moved to dismiss the FAC, again asserting that Summerhill’s claims were time-barrеd because Summerhill failed to allege sufficient facts to toll applicable statutes of limitations under the doctrine of fraudulent concealment.
The district court dismissed the FAC as time-barred, holding that Summerhill failed to plead the doctrine of fraudulent concealment with particularity. Specifically, the district court determined that Terminix’s failure to inform Arkansas customers that it was not erecting complete
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chemical barriers was not the type of “affirmative and fraudulent aet[] of concealment” required under Arkansas law to toll statutes of limitations.
First Pyramid Life Ins. Co. of Am. v. Stoltz,
II. DISCUSSION
We review de novo the district court’s decision to dismiss a complaint under Federаl Rules of Civil Procedure 12(b)(6) or 9(b).
Drobnak v. Andersen Corp.,
Because this case arises under our diversity jurisdiction, we apply state tolling law and federal procedural law.
Id.
Under Arkansas lаw, once it is clear from the face of the complaint that an action is barred by an applicable statute of limitations, the burden shifts to the plaintiff to prove that the limitation period was in fact tolled.
Paine v. Jefferson Nat’l Life Ins. Co.,
Summerhill does not dispute that the claims in the FAC, which are based on Terminix’s alleged misconduct between 1978 and 1996, are clearly time-barred unless the doctrine of fraudulent concealment tolls applicable limitation periods. See Ark.Code Ann. § 16-56-111 (five-year limitation period for actions to еnforce written obligations); id. § 16-56-105 (three-year limitation period for tort actions); id. § 4-88-115 (five-year limitation period for deceptive trade practices actions). Therefore, it is Summerhill’s burden to plead, with particularity, facts to support his claim that the doctrine of fraudulent conсealment tolls applicable statutes of limitations. Summerhill vigorously argues that he sufficiently pled that Terminix engaged in affirmative and fraudulent aсts of concealment as required by Arkansas law. Summerhill fails to address, however, the district court’s alternative ground for dismissing the FAC — i.e., the FAC does not spеcifically allege when and how Summer-hill discovered Terminix’s alleged fraud.
Assuming
arguendo
that Summer-hill sufficiently pled that Terminix engaged in affirmative and fraudulent acts of concealment, the applicable statutes of limitations would only be tolled
“until [Summerhill] discovered] the fraud
or should have discovered it by the exercise of rea
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sonable diligence.”
Martin,
III. CONCLUSION
We affirm.
Notes
. The defendants in this case include Terminix, Inc.; Terminix International Company, LP; Terminix International, Inc.; Service Master Company; ServiceMaster Consumer Services, LP; and ServiceMaster Consumеr Services, Inc. For ease of reference, we refer to these defendants as "Terminix” throughout this opinion.
. The Honorable G. Thomas Eisele, United States District Judge for the Eastern District of Arkansas.