Douglas Dunlap v. Texas Guaranteed , 590 F. App'x 244 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1884
DOUGLAS C. DUNLAP,
Plaintiff – Appellant,
v.
TEXAS GUARANTEED; U.S. DEPARTMENT OF EDUCATION; SUNTRUST
BANK; SALLIE MAE; SAN ANTONIO FEDERAL CREDIT UNION; NAVIENT
SOLUTIONS, INC.,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. John A. Gibney, Jr.,
District Judge. (3:14-cv-00256-JAG)
Submitted: January 5, 2015 Decided: January 16, 2015
Before NIEMEYER and DIAZ, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Douglas C. Dunlap, Appellant Pro Se. Robert Field Moorman, LAW
OFFICE OF ROBERT F. MOORMAN, PLC, Richmond, Virginia; Maurice
Francis Mullins, Jr., SPOTTS FAIN, PC, Richmond, Virginia;
Stephen M. Faraci, Sr., LECLAIR RYAN, PC, Richmond, Virginia;
Douglas P. Rucker, Jr., Eric C. Howlett, SANDS ANDERSON, PC,
Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Douglas C. Dunlap appeals the district court’s order
dismissing his claims pursuant to 28 U.S.C. § 1915(e)(2) (2012).
On appeal, Dunlap contends that the judge erred in holding that
his fraud claims were barred by the Virginia statute of
limitations. He does not contest the district court’s reasons
for dismissing his remaining claims, instead simply reiterating
the merits of those claims, which the district court did not
address. Finding no error, we affirm.
We review a dismissal pursuant to § 1915(e)(2) de
novo. De’lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003).
Virginia imposes a two-year statute of limitations on fraud
claims. Va. Code Ann. § 8.01-243(A) (West 2014); see Hansen v.
Stanley Martin Cos., Inc., 266 Va. 345, 355, 585 S.E.2d 567, 573
(2003). The statute “begins to run from the date the fraud or
negligent misrepresentation ‘is discovered or by the exercise of
due diligence reasonably should have been discovered.’” Hansen,
266 Va. at 355, 585 S.E.2d at 573 (citing Va. Code Ann.
§ 8.01-249(1) (West 2014)).
Furthermore, the plaintiff bears the burden “to prove
that, despite the exercise of due diligence, he could not have
discovered the alleged fraud [except] within the two-year period
before he commenced the action[.]” Schmidt v. Household Fin.
Corp., II, 276 Va. 108, 117, 661 S.E.2d 834, 839 (2008). Due
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diligence is “such a measure of prudence, activity, or
assiduity, as is properly to be expected from, and ordinarily
exercised by, a reasonable and prudent man under the
circumstances; not measured by any absolute standard, but
depending on the relative facts of the special case. Id. at
118, 661 S.E.2d at 839 (internal alterations omitted).
Based on our review of the record and the parties’
briefs, we conclude that the district judge did not err in
dismissing Dunlap’s claims. Dunlap has not presented sufficient
evidence to show that, had he exercised due diligence, he would
not have discovered the Appellees’ allegedly fraudulent conduct
until less than two years before the date he filed his
complaint.
Accordingly, we affirm the order of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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