Douglas Dunlap v. Texas Guaranteed

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:14-cv-00256-JAG. Copies to all parties and the district court. [999512020]. Mailed to: Appellant. [14-1884]

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UNPUBLISHED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

Before NIEMEYER
Circuit Judge.

and

DIAZ,

Decided:

Circuit

Judges,

January 16, 2015

and

DAVIS,

Senior

Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

limitations.

claims

were

barred

by

the

Virginia

statute

of

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

novo.

review

a

dismissal

pursuant

to

§

1915(e)(2)

de

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.’”
266

Va.

at

355,

585

S.E.2d

at

573

(citing

Va.

Hansen,

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).
2

Due

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diligence

is

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“such

a

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measure

of

prudence,

activity,

or

assiduity, as is properly to be expected from, and ordinarily
exercised

by,

circumstances;

a

reasonable

not

measured

and
by

prudent

any

man

absolute

under

standard,

depending on the relative facts of the special case.

the
but

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

dismissing Dunlap’s claims.

district

judge

did

not

err

in

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,
court.
legal
before

we

affirm

the

order

of

the

district

We dispense with oral argument because the facts and
contentions
this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED

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