                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 10-1430


BOBBIE G. BONHAM,

                Plaintiff - Appellant,

          v.

GLENN M. WEINRAUB, D.P.M.,

                Defendant - Appellee.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.     James C. Turk, Senior
District Judge. (7:09-cv-00358-jct)


Submitted:   January 10, 2011               Decided:   February 24, 2011


Before KING and     SHEDD,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


James J. O’Keeffe, IV, Monica T. Monday, Lauren E. Davis,
GENTRY, LOCKE, RAKES & MOORE, LLP, Roanoke, Virginia, for
Appellant.    Joseph M. Rainsbury, John T. Jessee, Nancy F.
Reynolds, LECLAIRRYAN, A PROFESSIONAL CORPORATION, Roanoke,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Bobbie         Bonham    appeals          the     district      court’s       order

dismissing her civil action against Dr. Glenn M. Weinraub under

Fed.   R.    Civ.       P.    12(b)(6).           On    appeal,      Bonham       contends   the

district court erred in finding that her action was barred by

the statute of limitations.                  We agree.

              A    Rule      12(b)(6)     motion        to    dismiss       tests    the    legal

sufficiency of the complaint.                      Giarratano v. Johnson, 521 F.3d

298, 302 (4th Cir. 2008).                In deciding a motion to dismiss, the

“judge      must    accept      as     true    all      of    the    factual        allegations

contained in the complaint.”                      Erickson v. Pardus, 551 U.S. 89,

94   (2007).        This       court    reviews         de    novo     a   district       court’s

decision to grant a motion to dismiss pursuant to Rule 12(b)(6).

Laurel Sand & Gravel, Inc. v. Wilson, 519 F.3d 156, 161 (4th

Cir. 2008).

              In    a    suit    based       on       diversity      of    citizenship,       the

substantive law of the forum state is controlling.                                   Erie R.R.

Co. v. Tompkins, 304 U.S. 64, 78 (1938); Colgan Air, Inc. v.

Raytheon      Aircraft        Co.,     407    F.3d       270,    275       (4th    Cir.    2007).

Similarly,         state       statutes        of       limitations          are    considered

substantive law; therefore, if “the statute of limitations would

bar recovery in a State court, a federal court ought not to

afford recovery.”             Guaranty Trust Co. v. York, 326 U.S. 99, 110

(1945).

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            “Unless otherwise provided in this section or by other

statute, every action for personal injuries, whatever the theory

of recovery, and every action for damages resulting from fraud,

shall be brought within two years after the cause of action

accrues.”    Va. Code Ann. § 8.01-243A (LexisNexis 2007).

     In every action for which a limitation period is
     prescribed, the right of action shall be deemed to
     accrue and the prescribed limitation period shall
     begin to run from the date the injury is sustained in
     the case of injury to the person . . . except . . .
     where . . . otherwise provided under § 8.01-233,
     subsection C of § 8.01-245, §§ 8.01-249, 8.01-250 or
     other statute.

Va. Code Ann. § 8.01-230 (LexisNexis 2007).              Section 8.01-249

provides that a cause of action for fraud accrues “when such

fraud . . . is discovered or by the exercise of due diligence

reasonably should have been discovered.”

            In   dismissing   Bonham’s   action,   the    district   court

found that, in order to “avoid the personal injury statute of

limitation,”     Bonham   characterized    Dr.     Weinraub’s    tortious

actions as fraudulent.        The district court concluded that this

characterization had no bearing on the applicable statute of

limitations, applying the reasoning that “an action to recover

for personal injuries is, in essence, a personal injury action,

and regardless of whether it is based upon an alleged breach of

an implied warranty or upon an alleged tort, the limitations

statute governing actions for personal injuries is controlling.”


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Friedman v. Peoples Serv. Drug Stores, Inc., 160 S.E.2d 563, 565

(Va. 1968).

              We conclude the district court reached an incorrect

conclusion.           Here,    the    parties       agreed           that    the    limitations

period in question is two years, as prescribed in § 8.01-243A.

The parties        differed,        however,       as    to     when      Bonham’s     cause    of

action accrued.             Under the framework proposed by the Defendants

and     adopted       by     the     district           court,        § 8.01-230          applied,

establishing that Bonham’s cause of action accrued on the date

of the injury.             In this instance, this would be June 9, 2005,

the    date   of      Bonham’s      surgery.            However,       Bonham       argues    that

§ 8.01-249       applies,       establishing            that        her     cause    of     action

accrued on the date she discovered or reasonably should have

discovered Dr. Weinraub’s alleged fraud.                            This date was sometime

in    October    2007,       when    she    consulted          other      doctors     about    her

condition.

              Virginia       courts       determine       the       applicable       statute    of

limitations by reference to “the object of the litigation and

the    substance       of    the    complaint,          not    the     form    in    which     the

litigation is filed.”                Kappa Sigma Fraternity, Inc. v. Kappa

Sigma    Fraternity,          587    S.E.2d    701,           707    (Va.     2003).         After

reviewing       the    record,       we    conclude           that     the    district       court

erroneously characterized Bonham’s action as one for negligence

and therefore incorrectly applied the accrual rules of § 8.01-

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230.       In    her    complaint,        Bonham       properly         alleged    facts   and

arguments giving rise to a cause of action for fraud, on which

her reliance resulted in unnecessary surgery and additional pain

and    suffering.           City   of    Richmond,      Va.    v.       Madison    Management

Group, 918 F.2d 438, 447 (4th Cir. 1990) (stating elements of

fraud).      Both the object of the litigation and the substance of

the     complaint       indicated        that       Bonham’s       action    asserted       Dr.

Weinraub’s intentional fraud, not an accidental misdiagnosis or

negligent treatment.               Nor can we agree that Bonham’s assertion

of fraud is a mere pleading artifice to evade the statute of

limitation accrual rules that would attend a cause of action for

negligence.            By    pursuing       a       theory    of    fraud     rather       than

negligence, Bonham shoulders a different, and more challenging,

burden of proof.            But that is the litigant’s prerogative, which

the district court should honor, at least at the pleading stage

of the litigation. *          Accordingly, we hold that the district court

erred in categorizing her action as one for negligence, rather

than fraud.

                The    district     court       also   erred       in    holding    that    any

fraud      action      alleged      by    Bonham       would       still    be     considered

malpractice       under      the    definitions        of    the    Medical       Malpractice

       *
       We have no occasion to consider whether Bonham’s complaint
can or will survive an appropriate summary judgment motion or
other motion by the Defendant to seek judgment prior to trial.



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Act,     Virginia    Code.     § 8.01-581.1,        and    would    therefore      be

governed by the statute of limitations provisions of § 8.01-

243C.     As noted above, the two-year statute of limitations was

not in dispute.         Rather, the issue is whether to apply the

general personal injury accrual rules provided by § 8.01-230, or

the specific fraud accrual rule found in § 8.01-249.                         By its

plain language, § 8.01-230 is limited by application of § 8.01-

249 in cases of fraud.          Applying § 8.01-249, Bonham’s cause of

action accrued on the date that Dr. Weinraub’s alleged fraud was

discovered,     in   October    2007.       Thus,   her    complaint,      filed   in

August 2009, was filed within the two-year limitations period.

            Accordingly, we vacate the judgment of the district

court and remand for further proceedings consistent with this

opinion.     We dispense with oral argument because the facts and

legal    contentions    are    adequately      expressed     in     the   materials

before    the   court   and    argument      will    not   aid     the    decisional

process.

                                                           VACATED AND REMANDED




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