Marshall v. Dalkon Shield Trust

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

In Re: A. H. ROBINS COMPANY,
INCORPORATED,

Debtor.

No. 98-1436
IDA SCOTT MARSHALL,
Claimant-Appellant,

v.

DALKON SHIELD CLAIMANTS TRUST,
Trust-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert R. Merhige, Jr., Senior District Judge;
Blackwell N. Shelley, Bankruptcy Judge.
(CA-85-1307-R)

Submitted: September 22, 1998

Decided: October 16, 1998

Before WIDENER, HAMILTON, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Ida Scott Marshall, Appellant Pro Se. Orran Lee Brown, Sr.,
DALKON SHIELD CLAIMANTS TRUST, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Ida Scott Marshall appeals the district court's order denying her
Fed. R. Civ. P. 60(b)(1) motion seeking relief from the district court's
order denying her motion for reinstatement of her disallowed Dalkon
Shield claim. Because the district court did not abuse its discretion,
we affirm.

Marshall filed a timely Dalkon Shield claim. In order to perfect her
claim, Marshall, like other claimants, was required to complete a
questionnaire giving information about herself and her alleged inju-
ries and to return the questionnaire to the bankruptcy court by June
30, 1986. Marshall did not return a completed questionnaire.

The district court gave claimants who failed to return the initial
questionnaire a second chance to perfect their claims. To that end, a
second questionnaire was mailed to those claimants who had not sub-
mitted initial questionnaires. The second questionnaire included a
warning that, unless the completed questionnaire was postmarked or
delivered to the court by July 15, 1987, the court would disallow the
claim. Marshall never returned a completed second questionnaire.

The district court subsequently entered an order disallowing the
claims of all Dalkon Shield Claimants, including Marshall, who had
not submitted timely, completed questionnaires. The court also sent
a notice to claimants affected by the order that it would reconsider the
disallowance of their claims if it received a written request for rein-
statement by September 11, 1987. To facilitate the reconsideration
process, the court sent a one-page form (the Reinstatement Request
Form) to holders of disallowed claims, including Marshall.

Marshall submitted a timely Reinstatement Request Form. She
asserted nothing to explain her failure to submit a completed ques-

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tionnaire. Instead, she discussed her age at the time her Dalkon Shield
was inserted, the problems she had experienced as a result of using
the device, and her claim that the Dalkon Shield was not properly
tested before being placed on the market.

A special master recommended that certain claims, including Mar-
shall's, remain disallowed. The district court set a hearing so that
holders of claims that the special master had recommended remain
disallowed could persuade the court otherwise. The court instructed
persons objecting to the recommendation to timely object in writing
or to attend a hearing where they could present persuasive new evi-
dence supporting reinstatement. Marshall neither filed written objec-
tions nor attended the hearing. In an order dated February 12, 1988,
the court denied Marshall's request for reinstatement.

On August 2, 1990, Marshall filed a Fed. R. Civ. P. 60(b)(1)
motion seeking relief from the order denying reinstatement of her dis-
allowed claim. She stated that she was separated from her husband
and living at a different address between 1983 and 1986 and therefore
did not receive either questionnaire. She claimed that she filed a
change of address form with the post office. However, she failed to
notify the bankruptcy court of her new address.

The district court denied her motion. The court noted that the
motion was untimely and lacked merit. Marshall timely appealed the
denial of her motion.

Rule 60(b)(1) authorizes relief from a final judgment because of
excusable neglect. Such motions must be filed within one year of the
order from which the movant seeks relief. See Fed. R. Civ. P. 60(b).
The remedy of Rule 60(b) "is extraordinary and is only to be invoked
upon a showing of exceptional circumstances." Compton v. Alton S.S.
Co., 608 F.2d 96, 102 (4th Cir. 1979). We review the denial of a Rule
60(b) motion for abuse of discretion. See Heyman v. M. L. Mktg. Co.,
116 F.3d 91, 94 (4th Cir. 1997).

Marshall's motion was untimely, having been filed more than one
year after entry of the order from which she seeks to be relieved. Fur-
ther, the grounds for relief that Marshall identifies do not constitute
excusable neglect largely because the failure to perfect her claim was

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her fault. See Home Port Rentals, Inc., v. Ruben , 957 F.2d 126, 132
(4th Cir. 1992). It was incumbent upon her to keep the court apprised
of her whereabouts and to inquire about the status of her claim.
Because her motion was both untimely and without merit, the district
court did not abuse its discretion.

We therefore affirm the judgment of the district court. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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