Grossman v. Dalkon Shield Trust ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: A. H. ROBINS COMPANY,
INCORPORATED,
Debtor.
H. PHILIP GROSSMAN; JAMES F.
No. 95-2611
SZALLER,
Appellants,
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.
(CA-85-1307-R)
Argued: March 5, 1996
Decided: July 15, 1996
Before RUSSELL and WIDENER, Circuit Judges, and
CHAPMAN, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Tyler Perry Brown, HUNTON & WILLIAMS, Rich-
mond, Virginia, for Appellants. Orran Lee Brown, Sr., Richmond,
Virginia, for Appellee. ON BRIEF: Lewis T. Booker, Benjamin C.
Ackerly, HUNTON & WILLIAMS, Richmond, Virginia, for Appel-
lants. John C. Jeffries, Jr., George A. Rutherglen, UNIVERSITY OF
VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Appel-
lee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Attorneys H. Philip Grossman and James P. Szaller, (collectively
the "Appellants"), appeal the Bankruptcy Court's denial of their
motion for an extension of time to file a timely notice of appeal pur-
suant to Federal Rule of Appellate Procedure 4(a)(5). They contend
the Bankruptcy Court erred in failing to grant them an extension of
time within which to file a notice of appeal from its final order disal-
lowing unreasonable attorneys fees on pro rata distributions from the
Dalkon Shield Claimants Trust. According to Appellants, they estab-
lished excusable neglect for failing to file a timely notice of appeal,
and they should now be permitted to join the consolidated appeal
from the Bankruptcy Court's order, docketed in this court as
Bergstrom v. Dalkon Shield Claimants Trust, No. 95-2239(L) (4th
Cir.).
I.
The Appellants, as well as the Bergstrom attorneys, represented
claimants against the Dalkon Shield Claimants Trust ("the Trust"),
which was created to compensate personal injury claims arising from
the use of the Dalkon Shield intra-uterine device manufactured by
A.H. Robins. Section G.14 of the Claims Resolution Facility provided
that if funds remained after the initial disposition of all pending
claims, the remaining funds would be paid in lieu of punitive damages
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on a pro rata basis to all claimants who received compensatory dam-
ages. Because of the Trustees' diligent management of the Trust's
holdings, all claimants who received more than the de minimus
amount of $750 will receive an additional payment or pro rata distri-
bution. The Bergstrom attorneys appealed the Bankruptcy Court's
final judgment disallowing attorneys' fees in excess of ten percent of
the amount of any pro rata distribution. The Appellants appeal the
Bankruptcy Court's order denying their motion for an extension of
time to file a notice of appeal from the same final judgment, because
they failed to file a timely notice of appeal within the requisite thirty
days under Fed.R.App.P. 4(a)(1).
Appellants contend the Bankruptcy Court erred in failing to find
"excusable neglect" pursuant to Fed.R.App.P. 4(a)(5). They argue that
they established excusable neglect by showing that they believed the
law firm of Hunton & Williams had jointly included them in the
Bergstrom appeal from the Bankruptcy Court's final order. We
believe it was incumbent on the Appellants to make a more concerted
effort to confirm that they were joined in the Bergstrom Appeal. As
a general matter, coordination problems or miscommunications
between lawyers, or between lawyers and their clients, have not
amounted to excusable neglect. Cf. United States v. Breit, 754 F.2d
526, 529 (4th Cir. 1985) (holding that failure to appeal because of
miscommunication between appellant and family members was not
excusable neglect); RCA Corporation v. Local 241 , 700 F.2d 921, 924
(3rd Cir. 1983) (holding that coordination problems between two law
offices was not excusable). In sum, the Bankruptcy Court did not
abuse its discretion in finding that the Appellants failed to demon-
strate excusable neglect or good cause warranting an extension of
time to file an appeal.
II.
For the foregoing reasons, the Bankruptcy Court's denial of Appel-
lants' motion for extension of time is
AFFIRMED.
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