Assem Abulkhair v. Liberty Mutl Ins Co

BLD-282 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-2543
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ASSEM A. ABULKHAIR,
Appellant
v.
LIBERTY MUTUAL INSURANCE COMPANY;
ADA PRIDDY, Adjuster; KAREN KUEBLER, Esq.;
THE LAW OFFICES OF LINDA BAUMAN, ESQ.
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 10-cv-00146)
District Judge: Honorable Jose L. Linares
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
September 13, 2012
Before: SCIRICA, SMITH and CHAGARES, Circuit Judges
(Opinion filed: September 27, 2012)
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OPINION
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PER CURIAM.
Assem A. Abulkhair appeals the District Court’s order denying his pro se “motion
for extension of time to file an appeal,” which the District Court properly construed as a
motion to reopen the time to appeal under Federal Rule of Appellate Procedure 4(a)(6).
We will summarily affirm.
The background can be stated briefly. In 2010, the District Court dismissed
Abulkhair’s complaint in this action for lack of subject-matter jurisdiction. This Court
affirmed the dismissal, see Abulkhair v. Liberty Mut. Ins. Co., No. 11-1584, 441 F.
App’x 927 (3d Cir. 2011), and issued an amended mandate awarding costs to defendants
in the amount of $276.54, pursuant to Rule 39 of the Federal Rules of Appellate
Procedure. On December 8, 2011, the District Court enforced this Court’s amended
mandate by entering an Order and Judgment reflecting the costs awarded on appeal.
On March 26, 2012, Abulkhair filed a motion to reopen his time to appeal the
December 8, 2011, Order and Judgment, asserting that he did not receive notice of the
judgment until March 23, 2012. Defendants opposed reopening the appeal period, and
the District Court denied Abulkhair’s motion. It explained that, while Abulkhair satisfied
the requirements of subparts (A) and (B) of Rule 4(a)(6), he did not satisfy subpart (C),
which requires the District Court to find that “no party would be prejudiced” by
reopening the time to appeal. The District Court observed that there is no basis for
Abulkhair to appeal the judgment awarding appellate costs, that defendants should not be
made to defend against a meritless appeal, and that Abulkhair had the opportunity to
appeal this Court’s award but failed to do so. Abulkhair timely filed this appeal.
We have appellate jurisdiction under 28 U.S.C. § 1291 and review the denial of a
Rule 4(a)(6) motion for abuse of discretion. See United States v. Rinaldi, 447 F.3d 192,
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195 (3d Cir. 2006). Rule 4(a)(6) “provides a mechanism for granting an extension of
time when a party would be unfairly deprived of an appeal because of the failure of a
court clerk.” Marcangelo v. Boardwalk Regency, 47 F.3d 88, 90 (3d Cir. 1995). The
district court must find, inter alia, “that no party would be prejudiced” by reopening the
appeal period. Fed. R. App. P. 4(a)(6)(C); see Baker v. United States, 670 F.3d 448, 454
(3d Cir. 2012) (explaining that “Rule 4(a)(6) provides a limited opportunity to reopen the
time to file an appeal when certain conditions are met”).
We agree with the District Court that an appeal of its judgment based on this
Court’s award of costs would be frivolous, taken in bad faith, and prejudicial to
defendants. Our docket in No. 11-1584 reflects that defendants timely filed a bill of costs
after this Court entered judgment in their favor and taxed costs for the appeal against
Abulkhair pursuant to Rule 39. Abulkhair filed objections to the bill of costs. The Clerk
issued an order addressing and rejecting each objection, and she awarded costs in the
amount of $276.54. Abulkhair filed objections to the Clerk’s order. A panel of this
Court overruled and denied those objections. An amended mandate was issued, in
accordance with Rule 39(d), reflecting the costs taxed against Abulkhair. Upon receipt of
the amended mandate, the District Court issued a notice directing defendants to prepare
and submit an order implementing this Court’s mandate. Defendants timely complied,
and the District Court entered its Order and Judgment reflecting the costs awarded.
Given this record, it is clear that this Court has already heard and rejected
Abulkhair’s arguments in opposition to the costs imposed for his prior appeal. Abulkhair
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is not entitled to rehash those arguments by filing another appeal. Consequently, we are
satisfied that an appeal from the December 8, 2001, Order and Judgment would be
frivolous, not only because such an appeal would be inarguable as a matter of law, see
Neitzke v. Williams, 490 U.S. 319, 325 (1989), but also because a “reasonable paying
litigant” would not part with $455 (the cost in filing fees to bring an appeal) in order to
challenge a judgment entered against him for the substantially lesser sum of $276.54.
See Deutsch v. United States, 67 F.3d 1080, 1090 (3d Cir. 1995).
We acknowledge that the merits of a potential appeal ordinarily “are not a
permissible consideration” in deciding whether to afford Rule 4(a)(6) relief. Arai v. Am.
Bryce Ranches Inc., 316 F.3d 1066, 1071 (9th Cir. 2003). But under the particular
circumstances presented here, we cannot conclude that the District Court abused its
discretion in finding that defendants would be prejudiced by any further litigation of the
Rule 39 costs issue. We are cognizant, as well, of Abulkhair’s history of taking meritless
in forma pauperis appeals to this Court. Finally, we note that, even if we concluded that
Abulkhair had satisfied the requirements of Rule 4(a)(6), we would still affirm the denial
of his motion to reopen. A district court retains discretion to deny a Rule 4(a)(6) motion
“even when the rule’s requirements are met.” Arai, 316 F.3d at 1069. The circumstances
of this case counsel against reopening the time for Abulkhair to appeal.
For these reasons, we will summarily affirm the District Court’s order denying
Abulkhair’s Rule 4(a)(6) motion. See 3d Cir. LAR 27.4 and I.O.P. 10.6.
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