BLD-282                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 12-2543
                                      ___________

                                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)
                                        _________

                                        OPINION
                                        _________

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,
                                             2
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
                                              3
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.


                                              4
