MEMORANDUM AND ORDER

JAMES C. FRANCIS IV, UNITED STATES MAGISTRATE JUDGE.

This case involves a dispute between a musician, Edward C. King, and his attorney, Lawrence A. Fox. Mr. King initially commenced this action seeking to recoup royalties that Mr. Fox had retained as payment for legal services he performed. Mr. Fox, in turn, counterclaimed on the ground that pursuant to his retainer with Mr. King, he was entitled to a portion of Mr. King's royalties on an ongoing basis, but Mr. King had refused to pay him.

On June 4, 1999, the Honorable Robert W. Sweet, U.S.D.J., granted summary judgment dismissing Mr. King's claims as time- barred. Thereafter, the parties consented to refer Mr. Fox's counterclaims to me for final disposition pursuant to 28 U.S.C. § 636(c). At trial, the jury found in favor of Mr. King on the counterclaims. Mr. King then filed a timely notice of appeal from Judge Sweet's decision dismissing his claims, but Mr. Fox failed to appeal from the jury verdict. Now Mr. Fox has moved pursuant to Rule 4(a)(6) of the Federal Rules of Appellate Procedure for an order reopening his time to appeal.

Procedural Background

At the time that Judge Sweet issued his summary judgment decision, Mr. Fox was represented by Robert B. McKay, Esq. Mr. King appealed Judge Sweet's ruling, but the appeal was withdrawn without prejudice to being refiled at the time the counterclaims were determined. Thereafter, Mr. McKay moved to be relieved as Mr. Fox's counsel, and Judge Sweet granted that motion on December 16, 1999, allowing Mr. Fox until February 12, 2000 to retain a new attorney.

In January 2000, David M. Oddo, Esq. of the law firm of Newman Okun, P.C. began representing Mr. Fox. (Affirmation of David M. Oddo dated November 20, 2000 ("Oddo Aff.") ¶ 15. Although Mr. Oddo consistently appeared at court conferences and filed papers on Mr. Fox's behalf after that, he apparently never filed a formal notice of appearance. Consequently, the docket sheet continued to show Mr. McKay as counsel of record for Mr. Fox. (Declaration of Cheryl Riess-Curtis dated December 12, 2000 ("Riess-Curtis Decl."), Exh. 1 at 1).

After the jury rendered its verdict on Mr. Fox's counterclaims, judgment was entered on October 3, 2000. (Riess-Curtis Decl., Exh. 1 at 11, entry 61). Mr. King's attorney, Cheryl Riess- Curtis, received notice of entry of the judgment on October 5, 2000. (Riess-Curtis Decl. ¶ 3). As the deadline for filing a notice of appeal approached, she contacted Mr. Oddo to determine if he intended to appeal the judgment dismissing the counterclaims, and Mr. Oddo responded that he did not know since he did not intend to represent Mr. Fox on any appeal. (Riess- Curtis Decl. ¶¶ 3-4). Ms. Riess-Curtis then filed her notice of appeal on November 1, 2000, and a copy was sent to Mr. Oddo. (Riess-Curtis Decl. ¶ 5 Exh. 1, entry 66). His office received it on November 3, 2000, and he first reviewed it on November 6, 2000. (Oddo Aff. ¶¶ 31-32). This was the first inkling Mr. Oddo had that judgment had been entered. (Oddo Aff. ¶¶ 33-34). He called the court clerk's office that same day to determine the status of any judgment but was told to call again the next business day, which was November 8, 2000. (Oddo Aff. ¶¶ 35-36). When he called back he learned that judgment had indeed been entered on October 3, 2000. (Oddo Aff. ¶ 37). He then arranged to have a copy of the judgment picked up and received it on November 15, 2000. Mr. Oddo filed the instant motion on November 21, 2000.

Discussion

A party other than the United States, its officers, or agencies must file a notice of appeal within thirty days of entry of judgment. Fed.R.App.P. 4(a)(1); see also Ryan v. First Unum Life Insurance Co., 174 F.3d 302, 303 (2d Cir. 1999). However, Rule 4(a)(6) establishes the standard for reopening the time to file an appeal if the initial deadline is missed:

The district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, but only if all the following conditions are satisfied:

(A) the motion is filed within 180 days after the judgment or order is entered or within 7 days after the moving party receives notice of the entry, whichever is earlier;

(B) the court finds that the moving party was entitled to notice of the entry of the judgment or order sought to be appealed but did not receive the notice from the district court or any party within 21 days after entry; and

(C) the court finds that no party would be prejudiced.

Here, each of these requirements is met. Mr. Oddo filed his motion on behalf of Mr. Fox on November 21, 2000. This is clearly within 180 days of entry of the judgment. It is also within seven days after Mr. Oddo received notice of entry, since only written notice triggers the running of the seven-day period under the rule. See Ryan, 174 F.3d at 305; Avolio v. County of Suffolk, 29 F.3d 50, 53 (2d Cir. 1994). There is no question that Mr. Fox was entitled to notice of the judgment, and it is undisputed that he did not receive it within twenty-one days of entry.

Finally, reopening the time to appeal would create no prejudice for Mr. King. The 1991 Note of the Advisory Committee on Appellate Rules states:

By "prejudice" the Committee means some adverse consequence other than the cost of having to oppose the appeal and encounter the risk of reversal, consequences that are present in every appeal. Prejudice might arise, for example, if the appellee had taken some action in reliance on the expiration of the normal time period for filing a notice of appeal.

Fed.R.App.P. 4(a)(6) advisory committee's note. Here, there is no prejudice to Mr. King beyond the normal risks and costs of opposing an appeal. Moreover, Mr. King has already filed his own notice of appeal and therefore anticipates some further litigation in any event.

Conclusion

Because Mr. Fox has satisfied the requirements of Rule 4(a)(6) of the Federal Rules of Appellate Procedure, his motion to reopen the time to appeal is granted. In accordance with the rule, he shall have fourteen days to file a notice of appeal.

SO ORDERED.