dissenting:
I respectfully dissent from that portion of the majority’s opinion which vacates the district court’s dismissal of Hoefer’s action with prejudice. It was not an abuse of discretion for the district court to refuse to reopen the case over four months after it was reported settled and 69 days after the settlement deadline had passed.
This case is readily distinguishable from Muze, Inc. v. Digital On Demand, Inc., 356 F.3d 492 (2d Cir.2004). In Muze, like here, the district court set a time period (in Muze, thirty days, while here sixty days) for a case that had been reported settled to finalize the settlement. Also, like in Muze, the district court did not specify in its order that any reinstatement must be sought within the same period. In Muze, we held, “Of course, the lack of a deadline for a reinstatement request does not mean that either party had an unlimited time for seeking reinstatement. The omission of a time limit ... means that [the reinstatement request must be made] within a reasonable time.” Id. at 495. In Muze, the plaintiff sought reinstatement only six days after the expiration of the last period allowed by the district court for finalizing the settlement but the district court refused to reopen the case. Muze does not hold that a plaintiff who waits over two months to seek to reinstate an action from the last period allowed for finalizing the settlement has acted within a reasonable time.
Muze does not indicate how much more than six days would constitute a reasonable period for seeking reinstatement. But we must allow the district courts some discretion in evaluating the timeliness of such requests, particularly given that the circumstances of each request and each case will vary. It can hardly be an abuse of discretion by the district court to not reopen a case where the court gives a considerable period of time to complete settlement — here, sixty days — and the first indication that settlement has not occurred and that reinstatement is sought comes more than four months after the initial order of the court and two months after the expiration of that order.
The majority points to the lack of prejudice to defendants as a result of Hoefer’s delay. But even if prejudice were an appropriate consideration — one not identified as such in Muze — it must be balanced against Hoefer’s failure, at any point prior to the August 30 letter, to notify the court that settlement had not been finalized. In his August 30 letter to the district court, Hoefer stated that “several weeks after we reached a global settlement, ... one of the defendants ... was refusing to go along with the settlement.” J.A. 507. Hoefer was thus well aware that the settlement was, at best, unlikely with respect to certain defendants, yet failed to timely notify the court.
Because Muze mandates that a party must act “within a reasonable time” when the district court has not set a deadline for seeking reinstatement and Hoefer has introduced no real justifications to support his delay, I cannot find that the district
*67court abused its discretion in finding that delay unreasonable. To be sure, it would be better practice for the district courts to specify a time period within which to move for reinstatement of the action. See, e.g., Storey v. Cello Holdings, L.L.C., 347 F.3d 370, 375 (2d Cir.2003) (30-day order of dismissal included’ language that if settlement was not consummated within thirty days of the order “either party may apply by letter within the 30-day period for restoration of the action to the calendar”). But without such a specific deadline, this Court’s decision is guided by Muze, which holds only that the delay in seeking reinstatement must be reasonable. Hoefer’s delay here, particularly given his early knowledge of the breakdown in settlement negotiations, was not reasonable.
I would affirm the decision of the district court.,,