When can Utah courts dismiss cases for failure to prosecute? Cheek v. Clay Bulloch Construction, Inc. Explained

The Utah Court of Appeals recently addressed the failure to prosecute doctrine in Cheek v. Clay Bulloch Construction, Inc., providing important guidance on when trial courts may dismiss cases for lack of prosecution.

Background and Facts

Dennis Cheek sued Clay Bulloch Construction in 2003 for alleged breaches of a construction contract, claiming the building was partly erected on another’s property and defectively constructed. Bulloch counterclaimed for payment and mechanic’s lien foreclosure. Over six and a half years, the case proceeded slowly with initial discovery followed by ongoing correspondence and settlement negotiations between counsel. Notably, just weeks before Bulloch’s dismissal motion, the parties met, inspected the property, and discussed resolution plans.

Key Legal Issues

The central issue was whether the trial court abused its discretion in dismissing for failure to prosecute under the circumstances. The court applied the five-factor Westinghouse test: (1) conduct of both parties, (2) opportunity each party had to move the case forward, (3) what each party did to advance the case, (4) prejudice to the opposing party, and (5) whether injustice would result from dismissal.

Court’s Analysis and Holding

The Court of Appeals reversed, applying abuse of discretion review. While acknowledging that plaintiffs bear primary responsibility for prosecution, the court emphasized that Bulloch appeared content with the slow pace for years, even being unresponsive at times. The court found it problematic that Bulloch suddenly sought dismissal after both parties had actively engaged in recent negotiations. The timing “blindsided” Cheek’s attorney, who reasonably believed the pace was acceptable given Bulloch’s apparent satisfaction.

Practice Implications

This decision highlights the importance of documenting extrajudicial activity in cases. Ongoing negotiations, correspondence, and settlement discussions can defeat failure to prosecute motions even when court filings are sparse. However, practitioners should not rely solely on informal progress—courts may set “drop dead” dates requiring specific actions to avoid dismissal. The decision also emphasizes that defendants who acquiesce to slow litigation for years cannot suddenly claim prejudice without warning.