2023 UT App 7

THE UTAH COURT OF APPEALS

PLANTATIONS AT HAYWOOD 1 LLC, PLANTATIONS AT HAYWOOD 2

LLC, PLANTATIONS AT HAYWOOD 13 LLC, AND PLANTATIONS AT 

HAYWOOD 23 LLC,

Appellants,

v.

COTTONWOOD RESIDENTIAL OP LP, COTTONWOOD CAPITAL 

PROPERTY MA, COTTONWOOD CAPITAL MANAGEMENT, AND 

DANIEL SHAEFER,

Appellees.

Opinion

No. 20210498-CA

Filed January 20, 2023

Third District Court, Salt Lake Department

The Honorable Todd M. Shaughnessy

No. 200903397

Eric V. Anderton, Andrew G. Deiss, and Sean N. 

Egan, Attorneys for Appellants

Matthew L. Lalli, Sarah Anne Hafen, and

Henry H. Oh, Attorneys for Appellees

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, 

in which JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY

concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Plantations at Haywood 1 LLC, Plantations at Haywood 2 

LLC, Plantations at Haywood 13 LLC, and Plantations at 

Haywood 23 LLC (collectively, Plaintiffs) filed a lawsuit in 

California against several entities, including Cottonwood 

Residential OP LP, Cottonwood Capital Property MA, 

Cottonwood Capital Management, and Daniel Shaefer 

(collectively, the Cottonwood Defendants), alleging causes of 
Plantations v. Cottonwood Residential

20210498-CA 2 2023 UT App 7

action arising from a refinancing transaction related to property 

located in South Carolina. When the Cottonwood Defendants 

were dismissed from the California case, Plaintiffs refiled their 

claims against them in Utah. That case was eventually dismissed, 

without prejudice, for failure to prosecute. When Plaintiffs again 

refiled their claims, the Cottonwood Defendants filed motions to 

dismiss on grounds of failure to state a claim and failure to 

prosecute. The district court granted both motions. We are asked 

to determine whether the district court committed reversible error 

in dismissing Plaintiffs’ claims. Because we determine that the 

district court did not exceed its discretion in granting the 

Cottonwood Defendants’ motion to dismiss for failure to 

prosecute, we affirm.

BACKGROUND

¶2 In 2008, Plaintiffs, along with several other entities, 

acquired tenant-in-common interests in a South Carolina 

apartment complex (the Property). In 2011, to facilitate a refinance 

of their purchase money loan, the various tenants in common 

“rolled up” their interests in the Property by exchanging them for 

membership interests in a new entity called Plantations at 

Haywood M, LLC (Plantations). They also entered into an 

operating agreement (the Operating Agreement) to govern 

Plantations. In 2012, the Cottonwood Defendants acquired 

contract rights to manage the Property.

¶3 In 2016, Plaintiffs sued numerous defendants in California, 

alleging that the defendants had conspired to fraudulently induce 

the tenants in common to roll up their interests into Plantations.

The Cottonwood Defendants were named in that suit, and the 

causes of action pleaded against them included breach of the 

Operating Agreement, breach of the covenant of good faith and 

fair dealing, breach of fiduciary duty, constructive fraud, fraud 

and deceit, negligent misrepresentation, and negligence. A few 

months after the suit was filed, the California Superior Court 
Plantations v. Cottonwood Residential

20210498-CA 3 2023 UT App 7

dismissed the Cottonwood Defendants from the suit for lack of 

personal jurisdiction.

¶4 Approximately a year later, Plaintiffs refiled their 

complaint against the Cottonwood Defendants in Utah. The 

Cottonwood Defendants filed a motion to dismiss, which District 

Judge Su Chon granted in part and denied in part, leaving only 

Plaintiffs’ claims for breach of the Operating Agreement and 

breach of the covenant of good faith and fair dealing.

¶5 Plaintiffs then filed a motion to stay the Utah action 

pending the outcome of the litigation against the other defendants 

in California. This motion was never submitted for decision, and 

a Notice of Events Due Dates setting the fact discovery deadline 

for January 15, 2019, was entered. The Cottonwood Defendants

attempted to move forward with discovery but allegedly 

struggled to obtain responses from Plaintiffs.

¶6 In November 2018, some of the defendants in the 

California action (the Debtor Defendants) filed for bankruptcy in 

Florida. Once that occurred, Plaintiffs filed a notice of stay in the 

Utah case, asserting that the bankruptcy proceedings 

automatically stayed the Utah litigation. In December, the 

Cottonwood Defendants moved to strike the notice on the ground 

that they were not debtors in the bankruptcy.

¶7 Neither party took further action in the case, and in August 

2019, Judge Chon issued a Notice of Intent to Dismiss stating that 

“due to inactivity,” the matter “may be dismissed for lack of 

prosecution pursuant to Rule 4-103, Code of Judicial 

Administration[,] [u]nless a written statement is received by the 

court within 20 days of this notice showing good cause why this 

should not be dismissed.” Plaintiffs did not respond to the Notice, 

allegedly because their local Utah counsel did not forward it to 

their California counsel. In October 2019, Judge Chon dismissed 

the remaining claims without prejudice for failure to prosecute.
Plantations v. Cottonwood Residential

20210498-CA 4 2023 UT App 7

¶8 Plaintiffs did not file a motion to set aside Judge Chon’s

dismissal, attempt to amend their complaint, or otherwise 

complain about the lack of notice of the court’s intention to 

dismiss. Instead, they waited until May 2020 to refile their 

complaint. The newly filed case was assigned to District Judge 

Todd M. Shaughnessy. In addition to the claims for breach of 

contract and breach of the covenant of good faith and fair dealing, 

the refiled complaint realleged all the causes of action that Judge 

Chon had previously dismissed. After filing this third complaint, 

Plaintiffs then waited another four months to serve the 

Cottonwood Defendants. Plaintiffs took no further action to move 

the refiled case forward.

¶9 In the meantime, the Cottonwood Defendants had become 

a plan sponsor for the Debtor Defendants in their Florida 

bankruptcy case and had negotiated a settlement with the 

bankruptcy trustee that, if adopted, would include “a bar order 

prohibiting all present and future litigation arising out [of] or 

related to the debtors.” However, the settlement reached with the 

trustee was ultimately not approved by the bankruptcy court. 

Though it expressed sympathy for what it characterized as 

“relentless, or perhaps even vexatious litigation” by Plaintiffs, the 

court rejected the settlement at a December 2020 hearing in which 

it concluded the case did not meet the high standard required for 

a bar order.

¶10 In January 2021, the Cottonwood Defendants filed two 

motions to dismiss the refiled Utah case. The first requested

dismissal of the complaint for failure to prosecute under rule 41(b) 

of the Utah Rules of Civil Procedure (the Rule 41(b) Motion), and 

the second requested dismissal of the complaint for failure to state 

a claim under rule 12(b)(6) of the Utah Rules of Civil Procedure 

on various grounds including the expiration of the statute of 

limitations (the Rule 12(b)(6) Motion).
Plantations v. Cottonwood Residential

20210498-CA 5 2023 UT App 7

¶11 Plaintiffs did not file a written response to the Rule 41(b) 

Motion,

1 but they opposed the Rule 12(b)(6) Motion, raising 

arguments regarding the appropriate choice of law with respect 

to the statute of limitations as well as the applicability of the Utah 

savings statute. At no point in either their pleadings or at oral 

argument did Plaintiffs assert that the ongoing Florida 

bankruptcy negotiations justified their lack of action in the Utah 

case.

¶12 Judge Shaughnessy granted both motions to dismiss with 

prejudice. He granted the Rule 12(b)(6) Motion based on his

conclusion that the refiled complaint was barred by the Delaware 

statute of limitations—which he found to be the statute applicable 

to the claims at issue—and that the Utah savings statute did not 

apply. Judge Shaughnessy also granted the Rule 41(b) Motion as 

“an independent basis for dismissing the claims in this case.”

¶13 Plaintiffs now appeal.

ISSUE AND STANDARD OF REVIEW

¶14 Plaintiffs challenge the district court’s ruling with respect 

to the Rule 12(b)(6) Motion and the Rule 41(b) Motion. However, 

as we ultimately affirm the district court’s ruling on the Rule 41(b)

Motion, which was an “independent basis” for dismissal, we need 

not address the propriety of the district court’s grant of the Rule 

12(b)(6) Motion. “[W]e review for abuse of discretion the trial 

court’s decision to dismiss for failure to prosecute.” Cheek v. Clay 

Bulloch Constr., Inc., 2011 UT App 418, ¶ 6, 269 P.3d 964.

1. Plaintiffs allege on appeal that, as with Judge Chon’s Notice of 

Intent to Dismiss, their California counsel did not receive the Rule 

41(b) Motion. However, they took no steps in the district court to 

rectify this alleged error, such as asking for more time to respond 

or moving to set aside the court’s ruling on the Rule 41(b) Motion.
Plantations v. Cottonwood Residential

20210498-CA 6 2023 UT App 7

ANALYSIS

¶15 Rule 41(b) of the Utah Rules of Civil Procedure provides, 

“If the plaintiff fails to prosecute or to comply with these rules or 

any court order, a defendant may move to dismiss the action or 

any claim against it.” Utah R. Civ. P. 41(b). In determining 

whether a district court has exceeded its discretion by dismissing 

a case for failure to prosecute, we consider “(1) the conduct of both 

parties; (2) the opportunity each party has had to move the case 

forward; (3) what each party has done to move the case forward; 

(4) the amount of difficulty or prejudice that may have been 

caused to the other side; and (5) most important, whether injustice 

may result from the dismissal.” Cheek v. Clay Bulloch Constr., Inc., 

2011 UT App 418, ¶ 7, 269 P.3d 964 (quotation simplified). The 

burden is on the party “attacking a dismissal for failure to 

prosecute [to] offer a reasonable excuse for its lack of diligence.” 

Meadow Fresh Farms, Inc. v. Utah State Univ., 813 P.2d 1216, 1218 

(Utah Ct. App. 1991).

¶16 The court made the following findings with respect to the 

failure-to-prosecute factors:

• Conduct of both parties: “[T]he record shows that [Plaintiffs 

have] not been diligent, and [have] offered no convincing 

reasons for the various delays in the case. The

[Cottonwood Defendants], on the other hand, [have] been 

diligent in prosecuting the case.”

• Opportunity to move the case forward: “[I]t’s clear from the 

record that [Plaintiffs] had a full and fair opportunity to 

move the case forward, in particular during the time that 

that case was pending before Judge Chon.”

• What each side has done to move the case forward: “[Plaintiffs 

have] done little to nothing to move the case forward in the 

years in which it has been pending; and again, the 

[Cottonwood Defendants have] been diligent.”
Plantations v. Cottonwood Residential

20210498-CA 7 2023 UT App 7

• Difficulty or prejudice to the defendant: “[T]he parties have 

been litigating this case for around five years. The events 

in question occurred a decade ago. The evidentiary record 

in this case is undoubtedly cold. The recollections will have 

faded, . . . relevant documents are likely gone forever. Also 

. . . [the Cottonwood Defendants have] been required to 

expend [substantial sums] in attorney’s fees to defend 

[themselves] against claims that despite the length of time 

in which they have been pending, have so far never gotten 

out of the starting gate.”

• Injustice to the plaintiff: “[T]here’s no injustice to [Plaintiffs]

because [Plaintiffs] had a full and fair opportunity to 

litigate these claims.”

¶17 On appeal, Plaintiffs challenge these findings on the basis 

that the court failed to take into account the Cottonwood 

Defendants’ “obstructionist efforts” to seek a bar order in the 

Florida bankruptcy that would prevent Plaintiffs from pursuing 

their claims against the Cottonwood Defendants in the Utah case. 

Plaintiffs assert that had the Cottonwood Defendants been 

successful in obtaining the Florida bankruptcy court’s approval of 

their settlement agreement with the bankruptcy trustee, it would 

have made all Plaintiffs’ efforts to prosecute the Utah case moot. 

And for this reason, they assert they were justified in delaying 

prosecution of their Utah claims until the issues in the Florida 

bankruptcy could be resolved.

¶18 But Plaintiffs never raised this argument to the district 

court. In fact, they never filed a written response to the Rule 41(b) 

Motion at all. We generally consider it “unfair to reverse a district 

court for a reason presented first on appeal.” Patterson v. Patterson, 

2011 UT 68, ¶ 16, 266 P.3d 828. “Under our adversary system, the 

responsibility for detecting error is on the party asserting it, not 

on the court.” Id. Because Plaintiffs did not provide the district 

court with any justification for their delays, let alone the 
Plantations v. Cottonwood Residential

20210498-CA 8 2023 UT App 7

justifications they now assert on appeal, we decline to reverse the 

district court’s ruling on the basis of their new arguments 

regarding the Florida litigation.

¶19 But even if we were to consider Plaintiffs’ arguments, we 

are not convinced that the district court exceeded its discretion in 

granting the dismissal here. There is nothing about the Florida 

bankruptcy proceedings that actively prevented Plaintiffs from 

pursuing litigation in Utah. And if they believed that the Florida 

case might render their efforts in the Utah case moot, they should 

have taken steps to formally delay the Utah litigation rather than 

simply neglect it. But they did not request a stay of this action 

pending the outcome of the Florida bankruptcy; they appear to 

have dragged their feet on discovery in the initial case before 

Judge Chon even before the Florida bankruptcy was filed; they 

took no steps to avoid having their previous case dismissed by 

Judge Chon or to set aside the dismissal after it occurred; and they 

waited seven months to refile their claim after it was dismissed, 

waited another four months to serve the Cottonwood Defendants 

with the claim, and then took no further action until the 

Cottonwood Defendants filed their motions to dismiss. The 

Cottonwood Defendants, on the other hand, made initial efforts 

to conduct discovery and stopped working to move the case 

forward only after Plaintiffs resisted their discovery attempts. 

And ultimately, the Cottonwood Defendants did not have the 

same responsibility to move the case forward that Plaintiffs had. 

See Cheek, 2011 UT App 418, ¶ 8 (“[T]he plaintiff bears the primary 

responsibility for advancing the case and . . . the defendant’s 

responsibility in this area is limited . . . to responding timely to the 

action, expeditiously attending to discovery, and moving any 

counterclaim along. The defendant has no general responsibility 

to move [the] plaintiff’s action to judgment.” (quotation 

simplified)). Given the length of time this case has been pending 

and Plaintiffs’ complete lack of effort to move it forward, we do 

not believe the district court abused its discretion in dismissing 

the case for lack of prosecution.
Plantations v. Cottonwood Residential

20210498-CA 9 2023 UT App 7

CONCLUSION

¶20 Because Plaintiffs presented the district court with no 

justification for their delays in prosecuting their case, we conclude 

that the district court did not exceed its discretion in dismissing 

their claims under rule 41(b) of the Utah Rules of Civil Procedure. 

Accordingly, we affirm and award the Cottonwood Defendants 

their costs on appeal.
CERTIFICATE OF MAILING 

I hereby certify that on the 20th day of January, 2023, a true and correct copy of the

attached OPINION was sent by standard or electronic mail to be delivered to:

ERIC V ANDERTON

CATANZARITE LAW FIRM

eanderton@catanzarite.com

SEAN N EGAN

ATTORNEY AT LAW

SEANNEGAN@SNEGANLAW.COM

MATTHEW L. LALLI

SARAH ANNE HAFEN

SNELL & WILMER LLP

MLALLI@SWLAW.COM

SAHAFEN@SWLAW.COM

HENRY H OH

SHUMENER ODSON & OH LLP

hoh@soollp.com

HONORABLE TODD M. SHAUGHNESSY

THIRD DISTRICT, SALT LAKE

THIRD DISTRICT, SALT LAKE

ATTN: CHERYL AIONO

cheryla@utcourts.gov

TRIAL COURT: THIRD DISTRICT, SALT LAKE, 200903397

APPEALS CASE NO.: 20210498-CA