Reliance Hospitality LLC v. 2930 Waterfront Parkway IN LLC et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Reliance Hospitality LLC,
Plaintiff,
v.
2930 Waterfront Parkway IN LLC, et al.,
Defendants.
No. CV-23-00229-PHX-DJH
ORDER
Before the Court is Counter-Defendant Reliance Hospitality, LLC’s Motion to
Dismiss Counterclaims (Doc. 67), filed on March 28, 2025. Counterclaimants have not
responded. On October 24, 2025, the Court ordered Counterclaimants to respond to
Plaintiff/Counter-Defendant Reliance Hospitality, LLC’s (“Plaintiff”) Motion to Dismiss
or otherwise show cause why the Motion should not be granted within seven days of the
Order. (Doc. 71). The Court specifically warned that “If Counterclaimants fail to respond,
Plaintiff’s Motion will be summarily granted and the counterclaims asserted against
Reliance will be dismissed.” (Id. at 2). Counterclaimants have not responded.
Federal Rule of Civil Procedure 41(b) provides that the failure of a party to
prosecute their claim is grounds for involuntary dismissal of the action. Id. “[F]ailure to
prosecute diligently is sufficient by itself to justify a dismissal, even in the absence of a
showing of actual prejudice to the defendant from the failure.” Anderson v. Air W., Inc.,
542 F.2d 522, 524 (9th Cir. 1976). In determining whether Counterclaimants’ failure to
prosecute or failure to comply with court orders warrants dismissal of the case, the Court
Case 2:23-cv-00229-DJH Document 72 Filed 11/05/25 Page 1 of 3

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must weigh the following five factors: “(1) the public’s interest in expeditious resolution
of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the
defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the
availability of less drastic sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988)
(quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986).
The first factor “always favors dismissal.” Yourish v. Cal. Amplifier, 191 F.3d 983,
990 (9th Cir. 1999). The second factor also favors dismissal. See Ferdik, 963 F.2d at 1261.
Counterclaimants’ failure to respond or notify the Court whether it intends to pursue its
claims prevents the case from proceeding in the foreseeable future. The third factor also
weighs in favor of dismissal. “[T]he failure to prosecute diligently is sufficient by itself to
justify a dismissal, even in the absence of a showing of actual prejudice to the defendant .
. . .” In re Eisen, 31 F.3d 1447, 1452 (9th Cir. 1994) (internal quotation omitted). Public
policy favors disposition of cases on their merits, so the fourth factor weighs against
dismissal. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, the Court
notes that Counterclaimants have been given every opportunity to prosecute their claims
on the merits, e.g., to file a dispositive motion, to respond to a motion for summary
judgment, to respond to the motion to dismiss. Counterclaimants have ignored these
opportunities. The final factor requires the Court to consider the availability of less drastic
sanctions. But the Court need not exhaust every sanction short of dismissal before finally
dismissing a case. See Henderson, 779 F.2d at 1424. Reliance seeks dismissal with
prejudice and Counterclaimants have failed to respond. In sum, the five-factor analysis
favors dismissal with prejudice. Counterclaimants’ claims shall be dismissed for failure to
prosecute.
Accordingly,
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IT IS ORDERED granting Counter-Defendant Reliance Hospitality, LLC’s
Motion to Dismiss Counterclaims (Doc. 67). Counterclaimants’ claims against Reliance
(Doc. 20) are dismissed with prejudice for failure to prosecute.
Dated this 4th day of November, 2025.
Honorable Diane J. Humetewa
United States District Judge
Case 2:23-cv-00229-DJH Document 72 Filed 11/05/25 Page 3 of 3