MEMORANDUM DECISION
1 Appellant PDC Consulting, Inc. (PDC) appeals the trial court's September 6, 2006 order dismissing PDC's complaint with prejudice. PDC argues that the trial court exceeded its discretion when it dismissed the claims against Appellee Jared Porter. We affirm the trial court's order dismissing the action.
12 PDC filed its complaint agаinst Porter-a former employee-on April 6, 2001, and the parties executed a settlement agreement shortly thereafter. Two years later, Porter filed a motion to enforce the settlement, and PDC subsequently filed a motion to have the court set aside that settlement agreement. Finding that there were genuine issues of material fact in dispute, the trial court denied both motions in a ruling entered on November 8, 2003. 1 A year later, in November 2004, the trial court held an order to show cause hearing, after which it ordered that discovery on the issue of whether the settlement agreement should be set aside be completed within ninety days. The parties later stipulated to extend discovery an additional sixty days, until April 30, 2005.
T3 On April 4, 2006, the trial court held another order to show cause hearing, during which it ordered that PDC submit a new scheduling order or a certificate of readiness for trial by April 30, 2006. 2 PDC filed a certificate of readiness for trial on April 28, 2006, and on May 8, 2006, Porter filed both an objection to PDC's certificate of readiness and a motion to dismiss. PDC did not oppose Porter's motion until August 10, 2006, at which time it filed a motion to strike both Porter's objection to PDC's certificate of readiness and his motion to dismiss. That same day, the trial court held oral argument and ordered that the action be dismissed. The dismissal was memorialized in the court's September 6, 2006 order, which PDC challenges in this appeal.
T4 The trial court dismissed PDC's case on three grounds: (1) PDC "failed to prosecute the case," (2) PDC "failed to timely renew its denied motion to set aside the parties' April 15, 2001 settlement agreement within the dates and extensions given by [the] court and opposing counsel," and (8) PDC "failed to timely oppose [Porter]'s motion to dismiss." Because the trial court's first and second grounds for dismissal are сlosely interrelated, we will analyze both grounds within the context of PDC's failure to prosecute its case. 3
T5 "[Wel do not disturb [a trial court's order of dismissal for failure to prose- . cute] absent an abuse of discretion and a likelihood that an injustice occurred." Hartford Leasing Corp. v. State,
Utah appellate courts analyze whether a case was properly dismissed for failure to prosecute using the following five factors (the Westinghouse factors):
(1) the conduct of both parties; (2) the opportunity each party has had to move the case forward; (8) 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."
Meadow Fresh Farms, Inc. v. Utah State Univ. Dep't of Agric. & Applied Sci.,
T7 With respect to the first three Westinghouse factors, we consider the parties' conduct, what they had the opportunity to do, and what was actually done to move the case forward. PDC was told early in this litigation what it needed to do if it wished to litigate the allegations of its complaint on the merits. In 2001, the trial court indicated, and PDC agreed, that it was PDC's burden to set aside the settlement agreement if it wished to resume prosecution of the matter:
[PDC's Counsell: Well, but at the time that we signed this the fraudulent inducement, then the agreement can't operate.
The [Court]: All right. But you need to make a motion then to set aside the settlement agreement-
[PDC's Counsell: Correct.
The [{Court]:-based on his fraud. Is that correct? I would assume.
[PDC's Counsell: I would think we do, sir. Yes.
(Emphasis added.) Later, at that same hearing, the trial court discussed the effects of the settlement agreement with Porter's counsel:
[Porter's Counsel]: Well, the issue is we want you to order him to dismiss as he agreed to do in the settlement agreement.
The [Court]: Then you need to move to enforce it then.
[Porter's Counsell: To file a motion?
The [Court]: Un-huh (affirmative).
[Porter's Counsel]: Okay.
T8 For two years, neither party did anything to invalidate or to enforce the settlement agreement. Indeed, it was not until after Porter filed his motion to enforce the agreement in 2008 that PDC finally filed a motion to have the agreement set aside. In its Novеmber 2003 ruling on those motions, the trial court held "that genuine issues of material fact exist[ed]" regarding "the parties' compliance or non-compliance with" their executed settlement agreement. The parties, however, again did nothing to resolve this matter. Indeed, a full year latеr the trial court issued an order to show cause why the case should not be dismissed for failure to prosecute and, after the hearing, ordered discovery on the enforceability of the settlement agreement "to be complete[d] within 90 days." Again, PDC did nothing to set the settlement agreemеnt aside, and another year passed before the trial court held a second order to show cause hearing in 2006.
«T9 PDC argues on appeal that "the only delay at issue before the trial court on August 10, 2006 was the eleven months of delay accruing since the expiration of the April 30, 2005 discovery cut-off." 4 Accord *630 ing to PDC, any delay prior to the trial court's November 80, 2004 order was not considered at the order to show cause hearing on April 4, 2006. Instead, PDC contends that the only delay relied upon by the trial court and thus relevant on appeal is that which accrued from November 30, 2004, until Aрril 4, 2006. PDC, however, cites no authority which would limit the trial court's consideration to only some of the periods when nothing was done to advance this case. Furthermore, the court's August 10, 2006 ruling from the bench expressly discussed time lapses prior to April 30, 2005, 5 and we likewise consider the lack of diligence in prosecuting this matter from its inception. The record leaves no doubt that PDC had the opportunity to move the case forward but failed to do so.
110 PDC also argues that "under the terms of the November 26, 2003 order both parties were equally charged with prosecuting their respective claims regarding the April 15, 2001 agreement" but "[njeither party moved the case forward in the sixteen months from November 80, 2004 to April 4, 2006." "Although inaction on the part of a defendant may contribute to the justifiability of a plaintiff's exeuse for delay, the duty to prosecute is a duty of due diligence imposed on a plaintiff, not on a defendant." Country Meadows Convalescent Ctr. v. Utah Dep't of Health,
{11 We likewise are unpеrsuaded by PDC's argument that its prosecution of the case was somehow hampered by Porter's failure to file his motion to dismiss earlier. PDC was always able to compel discovery, if necessary; retain experts; and request an evidentiary hearing pursuant to the trial court's November 26, 2008 ruling and еxplicit instructions:
It is this Court's opinion that a lengthy evidentiary hearing is probably implicated, that experts would need to be employed, and that each party might need to seek new legal counsel. In light of this opinion, the Court invites the parties to seriously reconsider the proposеd resolution of the case.
#12 The fourth and fifth Westinghouse factors, prejudice and injustice, like
*631
wise support the trial court's dismissal. See Meadow Fresh Farms, Inc. v. Utah State Univ. Dep't of Agric. & Applied Sci.,
113 Second, PDC argues that because it can no longer challenge the settlement agreement or pursue the underlying lawsuit against Porter, injustice will result from dismissal of this case. However, "wе conclude that [PDC] had more than ample opportunity" to challenge the agreement on the basis of Porter's alleged breaches, fraudulent conduct, or both "and simply failed to do so." See Maxfield v. Rushton,
114 Finally, we reject PDC's argument that the filing of the certificate of readiness rendered its failure to prosecute moot. The trial court had discretion to dismiss the case under rule 41(b) on its own motion, see Utah R. Civ. P. 41(b);, see also Brasher Motor & Fin. Co. v. Brown,
115 In applying the five Westinghouse factors under the totality of the cireum-stances here, see generally Country Meadows Convalescent Ctr. v. Utah Dep't of Health,
1 16 Affirmed.
17 WE CONCUR: PAMELA T. GREENWOOD, Presiding Judge, and GREGORY K. ORME, Judge.
Notes
. Judge Lynn Davis originally presided over these proceedings and entered the November 3, 2003 ruling in an order dated November 26, 2003; Judge Derek Pullan replaсed Judge Davis after entry of the November 26, 2003 order.
. Although PDC disagrees, we defer to the trial court's own determination that it erroneously thought that the parties' stipulated extension was still in effect and set to expire on April 30, 2006. The extension had actually expired a year earlier, on April 30, 2005.
. Even though we need not separately address the trial court's third reason for dismissing PDC's complaint, we agree that PDC did not timely oppose Porter's motion to dismiss. See Utah R. Civ. P. 7(c)(1) (requiring the party who opposes a motion to do so within ten days).
. PDC claims that the trial court only considered the delay between November 30, 2004, and April 4, 2006. Even if this is true, we note that the time elapsing between November 30, 2004, and April 4, 2006, is actually just over sixteen months. Curiously, PDC insists that the delay consisted of only eleven months because five *630 months of the time period were designated for discovery.
. As part of the trial court's August 10, 2006 ruling, the court quoted the previous November 3, 2003 ruling: "This case hаs been inactive for over two years, even though [PDC] claims that material breaches of the settlement agreement by [Porter] occurred as early as June and July of 2001.[PDC] has offered no explanation for this delay."
. PDC also claims the trial court concluded that Porter's failure to comply with the terms of the settlement agreement rendered it unenforceable. We disagree with PDC's characterization of the court's November 27, 2003 order. The trial court found, in its November 3, 2003 ruling, that there were disputed issues of material fact regarding the parties' compliance with the settlement agreement, which rendered the grant of summary judgment inappropriate.
. PDC asserts that it had "moved the case toward a conclusion." As examples, it points to a two-day deposition of Porter, the copying of Porter's hard drive, and the filing of affidavits "specifying the testimony to bе proffered by [its] witnesses." We note, however, that these actions occurred in 2001. If PDC was in fact finished with discovery at that point-as implied in PDC's brief and stated in its certificate of readiness for trial-there was no reason to allow another year to pass without challenging the settlement аgreement.
. PDC also contends that Porter "[wals stonewalling" by not providing the disclosures promised in the parties' settlement agreement and was therefore impeding PDC's ability to conduct further discovery. Even assuming this assertion were true, the alleged stonewalling and discovery obstruction occurred in June of 2001, yet nothing was done to compel discovery or set a hearing on the validity of the agreement until 2004.