JPMorgan Chase Bank, N.A. v. KB Home Nevada Inc. , 469 F. App'x 619 ( 2012 )

FILED
NOT FOR PUBLICATION FEB 29 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JPMORGAN CHASE BANK, N.A., No. 10-17562
Plaintiff, D.C. No. 2:08-cv-01711-PMP-RJJ
and
MEMORANDUM AND ORDER*
FOCUS SOUTH GROUP, LLC; SOUTH
EDGE, LLC,
Petitioners - Appellees,
v.
KB HOME NEVADA INC.; COLEMAN-
TOLL LIMITED PARTNERSHIP, LLC;
PARDEE HOMES OF NEVADA;
BEAZER HOMES HOLDINGS CORP.;
MERITAGE HOMES OF NEVADA,
FKA MTH HOMES NEVADA, INC.,
Defendants - Appellants.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Submitted February 15, 2012
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: THOMAS, FISHER and IKUTA, Circuit Judges.
Defendants-Appellants KB Home Nevada; Coleman-Toll Ltd Partnership;
Pardee Homes of Nevada; and Beazer Homes Holding Corp. (collectively, “Home
Builders”); and Defendant-Appellant Meritage Homes of Nevada (“Meritage”)
appeal the district court’s order confirming a final arbitration award in favor of
Plaintiff-Appellee Focus South Group (“Focus”), and denying their motions to
vacate and/or correct the award.
1. We GRANT (1) Focus’ motion to substitute Inspirada Builders as
appellee, filed January 26, 2012; (2) the stipulation of partial dismissal, filed
February 9, 2012; (3) Meritage’s request for judicial notice, filed January 20, 2012;
(4) Home Builders’ motion for leave to file a response to Meritage’s reply brief,
filed October 6, 2011; and (5) Meritage’s unopposed motion for an extension of
time to file a response, filed October 12, 2011.
2. Judicial estoppel does not apply here. See New Hampshire v. Maine, 532
U.S. 742, 750-51 (2001) (discussing factors relevant to the judicial estoppel
analysis); Interstate Fire & Cas. Co. v. Underwriters at Lloyd’s London, 139 F.3d
1234, 1239 (9th Cir. 1998) (restricting application of judicial estoppel to cases in
which a court “relied on the party’s previously inconsistent statement”).
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3. Applying the deferential standard of judicial review governing arbitration
awards, see Kyocera Corp. v. Prudential-Bache Trade Servs., Inc., 341 F.3d 987,
994 (9th Cir. 2003) (en banc), we reject the argument that the arbitrators exceeded
their authority by awarding what Meritage would construe as consequential
damages despite the arbitrators’ specific finding to the contrary, see id. (“Neither
erroneous legal conclusions nor unsubstantiated factual findings justify federal
court review of an arbitral award under the [FAA].”). See also Health Plan of
Nev., Inc. v. Rainbow Med., LLC, 100 P.3d 172, 178 (Nev. 2004).
4. The award is not “imperfect in a matter of form.” 9 U.S.C. § 11; Nev.
Rev. Stat. § 38.242(c). See Kyocera, 341 F.3d at 994; Bosack v. Soward, 586 F.3d
1096, 1106 (9th Cir. 2009) (explaining that contradictory findings of fact are not
grounds for vacatur).
5. Meritage’s appeal of the denial of its motion to vacate the arbitration
award’s denial of its counterclaim against South Edge, LLC is stayed pursuant to
11 U.S.C. § 362(a). See Parker v. Bain, 68 F.3d 1131, 1135-36 (9th Cir. 1995).
The panel shall retain jurisdiction over this appeal pending further proceedings in
the bankruptcy court. Within 30 days of this order, Meritage shall file a status
report regarding the proceedings referenced in Meritage’s notice of bankruptcy
proceeding and automatic stay, filed March 3, 2011.
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The parties shall bear their own costs on appeal.
AFFIRMED as to Home Builders’ motion to vacate the award in part, and
Meritage’s motion to correct the award; STAYED as to Meritage’s motion to
vacate the denial of its counterclaims against South Edge, LLC.
The mandate is stayed pending further notice of the court.
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