                                                                             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                           NOT FOR PUBLICATION                                FEB 29 2012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.


                                          3
      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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