No. 23-2234 ___________________________

KOKO Development, LLC

Plaintiff - Appellant

v.

Phillips & Jordan, Inc.; DW Excavating, Inc.; Thomas Dean & Hoskins, Inc.

Defendants - Appellees

v.

BKW, Inc.

Third Party Defendant - Appellee ____________

Appeal from United States District Court for the District of North Dakota - Western ____________

Submitted: February 13, 2024 Filed: May 7, 2024 ____________ Before SMITH, Chief Judge, 1 BENTON, and STRAS, Circuit Judges. ____________ BENTON, Circuit Judge.

1 Judge Smith completed his term as chief judge of the circuit on March 10, 2024. See 28 U.S.C. § 45(a)(3)(A). The planned real estate development of the Stenehjem Commons in Watford City, North Dakota cost more than anticipated. KOKO Development, LLC seeks to recover damages from Phillips & Jordan, Inc.; DW Excavating, Inc.; and Thomas Dean & Hoskins, Inc. (TD&H). Before trial, KOKO did not disclose any expert witnesses either in its Federal Rule of Civil Procedure 26(a) disclosures, or before the district court’s deadline for disclosing experts. The district court 2 ruled, because KOKO ignored the deadlines, none of its witnesses could give expert testimony at trial. The district court granted the defendants’ motion for summary judgment, finding that without expert witnesses, KOKO could not establish its claims. KOKO appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

In 2014, KOKO was created to develop Commons, a 180-acre tract of undeveloped land. To subdivide it and sell lots with infrastructure for houses, KOKO contracted with DW Excavating and Phillips & Jordan. Phillips & Jordan subcontracted part of its work to BKW, Inc. To inspect and supervise the work of all parties, KOKO hired TD&H.3

After the end of the North Dakota oil boom, the Commons project sat dormant and without maintenance. When the price of oil recovered—and after some defendants completed some of their tasks—KOKO sought to complete the project and sell the lots. However, the lots had numerous issues, requiring KOKO to spend more money to prepare them for sale. KOKO sued the defendants for breach of contract and negligence. TD&H removed the case to federal court. After removal, Phillips & Jordan sued BKW, as a third party, for its subcontracted work.

2 The Honorable Daniel L. Hovland, United States District Judge for the District of North Dakota. 3 TD&H earlier moved for summary judgment, asserting there was no contract between itself and KOKO. The district court denied the motion, finding a dispute of material facts. See KOKO Dev., LLC v. Phillips & Jordan, Inc., 2021 WL 5909181, at *3 (D.N.D. Dec. 14, 2021). -2- KOKO served its Rule 26(a) disclosures, identifying only 12 fact witnesses. The district court set a deadline for disclosing expert witnesses. KOKO did not disclose expert witnesses by the deadline, ask for an extension, or even indicate an intent to disclose expert witnesses. All defendants moved for summary judgment, arguing that, to prove negligence and breach of contract, KOKO required expert testimony because the issues were complex and highly technical. KOKO responded it sought to “elicit testimony” from three fact witnesses—Mac Hall, Lonnie Kern, and Wayne Kern—“that is expert in nature.” KOKO Dev., LLC v. Phillips & Jordan, Inc., 2023 WL 1100706, at *3 (D.N.D. Jan. 30, 2023), reconsideration denied,