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