NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT NOV 20 2014

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

TRAVELERS PROPERTY CASUALTY No. 13-55161 COMPANY OF AMERICA, a Connecticut corporation, D.C. No. 2:12-cv-07198-DSF-JC

Plaintiff - Appellee,

ORDER*

v.

KB HOME COASTAL, INC., a California corporation; KB HOME NORTH BAY, INC., a California corporation; KB HOME CENTRAL VALLEY, INC., a California corporation; KB HOME SACRAMENTO, INC., a California corporation,

Defendants - Appellants.

Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding

Argued and Submitted October 8, 2014 Pasadena, California

Before: TALLMAN, BEA, and OWENS, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Defendants-Appellants’ motion to voluntarily dismiss the above-captioned

appeal is GRANTED. Costs are awarded to the Plaintiff-Appellee.

IT IS SO ORDERED.

2

FILED

NOV 20 2014

Travelers Property Casualty Company v. KB Home Coastal, Inc., No. 13-55161

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

TALLMAN, Circuit Judge, dissenting from the order granting dismissal.

For the reasons stated in Plaintiff-Appellee’s opposition to the motion to

dismiss, I respectfully dissent from the order granting the opposed dismissal. As the

parties are engaged in numerous ongoing district court proceedings and, given the

nature of the parties’ businesses, will likely face again the issues raised on appeal, the

panel should provide a ruling that gives direction to the district courts. In addition,

as this appeal has been pending for almost two years, Defendants-Appellants’ motion

has been made at the eleventh hour for no other reason than a fear of losing its appeal

after having heard the tenor of panel questioning at oral argument. Granting dismissal

at this late stage further encourages improper gamesmanship by parties. That

Defendants-Appellants would rather withdraw the appeal than face a potential loss

reinforces the conclusion that this issue is likely to reappear. One can only conclude

that Defendants-Appellants are motivated purely by a fear that the Ninth Circuit will

issue controlling authority that will negatively impact future litigation.