                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 29 2013

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



REGATTA BAY LIMITED,                             No. 11-16440

              Plaintiff - Appellant,             D.C. No. 2:07-cv-01619-PMP-
                                                 PAL
  v.

UNITED STATES OF AMERICA,                        MEMORANDUM *

              Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Nevada
                      Philip M. Pro, District Judge, Presiding

                      Argued and Submitted January 14, 2013
                            San Francisco, California

Before: WALLACE, FARRIS, and BYBEE, Circuit Judges.

       Appellant Regatta Bay Limited appeals from the district court’s judgment

entered after granting of the Government’s motion to dismiss for lack of jurisdiction

or, alternatively, for summary judgment. We have jurisdiction under 28 U.S.C. §

1291. We affirm.



        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       We conclude that Regatta failed to establish that it had the kind of “special

relationship” with HUD necessary under Nevada law to support an action for either

tortious breach of the covenant of good faith and fair dealing or tortious breach of a

fiduciary duty. See Ins. Co. of the West v. Gibson Tile Co., 134 P.3d 698, 702-03

(Nev. 2006) (en banc). Regatta and HUD’s relationship was essentially that of a

principal and surety as HUD insured Regatta’s mortgage obligations. See Great Am.

Ins. Co. v. Gen. Builders, Inc., 934 P.2d 257, 260 (Nev. 1997). Nevada courts have

refused to hold that there is a “special relationship” in such a situation. Ins. Co. of the

West, 134 P.3d at 702; Great Am., 934 P.2d at 354-56. Further, although HUD, as a

government agency, was larger and more powerful, Regatta was nevertheless a

sophisticated commercial entity represented by a managing partner with significant

real estate and business experience. Despite HUD’s inherent clout, the two entities’

course of dealings most closely resembles the type of arm’s-length business

interactions between private parties that courts have found insufficient under Nevada

law to constitute a “special relationship.” See Premiere Digital Access, Inc. v. Cent.

Tel. Co., 360 F. Supp. 2d 1161, 1166 (D. Nev. 2005); Great Am., 934 P.2d at 263;

Aluevich v. Harrah’s, 660 P.2d 986, 987 (Nev. 1983).

       Because Regatta did not establish that the essential “special relationship”

existed between itself and HUD, Regatta failed to demonstrate that the Government


                                            2
could be liable “in the same manner and to the same extent as a private individual

under like circumstances” in Nevada for tortious breach of the covenant of good faith

and fair dealing, and breach of fiduciary duty. 28 U.S.C. § 2674. As a result, Regatta

did not satisfy the requirements of the Federal Tort Claims Act. Id. We thus conclude

that the district court did not error as a matter of law in granting the Government’s

motion to dismiss, or, alternatively, for summary judgment as to Regatta’s breach of

the covenant of good faith and fair dealing and breach of fiduciary duty tort claims.

      AFFIRMED.




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