United States District Court, D. Nevada
before the court is defendant Gary Tharaldson's motion
for summary judgment. (ECF No. 61). Plaintiff Jason Halpern
filed a response (ECF No. 66), to which Tharaldson replied
(ECF No. 70).
and Tharaldson were part of a group of investors that
invested in the acquisition of a property located in Las
Vegas, Nevada, for the purpose of creating a master-planned
residential community, which included a golf course. (ECF No.
1 at 12). To purchase the property, the group obtained a $30
million loan, on which Tharaldson provided his personal
guaranty. (ECF No. 1 at 12). As a result of the 2007-08
financial crisis, the investors agreed that the property
could not be developed further at that time. (ECF No. 1 at
12). However, the existing golf course could not support the
payments on the loan, and the loan went into default. (ECF
No. 1 at 12).
loan was subsequently sold to a third party. (ECF No. 1 at
12). After this sale, there were multiple attempts by the
investors to try to purchase the loan. (ECF No. 1 at 13-14).
While Halpern had nearly closed several attempts to purchase
the debt, Tharaldson ultimately acquired the debt in order to
extinguish his personal guaranty on the full $30 million.
(ECF No. 1 at 14).
entered into a contract (“the contract”), on
March 3, 2015, with Halpern and two of the other original
investors. (ECF No. 1 at 14). The terms of the contract
included that Tharaldson would provide one of the investors
with consulting fees and then reimburse Halpern and the other
investor for their costs incurred in negotiating their
attempted purchase of the loan. (ECF No. 1 at 14).
contract also included an option for either Halpern or his
affiliate to acquire a 50 percent interest in the loan. (ECF
No. 1 at 14). To acquire this 50 percent interest, Halpern
needed to satisfy three conditions: (1) before the
seventy-fifth day following the closing date, Halpern had to
provide written notice to Tharaldson of his intention to
acquire the interest; (2) Halpern was required to pay
Tharaldson 50 percent of the purchase price under the loan
purchase agreement together with interest thereon at an
annual rate of 8 percent from the closing date through and
including the date upon which such payment is made; and (3)
Halpern needed to reimburse Tharaldson 50 percent of the
reimbursement and the closing expenses. (ECF No. 1 at 14).
these conditions were met, Halpern and Tharaldson would enter
into a joint venture on “commercially reasonable
terms.” (ECF No. 1 at 15). While not exhaustive, these
(i) all decisions and governance with respect to the Loan
Purchaser, the Loan, the Property, the budget and the
business plan and any all things in connection therewith will
require the consent and approval of both [Tharaldson] and
[Halpern] (or their respective affiliates), and (ii) a
buy/sell provision on commercially reasonable terms in the
event [Tharaldson] and [Halpern] are unable to agree on any
particular decision, and (iii) pari passu and pro rata
capital contributions and returns/distributions to each
(ECF No. 1 at 15).
through an associate, began conducting negotiations in April
and May 2015, to convert the property into the
previously-planned residential community. (ECF No. 1 at
15-17). After beginning these negotiations, Halpern alleges
that he “made several attempts to exercise his right
pursuant to the contract;” however, every time he
“expressed his interest” or “tried to
exercise his right, ” “[Tharaldson] and those who
work for [Tharaldson] made it abundantly clear that Halpern
was not welcome in the partnership.” (ECF No. 1 at 17).
also describes further issues between the two parties that
made consummation of the joint venture impossible prior to
the seventy-fifth day following the closing date. (ECF No. 1
at 17-18). Despite these issues, both parties claim that they
were still amenable to the deal. (ECF No. 1 at 18). They
jointly agreed-via a side letter-to extend Halpern's
election period under the contract from May 26, 2015, to June
19, 2015. (ECF No. 1 at 18).
then alleges that Tharaldson refused to cooperate and
“would fight Halpern over every term in a joint venture
agreement.” (ECF No. 1 at 18). As a result of this
breakdown, Halpern filed the instant action on July 9, 2015,
in the Supreme Court of the State of New York. (ECF No. 1 at
10). The complaint alleges three causes of action: (1) breach
of contract; (2) anticipatory breach; and (3) breach of the
covenant of good faith and fair dealing. (ECF No. 1 at
suit was then removed to the United States District Court for
the Eastern District of New York, and thereafter the suit was
transferred to the District of Nevada. (ECF No. 12). On July
18, 2016, the court granted Tharaldson's partial motion
to dismiss Halpern's claims for breach of contract and
breach of the implied covenant of good faith and fair
dealing. (ECF No. 55).
instant motion, Tharaldson moves for summary judgment on
Halpern's remaining claim for anticipatory breach. (ECF