Schwerdt

MEMORANDUM

This diversity action arises from a failed business transaction between plaintiff-appellant Craig Schwerdt (“Schwerdt”) and two Michigan businessmen, Anatol Nofar and Hector Yasquez. Defendant-Appellee International Fidelity Insurance Company (“IFIC”) is the surety of the underlying agreement between Schwerdt and Nofar and Vasquez. On July 7, 1997, Schwerdt filed the instant action against IFIC for breach of contract and breach of the covenant of good faith and fair dealing. Ultimately, the district court granted partial summary judgment in favor of Schwerdt on his breach of contract claim; on his claim for breach of the covenant of good faith and fair dealing, the court granted summary judgment in favor of IFIC, finding that such claim was barred by the California Supreme Court’s decision in Cates Construction, Inc. v. Talbot Partners, 21 Cal.4th 28 , 86 Cal.Rptr.2d 855 , 980 P.2d 407 (1999), which held that tort damages were not allowed in an action for breach of a construction performance bond. After the court rendered the above decisions, Schwerdt sought to amend his complaint to add claims, on the basis of “newly discovered evidence,” for fraud and negligence…