                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUL 22 2015

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

ARCH INSURANCE COMPANY, a                        No. 13-56135
Missouri corporation,
                                                 D.C. No. 2:12-cv-02544-JFW-
              Plaintiff - Appellee,              RNB

 v.
                                                 MEMORANDUM*
NIZAR AND NUHA KATBI FAMILY
TRUST; NIZAR KATBI, individually and
as trustee of the Nizar and Nuha Katbi
Family Trust; NUHA KATBI, individually
and as trustee of the Nizar and Nuha Katbi
Family Trust,

              Defendants - Appellants.


                   Appeal from the United States District Court
                      for the Central District of California
                    John F. Walter, District Judge, Presiding

                             Submitted July 6, 2015**
                               Pasadena, California

Before: W. FLETCHER, PAEZ, and BERZON, Circuit Judges.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Arch Insurance, an insurer that underwrites surety bonds for the construction

industry, entered into an indemnity agreement with FTR International President

and CEO Nizar Katbi in 2006 (“Indemnity Agreement”). Katbi and FTR agreed to

indemnify and hold Arch harmless for all losses sustained from any bonds Arch

executed on FTR’s behalf. The next year, in 2007, Katbi wrote a letter informing

Arch that he was switching sureties. FTR switched back to using Arch as a surety

two years later. The parties did not sign a new indemnity agreement, but Arch and

FTR did receive and execute new bonds.

      After FTR defaulted on its obligations, Arch sued to collect the money it had

paid FTR’s subcontractors and suppliers on FTR’s bonds. Arch moved for

summary judgment. Katbi failed to oppose Arch’s motion on time, but the district

court granted him an extension. In his opposition, Katbi claimed that the 2007

letter switching sureties terminated the Indemnity Agreement. In its reply, Arch

provided evidence that Katbi continued to rely on the Indemnity Agreement after

he sent that letter. The district court granted summary judgment. One month later,

Katbi filed motions for relief from the judgment and for reconsideration. The

district court denied the motions.

      Under California contract law, which governs here, a contract remains in

force until it is terminated according to its terms or by the acts of the parties


                                           -2-
evidencing an abandonment. Busch v. Globe Indus., 200 Cal. App. 2d 315, 320

(1962). The only evidence the Indemnity Agreement was terminated is a letter

Katbi sent Arch in 2007 stating that FTR was switching sureties. The letter did not

mention the Indemnity Agreement. After Katbi contracted with Arch again for

surety coverage for FTR, he sent letters to Arch as late as 2012 telling Arch that it

had to comply with the Indemnity Agreement. The parties never abandoned that

contract, and Katbi is estopped from claiming that they did. See Metalclad Corp.

v. Ventana Envtl. Org. P’Ship, 109 Cal. App. 4th 1705, 1713–14 (2003).

      The district court did not abuse its discretion in denying Katbi’s motions for

relief from the judgment and reconsideration. A court may relieve a party from a

final judgment based on “excusable neglect.” Fed. R. Civ. P. 60(b). Katbi sought

and received an extension of time to file his opposition. He had enough time to

oppose summary judgment.

      A court also may relieve a party from a final judgment based on “newly

discovered evidence.” Id. Most of the “new” evidence Katbi pointed to was in his

possession before his opposition to summary judgment was due. See Feature

Realty, Inc. v. City of Spokane, 331 F.3d 1082, 1093 (9th Cir. 2003). He could

have collected the other evidence before the opposition was due via public records

requests. See id.


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      Finally, while the district court may not rely on evidence provided for the

first time in a reply brief, a court may rely on such evidence if it provides full

context for the facts supplied in the opposition. See SEC v. Platforms Wireless

Int’l Corp., 617 F.3d 1072, 1087 n.9 (9th Cir. 2007). Arch’s evidence that Katbi

relied on the Indemnity Agreement in 2012 gives context to Katbi’s claim that he

terminated the Agreement in 2007.

      AFFIRMED.




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