AECOM Technical Services v. Flatiron

PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
_________________________________
AECOM TECHNICAL SERVICES,
INC.,

Plaintiff / Counter defendant -
Appellee,

v.

FLATIRON | AECOM, LLC,

Defendant / Counterclaimant -
Appellant.

No. 25-1140
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:19-CV-02811-WJM-KAS)
_________________________________
Michael C. Davis of Venable LLP, Washington, District of Columbia (David L.
Feinberg of Venable LLP, Washington, District of Columbia, and Mitchell Y.
Mirviss of Venable LLP, Baltimore, Maryland, with him on the briefs), for
Defendant/Counterclaimant-Appellant.

Bennett L. Cohen of Polsinelli PC, Denver, Colorado (Stephen D. Gurr and M.
Adam Lewis with him on the brief), for Plaintiff/Counter defendant-Appellee.
_________________________________
Before HARTZ, PHILLIPS, and MORITZ, Circuit Judges.
_________________________________
PHILLIPS, Circuit Judge.
_________________________________
FILED
United States Court of Appeals
Tenth Circuit

August 14, 2026

Christopher M. Wolpert
Clerk of Court
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A joint venture between two infrastructure firms bid for a contract to
construct express lanes on Denver’s C-470 freeway. Using designs created by
an engineering subcontractor, the joint venture won the bid, and the joint
venture agreed to continue working with the subcontractor on the project. But
relations between the joint venture and the subcontractor soured, with each
alleging sloppiness or bad faith in the other’s performance. Eventually they
sued each other in federal district court. After a seventeen-day trial, a jury
returned a verdict for the subcontractor on all claims and counterclaims, and
the court entered judgment accordingly.
The joint venture now asks us to review a litany of rulings made during
nearly five years of litigation. It argues that errors in those rulings warrant a
new trial. Some of its arguments are procedural, others are substantive, but all
lack merit. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the
district court’s judgment for the subcontractor.
BACKGROUND
I. Factual Background
In 2015, the Colorado Department of Transportation solicited bids for
constructing express lanes on a 12.5-mile stretch of State Highway 470 (also
known as C-470) south of Denver. Flatiron Constructors, Inc. and AECOM
Energy & Construction, Inc. formed a joint venture to bid for the project. The
joint venture hired AECOM’s engineering arm, AECOM Technical Services,
Inc. (ATS), to design the roadways and other structures for the eventual bid.
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Proper design work was critical for accurately estimating the project’s
cost. So at the pre-award stage, the joint venture and ATS entered into a formal
teaming agreement. The teaming agreement required ATS’s designs to be
“consistent with all professional engineering principles generally accepted as
standards of the industry in [Colorado].” App. vol. VIII at 2267. It also
required the designs to meet “the standard of care, skill and diligence
commensurate with that provided by other design professionals at the [pre-
award] stage for projects of similar size, type and complexity,” and to meet
“any additional standards set forth” by the CDOT. Id. If the joint venture and
ATS were shortlisted for the project, the teaming agreement required them “to
negotiate in good faith” a subcontract for post-award designs. Id. at 2266.
Using ATS’s designs, the joint venture won the CDOT contract, and the
parties entered into a post-award subcontract. The subcontract incorporated all
the teaming agreement’s terms “not inconsistent with” the subcontract’s own.
App. vol. IX at 2354. The subcontract also “supersede[d] all prior . . .
agreements” and “represent[ed] the [parties’] entire agreement” going forward.
Id.
Under the subcontract’s terms, the joint venture would pay ATS a lump
sum of about $9 million for post-award designs.
1
The subcontract also capped
ATS’s potential liability to the joint venture at roughly $10 million—“100% of

1
ATS was paid around $730,000 for its pre-award designs.
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the Lump Sum in the aggregate, less direct costs, plus additional design fees
incurred” for the post-award work. App. vol. VIII at 2283, 2287. The teaming
agreement hadn’t capped ATS’s liability.
Over the next few years, redesigns and delays plagued the project. The
parties blame each other. The joint venture says it discovered that ATS’s pre-
award work was shoddy and noncompliant with the CDOT’s standards. In
contrast, ATS says the joint venture cut corners and crafted its low bid by
asking ATS for just a fraction of the designs the project needed.
During the construction period, ATS submitted at least twenty-seven
“potential change orders” to the joint venture. Each potential change order
proposed a design change and stated the value of the work that went into it .
The subcontract required all proposed changes to be “outside the work
scope described herein.” Id. at 2342. And before a change order could be
submitted to the CDOT, the subcontract required the order to be approved by
the parties’ Design Change Control Board. Each party bore responsibility for
staffing the board, which had three members—one from the joint venture, one
from ATS, and one third-party neutral selected by the parties.
Before the Control Board was formed, the joint venture submitted one of
ATS’s potential change orders to the CDOT without board approval. Though
the CDOT paid the joint venture for some of the work that went into the
proposed change, the joint venture didn’t share that money with ATS.
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Later, after the board was formed, the joint venture “effectively shelved”
several of ATS’s potential change orders without submitting them to the board.
App. vol. VII at 1999–2000. It did so because litigation had begun and the joint
venture “assum[ed] that [the change orders] would get resolved” in court. Id. at
2000.
II. Procedural History
A. Claims & Counterclaims
In 2019, ATS sued the joint venture in the District of Colorado, alleging
breach of the subcontract and, alternatively, unjust enrichment.
2
ATS sought
over $5 million in damages, mostly for uncompensated potential change orders.
The joint venture countersued for breach of the subcontract and breach of
the teaming agreement. It later added a tort counterclaim for negligent
misrepresentation during the subcontract negotiations. In total, the joint venture
sought over $260 million in damages from delays, increased materials, and
other project changes.
B. ATS’s Motion to Dismiss
ATS moved to dismiss the joint venture’s counterclaims. It argued that
because the negligent-misrepresentation counterclaim relied on contractual
duties imposed by the teaming agreement, the counterclaim was barred by

2
Under Colorado law, “breach of contract and unjust enrichment claims
involving the same subject matter are mutually exclusive.” Bd. of Gov’rs v.
Alderman, 563 P.3d 1205, 1213 (Colo. 2025).
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Colorado’s economic-loss rule.
3
It also argued that because the subcontract
superseded the teaming agreement, any counterclaim based on ATS’s pre-award
work must be brought as a counterclaim for breach of the subcontract.
The district court agreed that ATS’s duties in negotiating the subcontract
were defined by the teaming agreement, not by tort law. AECOM Tech. Servs.
v. Flatiron | AECOM, LLC (MTD Order), No. 19-cv-2811, 2021 WL 698665, at
*4 (D. Colo. Feb. 23, 2021). So the court dismissed the joint venture’s
negligent-misrepresentation counterclaim as barred by the economic-loss rule.
Id. at *4, *6. But the court declined to dismiss the joint venture’s counterclaim
for breach of the teaming agreement, ruling that ATS’s argument depended on
facts outside the pleadings. See id. at *5.
C. ATS’s Motion for Summary Judgment
Later, ATS moved for summary judgment on the joint venture’s
counterclaim for breach of the teaming agreement. It again argued that because
the subcontract superseded the teaming agreement, any counterclaim based on
ATS’s pre-award work must be brought as a counterclaim for breach of the
subcontract, which capped ATS’s liability at roughly $10 million.
The district court agreed. AECOM Tech. Servs. v. Flatiron | AECOM,
LLC (MSJ Order), No. 19-cv-2811, 2023 WL 5758860, at *6, *12 (D. Colo.

3
The economic-loss rule provides that “a party suffering only economic
loss from the breach of an express or implied contractual duty may not assert a
tort claim for such a breach absent an independent duty of care under tort law.”
Town of Alma v. AZCO Constr., 10 P.3d 1256, 1264 (Colo. 2000).
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June 16, 2023). The court ruled that under “the plain language of the Teaming
Agreement and the Subcontract,” the joint venture “lost its right to sue [ATS]
for breach of the Teaming Agreement.” Id. at *6, *11. In other words, any
counterclaim based on ATS’s pre-award work could be brought only as part of
the counterclaim for breach of the subcontract. Id. at *7. So the court granted
summary judgment for ATS on the joint venture’s counterclaim for breach of
the teaming agreement, and it declared that the joint venture’s counterclaim for
breach of the subcontract was “subject to” the subcontract’s liability limit. Id.
at *6, *12.
D. The Joint Venture’s Motion to Add Two Fraud Counterclaims
About a month later, in July 2023, the joint venture sought to add
counterclaims for fraudulent concealment and fraudulent inducement. But its
request was untimely, because over three years had passed since the scheduling
order’s deadline for amending the pleadings, and over one year had passed
since the district court entered its final pretrial order. The joint venture offered
three reasons why its untimeliness should be excused.
First, the joint venture argued that discovery had unearthed facts
“establishing ATS’s intentional misrepresentations and omissions” during the
pre-award period. App. vol. II at 408. The joint venture claimed to have
discovered those facts in March 2022 while deposing ATS’s lead drainage
engineer. The joint venture said it then “rightfully” waited sixteen months to
add the fraud counterclaims “[b]ecause fraud must be alleged with
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particularity” and “ATS’s concealments meant that the full story was not
readily apparent until after post-discovery cohesion.” Id. at 412.
Second, the joint venture identified what it called “a relevant change in
the law.” Id. at 400. It argued that while dismissing the negligent-
misrepresentation counterclaim, the court had declared that the economic-loss
rule applied to both unintentional and intentional torts. So in the joint venture’s
view, it “would have been futile” to try to add counterclaims for fraud. Id. at
413. But later the joint venture realized that “just weeks” before the court’s
dismissal order, a case called McWhinney had “call[ed] . . . into question”
whether the economic-loss rule applied to intentional torts. See id. (citing
McWhinney Centerra Lifestyle Ctr. LLC v. Poag & McEwen Lifestyle Ctrs.-
Centerra LLC, 486 P.3d 439, 453 (Colo. App. 2021)). The joint venture
informed the court that this “development[]” made the court’s economic-loss
declaration “legally unsupportable,” justifying the joint venture’s belated effort
to add the fraud counterclaims. Id. at 413–14.
Third, the joint venture argued that the court’s summary-judgment order
had recently “eliminated” the joint venture’s right to sue ATS for “wrongful
conduct during negotiation of the Subcontract.” Id. at 411–12. The joint venture
said that “upon this new development,” it “acted diligently” in seeking to add
two new claims about ATS’s pre-award conduct. Id. at 412.
The district court refused to allow the joint venture to add the fraud
counterclaims, reasoning that the joint venture had not shown the “manifest
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injustice” required for modifying pretrial orders under Federal Rule of Civil
Procedure 16(e). AECOM Tech. Servs. v. Flatiron | AECOM, LLC (Modification
Order), No. 19-cv-2811, 2023 WL 5748376, at *1–4 (D. Colo. Sept. 6, 2023).
To start, the court “simply [did] not buy” that “the full story” of ATS’s
alleged fraud “was ‘not readily apparent’” for sixteen months after discovering
the relevant facts. Id. at *2. And because ATS had “spent the last four years
preparing to try a five-week breach of contract case,” the court ruled that ATS
would suffer “overwhelming prejudice . . . if [the joint venture] were permitted
to allege fraud claims at this point in the litigation.” Id. at *3 (citation omitted).
The court also declared that “[b]y bringing the Motion to Amend now, it is
clear that [the joint venture] seeks to avoid the Court’s application of the
Subcontract’s liability cap and fee-shifting provision.” Id. Though the court
“d[id] not wish to explicitly characterize [the motion] as brought in ‘bad
faith,’” it described the motion’s timing as “certainly suspect.” Id.
The court also rejected the joint venture’s argument about a change in
Colorado law. It noted that Bermel v. BlueRadios, Inc., 440 P.3d 1150 (Colo.
2019), the case McWhinney relied on, was decided “a year before [the joint
venture] filed its counterclaims.” Modification Order, 2023 WL 5748376, at *4.
The court observed that even though the joint venture “could have pled
accordingly . . . at the onset of this litigation,” it “chose not to do so.” Id. The
court also ruled that “regardless of any purported change in the law, . . . the
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prejudice to [ATS] in allowing [the joint venture] to add fraud claims at this
juncture of the litigation is too overwhelming for the Court to countenance.” Id.
Finally, the court rejected the joint venture’s argument that the court’s
summary-judgment order had “eliminated” any right to sue about ATS’s pre-
award designs. Id. As the court had already “thoroughly explained,” any
counterclaim about ATS’s pre-award work “remains cognizable as a claim for
breach of the Subcontract.” Id.
E. The Joint Venture’s Motion for Judgment Against Itself on
ATS’s Breach-of-Contract Claim

A month and a half before trial, the joint venture informed the court that
during settlement negotiations, the joint venture “propose[d] to stipulate to the
merits of ATS’s affirmative contract claim.” App. vol. VI at 1744. The joint
venture’s proposal had two conditions: (1) that “the contract amount stipulated
by the parties . . . be subject to setoff after the jury verdict” on the joint
venture’s breach-of-contract counterclaim, and (2) that the joint venture
“assume the status of plaintiff for all purposes at trial.” Id. The joint venture
said ATS “ha[d] not substantively responded to this proposal.” Id. at 1744–45.
The joint venture also told the court that if the parties couldn’t agree, the joint
venture would “seek guidance from the Court, because [it ] does not intend to
contest at trial the breach of contract claim by ATS . . . subject to [the joint
venture’s] right of setoff and ability to proceed as plaintiff.” Id. at 1745.
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The parties did not agree, so ten days before trial, the joint venture
moved for judgment against itself in the full amount of ATS’s breach-of-
contract claim. The joint venture asked the court to “permit the [joint venture]
to assume the role of plaintiff for all purposes at trial” and to “exclude from the
trial any evidence or argument about ATS’s claims.” App. vol. VII at 1828.
According to the joint venture, the parties had “reach[ed] a stipulated judgment
on these issues” but “ATS’s counsel backed out just hours before the [joint
venture] intended to file.” Id. at 1832–33. The joint venture also accused ATS
of “wast[ing] days of jury time by presenting its affirmative claim—a claim to
which the [joint venture] plans to present no defense in part so [it] can use the
available trial time for what it believes are more important issues.” Id. at 1833.
ATS responded that if the joint venture’s offer hadn’t come “with strings
attached,” ATS would have accepted the offer two months earlier, when doing
so “would have substantially reduced ATS’s trial preparation burden.” Id. at
1839–40. But with only a few days left before trial, ATS said it would no
longer accept even an unconditional offer, given “how a last-minute change in
the parties’ roles as plaintiff and defendant would upend [the parties’]
preparations.” Id. at 1840–41.
The district court denied the joint venture’s motion. Though the court
agreed “that in practical terms it borders on the absurd to try [ATS’s] claim[]
under these circumstances,” it saw “no justifiable reason that [the joint venture]
waited until days before trial to request . . . relief.” Id. at 1858. Besides, the
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court said, ATS was “no longer interested in a confessed judgment.” Id. In the
court’s view, there was “no legal or factual justification for . . . impos[ing], by
means of a judicial order, what amounts to a settlement offer by [the joint
venture] on [ATS] without the latter’s consent.” Id.
F. The Joint Venture’s Motions for Judgment as a Matter of Law
As the plaintiff, ATS proceeded first at trial and used five days to make
its affirmative case. ATS introduced evidence that of its $5.2 million in claimed
damages, about $4.7 million was for twenty-seven potential change orders that
ATS submitted to the joint venture but that the joint venture never paid.
4

Once ATS rested its case, the joint venture moved for judgment as a
matter of law under Rule 50(a). The joint venture argued that ATS hadn’t
introduced sufficient evidence (1) that any of the twenty-seven unpaid change
orders had been approved by the Design Change Control Board or (2) that
fourteen of those orders had proposed changes outside the subcontract’s work
scope. In other words, the joint venture argued that ATS had failed to meet two
conditions for activating the joint venture’s duty to pay under the subcontract’s
change-order provision. The district court did not immediately rule, instead
“tak[ing] the . . . motion under advisement.” App. vol. XIII at 3719.
On the sixteenth trial day, after evidence closed, the joint venture
renewed its motion under Rule 50(b). The district court deferred ruling on that

4
The rest of the claimed damages, roughly $543,000, were for the unpaid
balance on the subcontract’s lump-sum payment for ATS’s post-award work.
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motion, too, and submitted the case to the jury. After deliberating for half a
day, the jury returned a verdict for ATS on ATS’s and the joint venture’s
breach-of -contract claims.
The district court later denied the joint venture’s Rule 50(b) motion.
AECOM Tech. Servs. v. Flatiron | AECOM, LLC (Rule 50 Order), No. 19-cv-
2811, 2024 WL 1330075, at *1, *4 (D. Colo. Mar. 28, 2024). First, the court
ruled that the joint venture waived its right to enforce the two conditions
precedent. Id. at *3–4. The court noted that the joint venture had submitted a
change order to the CDOT “at least six months before the [Control Board] was
formed,” had received partial payment for that order, and had withheld part of
that payment from ATS. Id. at *3. The court also quoted testimony that the
joint venture had “shelved consideration of ATS’s [change orders] in favor of
letting [them] get resolved through litigation.” Id. at *4 (citation modified).
Second, the court ruled that the jury reasonably found that the proposed
changes were outside the subcontract’s work scope. Id. Even if “some [change
orders] did not provide such an explanation,” the court reasoned, the jury still
had a “legally sufficient evidentiary basis” for its verdict. Id. (citation omitted).
The court cited the above testimony, plus “the totality of the evidence in this
18-day trial, including without limitation the parties’ course of conduct in
preparing [change orders] and submitting them for payment.” Id.
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G. The Joint Venture’s Proposed Jury Instruction

Meanwhile, a month and a half before trial, the joint venture proposed a
jury instruction on the implied duty of good faith and fair dealing in connection
with the joint venture’s breach-of-contract counterclaim. Later, at the final
instructions conference, the joint venture argued that “[t]he implied duty is
found in every contract under Colorado law” and that the trial evidence
supported a finding that ATS had breached that duty. App. vol. XXI at 6077.
The district court refused to instruct the jury about the implied duty. In
the court’s view, “a claim for a breach of the implied [duty] of good faith and
fair dealing is a separate claim, which . . . had to have been preserved in [the]
final pretrial order.” Id. Yet the first time the court saw “any reference” to that
duty “was in the submission of the jury instructions,” over a year after the
pretrial order. Id. at 6078. So even though the court agreed that Colorado law
implies a duty of good faith and fair dealing into every contract, it ruled that
the joint venture “never asserted” a claim based on that duty and thus hadn’t
preserved one for trial. Id.
H. Judgment & Appeal
Consistent with the jury’s verdict, the district court awarded ATS $5.259
million in compensatory damages, plus pre- and post-judgment interest. After
months of litigation over fees and costs, the joint venture timely appealed.
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DISCUSSION
The joint venture argues that four of the district court’s decisions were
erroneous and warrant a new trial. First, it says the court should have granted
its motion for judgment against itself on ATS’s breach-of-contract claim.
Second, it says the court should have granted its Rule 50(b) motion for
judgment as a matter of law. Third, it says the court should have instructed the
jury about the implied duty of good faith and fair dealing. And fourth, it says
the court should have allowed it to add two fraud counterclaims.
5

We reject these arguments, and we affirm the district court’s judgment
for ATS on ATS’s and the joint venture’s breach-of -contract claims.
I. Denial of the Joint Venture’s Motion for Judgment Against Itself

The joint venture asserts three errors in the district court’s denial of its
motion for judgment against itself. First, it argues that the court lacked
jurisdiction to hear ATS’s breach-of-contract claim, because the joint venture’s
offer of judgment in the claim’s full amount rendered the claim constitutionally
moot. Second, it argues that the court violated due process by allowing ATS’s
claim to go to trial. And third, it argues that even if the court had discretion to
deny the joint venture’s motion, the court abused that discretion by over-

5
The joint venture also alleges two errors that wouldn’t warrant a new
trial but would affect a possible damages award at a new trial.
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crediting the prejudice to ATS from switching the order of proof and by failing
to recognize the joint venture’s efforts in negotiating with ATS.
These arguments don’t persuade us. We affirm the district court’s denial
of the joint venture’s motion for judgment against itself on ATS’s breach-of-
contract claim.
A. Mootness
We review questions of justiciability, including mootness, de novo. Shaw
v. Smith, 166 F.4th 61, 74 (10th Cir. 2026); Brown v. Buhman, 822 F.3d 1151,
1168 (10th Cir. 2016). We analyze mootness on a claim-by-claim basis. Smith
v. Becerra, 44 F.4th 1238, 1247 (10th Cir. 2022).
Under Article III’s case-or-controversy requirement, a claim becomes
moot “when the issues presented are no longer ‘live’ or the parties lack a
legally cognizable interest in the outcome.” Chafin v. Chafin, 568 U.S. 165,
172 (2013) (citation omitted). In other words, a claim becomes constitutionally
moot “if an event occurs . . . that makes it impossible for the court to grant any
effectual relief whatever to a prevailing party.” Id. (citation modified).
One event that moots a claim is the plaintiff’s acceptance of a settlement
offer or offer of judgment. Tosco Corp. v. Hodel, 804 F.2d 590, 592 (10th Cir.
1986); Montgomery v. Kraft Foods Glob., 822 F.3d 304, 310 (6th Cir. 2016).
The key word is “acceptance,” because “an unaccepted settlement offer or offer
of judgment does not moot a plaintiff’s case.” Campbell-Ewald Co. v. Gomez,
577 U.S. 153, 165 (2016) (emphasis added); see also Fed. R. Civ. P. 68(b).
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That’s true no matter how good the offer’s terms. Campbell-Ewald, 577 U.S. at
162.
For that reason, the joint venture’s offer of judgment did not moot ATS’s
breach-of -contract claim. As the joint venture acknowledges, ATS never
accepted its offer. And under Campbell-Ewald, what matters for constitutional
mootness is an offer’s acceptance, “however good” the offer was. Id. (citation
omitted).
The joint venture tries to distinguish Campbell-Ewald by arguing that the
defendant in that case didn’t fully concede liability or ask the court to enter
judgment like the joint venture did here. The joint venture analogizes it self to a
hypothetical defendant that proactively “pay[s] the judgment amount into a
court registry” payable to the plaintiff. See JV’s Open. Br. at 39. In the joint
venture’s view, moving for judgment against itself is “tantamount to the same
thing: a binding and complete acceptance of plaintiff’s full recovery, subject to
the court’s control.” Id.
This is unpersuasive. Campbell-Ewald refrained from deciding whether a
claim becomes constitutionally moot “if a defendant deposits the full amount of
the plaintiff’s individual claim in an account payable to the plaintiff, and the
court then enters judgment for the plaintiff in that amount.” 577 U.S. at 166.
And even if those actions could moot a plaintiff’s claim, the joint venture’s
actions—offering judgment, then asking the court to enter that judgment once
ATS rejected it—are not “tantamount to the same thing.” JV’s Open. Br. at 39.
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So like Campbell-Ewald, we reserve the deposit-and-judgment question “for a
case in which it is not hypothetical,” and we reject the joint venture’s argument
because “an unaccepted settlement offer or offer of judgment does not moot a
plaintiff’s case.” 577 U.S. at 165–66.
The joint venture next tries to cabin Campbell-Ewald’s holding to class
actions. It cites several decisions and articles that purportedly confirm
Campbell-Ewald’s class-action focus. It also quotes our decision in Lucero v.
Bureau of Collection Recovery, 639 F.3d 1239 (10th Cir. 2011), which
observed that
[w]hile we have yet to address the question squarely, other circuits
have concluded that if a defendant makes an offer of judgment in
complete satisfaction of a plaintiff’s claims in a non-class action,
the plaintiff’s claims are rendered moot because he lacks a remaining
interest in the outcome of the case.

Id. at 1243. To the joint venture, these authorities confirm that offers of
judgment have different mootness implications for individual claims than for
class claims.
We reject these arguments. True enough, Campbell-Ewald concerned
class actions—namely, whether a class-action defendant can moot a lawsuit by
offering full judgment on the sole class representative’s claims. See 577 U.S. at
156. But nothing in Campbell-Ewald limits its reasoning to that context. On the
contrary, the Supreme Court declared that an unaccepted offer of judgment
“ha[s] no continuing efficacy” “[u]nder basic principles of contract law.” Id. at
163. Nor does Campbell-Ewald’s logic imply such a limit, given its focus on
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one plaintiff’s refusal to accept a settlement and judgment offered only to him.
See id. at 157–58, 162–63. Finally, the joint venture’s cited sources don’t say
or suggest that Campbell-Ewald is limited to class actions.
Lucero doesn’t convince us otherwise. Lucero did not decide whether an
individual-action defendant moots a plaintiff’s claims by offering full judgment
on them. See 639 F.3d at 1243. Lucero merely noted that other circuits had
decided that it does.
6
Id. Lucero then distinguished that issue from the one
presented—whether offers of judgment can moot class claims before class
certification. Id. So Lucero is consistent with Campbell-Ewald’s later
declaration that “an unaccepted settlement offer or offer of judgment does not
moot a plaintiff’s case.” 577 U.S. at 165.
B. Due Process
We review de novo whether a district court’s procedures violated due
process. FTC v. Kuykendall, 312 F.3d 1329, 1333 (10th Cir. 2002), vacated on
other grounds, 371 F.3d 745, 767–68 (10th Cir. 2004); see High Lonesome
Ranch, LLC v. Bd. of Cnty. Comm’rs, 61 F.4th 1225, 1242 (10th Cir. 2023).
“Unless [a] claim is frivolous, a party is entitled to assert it, and to
whatever judicial time is required to try it.” Del Rio v. N. Blower Co., 574 F.2d

6
One of those circuits later overruled its holding. Chapman v. First
Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015), overruling Rand v. Monsanto
Co., 926 F.2d 596, 598 (7th Cir. 1991). The other circuit later clarified that it
never decided the mootness question for individual actions. Compare Hooks v.
Landmark Indus., 797 F.3d 309, 314 (5th Cir. 2015), with Sandoz v. Cingular
Wireless, LLC, 553 F.3d 913, 921 (5th Cir. 2008).
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20

23, 26 (1st Cir. 1978). Likewise, a party “ha[s] a right to refuse [a settlement]
offer and to litigate to its heart’s content.” United States ex rel. Wadeford Elec.
Co. v. E.J. Biggs Constr. Co., 116 F.2d 768, 775 (7th Cir. 1940); see also Bass
v. Phx. Seadrill/78, Ltd., 749 F.2d 1154, 1164 (5th Cir. 1985). A court lacks
power “to require [a] part[y] to accept a settlement to which [it] ha[s] not
agreed.” See Evans v. Jeff D., 475 U.S. 717, 726 (1986).
The district court did not violate due process by trying ATS’s breach-of-
contract claim. No due-process right entitles a defendant to avoid trial on a
plaintiff’s legally supported claim. See Bass, 749 F.2d at 1164. If any due-
process concerns were to arise here, it would be in the opposite situation—the
court’s forcing ATS to settle on the joint venture’s terms. See In re LaMarre,
494 F.2d 753, 756 (6th Cir. 1974).
The joint venture argues that the court should have entered judgment on
ATS’s claim because it was “effectively moot,” rendering a trial on that claim
“fundamentally unfair” and “offending the deep-rooted demands of fair play
enshrined in the Constitution.” JV’s Open. Br. at 41 (citation modified).
But the joint venture cites no authority for that point. Nor does it explain
what it means for a claim to be “effectively moot.” As discussed, ATS’s claim
isn’t constitutionally moot. It also isn’t prudentially moot, which applies only
to claims for injunctive or declaratory relief. Bacote v. Fed. Bureau of Prisons,
119 F.4th 808, 813 n.2 (10th Cir. 2024). To the extent the joint venture argues
that a claim is moot whenever the costs of trial outweigh the possible recovery,
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21

that argument is mistaken. See, e.g., Uzuegbunam v. Preczewski, 592 U.S. 279,
282–83 (2021) (confirming the justiciability of suits for nominal damages). “If
there is any chance of money changing hands,” a claim “remains live.” Mission
Prod. Holdings, Inc. v. Tempnology, LLC, 587 U.S. 370, 377 (2019).
The joint venture also refers to “the unfairness of according ATS the
huge tactical benefit of nominal plaintiff status” and to the “charade” of ATS’s
“proceed[ing] both first and last as if it were a bona fide plaintiff.” JV’s Open.
Br. at 33, 37.
Yet by rejecting the joint venture’s offer of judgment, ATS ensured that
its plaintiff status remained more than “nominal.” Besides, a district court has
discretion to decide who—plaintiff or counterclaimant—will proceed first at
trial. See Peterson v. Weinberger, 508 F.2d 45, 54 (5th Cir. 1975); Cont’l
Baking Co. v. Old Homestead Bread Co., 476 F.2d 97, 101 (10th Cir. 1973).
The parties proposed that ATS do so. We see no due-process problem in the
court’s blessing that proposal. And beyond calling the arrangement “unfair,”
the joint venture offers no argument to the contrary.
7
JV’s Open. Br. at 41.
C. Abuse of Discretion
“A court abuses its discretion when its decision rests on an error of law
or a clearly erroneous finding of fact, or when the decision manifests a clear

7
The joint venture separately accuses ATS of “presenting its evidence in
preemptive defense against the [joint venture’s] counterclaim.” JV’s Open. Br.
at 37. But what ATS did at trial has nothing to do with the joint venture’s
pretrial motion for judgment against itself.
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22

error in judgment.” United States v. Kirby, 161 F.4th 1208, 1213 (10th Cir.
2025) (citation modified). Put differently, a court abuses its discretion when it
“exceed[s] the bounds of permissible choice, given the facts and the applicable
law in the case at hand.” United States v. Clay, 148 F.4th 1181, 1190 (10th Cir.
2025) (citation omitted).
The district court did not “exceed[] the bounds of permissible choice” in
the circumstances. Id. On the contrary, it did the only thing it could do—reject
the joint venture’s attempt to effectively force a settlement on an unwilling
party.
8
See Evans, 475 U.S. at 726; Kothe v. Smith, 771 F.2d 667, 669 (2d Cir.
1985). A court doesn’t abuse its discretion by making the only lawful choice
under the circumstances. See Clay, 148 F.4th at 1190; cf. United States ex rel.
Doe v. Credit Suisse AG, 117 F.4th 155, 161 (4th Cir. 2024). So we reject the
joint venture’s abuse-of -discretion argument.
II. Denial of the Joint Venture’s Rule 50(b) Motion

We review de novo a district court’s Rule 50(b) rulings. Mtn. Dudes v.
Split Rock Holdings, 946 F.3d 1122, 1129 (10th Cir. 2019). Under Rule 50(b),
entering judgment as a matter of law is appropriate only when the evidence
points “one way” and supports “no reasonable inferences” for the nonmoving

8
It’s not clear under what authority the joint venture brought its motion.
The joint venture says it sought relief under Rule 54(b). But Rule 54(b) merely
permits a court to enter final judgment on a subset of decided claims or parties
when “there is no just reason for delay.” It doesn’t authorize a court to decide
claims or approve a settlement, much less force a settlement upon a party that
rejects it. See Fed. R. Civ. P. 54(b).
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23

party. Id. We draw all reasonable inferences in the nonmovant’s favor, and we
do not assess witness credibility or weigh the evidence. Id. at 1130.
The joint venture asserts two errors in the district court’s denial of its
Rule 50(b) motion. First, it argues that the court erred in concluding that by
submitting ATS’s first potential change order without Control Board approval,
the joint venture waived the subcontract’s Control Board condition. Second, it
argues that for fourteen of the change orders, the court erred in ruling that ATS
presented sufficient evidence that the proposed changes were outside the
subcontract’s work scope.
Neither argument persuades us. We affirm the district court’s denial of
the joint venture’s Rule 50(b) motion for judgment as a matter of law.
A. Waiver of the Control Board Condition
“Waiver is the intentional relinquishment of a known right or privilege.”
Johnson v. People, 524 P.3d 36, 41 (Colo. 2023) (citation modified). “Waiver
may be explicit, such as when a party expressly abandons an existing right or
privilege, or implied, such as when a party engages in conduct that manifests an
intent to relinquish a right or privilege or acts inconsistently with its assertion.”
Babcock v. People, 569 P.3d 850, 856 (Colo. 2025) (citation modified). “For
waiver to be implied by conduct, the conduct should be free from ambiguity
and clearly manifest the intention not to assert the benefit.” Richmond v.
Grabowski, 781 P.2d 192, 195 (Colo. App. 1989).
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24

Because intent is a fact issue, the question of whether a party waived a
contractual provision—including a condition precedent—is usually a question
for the factfinder. See Avicanna Inc. v. Mewhinney, 487 P.3d 1110, 1115 (Colo.
App. 2019); Vogel v. Carolina Int’l, Inc., 711 P.2d 708, 712 (Colo. App. 1985).
So for the joint venture to prevail on its Rule 50(b) motion, it had to show that
the evidence supported “no reasonable inferences” that the joint venture either
(1) expressly waived the Control Board condition or (2) “clearly manifest[ed]
the intention not to assert” that condition. Mtn. Dudes, 946 F.3d at 1129 (first
quote); Richmond, 781 P.2d at 195 (second quote).
The joint venture did not meet this high standard. Undisputed testimony
showed that the joint venture submitted ATS’s first potential change order to
the CDOT without Control Board approval. Undisputed testimony also showed
that the joint venture later stopped sending change orders to the Control Board,
instead “shelv[ing]” them to be sorted out in litigation. App. vol. VII at 1999–
2000. From that testimony, the jury could reasonably conclude that the joint
venture “clearly manifest[ed] the intention not to assert” the Control Board
condition. Richmond, 781 P.2d at 195.
The joint venture counters that its failure to follow the Control Board
condition in one instance “might have occurred for any reason” and “does not
show requisite intent to waive [the condition] for all instances.” JV’s Open. Br.
at 45–46. It also argues that its own “eventual halt of the [Control Board]
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25

process . . . hardly constitutes an unequivocal waiver of the condition while the
[Control Board] operated.” Id. at 46 (internal quotation marks omitted).
But just because we might fathom a reason to think the joint venture’s
waiver wasn’t unequivocal doesn’t mean the jury couldn’t reasonably find that
it was. The evidence shows that the joint venture didn’t always follow the
requirement to submit change orders to the Control Board. From that, the jury
could reasonably conclude that when the joint venture did follow the
requirement, it did so out of prudence, not obligation. In other words, following
the Control Board condition from time to time is compatible with a finding that
the joint venture “clearly manifest[ed]” its intent not to assert that condition.
See Richmond, 781 P.2d at 195.
The joint venture also argues that the subcontract “prohibits generalized
claims of waiver.” JV’s Reply Br. at 25. In its view, the following provision
required ATS to individually prove waiver for each unpaid change order:
The failure of either party to insist, in any one or more instances,
upon the performance of any of the terms, covenants or conditions
of this Subcontract, or to exercise any of its rights, shall not be
construed as a waiver or relinquishment of any term, covenant,
condition or right with respect to further performance.

App. vol. IX at 2353–54.
We don’t consider this argument. The joint venture didn’t identify that
provision in either its initial or renewed Rule 50 motions. “And we generally do
not consider new theories on appeal—even those that fall under the same
general category as the one that was presented in the district court.” Timken v.
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26

S. Denv. Cardiology Assocs., 155 F.4th 1227, 1239 (10th Cir. 2025) (citation
modified). The joint venture also didn’t identify that provision in its opening
brief. And “[w]e do not consider late-blooming arguments raised for the first
time in a reply brief.” Alex W. v. Poudre Sch. Dist. R-1, 94 F.4th 1176, 1186
(10th Cir. 2024) (citation modified).
B. Sufficiency of the Evidence That All Proposed Changes Were
Outside the Subcontract’s Work Scope
9

At trial, ATS introduced into evidence a chart summarizing twenty-seven
potential change orders it submitted to the joint venture. For thirteen of those
orders, the chart described how the proposed change was outside the
subcontract’s work scope. But for the other fourteen orders, the chart contained
no such description. The joint venture says this means the jury lacked sufficient
evidence to find that all twenty-seven proposed changes were outside the work
scope.
We disagree. ATS’s project manager testified that the chart
“summariz[ed] . . . what th[e] out-of-scope work is.” App. vol. XI at 3069. She
called one proposed change “another example” of problems that ATS did not

9
The district court ruled that the joint venture’s waiver of the Control
Board condition “waived [the joint venture’s] right to enforce Section 2.5 of
the Subcontract.” Rule 50 Order, 2024 WL 1330075, at *3. Because section 2.5
contains both the Control Board and the work-scope conditions, we read the
court’s order to rule that by waiving the Control Board condition, the joint
venture also waived the work-scope condition. Yet neither party reads the order
this way. We need not address the issue, because we conclude that ATS
introduced sufficient evidence that the proposed changes were outside the
subcontract’s work scope.
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27

and could not have predicted during the pre-award stage. Id. at 3070–71. And
she noted the “additional work” that the proposed changes involved. See, e.g.,
id. at 3069, 3073. Because the joint venture failed to rebut this evidence, the
jury could reasonably infer that ATS met the work-scope condition.
III. Refusal to Give the Joint Venture’s Proposed Instruction on the
Implied Duty of Good Faith & Fair Dealing

The joint venture asserts two errors in the district court’s refusal to give
its proposed jury instruction on the implied duty of good faith and fair dealing
in connection with its breach-of-contract counterclaim. First, it argues that by
not including an instruction about the implied duty, the court misstated the law
on breach of contract. Second, it argues that the court “erred in ruling that the
[joint venture] failed to preserve the issue by not filing motions or pretrial
statements raising an implied duty.” JV’s Open. Br. at 50.
Both arguments fail. We affirm the district court’s refusal to instruct the
jury on the implied duty of good faith and fair dealing.
A. Accurately Stating the Law
We review de novo whether jury instructions “accurately state the
governing law and provide the jury with an accurate understanding of the
relevant legal standards and factual issues in the case.” Packard v. City & Cnty.
of Denv., 173 F.4th 1247, 1253 (10th Cir. 2026) (citation omitted).
“Every contract in Colorado contains an implied duty of good faith and
fair dealing.” State Farm Mut. Auto. Ins. v. Goddard, 484 P.3d 765, 772 (Colo.
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App. 2021). A breach of that duty is a breach of contract. City of Golden v.
Parker, 138 P.3d 285, 292 (Colo. 2006). So under Colorado law, a plaintiff
may—and often does—plead a breach-of-contract claim on an implied-duty
theory. See, e.g., Genova v. Banner Health, 896 F. Supp. 2d 993, 998 (D. Colo.
2012); Denny Constr., Inc. v. City & Cnty. of Denv. ex rel. Bd. of Water
Comm’rs, 170 P.3d 733, 737 (Colo. App. 2007), rev’d on other grounds, 199
P.3d 742 (Colo. 2009).
But just because a breach-of -contract claim can rely on an implied-duty
theory doesn’t mean that all breach-of-contract claims do rely on that theory.
The implied duty is enforceable only for contracts whose terms “allow[] for
discretion.” Amoco Oil Co. v. Ervin, 908 P.2d 493, 498 (Colo. 1995). And even
within such contracts, the implied duty isn’t the sole possible basis for breach.
See, e.g., McDonald v. Zions First Nat’l Bank, N.A., 348 P.3d 957, 965, 967
(Colo. App. 2015). As a result, many breach cases don’t implicate the implied
duty. See, e.g., Bertoia v. Galaxy Mgmt. Co., 574 P.3d 259, 268 (Colo. App.
2025); Valdez v. Cantor, 994 P.2d 483, 487 (Colo. App. 1999).
Given that, the district court did not misstate Colorado law by refusing to
instruct about the implied duty in connection with the joint venture’s breach-of-
contract counterclaim. The implied duty is not “an inherent element” of breach.
JV’s Open. Br. at 50. On the contrary, its relevance and factual support vary by
case. Sometimes, a court should not instruct about the implied duty, because
instructing about irrelevant or unsupported theories risks confusing the jury.
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See, e.g., Zamora v. United States, 369 F.2d 855, 859 (10th Cir. 1966). So even
though some cases require an implied-duty instruction, the absence of such an
instruction is not the per se legal error the joint venture says it is.
10

B. Instructing on a Theory Not Identified in the Pretrial Order

The district court ruled that because the pretrial order didn’t mention the
implied duty, the joint venture hadn’t preserved that theory and wasn’t entitled
to an instruction about it at trial. Put another way, the court refused to deviate
from the pretrial order by instructing the jury on a theory the order did not
contain. We review for abuse of discretion a court’s decision whether to modify
a pretrial order. Monfore v. Phillips, 778 F.3d 849, 851 (10th Cir. 2015).
A party is entitled to a proposed instruction that “is properly and timely
brought to the trial court’s attention, is legally correct, and is supported by the
evidence.” First Sec. Bank of Beaver, Okla. v. Taylor, 964 F.2d 1053, 1058
(10th Cir. 1992). A party may propose instructions “[a]t the close of the
evidence or at any earlier reasonable time that the court orders.” Fed. R. Civ. P.
51(a)(1). Once evidence has closed, a party may propose instructions “on issues
that could not reasonably have been anticipated” by the earlier deadline, or on
any other issue “with the court’s permission.” Fed. R. Civ. P. 51(a)(2).

10
For the same reasons, we reject the joint venture’s view that because
the implied-duty instruction came from Colorado’s pattern jury instructions, the
district court had to give that instruction. Just because an instruction is in the
pattern instructions doesn’t mean it is appropriate for every case on that topic.
See Richards v. Att’ys’ Title Guar. Fund, 866 F.2d 1570, 1573 (10th Cir. 1989);
United States v. Edwards, 782 F.3d 554, 564 (10th Cir. 2015).
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At the same time, “any claims, issues, defenses, or theories of damages
not included in the pretrial order are waived.” Murphy-Sims v. Owners Ins., 947
F.3d 628, 631 (10th Cir. 2020) (citation modified). A district court may modify
its final pretrial order “only to prevent manifest injustice.” Fed. R. Civ. P.
16(e). So even if a party timely proposes its jury instructions, a court may still
refuse to instruct on “any issue that was foreseeable but not raised in a pretrial
order or conference.” Potthast v. Metro-N. R.R. Co., 400 F.3d 143, 154 (2d Cir.
2005); see also Century Refin. v. Hall, 316 F.2d 15, 19 (10th Cir. 1963).
The district court did not abuse its discretion in refusing to instruct on
the joint venture’s implied-duty theory. The joint venture first proposed its
implied-duty instruction six weeks before trial. Though that proposal met the
court’s initial deadline for proposing instructions, the underlying theory
appeared in neither the proposed nor the final pretrial orders. The joint venture
also never explains why it waited a year and a half after the final pretrial
order—and over four years after its counterclaim—to raise that theory for the
first time. Thus, we can’t say that the joint venture “suffered manifest injustice,
or anything approximating it,” from the lack of an implied-duty instruction.
Potthast, 400 F.3d at 157.
IV. Refusal to Allow the Joint Venture to Add Fraud Counterclaims

When the joint venture sought to add two fraud counterclaims, one year
had passed since the district court had entered its final pretrial order. Again, we
review for abuse of discretion a court’s decision whether to modify a pretrial
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order, Monfore, 778 F.3d at 851, which the court may do “only to prevent
manifest injustice,” Fed. R. Civ. P. 16(e).
The manifest-injustice inquiry considers (1) “prejudice or surprise” to the
party opposing modification, (2) “the ability of that party to cure any
prejudice,” (3) “disruption to the orderly and efficient trial of the case,” and
(4) “bad faith by the party seeking to modify the order.” Koch v. Koch Indus.,
203 F.3d 1202, 1222 (10th Cir. 2000). “[T]he burden of demonstrating manifest
injustice falls upon the party moving for modification.” Id.
The joint venture asserts two errors in the district court’s refusal to
modify the final pretrial order. First, it argues that the court wrongly concluded
that the joint venture hadn’t shown diligence or good faith in seeking the
modification. Second, it argues that the court blindly accepted ATS’s assertions
of prejudice without examining whether the prejudice was curable.
We aren’t persuaded. We affirm the district court’s refusal to modify the
pretrial order with the joint venture’s two fraud counterclaims.
A. Diligence & Good Faith
The district court didn’t abuse its discretion in concluding that the joint
venture hadn’t acted diligently or in good faith. A party’s “failure to raise [a]
specific [claim] at an earlier possible juncture cuts deeply against [its] claim of
manifest injustice.” Id. at 1223 (citation modified). Yet the joint venture waited
to plead new counterclaims sixteen months after discovering ATS’s alleged
fraud. To explain the delay, the joint venture said that “the full story” of ATS’s
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fraud “was not readily apparent until after post-discovery cohesion.” App. vol.
II at 412. But this explanation “lacks credibility,” because the joint venture had
been trying to plead fraud “[f]rom the day [it] filed its Amended Counterclaim,
in April 2020.” Modification Order, 2023 WL 5748376, at *2 (first quote);
App. vol. II at 410 (second quote). More likely, the joint venture “s[ought] to
avoid the Court’s application of the Subcontract’s liability cap,” the subject of
a summary-judgment order issued one month earlier. Modification Order, 2023
WL 5748376, at *3; see MSJ Order, 2023 WL 5758860, at *6, *12.
The joint venture counters that the district court “too readily dismissed”
its primary concern about the summary-judgment order. JV’s Open. Br. at 53–
54. The summary-judgment order’s main ruling was that the subcontract
subsumed the teaming agreement. See MSJ Order, 2023 WL 5758860, at *6,
*11. The joint venture says it “feared” that this ruling “would prevent it from
proving ATS’s bad faith to the jury.” JV’s Open. Br. at 53. Thus, it tried to add
fraud counterclaims to keep ATS’s bad faith in play.
Any such fear was unfounded. The summary-judgment order made clear
that claims about ATS’s pre-award conduct didn’t disappear but instead became
claims “for breach of the liability-capped Subcontract.” MSJ Order, 2023 WL
5758860, at *7. In other words, the joint venture could sue about ATS’s pre-
award conduct, including fraud during the subcontract negotiations, if it did so
under the subcontract’s $10 million liability limit. See id.
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The joint venture also accuses the district court of “fail[ing] to credit the
[joint venture’s] need for caution” and “prudence” in pleading fraud. JV’s
Open. Br. at 54. Emphasizing that “[f]raud must be pled with particularity and
proven by clear and convincing evidence,” the joint venture cites two decisions
that it says “accepted” tardy claims on the same justification. Id.
We disagree. Whatever care is needed in pleading fraud, see generally
Fed. R. Civ. P. 9(b), the joint venture hasn’t adequately explained why it took
sixteen months to do so after discovering the relevant facts. Its explanation is
even harder to believe given its eagerness to plead fraud from the outset. On
top of that, neither of the decisions it cites applies the “manifest injustice”
standard for modifying a final pretrial order. See Riggs v. Johnson, No. 09-cv-
01226, 2010 WL 1957110, at *2–3 (D. Colo. Apr. 27, 2010); Minter v. Prime
Equip. Co., 451 F.3d 1196, 1205–07 (10th Cir. 2006). Nor do those decisions
approve anything close to a sixteenth-month period of “post-discovery
cohesion.” App. vol. II at 412; see Riggs, 2010 WL 1957110, at *2–3 (allowing
new claims five weeks after new evidence); Minter, 451 F.3d at 1207 & n.7
(allowing a new claim six months after new evidence, partly because “[t]he
record show[ed] that the plaintiff . . . believed [that his claim] was already
fairly encompassed by his pleadings”).
The joint venture further argues that “[w]hen litigation commenced,
Colorado caselaw” on the economic-loss rule “was adverse” and “likely barred
a fraud claim” over ATS’s pre-award conduct. JV’s Open. Br. at 54. In the joint
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venture’s view, the only indication that such a claim was allowed was a
footnote in Bermel “stating that the rule might not apply to statutory fraud.” Id.
at 55 (citing 440 P.3d at 1154 n.6). The joint venture then identifies
McWhinney as the tipping point in allowing it to make intentional-tort claims
under the economic-loss rule. See id. (citing 486 P.3d at 455).
This, too, is unpersuasive. Bermel and McWhinney gave the joint venture
authority for its fraud counterclaims years before it tried to plead them. Bermel
declared that “the economic loss rule generally should not be available to shield
intentional tortfeasors from liability for misconduct that happens also to breach
a contractual obligation.” 440 P.3d at 1154 n.6 (dictum). That declaration came
five months before the joint venture’s counterclaim and nearly a year before its
amended counterclaim. McWhinney then relied on Bermel in concluding “that in
most instances the economic loss rule will not bar intentional tort claims.” 486
P.3d at 453. That conclusion came two and a half years before the joint venture
sought to add its fraud counterclaims. So neither Bermel nor McWhinney shows
that Colorado law “changed” at any relevant time. JV’s Open. Br. at 54.
The joint venture next says it was deterred from pleading fraud because
the district court “seemed to” bar claims based on pre-award conduct, on the
ground that “no precontractual negotiations were occurring” at that time. See
id. at 55.
But the ruling the joint venture says “seemed to” bar pre-award claims
came years after Bermel and a month after McWhinney. See MTD Order, 2021
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35

WL 698665, at *4. The joint venture could have alerted the district court to
those cases, either before the court ruled or in a motion for reconsideration. Yet
it did not do so. That was in consistent with diligently pursuing its claims.
Finally, in a supplemental-authority letter, the joint venture points to a
recent decision, Veolia Water Technologies v. Antero Treatment LLC, 591 P.3d
936 (Colo. 2026), that it contends “supports [its] explanation for the timing of
its amendment request.” JV’s 28(j) Ltr. at 1. Veolia held that the economic-loss
rule doesn’t bar a fraudulent-inducement claim that arises during an earlier
contract, where that contract “represents a stand-alone transaction” separate
from a later contract that was fraudulently induced. See 591 P.3d at 938, 945.
Veolia doesn’t change our conclusion. The issue isn’t whether the
economic-loss rule bars the joint venture’s fraud counterclaims; the issue is
whether the joint venture diligently explored and pleaded those claims under
existing authority. It did not.
B. Prejudice
The district court didn’t abuse its discretion in concluding that the new
fraud counterclaims would prejudice ATS. By the time the joint venture tried to
plead those claims, ATS had “spent the last four years preparing to try a five-
week breach of contract case—not a fraud case—to a jury.” Modification
Order, 2023 WL 5748376, at *3 (citation omitted). So unless the court
reopened discovery, ATS would have been unprepared to defend the fraud
claims at trial. See, e.g., Koch, 203 F.3d at 1223. The court ruled that the
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resulting prejudice would be “substantial.” Modification Order, 2023 WL
5748376, at *3. Given the court’s “experience with and knowledge about the
course of the litigation,” and seeing no reason to think otherwise, we defer to
this determination. Cf. Bond v. Sheriff of Ottawa Cnty., 173 F.4th 1265, 1309
(10th Cir. 2026) (citation omitted).
The joint venture accuses the district court of “simply accept[ing] a rote
claim of prejudice” rather than “conduct[ing] a detailed analysis.” JV’s Open.
Br. at 56. In its view, the court should have required ATS to show what further
discovery was needed, not “simply assumed that [such discovery] could not be
done” before trial. See id.
But again, “the burden of demonstrating manifest injustice falls upon the
party moving for modification.” Koch, 203 F.3d at 1222. Put differently, “[i]t is
the moving party’s burden to show that a review of [the four] factors warrants a
conclusion that manifest injustice would result if the pretrial order is not
modified.” Byrd v. Guess, 137 F.3d 1126, 1132 (9th Cir. 1998), superseded by
statute on other grounds as recognized in Little v. City of Manhattan Beach, 21
F. App’x 651, 652 (9th Cir. 2001). By arguing that ATS failed to show
prejudice, the joint venture foists its own burden onto ATS.
The joint venture next argues that “[a]ny prejudice could have been cured
by re-opening discovery instead of foreclosing the [joint venture’s] claims
entirely.” JV’s Open. Br. at 56. It then minimizes what further discovery was
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needed, asserting that “[t]he basic subject-matter” of the fraud counterclaims
“was the same” as that of the breach-of-contract counterclaim. See id. at 57.
These arguments miss the mark. Prejudice from tardy claims usually
occurs when the claims “arise out of a subject matter different from what was
set forth in the complaint and raise significant new factual issues.” Minter, 451
F.3d at 1208. And despite the joint venture’s efforts to downplay the problem,
the showing of intent required for a fraud claim is a major issue on which ATS
had taken no fact or expert discovery. Modification Order, 2023 WL 5748376,
at *3. Besides, “the delay and expense [of] additional discovery proceedings
also represent[] a form of prejudice.” Jama v. City & Cnty. of Denv., 304
F.R.D. 289, 301 (D. Colo. 2014). In other words, reopening discovery is not a
panacea for prejudice.
11
See id.
CONCLUSION
We affirm the district court’s judgment for ATS on ATS’s and the joint
venture’s breach-of-contract claims.
12

11
Even beyond the prejudice to ATS, reopening discovery “might have so
severely disrupted the orderly and efficient course of [the upcoming] trial that
we cannot say the district court’s refusal [to do so] was an abuse of discretion.”
Koch, 203 F.3d at 1223.

12
ATS also asks us to award it appellate fees and costs, “which ATS will
present per [Local] Rule 39.2.” ATS’s Resp. Br. at 85. To date, ATS has not
moved for such relief, so we do not consider it. See 10th Cir. R. 39.
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