3d Global Solutions , Inc . v. Mvm, Inc .

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 11, 2014 Decided June 17, 2014
No. 13-7015
3D G LOBAL S OLUTIONS , INC .,
APPELLANT
v.
MVM, INC .,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:06-cv-00722)
Haytham Faraj argued the cause and filed the brief for
appellant. Bradley P. Moss entered an appearance.
Herbert S. Rosenblum argued the cause and filed the brief
for appellee.
Before: GARLAND , Chief Judge, W ILKINS , Circuit Judge,
and S ENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Wilkins.

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W ILKINS , Circuit Judge: This appeal arises out of a
contract dispute between 3D Global Solutions, Inc. (“3D
Global”) and MVM, Inc. (“MVM”). In early 2005, MVM
won a contract with the United States government to provide
security forces in Kabul, Afghanistan. To fulfill its
obligations under the contract, MVM entered into a recruiting
agreement with 3D Global, pursuant to which 3D Global was
retained to recruit and deploy third country nationals as
security personnel for the United States embassy in Kabul. In
April 2006, 3D Global filed a lawsuit against MVM in the
district court for the District of Columbia, alleging, inter alia,
breach of the recruiting agreement. MVM filed
counterclaims, alleging that 3D Global breached the recruiting
agreement by failing to provide third country nationals with
the required English proficiency levels. The recruiting
agreement contained a choice-of-law provision stating that the
agreement will be governed by Virginia law.
The case went to trial on September 10, 2012. Before
providing final instructions to the jury, the court held a
conference with the parties to discuss the jury instructions.
Counsel for 3D Global requested an instruction regarding
“interest on damages.” The following colloquy ensued:
COUNSEL FOR 3D GLOBAL: I provided to the court a
case from Virginia regarding interest on damages, and I
would ask that the court include that in the instruction. I
believe the statutory rate is 6 percent unless they
contract—
THE COURT: Why should that be included in an
instruction? Why wouldn’t that simply be after the
verdict comes in, why wouldn’t it, as a matter of law,

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simply be added to whatever amount the jury came up
with?
COUNSEL FOR 3D GLOBAL: It can. There is nothing
that prevents the court from doing that.
THE COURT: The less that the jury has to focus on the
easier their task will be.
COUNSEL FOR 3D GLOBAL: I agree. And based on
my reading of the three or four cases—I’m not a Virginia
lawyer, but it didn’t appear that the court is precluded
from doing that post verdict.
[JA-115-16] Counsel for MVM remained silent during the
exchange between the court and counsel for 3D Global. The
district court’s final instructions to the jury did not mention
prejudgment or post-judgment interest.
On September 20, 2012, the jury returned a verdict for
3D Global in the amount of $138,565. The jury did not award
any incidental, consequential or nominal damages. After the
verdict, counsel for 3D Global moved for an award of
prejudgment interest at the Virginia statutory rate of six
percent. Counsel for MVM objected, arguing that the
awarding of prejudgment interest is discretionary with the
finder of fact. The court granted 3D Global’s motion on the
basis that the issue was waived by the parties’ failure to
submit it to the jury on the verdict form. [JA-180-82]
On September 25, 2012, MVM filed a motion for
reconsideration, renewing its argument that the jury, rather
than the court, has discretion to award prejudgment interest
under Virginia law. 3D Global opposed, claiming that the
parties had agreed to have the trial court decide the issue

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during the conference. The trial court reversed its earlier
decision and granted MVM’s motion, and this appeal
followed.
On appeal, 3D Global argues that the district court had
discretion to award prejudgment interest under Virginia law.
Appellant Br. at 20-21. 3D Global further argues that MVM
did not object to the court’s initial ruling and was therefore
foreclosed from raising the issue post-verdict. Id. at 18-19,
22-26. MVM, on the other hand, disputes 3D Global’s claim
that the parties agreed to have the district court decide the
issue. Appellee Br. at 14-17.
As an initial matter, we accept, without deciding, the
parties’ assertion that abuse of discretion is the appropriate
standard of review. Appellant Br. at 20; Appellee Br. at 7.
Applying that standard, we do not find an abuse of discretion
in this case.
The Virginia Code provides in pertinent part, “[i]n any
Administrative Process Act (§ 2.2-4000 et seq.) action or
action at law or suit in equity, the final order, verdict of the
jury, or if no jury the judgment or decree of the court, may
provide for interest on any principal sum awarded, or any part
thereof, and fix the period at which the interest shall
commence.” VA. C ODE ANN . § 8.01-382. Thus, under the
statute, the decision to award prejudgment interest falls within
the discretion of the trier of fact. See McClung v. Smith, 89
F.3d 829 (4th Cir. 1996) (“The Virginia Code allows a jury or
a court sitting without a jury to award prejudgment interest in
an action at law or a suit in equity.”); Gill v. Rollins
Protective Servs. Co., 836 F.2d 194, 198 (4th Cir. 1987).
Thus, 3D Global’s argument that the district court had
discretion to award prejudgment interest in this instance fails
as matter of law.

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Moreover, when the district court initially ruled that it
would decide the issue of prejudgment interest, 3D Global
failed to advise the court that the issue is one for the jury
under Virginia law. Instead, counsel for 3D Global
erroneously informed the court that “[t]here is nothing that
prevents the court from doing that.” [JA-116] 3D Global
therefore invited the error. See Wagner v. Taylor, 836 F.2d
596, 599 (D.C. Cir. 1987) (“It has long been settled that on
appeal a litigant cannot avail himself of an error that he
induced the court under review to commit.”) (citations
omitted); Bhd. of R.R. Trainmen v. Chicago, Milwaukee, St.
Paul & Pac. R.R. Co., 380 F.2d 605, 609 (D.C. Cir. 1967),
cert. denied, 389 U.S. 928 (1967); Barone v. Williams, 199
F.2d 189, 191 (D.C. Cir. 1952). We see no abuse of
discretion in the district court’s decision to change its earlier
ruling after it had a more fulsome opportunity to consider the
relevant Virginia law.
Nor do we find that the district court erred in concluding
that the parties did not reach an agreement to submit the issue
of prejudgment interest to the court. When counsel for 3D
Global initially asked the district court to instruct the jury on
prejudgment interest, counsel for MVM remained silent.1 In
1 MVM argued in its brief that it had no reason to object during
the initial discussion between counsel for 3D Global and the district
court because it was not clear whether 3D Global was seeking
prejudgment or post-judgment interest. Appellee Br. at 15.
MVM’s counsel reiterated the claim during oral argument. See
[Oral Arg. Recording at 13:07-14:10, 17:03-18:47]. We are
dubious of this contention. Nonetheless, the trial court was in the
best position to assess whether gamesmanship or sharp practice was
at play here, and if so, how that should affect the outcome. Thus, it
is quite significant that the trial court not only invited MVM to file
a motion for reconsideration, but also granted the motion, for “the

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the absence of a stipulation or express agreement by MVM’s
counsel, it was not an abuse of discretion for the district court
to conclude that no such agreement existed, particularly since
“[c]ourts will ‘indulge every reasonable presumption against
waiver’ of a jury trial.” Rodenbur v. Kaufman, 320 F.2d 679,
683 (D.C. Cir. 1963) (quoting Aetna Ins. Co. v. Kennedy, 301
U.S. 389, 393 (1937)).
Accordingly, we affirm the judgment below.
So ordered.
district judge is in the best position to assess whether or not ‘justice
requires’ [reconsideration].” Greene v. Union Mut. Life Ins. Co. of
Am., 764 F.2d 19, 22–23 (1st Cir. 1985) (Breyer, J.) (cited in
Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc., 630 F.3d
217, 227 (D.C. Cir. 2011)).

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