Full Opinion

Appellate Case: 25-1140 Document: 43-1 Date Filed: 08/14/2026 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS August 14, 2026 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________ AECOM TECHNICAL SERVICES, INC., Plaintiff / Counter defendant - Appellee, v. No. 25-1140 FLATIRON | AECOM, LLC, Defendant / Counterclaimant - Appellant. _________________________________ 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. _________________________________ Appellate Case: 25-1140 Document: 43-1 Date Filed: 08/14/2026 Page: 2 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. 2 Appellate Case: 25-1140 Document: 43-1 Date Filed: 08/14/2026 Page: 3 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. 3 Appellate Case: 25-1140 Document: 43-1 Date Filed: 08/14/2026 Page: 4 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. 4 Appellate Case: 25-1140 Document: 43-1 Date Filed: 08/14/2026 Page: 5 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 Under Colorado law, “breach of contract and unjust enrichment claims 2 involving the same subject matter are mutually exclusive.” Bd. of Gov’rs v. Alderman, 563 P.3d 1205, 1213 (Colo. 2025). 5 Appellate Case: 25-1140 Document: 43-1 Date Filed: 08/14/2026 Page: 6 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). 6 Appellate Case: 25-1140 Document: 43-1 Date Filed: 08/14/2026 Page: 7 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 7 Appellate Case: 25-1140 Document: 43-1 Date Filed: 08/14/2026 Page: 8 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 8 Appellate Case: 25-1140 Document: 43-1 Date Filed: 08/14/2026 Page: 9 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 9 Appellate Case: 25-1140 Document: 43-1 Date Filed: 08/14/2026 Page: 10 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. 10 Appellate Case: 25-1140 Document: 43-1 Date Filed: 08/14/2026 Page: 11 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 11 Appellate Case: 25-1140 Document: 43-1 Date Filed: 08/14/2026 Page: 12 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. 12 Appellate Case: 25-1140 Document: 43-1 Date Filed: 08/14/2026 Page: 13 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. 13 Appellate Case: 25-1140 Document: 43-1 Date Filed: 08/14/2026 Page: 14 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. 14 Appellate Case: 25-1140 Document: 43-1 Date Filed: 08/14/2026 Page: 15 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- The joint venture also alleges two errors that wouldn’t warrant a new 5 trial but would affect a possible damages award at a new trial. 15 Appellate Case: 25-1140 Document: 43-1 Date Filed: 08/14/2026 Page: 16 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). 16 Appellate Case: 25-1140 Document: 43-1 Date Filed: 08/14/2026 Page: 17 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 itself 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. 17 Appellate Case: 25-1140 Document: 43-1 Date Filed: 08/14/2026 Page: 18 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 18 Appellate Case: 25-1140 Document: 43-1 Date Filed: 08/14/2026 Page: 19 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). 19 Appellate Case: 25-1140 Document: 43-1 Date Filed: 08/14/2026 Page: 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, 20 Appellate Case: 25-1140 Document: 43-1 Date Filed: 08/14/2026 Page: 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. 21 Appellate Case: 25-1140 Document: 43-1 Date Filed: 08/14/2026 Page: 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 It’s not clear under what authority the joint venture brought its motion. 8 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). 22 Appellate Case: 25-1140 Document: 43-1 Date Filed: 08/14/2026 Page: 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 b