Unaccepted Offers of Judgment Do Not Moot Claims; Post-Pretrial Additions of Fraud and Unpled Contract Theories Require “Manifest Injustice”

1. Introduction

This published Tenth Circuit decision arises from a high-stakes infrastructure dispute over the C-470 express lanes project in Colorado. A joint venture (Flatiron Constructors, Inc. and AECOM Energy & Construction, Inc.) engaged AECOM Technical Services, Inc. (“ATS”) to provide engineering designs first under a pre-award teaming agreement and then under a post-award subcontract. After project redesigns and delays, ATS sued for breach of the subcontract (seeking payment largely for unpaid “potential change orders”), while the joint venture counterclaimed for contract breaches and attempted to add tort and fraud theories.

Following a 17-day jury trial and a verdict for ATS on all claims and counterclaims, the joint venture appealed a series of procedural and substantive rulings, asking for a new trial. The Tenth Circuit affirmed across the board, emphasizing three recurring themes: (i) an unaccepted offer of judgment does not moot a claim and cannot be imposed as a forced settlement; (ii) contractual conditions may be waived by conduct and, at the Rule 50 stage, the jury’s waiver finding receives deference under the governing standard; and (iii) litigation is cabined by the final pretrial order—late-added fraud claims and late-raised contract theories require Rule 16(e) “manifest injustice,” a burden the joint venture did not meet.

2. Summary of the Opinion

3. Analysis

3.1. Precedents Cited

A. Mootness and offers of judgment

• Chafin v. Chafin supplied the controlling Article III formulation: a claim is moot only if it is “impossible for the court to grant any effectual relief whatever.” The panel used Chafin to frame mootness as an “effectual relief” inquiry rather than a cost-benefit or efficiency inquiry.
• Campbell-Ewald Co. v. Gomez was the decision’s centerpiece on mootness: “an unaccepted settlement offer or offer of judgment does not moot a plaintiff’s case.” The panel treated Campbell-Ewald as applying to individual claims (not limited to class actions), relying on its contract-law premise that an unaccepted offer has “no continuing efficacy.”
• Tosco Corp. v. Hodel and Montgomery v. Kraft Foods Glob. were invoked for the uncontroversial proposition that accepted settlement offers can moot a claim—highlighting that acceptance, not tender, is the critical event.
• Lucero v. Bureau of Collection Recovery was addressed and confined: the panel explained that Lucero did not decide the individual-action mootness question and is consistent with Campbell-Ewald. The opinion also noted developments in other circuits referenced by Lucero (including the later overruling/clarification of cases discussed in footnote 6).
• Uzuegbunam v. Preczewski and Mission Prod. Holdings, Inc. v. Tempnology, LLC reinforced that even small or nominal monetary stakes keep a dispute live: “If there is any chance of money changing hands,” the claim remains justiciable.

B. Due process and the limits of judicial power to compel settlement

• Evans v. Jeff D. provided the core limitation: courts lack power “to require [parties] to accept a settlement” without agreement. The panel used this to reject the joint venture’s attempt to convert a rejected offer into a judicially imposed judgment.
• Del Rio v. N. Blower Co., United States ex rel. Wadeford Elec. Co. v. E.J. Biggs Constr. Co., and Bass v. Phx. Seadrill/78, Ltd. supported a litigant’s right to refuse settlement and proceed to trial; the panel flipped the joint venture’s “due process” narrative by explaining that due process concerns would arise from forcing ATS to accept the joint venture’s terms.
• Kothe v. Smith further underscored the impropriety of coercive settlement pressure by courts, bolstering the conclusion that the district court made the only lawful choice in denying the “judgment against itself” request.
• On trial management/order of proof, the panel cited Cont’l Baking Co. v. Old Homestead Bread Co. and Peterson v. Weinberger for the district court’s discretion regarding which party proceeds first.

C. Rule 50(b), waiver, and sufficiency of evidence

• Mtn. Dudes v. Split Rock Holdings provided the Rule 50(b) standard: judgment as a matter of law is proper only when evidence points “one way” and supports “no reasonable inferences” for the nonmovant; courts do not weigh evidence or assess credibility.
• On Colorado waiver doctrine, the panel relied on Johnson v. People (waiver as intentional relinquishment), Babcock v. People (waiver can be implied by conduct), and Richmond v. Grabowski (conduct must be unambiguous and clearly manifest intent not to assert the benefit). It further invoked Avicanna Inc. v. Mewhinney and Vogel v. Carolina Int’l, Inc. for the proposition that waiver is typically a fact question for the factfinder—making Rule 50 relief hard to obtain on waiver disputes.
• On issue-preservation limits in Rule 50 practice and appellate briefing, the panel cited Timken v. S. Denv. Cardiology Assocs. and Alex W. v. Poudre Sch. Dist. R-1 to refuse consideration of a late-raised argument (a contractual “no waiver” clause) not presented in the Rule 50 motions or opening brief.

D. Jury instructions, implied duty, and pretrial-order control

• Packard v. City & Cnty. of Denv. supplied the standard for reviewing whether instructions accurately state governing law.
• On Colorado’s implied covenant, the panel cited State Farm Mut. Auto. Ins. v. Goddard (implied duty in every contract) and City of Golden v. Parker (breach of the implied duty is breach of contract). But it emphasized limits from Amoco Oil Co. v. Ervin: the implied duty is enforceable where contract terms “allow[] for discretion,” not as an automatic add-on in every breach case. It also referenced examples of breach litigation that may (e.g., Genova v. Banner Health, Denny Constr., Inc. v. City & Cnty. of Denv. ex rel. Bd. of Water Comm’rs) or may not (e.g., Bertoia v. Galaxy Mgmt. Co., Valdez v. Cantor) implicate the implied duty.
• The panel invoked Zamora v. United States to justify avoiding instructions that risk jury confusion when the theory is irrelevant or unsupported.
• In rejecting the argument that pattern instructions must be given, the court cited Richards v. Att’ys’ Title Guar. Fund and United States v. Edwards.
• On pretrial orders as the controlling roadmap, the panel relied on Murphy-Sims v. Owners Ins. for the rule that “any claims, issues, defenses, or theories of damages not included in the pretrial order are waived.” It tied that waiver principle to Rule 16(e)’s “manifest injustice” modification standard and cited Century Refin. v. Hall and Potthast v. Metro-N. R.R. Co. for refusing instructions on foreseeable issues omitted from the pretrial order.

E. Post-pretrial amendments and the “manifest injustice” framework

• The panel applied the Tenth Circuit’s four-factor “manifest injustice” test from Koch v. Koch Indus.: (1) prejudice/surprise to the opposing party, (2) ability to cure, (3) disruption of orderly trial, and (4) bad faith by the moving party—placing the burden on the movant.
• Minter v. Prime Equip. Co. and Riggs v. Johnson were discussed and distinguished: they did not involve Rule 16(e) final-pretrial-order modification and did not endorse delays as long as the joint venture’s.
• For deference to the trial court’s assessment of litigation realities, the panel cited Bond v. Sheriff of Ottawa Cnty..
• The panel noted Colorado economic-loss-rule authorities in the background of the case’s pleading disputes, including Town of Alma v. AZCO Constr. (economic-loss rule statement), and discussed intentional-tort signals from Bermel v. BlueRadios, Inc. and McWhinney Centerra Lifestyle Ctr. LLC v. Poag & McEwen Lifestyle Ctrs.-Centerra LLC. It also addressed the joint venture’s late reliance on Veolia Water Technologies v. Antero Treatment LLC, explaining it did not excuse the lack of diligence.
• Jama v. City & Cnty. of Denv. supported the point that additional discovery can itself be prejudicial through delay and expense, so “reopen discovery” is not a prejudice cure-all.

3.2. Legal Reasoning

A. The court’s “no forced settlement” logic (mootness + due process + discretion)

The joint venture attempted an end-run around trial by (i) offering to confess judgment on ATS’s contract claim, and then (ii) asking the court to enter judgment despite ATS’s rejection—framing the issue as mootness and “fundamental fairness.” The Tenth Circuit rejected the premise and the remedy.

• Mootness: The panel treated Campbell-Ewald Co. v. Gomez as a bright line: absent acceptance, the offer does not extinguish the controversy. The joint venture’s attempt to analogize itself to the “deposit-and-judgment” hypothetical expressly left open in Campbell-Ewald failed because it did not actually deposit funds and obtain a consensual judgment; it sought an imposed judgment after rejection.
• Due process: The court declined to recognize any due-process “right” of a defendant to avoid trial on a supported claim. Instead, it emphasized the opposite principle: a plaintiff may refuse settlement and “litigate to its heart’s content,” and courts lack power to compel settlement.
• Abuse of discretion: Because the requested relief amounted to forcing a settlement, the district court’s denial was not just reasonable; it was the only lawful option consistent with Evans v. Jeff D. and Kothe v. Smith.

B. Rule 50(b): why the verdict could stand

On ATS’s change-order damages, the joint venture argued ATS failed to prove satisfaction of contractual “conditions precedent” (Control Board approval and out-of-scope work). The panel affirmed denial of Rule 50(b) because the jury could reasonably infer waiver and out-of-scope performance from the record.

• Waiver of the Control Board condition: The joint venture’s conduct—submitting a change order to CDOT without board approval, then later shelving change orders “in favor of letting [them] get resolved through litigation”—supported a reasonable finding that it intentionally relinquished, or acted inconsistently with, enforcement of the condition. Colorado law treats waiver as fact-intensive; under the Rule 50 standard, the joint venture could not show the evidence pointed only one way.
• Out-of-scope evidence: Although a summary chart lacked an explicit out-of-scope explanation for 14 change orders, ATS offered testimonial evidence that the chart summarized out-of-scope work and described unanticipated issues and “additional work.” With no compelling rebuttal, the jury could infer the work fell outside scope.
• Preservation discipline: The panel’s refusal to consider the contract’s “no waiver” clause argument (raised late) underscores that Rule 50(b) is not a vehicle for new legal theories; arguments must be presented to the district court at the Rule 50(a) stage and developed in the opening appellate brief.

C. Jury instructions: implied duty as a theory, not an automatic element

The joint venture characterized good faith and fair dealing as an “inherent element” of breach of contract. The panel disagreed in two steps.

• Substantive law: Colorado implies the duty into every contract, but it is enforceable where contract terms involve discretion (Amoco Oil Co. v. Ervin). Not every breach claim requires litigating the implied duty; instructing on irrelevant theories risks confusion.
• Procedural law (pretrial order): Even a correct instruction may be refused if it introduces a foreseeable theory omitted from the final pretrial order. Here, the implied-duty theory appeared for the first time in proposed jury instructions long after the final pretrial order; Rule 16(e) permits deviation only to prevent “manifest injustice,” which was not shown.

D. Late fraud counterclaims: “manifest injustice” is demanding

The joint venture sought to add fraudulent concealment and fraudulent inducement years after amendment deadlines and a year after the final pretrial order, claiming new evidence and “changes” in Colorado economic-loss law.

• Diligence and motive: The panel accepted the district court’s skepticism of a 16-month delay after discovering alleged fraud. It also deemed “unfounded” the claim that summary judgment eliminated the ability to pursue pre-award wrongdoing; the district court had held such conduct remained actionable as breach of the subcontract (albeit within the subcontract’s liability cap).
• No meaningful “change in law” excuse: The court treated Bermel v. BlueRadios, Inc. and McWhinney Centerra Lifestyle Ctr. LLC v. Poag & McEwen Lifestyle Ctrs.-Centerra LLC as available long before the motion; they did not justify waiting until the eve of trial.
• Prejudice and disruption: The late addition of fraud would have injected intent-heavy issues requiring different discovery and trial preparation; reopening discovery itself would add delay and expense. Under Koch v. Koch Indus., this supported denying modification.

3.3. Impact

• Article III practice in the Tenth Circuit: The decision reinforces that defendants cannot moot claims by tendering (or offering) complete relief without acceptance, and they cannot repackage forced settlement as “mootness” or “due process.” This is especially relevant in complex commercial disputes where defendants may seek tactical role reversal at trial.
• Trial-management discipline: The opinion strengthens the practical authority of final pretrial orders. Parties must clearly preserve (i) specific contract theories (including implied covenant theories) and (ii) tort/fraud theories by the pretrial order stage or bear the steep Rule 16(e) burden.
• Construction-contract administration: On the merits-adjacent issues, the waiver analysis signals that owners/contractors who sporadically bypass contractual change-order mechanisms (e.g., approval boards) risk a finding that they waived those protections—particularly when they later “shelve” change requests pending litigation.

4. Complex Concepts Simplified

• Constitutional mootness: A case is moot only if the court can no longer give any meaningful relief. An offer of money does not end a case if the other side refuses it.
• Offer of judgment (Rule 68) vs. imposed judgment: A defendant can offer judgment, but the plaintiff decides whether to accept. Courts generally cannot force acceptance by entering judgment over the plaintiff’s objection.
• Rule 50(b) (judgment as a matter of law): After a jury verdict, the judge may overturn it only if no reasonable jury could have reached it based on the evidence—courts must give the verdict winner the benefit of reasonable inferences.
• Waiver (contract): You can lose a contract right not only by expressly giving it up, but also by acting in a way that clearly shows you are not insisting on it.
• Implied duty of good faith and fair dealing: Colorado recognizes this duty in every contract, but it matters most when a contract gives one party discretion (choices that must be exercised honestly and fairly). It is not automatically at issue in every breach case.
• Final pretrial order & “manifest injustice” (Rule 16(e)): The final pretrial order is the blueprint for trial. Adding new claims or theories after it is allowed only in exceptional circumstances; the moving party must show “manifest injustice” if the order is not changed.

5. Conclusion

The Tenth Circuit’s decision in AECOM Technical Services v. Flatiron | AECOM is a strong reaffirmation of litigation fundamentals that often decide complex commercial cases: (1) unaccepted offers of judgment do not moot claims and cannot be converted into compelled settlements; (2) jury verdicts survive Rule 50(b) where waiver and scope questions allow reasonable inferences; and (3) the final pretrial order meaningfully limits what gets tried—late fraud claims and late-raised contract theories are barred absent a compelling, diligently supported showing of “manifest injustice.”