Eastern Natural Gas Corp. (“ENG”) and Dest- Exploration, Inc. (“Dest”) discovered that going on the offensive is not always the best strategy. When they sued Aluminum Company of America (“ALCOA”) for breach of contract, ALCOA countersued for fraud. Dest and ENG lost on both claims before a jury and now appeal. We affirm.
I.
ALCOA owned the rights to drill for oil and gas on approximately 40,000 acres of property in Indiana owned by Peabody Development Company. Commensurate with these rights, ALCOA acquired certain obligations to drill on and develop the land. In 1988, ALCOA sublet its rights in the land to *998 ENG in an agreement that required ENG to spend a certain amount of money on the property, and which also required ENG to meet certain drilling obligations. ENG and ALCOA also entered into a gas purchase agreement (the “GPA”) which obliged ALCOA to buy from ENG the gas produced from the Peabody land. The Sublease and the GPA were later assigned to Dest with ALCOA’s consent. In 1991, after the GPA expired by its own terms, Dest and ALCOA signed a “Letter Agreement” which Dest claimed required ALCOA to enter into a new gas purchase agreement at higher prices.
Dest did not keep up with its contractual obligations and ALCOA began sending notices of default to Dest and ENG in 1993. ALCOA complained that Dest was not drilling the number of wells it was required to drill under the Sublease. Dest countered that it was relieved of its drilling obligаtions in 1993, and that ALCOA’s actions made it impossible for Dest to drill in 1993. Dest also charged ALCOA with anticipatory repudiation of the GPA. Although ALCOA was not aware of it at the time, Dest was also defaulting on its spending obligation. Larry Corwin, the president of Dest, tried to cover up Dest’s failure to meet spending requirements by creating a false invoice in the amount of $81,400, from Geodata Corp., a supplier of geophysical information. Corwin alsо falsified other documentation to back up the forged invoice so that ALCOA would not discover his deception, and so that ALCOA would believe that Dest and ENG were meeting their spending obligation.
In 1994, Dest sued ALCOA for breach of the Sublease and breach of the Letter Agreement. ALCOA counterclaimed, charging Dest and ENG with negligence in drilling a particular well on the Peabody land, with breaching the Sublease by failing to drill the number of wells requirеd, and with breach of the Letter Agreement. Both sides eventually moved for partial summary judgment. The district court rejected as a matter of law ENG’s argument that ALCOA could not declare ENG in default of the Sublease unless and until Peabody declared ALCOA in breach of the primary lease. The court found that although no one disputed that ENG failed to meet the minimum drilling requirements, questions of fact remained about whether ALCOA had prevented ENG from performing the drilling terms of the Sublease. Thus, the court held that issues of fact precluded summary judgment on the issue of which party breached the Sublease.
The district court also found that the Letter Agreement was not a valid contract because it was too indefinite in its terms to be enforceable. 1 At most, the court found, the Letter Agreement was a promise to negotiate in order to come to specific terms fоr a new gas purchase agreement at some later date. Thus, the district court granted summary judgment in favor of ALCOA on Dest and ENG’s claim for breach of the Letter Agreement.
Several months before trial on the remaining issues, ALCOA, in the course of conducting third party discovery, uncovered a discrepancy between invoices produced by third party Geodata and invoices produced by ENG and Dest related to Geodаta. ALCOA promptly moved to reopen discovery, and the trial court allowed ALCOA to depose Larry Corwin, the president of ENG. As a result of this deposition, ALCOA determined that Corwin had forged an $81,400 invoice from Geodata in order to make it appear to ALCOA that ENG was meeting its spending obligation under the Sublease. Corwin had also created a check, purportedly to Geodata, which was actually deposited in а Dest account. In addition to this deception, Corwin created “vendor analysis forms” which showed dummy payments to two other vendors, all in furtherance of the scheme to make it appear that ENG was meeting its spending obligation. All of this false documentation was presented to ALCOA with the intention that ALCOA rely on the information. And ALCOA did, in fact, rely on the false documentation in deciding to continue its relationship with Dest and ENG. One ALCOA witness, accountant Jerry Van Wert, testified that he “seriously doubt[ed]” wheth *999 er ALCOA would have continued its relationship with ENG if it had known that ENG was forging documents. ALCOA’s in-house counsel, John Holsinger, testified that ALCOA would have “absolutely” terminated its relationship with Dest if it had known that Corwin was lying and forging documents in order to show that it was meeting the spending requirement. Finally, ALCOA employee John Hemphill testified that ALCOA was damaged by relying on the false documents because it continued to work with ENG for a long period of time, expending resources it would not have otherwise spent.
Immediately after the Corwin deposition and approximately three months before trial, ALCOA moved to amend its complaint to add a counterclaim for fraud. Eleven days before trial was to begin, the court allowed the amendment. The jury found for ALCOA on both of ENG and Dest’s claims and on ALCOA’s counterclaims, rendering a verdict for ALCOA in thе amount of $450,000. Because the evidence did not support a verdict in that amount, and because ALCOA was willing to accept a remittitur, the court amended the amount of the judgment to $397,339. Dest and ENG moved for judgment as a matter of law and for a new trial on the breach of contract claim and on the fraud counterclaim, and the trial court denied the motions.
II.
Dest and ENG now appeal from the jury verdict and from the district сourt’s earlier summary judgment ruling, citing a number of alleged errors. They argue that ALCOA did not prove its fraud claim because it did not prove reliance on the false documentation. Furthermore, they argue, the trial court should not have granted ALCOA leave to amend its complaint to add the fraud counterclaim only eleven days before trial because this prejudiced Dest and ENG. On the breach of contract claim, Dest and ENG claim entitlement to a new trial because ALCOA allegedly withheld material evidence and because the trial court refused to allow Dest and ENG to use certain ALCOA pleadings to impeach ALCOA witnesses. Dest and ENG also argue that the district court erred when it ruled on summary judgment that the Letter Agreement was not an enforceable contract and when it ruled that ALCOA could declare default on the Sublease before Pеabody declared default on the primary lease. Finally, they claim prejudice to their contract claims from the court’s allowance of the fraud claims “on the eve of trial.” As we shall see, none of these arguments has any merit.
A.
Because much of the plaintiffs’ argument is premised on the district court’s allowance of ALCOA’s motion to amend the complaint to add the fraud counterclaim, we will address that issuе first. We review the district court’s grant of a motion to amend for abuse of discretion.
Sanders v. Venture Stores, Inc.,
The district court carefully considered the potential for prejudice to Dest and ENG. In *1000 order to minimize any prejudice, the court allowed plaintiffs to take necessary discovery regarding the fraud claim, and indeed, plaintiffs deposed ALCOA’s accountant regarding ALCOA’s reliance on the fraud. Dest and ENG belatedly list other discovery they would have taken had they had more time. We have no doubt that plaintiffs wish in hindsight that they had allocated their pretrial resources in a different manner. Although plaintiffs would have us believe that they had a mere eleven days to prepare for the counterclaim, they in fact were on notice of the counterclaim months befоre trial. Furthermore, as far as we can tell from the record, plaintiffs did not request a continuance of the trial date in order to facilitate this additional discovery. Dest and ENG have offered no reason for us to believe the district court abused its discretion in allowing the amendment. We will not second-guess the considered judgment of the district court.
B.
ENG and Dest contend that even if the trial court properly allowed the fraud claim, ALCOA failed to prove the claim because it presented no evidence that ALCOA relied on the fraudulent documents to its detriment. Plaintiffs argue that they are entitled to judgment as a matter of law on this claim, but we need not consider the merits of this issue because plaintiffs have waived this claim. As plaintiffs admitted at oral argument, they failed to file a Rule 50 motion for judgment as a matter of law at the close of all the evidence at trial. Instead, they moved for judgment as a matter of law at the close of ALCOA’s evidence, but before they presented rebuttal evidence. Dest and ENG conceded at oral argument that our ruling in
Umpleby v. Potter & Brumfield, Inc.,
C.
Dest and ENG also claim they are entitled to a new trial on their contract claim because ALCOA withheld material evidence, and because the trial court refused to allow Dest and ENG to use certain pleadings to impeach ALCOA witnesses. We review for abuse of discretion a trial court’s refusal to grant a new trial.
M.T. Bonk Co. v. Milton Bradley Co.,
Plaintiffs claim that ALCOA withheld documents to which they were entitled once ALCOA decided to put its in-house counsel on the stand. ALCOA had withheld as attorney-client privileged the files of Mark Holsinger, its in-house counsel. ALCOA listed Holsinger as a potential trial witness weeks before trial began, and Dest and ENG made no еffort to compel production at that time of the previously withheld documents. At trial, Holsinger was called to testify about, among other things, ALCOA’s reliance on the fraudulent Geodata invoice and supporting documentation. After Holsinger testified for a day, Dest and ENG called for the production of privileged documents, and in particular for “Mr. Holsinger’s notes and his memos to the Alcoa people and the Alcoa’s people [sic] memos to him.” See Transcript of Jury Trial, Volume 5, at p. 813. This request was made on a Friday afternoon, and on Sunday night, certain documents from Holsinger’s files were produced to the plaintiffs. On Monday morning, plaintiffs complained to the court that although ALCOA had produced correspondence from Holsinger, they had not produced correspondence to Holsinger. With Holsinger about to retake the stand, counsel for ENG and Dest commented to the court that the prоblem of the missing documents was “not something that we need to deal with on this witness.” See Transcript of Jury Trial, Volume 6, at p. 828. Dest and ENG did not raise the issue of the missing documents again before the trial court.
On appeal, they claim that “[a]fter the trial, and not earlier” they learned that ALCOA had not produced all of the privileged documents to which they believed they were *1001 entitled. Because of this withholding, Dest and ENG claim they are entitled tо a new trial. But again, Dest and ENG have waived this claim. By their own admissions, they knew during trial that ALCOA had not produced all of the documents in question, but they failed to object, or move to preclude testimony or to compel production, or even request a continuance so that they could determine what to do about any missing documents. They admitted in their brief to this Court that they were “dimly aware” that the requested production was not complete, but they did nothing at trial to remedy that situation. They were aware enough to raise the issue with the district court that Monday morning, but then informed the district court that the issue need not be addressed during Holsinger’s testimony. It was up to Dest and ENG to raise the issue anew before they were prejudiced by the failure to produce, and certainly before the end of trial. We will not address the issue of prejudice from the missing documents for the first time on appeal.
Nor are we persuaded that Dest and ENG are entitled to a new trial because the district court refused to allow them to use certain superseded pleadings to impeach ALCOA witnesses. We review for abuse of discretion any evidentiary rulings of the district court.
Whalen v. Rubin,
Dest and ENG rely on
Contractor Utility Sales Co. v. Certain-teed Products Corр.,
In stark contrast, the district court here was clearly аware that prior pleadings were generally admissible. But in this complex jury trial, the court decided on balance that the pleadings posed a serious risk of confus
*1002
ing the jury, and that this risk outweighed the probative value of the pleadings. In order to minimize prejudice to Dest and ENG, the district court allowed plaintiffs to use the pleadings to cross-examine witnesses and refresh their recollections. When we review for abusе of discretion, we do not second-guess the considered judgment of the district court. Dest and ENG offer us no reason to believe the district court abused its discretion; rather they appear to be asking us to reweigh the Rule 403 factors in an effort to convince us that these documents were more important to their ease than the district court realized, and that the district court overstated the risk of jury confusion. But we do not engage in this kind of reweighing when we review for abuse of discretion.
See United States v. Prevatte,
D.
Dest and ENG challenge the district court’s grant of summary judgment, finding that the Letter Agreement was not an enforceable contract. They also contest the district court’s denial of summary judgment on the issue of whether ALCOA could declare a default against the plaintiffs before Peabody declared a default against ALCOA. We сan easily dispense with the second claim because the district court’s refusal to grant summary judgment, followed by a full trial on the merits, is not reviewable by this Court.
See Watson v. Amedco Steel, Inc.,
On the issue of whether the letter agreement constituted an enforceable contract, we review the district court’s grant of summary judgment
de novo. Pasqua v. Metropolitan Life Ins. Co.,
E.
Finally, Dest and ENG' claim they are entitled to a new trial on the contract claim because they were prejudiced in litigating the contract claim in light of the late addition of ALCOA’s fraud counterclaim to the case. We have already decided that the district court did not abuse its discretiоn in allowing ALCOA to amend its counterclaim to add the fraud count. Furthermore, Dest and ENG failed to preserve any objection to the effect of the fraud claim on the contract claim, *1003 because they failed to ask for a continuance of the trial date.
Affirmed.
Notes
. After uncovering evidence of fraud committed by Dest’s president, ALCOA sought leave to amend its counterclaim so that it could withdraw the contract counterclaim based on the Letter Agreement, and add a claim based on the fraud. As we discuss infra, the district court did not abuse its discretion in allowing ALCOA to make these amendments.