                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                            JUL 22 2010

                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S . CO U RT OF AP PE A LS

ERNEST MERRILL; LILA MERRILL,                    No. 07-16472

              Plaintiffs - Appellants,           D.C. No. CV-05-00195-AWT

  v.
                                                 ORDER *
COUNTY OF MADERA; ANGELA
BASCH; MARK MEYERS; GARY
GILBERTS,

              Defendants - Appellees.



                  Appeal from the United States District Court
                      for the Eastern District of California
                 Anthony W. Ishii, Chief District Judge, Presiding

                       Argued and Submitted April 15, 2010
                            San Francisco, California

Before: SCHROEDER and RAWLINSON, Circuit Judges, and COLLINS, District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
      The matter before this Court involves claims of substantive due process,

procedural due process, equal protection, and state law claims arising from a land

use dispute between landowners Ernest and Lila Merrill and the County of Madera.

      The district court dismissed the majority of Plaintiffs' claims in response to

the County's motion to dismiss and motion for summary judgment. The Merrills'

procedural due process claims and equal protection clause claims proceeded to

trial, after which the Court issued judgment as a matter of law in favor of the

County on some claims, and a jury found in favor of the County on all others. The

only issue raised on appeal is the dismissal of the Merrills' substantive due process

claims, which we in turn will review in depth.

       The Merrills alleged that the County violated their substantive due process

rights when the County intentionally 'created and applied laws' in an unfair,

irrational and arbitrary manner that prevented them from being able to fully

develop their property. The Merrills also alleged that they were denied permits to

build a barn, add a decµ to their mobile home, and grade their land. The County

filed a 12(b)(6) motion to dismiss arguing the Merrills' substantive due process

claims were subsumed by the Taµings Clause of the Fifth Amendment. The

district court dismissed the substantive due process claims because it held that

claims pertaining to the deprivation of a property interest could only be brought

pursuant to the Taµings Clause. In reaching this decision, the district court relied
on Armendariz v. Penman, 75 F.3d 1311, 1319 (9th Cir. 1996) (en banc), which

held that the Taµings Clause of the Fifth Amendment subsumed substantive due

process claims challenging the economic impact of land use regulations.

      On appeal, Plaintiffs argue that Armendariz is no longer good law, having

been overturned by Crown Point Development, Inc. v. City of Sun Valley, 506 F.3d

851 (9th Cir. 2007). Plaintiffs contend that the change in law is reason to

reconsider the district court's decisions (1) to grant the County's motion to dismiss

the Merrills' substantive due process claims, (2) to deny the Merrills' motion to

amend their complaint to include additional substantive due process claims, and (3)

to deny the Merrills' motion for a new trial. Defendants acµnowledge the change

in law, but offer new reasons for this Court to uphold the district court's dismissal

of the substantive due process claims on the merits.

      As an initial matter, we affirm the district court's denial of the Merrills'

motion for a new trial. At trial, the claims under consideration were the Merrills'

procedural due process and equal protection claims. The substantive due process

claims had already been dismissed on the basis of the County's pretrial motions.

As the district court correctly noted, a Rule 59(a) motion for new trial is not

available on claims or causes of actions for which Plaintiffs never received a trial.

See Fed. R. Civ. P. 59; see also 11 Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedures y 2814 ('A ... new trial will not be granted to try
a new issue that was not litigated at the first trial.'). The change in law from

Armendariz to Crown Point therefore has no bearing on the claims that were tried,

and the Merrills present no other reason to justify retrying them.

      With regard to the dismissal of the Merrills' initial substantive due process

claims, and the denial of leave to amend the complaint to add new substantive due

process claims, we find that the district court is best suited to address these issues

in the first instance. We therefore remand for the district court to decide (1)

whether the Merrills should, in light of Crown Point, be granted leave to amend

their complaint to include additional substantive due process claims; (2) whether

the Merrills' complaint, as amended, states a substantive due process claim; and (3)

whether the principle of Hecµ v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129

L.Ed. 383 (1994), bars any of the Merrills' remaining substantive due process

claims, in particular the claim based on Mr. Merrill's liberty interest.

      Accordingly, this court retains jurisdiction to review any subsequent appeals.

We will resume control and jurisdiction over this matter after the district court

maµes a ruling consistent with our order. The parties shall notify the Clerµ of our

court with a status report of the proceeding in the district court after 60 days.

      IT IS SO ORDERED
                                                                            FILED
Merrill v. County of Madera, Case No. 07-16472                                JUL 22 2010
Rawlinson, Circuit Judge, concurring:                                   MOLLY C. DWYER, CLERK
                                                                          U.S . CO U RT OF AP PE A LS

      I concur in the order remanding this case to the district court. Specifically as

to the Hecµ claim, the district court should address the implications of: (1) Mr.

Merrill's guilty plea to a violation of the Fish and Game Code (moving dirt into a

waterway) and not to any violation involving grading of roads and/or building new

roads; and (2) the fact that Mrs. Merrill was never charged with violating any

statute or ordinance.
