                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                               Nos. 11-2074 & 11-2556
                                    ___________

                                    JOHN GOMEZ,
                                             Appellant

                                           v.

                           OFFICER JAMES MARKLEY
                      ____________________________________

                    On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                          (D.C. Civil Action No. 07-cv-00868)
                     District Judge: Honorable Nora Barry Fischer
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  August 17, 2012

                Before: AMBRO, FISHER and GARTH, Circuit Judges

                            (Opinion filed August 21, 2012)
                                    ___________

                                      OPINION
                                     ___________

PER CURIAM

      John Paul Gomez sued James Markley and the Midway Borough Police

Department under 42 U.S.C. § 1983, alleging, among other claims, a violation of his

Fourth Amendment rights during a traffic stop in March 2007. The District Court

concluded that it appeared that Gomez challenged three searches, one when he was
removed from his vehicle and searched for weapons, one when Markley searched the

vehicle for drugs and/or contraband, and one when his car was inventoried when it was

taken into police custody. The District Court granted summary judgment in favor of the

defendants on all three claims (and also dismissed Gomez’s other claims). Gomez

appealed. We vacated the judgment against Markley as to the Fourth Amendment claim

about the second search, but otherwise affirmed the District Court’s decision. Gomez v.

Markley, 385 F. App’x 79, 82-3 & n.1 (3d Cir. 2010). On remand, the claim about the

second search was tried before a jury, which found that there was no second search and

returned a verdict in favor of Markley.

       Gomez appeals.1 His main argument is that the District Court violated our

mandate on remand by allowing the parties to try, and the jury to consider, whether the

second search had taken place. (He contends that proper question for the jury was

whether Markley had probable cause to conduct a second search.) He also challenges

some of the District Court’s evidentiary rulings and a post-trial decision that a motion for

the District Court “to render judgment” was moot. Lastly, he contends that the District

Court should have granted his “motion for a new trial and/or judgment not withstanding

[sic] the verdict.”


1
  Gomez first appealed from the judgment entered after the jury verdict (C.A. No. 11-
2074). He later filed another appeal (C.A. No. 11-2556) to appeal from a later ruling on
post-trial motions (although he also challenged another order relating to the cost of the
transcript of his trial, we do not consider it, for we resolved the transcript issue
previously, and Gomez no longer pursues the matter, see Kost v. Kozakiewicz, 1 F.3d
176, 182 (3d Cir. 1993)). The two appeals have been consolidated for all purposes.
                                                 2
         We have jurisdiction pursuant to 28 U.S.C. § 1291. Whether the District Court

properly interpreted and applied our mandate is a question of law, which, like any other

question of law in this case, is subject to plenary review. See Kilbarr Corp. v. Business

Sys., 990 F.2d 83, 87-88 (3d Cir. 1993). The District Court’s rulings on whether to admit

or exclude evidence are reviewed for abuse of discretion (as long as they are based on a

permissible interpretation of the Federal Rules of Evidence). Renda v. King, 347 F.3d

550, 553 (3d Cir. 2003). We consider whether a motion for judgment as a matter of law

should have been granted under the same standard employed by the District Court; it

should have been granted “only if, viewing the evidence in the light most favorable to the

nonmoving party, there is no question of material fact for the jury and any verdict other

than the one directed would be erroneous under the governing law.” See McGreevy v.

Stroup, 413 F.3d 359, 364 (3d Cir. 2005). The District Court’s ruling on the motion to

grant a new trial is reviewed for abuse of discretion (unless the ruling was based on the

application of a legal precept). Blancha v. Raymark Indus., 972 F.2d 507, 512 (3d Cir.

1992).

         Upon review of our earlier decision and the proceedings on remand, we conclude

that the District Court did not violate our mandate. In our earlier opinion, we did say, as

Gomez notes, that “[t]he District Court determined that three searches occurred.”

Gomez, 385 F. App’x at 82. We also described a second search when we stated that, if

the facts were viewed in the light most favorable to Gomez, they “are still not sufficient


                                             3
to support a finding as a matter of law that Officer Markley had probable cause to believe

that there were drugs in the car before he commenced his search.” Id. at 83.

       However, the procedural context of our earlier ruling is important. We were

considering the case at the summary judgment stage. As we just noted above and as we

also noted at the outset of our earlier opinion, we were construing “all facts in the light

most favorable to [Gomez] as the non-moving party,” Gomez, 385 F. App’x at 80, as the

District Court had been obliged to do, too. Through the same lens, the District Court had

concluded that there were three searches at issue (although, even at that stage, the District

Court expressed doubt about the second search, stating “to the extent it happened . . . [it]

amounted to a search for contraband”). District Court Memorandum of July 18, 2008, at

p. 15. Accepting that the second search occurred, we held that if all the evidence

presented at the summary judgment stage was construed in favor of Gomez, then Markley

did not have probable cause to search the car for drugs. However, our ruling did not

establish for all purposes and all time that there had been a second search. Our ruling,

which vacated the grant of summary judgment on the second search claim, remanded the

matter to the District Court for further development of the case. Gomez, 385 F. App’x at

83. The District Court’s decision to allow Gomez’s claim about a second search to be

tried before a jury was entirely appropriate under the circumstances and consistent with

our mandate.

       We also discern no abuse of discretion in the District Court’s challenged rulings

on evidentiary issues. We have reviewed each ruling and find a sound basis for each in
                                              4
the record. For instance, the District Court did not err in precluding Gomez from

introducing evidence that was inadmissible hearsay or irrelevant to the issue being tried.

Similarly, the District Court committed no error in requiring, variously, and as necessary,

authentication, documentation in compliance with the Federal and Local Rules of Civil

Procedure, and compliance with disclosure requirements to the opposing party.

       Furthermore, we conclude that the District Court did not err when it ruled that a

motion for the District Court “to render judgment” was moot. In February 2011, the jury

came to its verdict and the judgment was entered on the docket (subsequently, Gomez

engaged in post-trial motions practice). On April 15, 2011, Gomez filed his motion for

the District Court “to render judgment.” On the same day, the District Court denied the

motion as moot, as judgment had already been entered. That ruling was correct.

       Lastly, we hold that the District Court properly denied Gomez’s “motion for a

new trial and/or judgment not withstanding [sic] the verdict.” As the District Court

noted, the motion was untimely filed under Rules 50(b) and 59(b), which set a time-limit

of 28 days for the motions allowed under those rules. 2 Furthermore, Gomez’s motion

was based largely on his primary argument on appeal, which we considered above.

Finally, after considering the trial transcript and the evidence presented in the case, we



2
  An additional procedural obstacle to success on the motion for judgment as a matter of
law is Gomez’s apparent failure to file such a motion at the close of the evidence. See
Brokerage Concepts v. U.S. Healthcare, 140 F.3d 494, 519 (3d Cir. 1998) (explaining
that a post-trial motion for judgment as a matter of law under Rule 50(b) of the Federal
Rules of Civil Procedure must be preceded by a motion under Rule 50(a)).
                                             5
conclude that judgment in Gomez’s favor as matter of law was not warranted.   For these

reasons, in this consolidated appeal, we will affirm.




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