                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 00-2403
                                ________________

Donald Sweat, Rev.; Albert Krantz;        *
Ron Decker,                               *
                                          *
             Appellants,                  *       Appeal from the United States
                                          *       District Court for the
      v.                                  *       Western District of Arkansas.
                                          *
City of Fort Smith, Arkansas; City        *
of Van Buren, Arkansas; City of           *
Alma, Arkansas,                           *
                                          *
             Appellees.                   *


                                ________________

                                Submitted: March 15, 2001
                                    Filed: September 11, 2001
                                ________________

Before HANSEN and HEANEY, Circuit Judges, and BATTEY,1 District Judge.
                        ________________

HANSEN, Circuit Judge.

       This case arose out of a constitutional challenge to certain ordinances enacted
by the defendant municipalities. This is the second time this case has been before our


      1
       The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota, sitting by designation.
court. In the first appeal, we determined that the challenged ordinances were
unconstitutionally overbroad. See Krantz v. City of Fort Smith, 160 F.3d 1214, 1222
(8th Cir. 1998), cert. denied, 527 U.S. 1037 (1999). In this appeal, Donald Sweat,
Albert Krantz, and Ron Decker challenge the district court’s2 refusal to certify a class
for purposes of their 42 U.S.C. § 1983 claims for money damages arising out of arrests
and threats of arrest under the unconstitutional municipal ordinances. We affirm.

                                          I.

        This case was originally brought in June of 1995 as two actions by the
Congregation of the Twentieth Century Holiness Tabernacle Church against the
municipalities of Alma, Dyer, Fort Smith, and Van Buren, Arkansas. The complaints,
signed by over 200 church members acting pro se, asserted that the municipalities
violated the complainants’ First Amendment free speech rights by arresting them or
threatening legal action pursuant to certain municipal ordinances, which prohibited
them from placing religious literature under the windshield wipers of unattended
vehicles parked on public property. The complaints sought monetary and injunctive
relief. The cases were consolidated, the district court determined that the Church
lacked standing to proceed, but that individuals who were actually arrested or those
who were threatened with or reasonably feared legal action had standing to participate
in the suit. Because of the number of individuals involved, and as an alternative to
dismissing the suit, the district court directed those wanting to be involved in the law
suit to file an amended class action complaint in accordance with Federal Rule of Civil
Procedure 23, describing three classes of plaintiffs–those arrested, those threatened
with legal action, and those refraining from protected activity out of fear–and
identifying one individual designated as the class representative for each group.



      2
        The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.
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       On December 15, 1995, three individuals (Donald Sweat, Albert Krantz, and
Ron Decker) filed an amended complaint “for themselves and all other members of the
class herein described.” (Appellants’ App. at 90.) Contrary to the district court’s
recasting order, however, this complaint did not specify the three groups identified by
the district court and did not identify a class member from each group designated as its
representative as required by the district court. The complaint sought declaratory and
injunctive relief, asserting that the ordinances are unconstitutionally overbroad. The
complaint also sought damages, stating that the plaintiffs had incurred costs of over
$125,000 due to arrests under the ordinances at issue and praying for $8,875,000 in
total damages for the plaintiffs “themselves and other members of the class.” (Id. at
98.)

         The plaintiffs then moved for class certification, identifying Albert Krantz as
the representative of the group of plaintiffs who had been arrested, Ron Decker as the
representative of the group that had been threatened with arrest, and Donald Sweat as
the representative of the group of plaintiffs who wanted to distribute religious literature
but refrained from doing so out of fear of arrest. The concluding paragraph of the
motion for certification states that the “[p]laintiffs respectfully request that the Court
certify this class action for the purposes of declaratory and injunctive relief.” (Fort
Smith’s App. at 75 (emphasis added).) No request was made for the certification of
a class seeking § 1983 damages for the alleged constitutional violations, and no such
class was ever certified. The district court entered an order on May 21, 1996, noting
that “[w]hile plaintiffs assert that their ‘primary goal’ is injunctive relief, the Court may
not simply overlook the fact that plaintiffs have pled § 1983 civil rights violations and
seek the recovery of damages.” (Appellants’ Add. at 14.) Ultimately, after considering
the factors relevant to class certification, the district court granted class certification on
the “constitutional claims” but denied class certification on “plaintiffs’ claims pursuant
to 42 U.S.C. §1983.” (Id. at 19.) The district court stayed the § 1983 civil rights
damages claims of the three individually named plaintiffs pending determination of the
constitutional overbreadth issue. The plaintiffs filed no objections to or motions to

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reconsider the May 21, 1996, order concerning class certification. Instead, they filed
an amended complaint and moved for declaratory judgment.

       Upon concluding that the ordinances were constitutional, the district court denied
declaratory relief to the class plaintiffs, granted the municipalities’ motions for
summary judgment, and dismissed the case. The class plaintiffs appealed, and we
reversed the district court’s judgment on the constitutionality issue. We held that the
ordinances were unconstitutionally overbroad and facially invalid because they were
“not narrowly tailored to serve the governmental purpose asserted by defendants.”
Krantz, 160 F.3d at 1222. On remand, consistent with our directive, the district court
entered declaratory and injunctive relief in favor of the certified class plaintiffs,
enjoining the municipalities from enforcing the unconstitutional ordinances.

        Further, by an order dated April 26, 2000, the district court granted in part the
municipalities’ motions for summary judgment on the pending § 1983 money damages
claims of the named individual plaintiffs. Sweat, Decker, and Krantz resisted summary
judgment and sought to assert the damages claims of other individuals, arguing that the
language used in orders subsequent to the class action ruling indicated that the court
had really intended to grant class action status for the entire § 1983 claim, including the
claims for money damages and not only on the claim for declaratory and injunctive
relief. The district court disagreed, noting that the then four-year-old class certification
order had explicitly denied class certification for the § 1983 damages claims. The
district court additionally noted that the plaintiffs had not appealed that determination
in their first appeal and even now had not asked the district court to reconsider the
earlier ruling.

      The district court then dismissed the claims for punitive damages and went on
to examine the allegations of proof in support of each of the three named plaintiff’s §
1983 damages claim. Ultimately, the district court granted partial summary judgment
to the municipalities, permitting some of the individual damages claims to proceed to

                                             4
trial. A settlement disposed of those remaining damages claims, and on May 1, 2000,
the district court dismissed the case. Following the dismissal order, on May 10, 2000,
Sweat, Decker, and Krantz sought leave to file an amended complaint, seeking to add
additional plaintiffs to the suit on the claim for damages, but they filed their notice of
appeal on May 24, 2000, before the district court could rule on the motion, and on July
12, 2000, the district court denied their motion for leave to file an amended complaint
as moot.

       Sweat, Decker, and Krantz (the appellants) argue on appeal that the district court
erroneously refused to certify a class on the § 1983 claims for money damages,
erroneously reinterpreted that order in the order dated April 26, 2000, and erroneously
refused to grant their motion for leave to amend the complaint to name additional
plaintiffs.

                                           II.

       We first consider the appellants’ assertion that we should review the district
court’s order of May 21, 1996, dealing with class action certification. We conclude
that the appellants have waived this issue by not raising it in a more timely fashion.
The appellants neither sought timely clarification of the May 1996 class certification
order nor did they bring a timely challenge on appeal. In their first appeal, the only
issues raised concerned the constitutionality of the ordinances. At that juncture,
however, a final order had issued in the case, and as explained below, the appellants
were duty bound to raise or waive all existing appealable issues.

       We have said that claims not raised in an initial appeal brief are waived.
Mahaney v. Warren County, 206 F.3d 770, 771 n.2 (8th Cir. 2000). “The general rule
is that, ‘where an argument could have been raised on an initial appeal, it is
inappropriate to consider that argument on a second appeal following remand.’”
Kessler v. Nat’l Enters., Inc., 203 F.3d 1058, 1059 (8th Cir. 2000) (quoting

                                            5
Northwestern Ind. Tel. Co. v. FCC, 872 F.2d 465, 470 (D.C. Cir. 1989), cert.
denied, 493 U.S. 1035 (1980)); see also United States v. Kress, 58 F.3d 370, 373 (8th
Cir. 1995) (noting even in the criminal context that “[w]here a party could have raised
an issue in a prior appeal but did not, a court later hearing the same case need not
consider the matter”). We recognize that this rule is prudential, not jurisdictional,
Kessler, 203 F.3d at 1059, but we see no reason here to depart from the general rule.
If the appellants were confused about the implications of the certification order, that
confusion would have been evident immediately upon reading the order because it quite
clearly denies class certification to the “plaintiffs’ claims pursuant to 42 U.S.C. §
1983.” (Appellants’ Add. at 19.) The appellants should have inquired of the district
court at that time if they were genuinely confused about which issues were denied class
certification. Instead, they failed to seek clarification, failed to raise the issue in their
first appeal, and attempted to challenge the order for the first time some four years
later. We thus conclude that the appellants waived the issue, and consequently, we will
not review the correctness of the May 21, 1996, class certification order. We will
review only the order entered on April 26, 2000, which was timely appealed following
the final disposition of this case on remand.

        The appellants next argue that in the order of April 26, 2000, the district court’s
conclusion that class certification had not been granted on the damages claim is an
erroneous reinterpretation of the ambiguously worded May 1996 class certification
ruling. The appellants argue that the original ruling was ambiguous because it
purported to grant class certification on the “constitutional claims” but to deny class
certification on the “§ 1983 claims,” which is an internally inconsistent result because
a constitutional claim can only be remedied through a § 1983 claim; they are one in the
same. See Bishop v. Tice, 622 F.2d 349, 356 n.12 (8th Cir. 1980) (noting Eighth
Circuit precedent holding that § 1983 is an exclusive remedy for constitutional
violations committed by municipalities). The appellants assert that until the ruling on
April 26, 2000, they had understood that the damages claims were simply bifurcated


                                             6
from the issue of liability and stayed pending resolution of the liability phase of trial.



         While we acknowledge that the district court’s certification order of May 21,
1996, could have been written with more precise language, its meaning is unmistakable
and the appellants’ attempt to confuse matters is disingenuous. The context and body
of the certification order plainly indicate that the district court’s shorthand phrase of
“the constitutional claims” referred to the injunctive and declaratory claims for relief
(i.e., the overbreadth challenge to the ordinances) and the phrase, “the § 1983 claims,”
referred to the claims for individual damages resulting from civil rights violations. The
district court first drew this distinction early in the 1996 certification order, noting that
the pleadings indicate “plaintiffs seek a declaration of whether the cities’ ordinances
are unconstitutional, and seek § 1983 damages, contending that their rights have been
violated by defendants’ enforcement of the same.” (Appellants’ Add. at 13.) The
court went on to find a common link between the class members on the question of
whether the ordinances were constitutional, making that question suitable for class
action status. The district court concluded that “plaintiffs’ constitutional claims should
be certified as a class action pursuant to Rule 23(b)(2) as the relief sought is
declaratory and injunctive and since it can fairly be said that the defendant
municipalities have ‘acted or refused to act’ on grounds generally applicable to all
persons challenging the validity of the defendants’ ordinances.” (Id. at 19.)

       To the contrary, the district court found no common link existing between the
asserted class members on the question of § 1983 damages for the violation of their
individual civil rights because “the propriety of relief requires consideration of the
individual circumstances of each class member . . . the number of defendant
municipalities and their acting officials; [and] the varying number of dates, times,
locations and factual scenarios giving rise to . . . claims not the result of defendants’
common policy or practice.” (Id. at 14.) Thus, while the court used shorthand
terminology, there is no doubt the district court was referring to the individual claims

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for damages arising out of their individual civil rights violations when it concluded this
discussion by stating “that certification of plaintiffs’ § 1983 claims is not an appropriate
course of action.” (Id.) The district court then stated that “[w]ith respect to the three
named plaintiffs, Krantz, Decker and Sweat, the Court will concurrently enter its Order
staying their § 1983 claims pending the resolution of plaintiffs’ constitutional claims.”
(Id. at 14-15.)

       In the order of April 26, 2000, the district court did not reinterpret that May 1996
class certification order but quoted from it and refused to deviate from it. Additionally,
in the April 26, 2000, order the district court stated the following:

       Plaintiffs did not appeal–and the appellate court did not address–this
       Court’s determination that their § 1983 claims should not be certified for
       class action. Thus, this Court’s earlier determination not to certify the §
       1983 claims for class action remains undisturbed. Absent such
       certification, of course, the nominal plaintiffs, Krantz, Decker and Sweat,
       may only proceed on their own § 1983 claims–and may not assert any
       such claims for any other alleged plaintiffs.

              Plaintiffs have not asked the Court to reconsider or change its
       ruling on class certification on the § 1983 claims–which was made almost
       four years ago–but rather, attempt to argue that the Court intended by the
       style of language used in later orders to permit class action status for the
       § 1983 claims notwithstanding its clear expression of a contrary intent in
       its May 21, 1996, Order. The Court had no such intention and, therefore,
       rejects such arguments out of hand.

(Id. at 24.)

        We conclude that the district court did not improperly add any new interpretation
to its prior order but simply abided by its express terms. The district court is not
responsible for the appellants’ claimed misunderstanding of the earlier class
certification order. While we recommend that the district court not use such shorthand

                                             8
references in the future, we conclude that in the context of this entire order, the
language was not ambiguous.

        The appellants argue that the class was entitled to specific notice that their
individual damages claims were not given class certification. We believe sufficient
notice was given when the district court issued a written order specifically granting
class certification on the constitutional challenge to the ordinances and specifically
denying class certification on the individual § 1983 civil rights claims. The district
court filed this order, it was issued to the attorneys, and there is no claim that notice of
the order was not received. There is no allegation that any class members did not
realize that they were granted class action status to challenge the ordinance, and the
denial of class action status as to the individual civil rights claims was within the same
order. Instead, they claim to not have understood that this order denied class
certification of the individual civil rights damages claims. The appellants argue that
they understood that the certification order merely stayed the issue of class damages
pending resolution of the constitutional overbreadth issue. We have already rejected
the contention that the order was ambiguous and concluded that although the order was
not a model in precision language, it was nonetheless sufficiently clear to convey the
court’s denial of class action certification on the individual civil rights damages claims.
No further notice was necessary in this context.

       Finally, the appellants contend that the district court abused its discretion in
refusing to grant them leave to amend the complaint to name additional plaintiffs for the
damages request. The decision to grant leave to amend is within the sound discretion
of the district court. Krispin v. May Dep’t Stores Co., 218 F.3d 919, 924 (8th Cir.
2000).

        In the April 26, 2000, order, the district court stated that it would not grant leave
to name additional plaintiffs, finding that “[n]o good reason is shown for such leave at
this late date. Moreover, the naming of additional plaintiffs would essentially amount

                                             9
to the grant of permission for plaintiffs to go forward in a quasi-class action which the
Court has determined not to be appropriate with respect to § 1983 claims in this case.”
(Appellants’ Add. at 25.) Although there was no pending motion for leave to amend
to name additional plaintiffs at the time of that order, the issue had arisen when the
municipalities argued in their motion for summary judgment that no individuals or class
members other than the named plaintiffs should be allowed to assert damages in this
case, and the plaintiffs argued that subsequent orders of the district court indicated that
class action status had been granted for the entire case.

        We conclude that the district court did not abuse its discretion in determining that
there was no showing of good cause to grant leave to amend at this late date. Class
certification had been granted in 1996 on the declaratory and injunctive claims but
denied on the claim of individual civil rights violations and damages. Four years had
passed since this order, which had clearly provided no basis for asserting class wide
damages. Granting leave to amend to add new individual civil rights violations at such
a late date would have resulted in a need for further discovery, the exploration of stale
evidence, and extended delay. See In re Milk Prods. Antitrust Litig., 195 F.3d 430,
438 (8th Cir. 1999), cert. denied, 529 U.S. 1038 (2000). The district court explicitly
referred to the late date of the motion to amend as problematic and noted that the
appellants had offered no valid reason for not amending their complaint in a more
timely fashion.

       The appellants filed a formal motion for leave to amend the complaint to name
additional plaintiffs after the district court had entered its final order dismissing the case
on May 1, 2000. They filed their appeal on May 24, 2000, and the district court
subsequently denied the motion to amend as moot. After a complaint is dismissed,
leave to amend may still be granted but a district court does not abuse its discretion in
refusing to allow an amendment if it changes the theory of the case, summary judgment
has already been granted, and no valid reason is shown for failing to present the new
theory earlier. Humphreys v. Roche Biomedical Labs., Inc., 990 F.2d 1078, 1082 (8th

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Cir. 1993). The motion for leave to amend here sought to add individuals who had
signed the original pro se complaint in this case five years earlier. Adding new
plaintiffs now alleging new civil rights violations would have required a new set of facts
to be proven by each plaintiff against each defendant–in effect, a new theory for each
new plaintiff. The appellants offer no reason for not seeking to add these individuals
sooner, other than their alleged confusion caused by the allegedly ambiguous nature of
the district court’s class certification order. We have already rejected the contention
that the district court’s order was so confusing that they would not have known that
class certification was denied on the individual claims of civil rights violations and
resulting damages. We find no abuse of discretion.

      We have considered all of the appellants’ remaining arguments and find them to
be without merit.

                                           III.

      Accordingly, we affirm the judgment of the district court.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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