                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                  _____________

                                  No. 98-1301EM
                                  _____________

Boaz Rafaeli,                             *
                                          *
             Appellant,                   *
                                          *
      v.                                  *   On Appeal from the United
                                          *   States District Court
                                          *   for the Eastern District
David Degonia, Cliff Kierstaed,           *   of Missouri.
and the City of Kirkwood, Missouri,       *
                                          *
             Appellees.                   *

                                   ___________

                             Submitted: September 24, 1998
                                 Filed: October 1, 1998
                                  ___________

Before RICHARD S. ARNOLD, BEAM, and HANSEN, Circuit Judges.
                           ___________

RICHARD S. ARNOLD, Circuit Judge.

       Boaz Rafaeli brought this action against the City of Kirkwood and two
individuals under 42 U.S.C. § 1983. The case arises out of the towing of Mr. Rafaeli's
car, which was done in a manner he contends deprived him of his property without due
process of law, in violation of the Fourteenth Amendment.
       The case was tried to a jury. At the conclusion of plaintiff's evidence, the
District Court1 found that counsel for defendants had used a peremptory challenge
against a potential juror on the basis of her gender, in violation of the equal-protection
component of the Due Process Clause of the Fifth Amendment. Ordinarily this action
would have resulted in the restoration of the case to the Court's docket for a new trial.
In the present instance, however, the Court dismissed the case with prejudice, giving
the following reason:

                    The Court . . . examined the testimony on behalf of
             the plaintiff and determined that the plaintiff's case should be
             dismissed because there was not sufficient evidence to
             support plaintiff's allegation of wrong-doing by the
             defendants . . ..


Boaz Rafaeli v. David Degonia, No. 4:95CV 1905-SNL, slip op. 2 (E.D. Mo., order
entered November 14, 1997).

        The plaintiff now appeals. He contends that once a mistrial had been declared
on grounds of the unlawful peremptory challenge, any further action by the District
Court was a nullity. The trial should be treated as though it had never occurred. We
disagree. At the close of plaintiff's case, defendants made a motion under Fed. R. Civ.
P. 50(a) for judgment as a matter of law. The District Court entered a handwritten
notation to the effect that this motion was being denied as moot, the Court already
having dismissed the case summarily on its own motion. In substance, however, what
the Court did was to grant the defendants' motion for directed verdict (as we used to
call it). Whether the form of words used in dismissing the case on the ground of
insufficiency of the evidence referred to the Rule 50(a) motion or not is immaterial: the
result is the same. The District Court has held that the evidence was not sufficient to




      1
      The Hon. Stephen N. Limbaugh, United States District Judge for the Eastern
and Western Districts of Missouri.

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go to the jury. If the Court did not dot all of the "i's" in reaching this conclusion, and
we are not saying that it didn't, the substance of the matter remains unchanged.

        On appeal, plaintiff does not claim that there was error in any substantive sense.
He does not argue that he in fact did present sufficient evidence to make out a jury
question. His only argument is that once the Court had found that a new trial should
be granted because of the illegal peremptory challenge, it lost all power to assess the
sufficiency of plaintiff's evidence. Under this view, plaintiff would be entitled to a new
trial even if the evidence presented at the first trial was wholly insufficient as a matter
of law. This is a conclusion we cannot accept.

        There was another defendant in the case originally, Southside Towing Co. This
defendant had defaulted, and the Court had entered a default judgment against it before
the trial started. A finding as to the amount of damages was reserved until testimony
could be adduced concerning damages in the plaintiff's case in chief. At the same time
that it entered its order dismissing the case against the City of Kirkwood defendants,
the District Court also entered judgment against Southside for $1.00 in nominal
damages. On appeal, plaintiff does not contend that the evidence entitled him to a
greater award. He argues only that the District Court had lost all power to enter any
judgment after making its finding with respect to the peremptory challenge. We have
already explained why we do not agree with this argument.

      This appeal is all about form, and inconsequential form at that. It has no
substance. The judgment is

      Affirmed.




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A true copy.

      Attest:

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




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