                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAY 20 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

JOHN L. SHERMAN,                                 No. 12-35980

              Plaintiff - Appellant,             D.C. No. 1:12-cv-00483-PA

  v.
                                                 MEMORANDUM*
TRACY WOOD and ROD
MCALLISTER,

              Defendants - Appellees.


                  Appeal from the United States District Court
                           for the District of Oregon
                 Owen M. Panner, Senior District Judge, Presiding

                             Submitted May 16, 2014**
                                 Portland, Oregon


Before: ALARCÓN, TASHIMA, and IKUTA, Circuit Judges.

       Plaintiff-Appellant John Sherman appeals from a judgment entered pursuant

to the jury’s verdict in favor of Appellees Tracy Wood and Rod McAllister, and


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
from the denial of his motion for a new trial, pursuant to Rule 59(a) of the Federal

Rules of Civil Procedure. We have jurisdiction, pursuant to 28 U.S.C. § 1291, and

we affirm.

      The district court did not abuse its discretion in denying Sherman’s motion

for a new trial, because the jury’s verdict was not against the weight of the

evidence. The officers’ testimony and other evidence at trial supported the jury’s

conclusion that the officers had probable cause to arrest Sherman for criminal

mischief in the third degree. See Or. Rev. Stat. § 164.345(1). Because there was

“some reasonable basis” for the jury’s decision, Molski v. M.J. Cable, Inc., 481

F.3d 724, 729–30 (9th Cir. 2007), the district court’s denial was not an abuse of

discretion.

      To the extent Sherman contends that the evidence at trial was insufficient to

support the jury’s verdict, he has not preserved his claim. Sherman did not file a

motion for judgment as a matter of law during trial, pursuant to Rule 50(a) of the

Federal Rules of Civil Procedure, or a renewed motion for a judgment as a matter

of law after trial, pursuant to Rule 50(b). Sherman’s failure to file these motions

means that he has “procedurally default[ed] a civil appeal based on the alleged

insufficiency of the evidence to support the verdict” and that his “procedurally




                                          2
barred sufficiency challenge . . . is considered forfeited.”1 Nitco Holding Corp. v.

Boujikian, 491 F.3d 1086, 1087 (9th Cir. 2007) (applying Unitherm Food Sys., Inc.

v. Swift–Eckrich, Inc., 546 U.S. 394 (2006)).

      Accordingly, we affirm the judgment of the district court.

      AFFIRMED.




      1
        Sherman did not file an optional reply brief in response to the Ninth Circuit
authorities cited by Appellees in their answering brief that provide that the failure
to challenge the sufficiency of the evidence pursuant to Rule 50(a) and Rule 50(b)
precludes this Court from reviewing the sufficiency of the evidence presented at
trial.
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