                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-2507
                         ___________________________

                  Stephen C. Hoffmeyer; Anthony Scott Wichlan

                       lllllllllllllllllllll Plaintiffs - Appellants

                                            v.

Michael Porter, Sergeant, in his individual capacity; Thomas L. Belote, Patrolman,
                             in his individual capacity

                       lllllllllllllllllllll Defendants - Appellees
                                        ____________

                      Appeal from United States District Court
                   for the Eastern District of Missouri - St. Louis
                                   ____________

                              Submitted: April 17, 2014
                                Filed: July 15, 2014
                                  ____________

Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.
                          ____________

BYE, Circuit Judge.

       Stephen Hoffmeyer and Anthony Wichlan filed this 42 U.S.C. § 1983 suit
against Water Patrol Officers Michael Porter and Thomas Belote (collectively, “the
officers”), alleging false arrest and retaliation. The case proceeded to trial. After a
jury returned a defense verdict on both claims, the district court1 denied a motion for
a new trial brought by both Hoffmeyer and Wichlan. We affirm.

                                           I

       On June 21, 2009, the officers arrested Hoffmeyer for peace disturbance in
violation of Mo. Rev. Stat. § 574.101 after Hoffmeyer, while in view of others on a
nearby dock, shouted profanity and insults at Porter from the deck of Hoffmeyer’s
houseboat. The officers also arrested Wichlan, who had joined Hoffmeyer on the
deck of the houseboat, for peace disturbance and for resisting arrest in violation of
Mo. Rev. Stat. § 575.150. The charges were later dropped.

       Hoffmeyer and Wichlan filed suit against the officers, alleging false arrest and
unlawful retaliation.2 Hoffmeyer and Wichlan moved for summary judgment. Partial
summary judgment was granted to Hoffmeyer3 on the issue of liability on the false
arrest claim and the case proceeded to trial.4

      At the close of evidence, the officers moved for judgment as a matter of law
pursuant to Rule 50(a) of the Federal Rules of Civil Procedure. Hoffmeyer and


      1
       The Honorable John A. Ross, United States District Judge for the Eastern
District of Missouri.
      2
        Hoffmeyer and Wichlan also alleged a claim of malicious prosecution, which
they later voluntarily dismissed.
      3
       The grant of summary judgment was based on the conclusion probable cause
had not existed to arrest Hoffmeyer and Wichlan for peace disturbance. As Wichlan
was also arrested resisting arrest, there remained questions of fact whether the
officers had probable cause to arrest Wichlan.
      4
       The case was initially assigned to a different district court judge, but
reassigned to Judge Ross prior to trial.

                                         -2-
Wichlan vigorously opposed the motion. The district court denied the officers’
motion. However, the district court also vacated the earlier partial grant of summary
judgment to Hoffmeyer, concluding the evidence introduced at trial had created
genuine questions of material fact whether the officers had probable cause to arrest
Hoffmeyer for peace disturbance. The district court ultimately submitted all issues
to the jury, which found for the officers on both claims. Hoffmeyer and Wichlan
moved for a new trial, arguing, amongst other issues not raised on appeal, the district
court’s decision to vacate the partial grant of summary judgment had tainted the trial.
The district court denied the motion. Hoffmeyer and Wichlan now appeal,
challenging the district court’s decisions to vacate the partial grant of summary
judgment and deny their motion for a new trial.5

                                          II

       Hoffmeyer and Wichlan first contend the district court erred when it vacated
the partial grant of summary judgment on the issue of liability in the false arrest
claim. Hoffmeyer and Wichlan claim they were entitled to summary judgment on the
issue as a matter of law, arguing the evidence was insufficient for a jury to find the
officers had probable cause to arrest them for peace disturbance. As a threshold
matter, however, the officers contend we cannot review the district court’s decision
to vacate the partial grant of summary judgment, arguing Hoffmeyer and Wichlan
failed to preserve the issue. We agree.

      Parties who appeal contending they were entitled to judgment as a matter of
law must preserve the issue by making a Rule 50(a) motion for judgment as a matter
of law after the close of the evidence, see Eaddy v. Yancey, 317 F.3d 914, 916 (8th

      5
        Hoffmeyer and Wichlan also challenge the district court’s failure to sua sponte
give a special interrogatory they did not request, asking the court to instruct the
district court to give the special interrogatory on remand. Because we conclude
remand is not required, we do not address this issue.

                                         -3-
Cir. 2003), and a Rule 50(b) renewed motion for judgment as a matter of law after the
verdict. Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 404 (2006);
see Linden v. CNH Am., LLC, 673 F.3d 829, 834 (8th Cir. 2012) (limiting necessity
of post-judgment motion under Unitherm to sufficiency of the evidence challenges).
Hoffmeyer and Wichlan acknowledge they did not make a Rule 50(a) motion at the
close of the evidence, but urge the court to treat their opposition to the officers’ Rule
50(a) motion as an independent motion. Whether Hoffmeyer and Wichlan made a
Rule 50(a) motion is moot, however, because, in any event, they failed to preserve the
issue by making a post-judgment Rule 50(b) motion as required.

                                           III

       Hoffmeyer and Wichlan next contend the district court abused its discretion in
denying their motion for a new trial. A district court has broad discretion when
deciding whether to grant a new trial. Douglas Cnty. Bank & Trust Co. v. United Fin.
Inc., 207 F.3d 473, 478 (8th Cir. 2000). Accordingly, we give great deference to the
district court’s ruling on a motion for a new trial. Id. “We review the denial of a
motion for a new trial for a ‘clear’ abuse of discretion, with the key issue being
whether a new trial is necessary to prevent a miscarriage of justice.” Hallmark Cards,
Inc. v. Murley, 703 F.3d 456, 462 (8th Cir. 2013). “Absent error affecting the
substantial rights of the parties, neither reversal nor a new trial is required.” E.I. du
Pont de Nemours & Co. v. Berkley & Co., 620 F.2d 1247, 1257 (8th Cir. 1980).

       Hoffmeyer and Wichlan argue a miscarriage of justice would occur if they are
not granted a new trial. They primarily contend they were prejudiced by the district
court’s decision to vacate the pretrial partial grant of summary judgment, arguing it
“tainted” the entire trial. To some extent, however, their arguments may be construed
as contending the district court erred by submitting to the jury the issue of whether
the officers had probable cause to arrest for peace disturbance.



                                          -4-
       The district court vacated the pretrial partial grant of summary judgment
because it concluded the evidence introduced at trial had created genuine issues of
material fact regarding the existence of probable cause to arrest Hoffmeyer and
Wichlan for peace disturbance. See Giordano v. Lee, 434 F.2d 1227, 1230 (8th Cir.
1970) (holding existence of probable cause is a question for the jury in § 1983 actions
if genuine issues of material fact exist). We agree with the district court. Hoffmeyer
and Wichlan offer several arguments there were higher legal standards implicated
here for the officers to have probable cause to arrest them for peace disturbance, i.e.
insults to officers must be exceptionally provocative to constitute fighting words and
the speaker must be in the immediate vicinity of the target to be characterized as
delivered face-to-face. See Mo. Rev. Stat. § 574.101.1(b). We note, however, that
even under those asserted standards there would still be questions of fact whether
Hoffmeyer and Wichlan’s actions met the elements of peace disturbance, i.e., whether
Hoffmeyer was close enough to Porter for his insults to be considered delivered face-
to-face and whether the insults were provocative enough to be considered fighting
words.

       Assuming for the sake of argument it was error for the district court to vacate
the pretrial partial grant of summary judgment, we conclude Hoffmeyer and Wichlan
have failed to prove any alleged error affected their substantial rights. Hoffmeyer and
Wichlan imply they would have presented their case differently had they anticipated
the district court would ultimately vacate the pretrial partial grant of summary
judgment. The only issue covered by the pretrial partial grant of summary judgment
was the existence of probable cause to arrest Hoffmeyer and Wichlan for peace
disturbance. Hoffmeyer and Wichlan presented and argued that issue to the jury.
Hoffmeyer and Wichlan point to no specific evidence or argument they did not have
the opportunity to present on the issue. Hoffmeyer and Wichlan merely speculate the
district court’s decision to vacate the pretrial partial grant of summary judgment may
have led the jury to improperly find in the officers’ favor. We find this unsupported
speculation unpersuasive.

                                         -5-
      No basis exists to conclude the district court abused its considerable discretion
in denying the motion for a new trial.

                                          IV

      The judgment of the district court is affirmed.
                     ______________________________




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