                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-1519
                                    ___________

Duane L. Hartman; DLH, Inc.,               *
a Nebraska Corporation, doing business *
as Coaches Sports Bar & Grill,             *
                                           *
              Appellants,                  *
                                           *   Appeal from the United States
       v.                                  *   District Court for the
                                           *   District of Nebraska.
Bob Workman, In his individual             *
and official capacity as a member, or      *
former member, of the Board of             *
Commissioners of Lancaster County,         *
Nebraska; Linda Steinman, In her           *
individual and official capacity as a      *
member, or former member, of the           *
Board of Commissioners of Lancaster *
County, Nebraska; Larry Hudkins,           *
In his individual and official capacity as *
a member, or former member, of the         *
Board of Commissioners of Lancaster *
County, Nebraska; Bernie Heier, In         *
his individual and official capacity as a *
member, or former member, of the           *
Board of Commissioners of Lancaster *
County, Nebraska; Kathy Campbell,          *
In her individual and official capacity *
as a member, or former member, of          *
the Board of Commissioners of              *
Lancaster County, Nebraska;                *
Ray Stevens, In his official capacity as *
a current member of the Lancaster          *
County Board of Commissioners;             *
Deb Schorr, In her official capacity as a
                                        *
current member of the Lancaster         *
County Board of Commissioners;          *
Lancaster County, Nebraska,             *
                                        *
             Appellees.                 *
                                   ___________

                             Submitted: October 20, 2006
                                Filed: January 23, 2007
                                 ___________

Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.
                           ___________

RILEY, Circuit Judge.

      Duane L. Hartman and DLH, Inc. (collectively, DLH) filed a complaint against
Lancaster County, Nebraska (Lancaster County),1 alleging general violations of
procedural due process and a conspiracy to deprive DLH of property without
procedural due process. After a bench trial, the district court2 entered judgment for
Lancaster County. DLH appeals.




      1
       DLH’s causes of action against the current and former members of the
Lancaster County Board of Commissioners (Commissioners) in their official
capacities are treated as causes of action against Lancaster County. See Thomas v. St.
Louis Bd. of Police Comm’rs, 447 F.3d 1082, 1083 n.1 (8th Cir. 2006). The district
court dismissed the causes of action against the Commissioners in their individual
capacities. Therefore, the real party in interest is Lancaster County. See Kentucky v.
Graham, 473 U.S. 159, 165-66 (1985).
      2
      The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.

                                            -2-
       On appeal, DLH argues Lancaster County’s actions toward DLH constituted a
violation of substantive due process. However, DLH did not allege a substantive due
process claim in its Complaint or its Amended Complaint, and did not raise a
substantive due process issue in the Order of Final Pre-Trial Conference (Pretrial
Order).3 The Pretrial Order identified procedural due process issues (“[w]as
procedural due process afforded to [DLH]”) and similar state claims remaining for the
court to resolve, including: (1) did DLH possess a property interest for purposes of the
Due Process Clause, (2) was DLH afforded a due opportunity to protect its property
interest, (3) were the statutory criteria adhered to and adequate, (4) were the
Commissioners impartial, and (5) what are DLH’s damages. As a result, the district
court did not address any substantive due process claim in its Memorandum Opinion.

       Ordinarily, we will not consider an argument raised for the first time on appeal.
P & O Nedlloyd, Ltd. v. Sanderson Farms, Inc., 462 F.3d 1015, 1019 (8th Cir. 2006)
(“We consider a newly raised argument only if it is purely legal and requires no
additional factual development, or if a manifest injustice would otherwise result.”


      3
       In relevant part, the Amended Complaint alleged, “[t]he actions of [Lancaster
County] . . . constitute a violation of [DLH’s] right not to be deprived of property
without due process of law under the Fifth and Fourteenth Amendments.” Assuming
arguendo this language is broad enough to raise a substantive due process claim, DLH
waived any substantive due process claim by not including it in the Pretrial Order.
The issues identified in the Pretrial Order supersede any issues raised in the Complaint
and Amended Complaint. Lane v. Geiger-Berger Assocs., 608 F.2d 1148, 1152-53
(8th Cir. 1979); 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice and Procedure § 1522 (2d ed. 1990) (saying “the pretrial order is treated as
superseding the pleadings and establishing the issues to be considered at trial”); see
also United States v. $84,615 in U.S. Currency, 379 F.3d 496, 499 (8th Cir. 2004); In
re Control Data Corp. Sec. Litig., 933 F.2d 616, 621 (8th Cir. 1991) (“[The] pre-trial
order controls the subsequent course of the action, unless modified at the trial to
prevent manifest injustice. Consequently, a party may not offer evidence or advance
theories which violate the terms of a pre-trial order.” (citations and quotations
omitted)).

                                          -3-
(quoting Orr v. Wal-Mart Stores, Inc., 297 F.3d 720, 725 (8th Cir. 2002))). Nothing
justifies considering DLH’s new argument.

       To the extent DLH’s appeal could be broadly interpreted to continue its
procedural due process claims, we conclude the district court’s findings of fact are not
clearly erroneous and its final conclusion that DLH failed to establish a deprivation
of property sufficient to state a due process claim is sound. Accordingly, we affirm.
See 8th Cir. R. 47B.
                        ______________________________




                                          -4-
