PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PINKLEY, INCORPORATED, t/a Bradley
Books,
Plaintiff-Appellee,

v.

CITY OF FREDERICK, MARYLAND, a Body
Politic,
Defendant-Appellant,

and

ROBERT A. SERVACEK, Individually and
in his official capacity as Detective in
Frederick City Police Department and
City of Frederick, Maryland; RICHARD
J. ASHTON, Major, Individually and in
his official capacity as Chief,
Frederick City Police and Agent,
                                           No. 96-1447
Servant, Employee and Policymaker
of City of Frederick, Maryland; THE
MAYOR AND BOARD OF ALDERMAN OF
FREDERICK, MARYLAND, CONSTITUTING
AND ACTING AS THE CITY OF FREDERICK
MARYLAND, a Body Politic; DAVID S.
GEARINGER, Officer, Individually and
in his official capacity as agent of
Frederick City, Maryland; JOHN
LAMMERS, Officer, Individually and in
his official capacity as agent of
Frederick City, Maryland; SHAWN
MARTYAK, Officer, Individually and in
her official capacity as agent of
Frederick City, Maryland,
Defendants.
PINKLEY, INCORPORATED, t/a Bradley
Books,
Plaintiff-Appellant,

v.

CITY OF FREDERICK, MARYLAND, a Body
Politic; ROBERT A. SERVACEK,
Individually and in his official
capacity as Detective in Frederick
City Police Department and City of
Frederick, Maryland; RICHARD J.
ASHTON, Major, Individually and in
his official capacity as Chief,
Frederick City Policy and Agent,
Servant, Employee, and Policy maker
of City of Frederick, Maryland; DAVID
S. GEARINGER, Officer, Individually
                                           No. 96-1448
and in his official capacity as agent of
Frederick City, Maryland; JOHN
LAMMERS, Officer, Individually and in
his official capacity as agent of
Frederick City, Maryland,
Defendants-Appellees,

and

THE MAYOR AND BOARD OF
ALDERMAN OF FREDERICK, MARYLAND,
CONSTITUTING AND ACTING AS THE
CITY OF FREDERICK MARYLAND, a Body
Politic; SHAWN MARTYAK, Officer,
Individually and in her official
capacity as agent of Frederick City,
Maryland,
Defendants.

                   2
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Edward S. Northrop, Senior District Judge.
(CA-93-397-N)

Argued: June 3, 1997

Decided: August 31, 1999

Before WIDENER and WILLIAMS, Circuit Judges,
and PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed in part and vacated and remanded in part by published opin-
ion. Judge Widener wrote the opinion, in which Judge Williams and
Senior Judge Phillips joined.

_________________________________________________________________

COUNSEL

ARGUED: Howard J. Schulman, SCHULMAN & KAUFMAN,
L.L.C., Baltimore, Maryland, for Appellant. William Edward Seek-
ford, Towson, Maryland, for Appellee.

_________________________________________________________________

OPINION

WIDENER, Circuit Judge:

On February 7, 1990 police officers of the Frederick, Maryland
Police Department executed a search warrant at Pinkley, Inc.'s store
known as Bradley Books, an adult bookstore. They confiscated alleg-
edly obscene press and speech materials and relevant audio-visual
devices and temporarily closed down the establishment.

Pursuant to 42 U.S.C. § 1983 Pinkley brought a three-count com-
plaint in the United States District Court for the District of Maryland

                    3
alleging that the seizure had deprived Pinkley of its constitutional
rights under the First, Fourth, and Fourteenth Amendments, and had
caused a "loss of property and profit" through"wrongful unconstitu-
tional conduct". The district court found that Pinkley's constitutional
rights were not violated by the seizure, but entered judgment against
the City for the stipulated value of the property, $20,775.41. The par-
ties appeal that decision.1 We vacate the judgment for conversion
against the city and affirm the district court's denial of Pinkley's con-
stitutional claims.

I. Background

On September 19, 1989 Terri Heger, a resident of Frederick, Mary-
land, filed a complaint with the City of Frederick Police Department
alleging Bradley Books was selling obscene materials. The State's
Attorney for Frederick authorized an investigation under the auspices
of Corporal Servacek, a detective in the Department's Criminal Inves-
tigation Division. Sometime around December 26, 1989 Detective
David S. Gearinger began undercover operations at the bookstore.

Based on that investigation, by February 1, 1990 Corporal Ser-
vacek had drafted an application and affidavit for a search warrant of
Bradley Books, which averred that there was probable cause to
believe that Pinkley was displaying and distributing obscene materi-
als, primarily magazines and videos, in violation of the Maryland
Criminal Code. The application, fifteen pages in length, described the
investigation and the adult nature of the materials and activities at
Bradley Books. Both Police Chief Ashton and State's Attorney Dor-
sey reviewed the application, and on February 5, 1990 Corporal Ser-
vacek presented the application to a judge of the District Court of
Maryland for Frederick County. The judge reviewed the warrant
application and issued a search warrant.
_________________________________________________________________
1 Pinkley, Inc. named as defendants the City of Frederick, Maryland
and several city officials. Although only defendant City of Frederick had
occasion to appeal the money judgment against the City, Pinkley's notice
of cross-appeal of the constitutional claims names as the cross-appellees
the "City of Frederick; Robert A. Servacek; Richard Ashton; David S.
Gearinger; and John Lammers." The four named individuals were mem-
bers of the Frederick Police Department.

                     4
Corporal Servacek executed the warrant on February 7, 1990 with
a search and seizure team of the Frederick City Police Department,
which included defendant Officer Lammers. It was Corporal Servacek
who determined which materials were to be seized by assessing
whether each item fell within the definition of obscene as set forth in
the warrant application. The other officers assisted in the removal of
the materials, but did not participate in the selection of items. In con-
junction with the seizure, Corporal Servacek prepared an inventory
sheet and a property record form for the police department, itemizing
the property seized. The store was closed by the officers, for they
arrested the sole employee present at the time, bookstore manager
Paul G. Sobus.

That same day Sobus was charged with violating 27 Md. Ann.
Code § 416D (knowingly displaying for advertising purposes pic-
tures, photographs, drawings, etc. depicting sadomasochistic abuse,
sexual conduct and sexual excitement), 27 Md. Ann. Code § 418
(knowingly exhibiting, distributing and offering to distribute obscene
matter), and 27 Md. Ann. Code § 421 (promoting the sale and distri-
bution of obscene material). To these charges was added, on February
21, 1990, the charge of maintaining a bawdy house in violation of 27
Md. Ann. Code § 15(a).

On February 9, 1990 Bradley Books through its counsel sent a let-
ter to Police Chief Ashton demanding the return of the seized materi-
als and equipment. The letter requested an adversary hearing and
advised plaintiff would "seek redress" if the materials were not
returned by February 12, 1990. Chief Ashton relayed the letter to the
State's Attorney's Office. Mayor Paul Gordon received an identical
letter, which he forwarded to Chief Ashton. Plaintiff's counsel did not
seek any formal hearing in a court, and no such hearing was ever
scheduled or held.

On June 18, 1990 Sobus pleaded guilty both to violating § 418 --
knowingly exhibiting, distributing and offering to distribute obscene
matter -- and to maintaining a bawdy house. During that plea Sobus
and his counsel agreed with the State's proffer that the following
would have been proven by the State:

          Materials that were taken on that day included magazines
          and books and video tapes which portrayed sexual conduct

                     5
          in what would be seen as a patently offensive manner to the
          average person buying (sic) contemporary community stan-
          dards. In addition Your Honor it would be found that in
          viewing these materials that they appeal to the prurient
          interest in sex and that they do not in any way serve a seri-
          ous literary, artistic, political, or scientific purpose.

Although no obscenity charges were filed against Pinkley or Bradley
Books, as the district court noted "[d]uring his plea, Mr. Sobus
acknowledged that Bradley Books was a bawdy house where men
engaged in sodomy and unnatural sexual acts in violation of State
criminal laws." That appeared to be the end of the matter as far as the
City was concerned. No other charges were filed against Pinkley con-
nected with the bookstore, and within a few days it had reopened. The
magazines, videos, VCRs and other materials were retained in the
police department's evidence room.

At all relevant times the Frederick Police Department's practice
regarding evidence was to provide notice to property owners of seized
property after the conclusion of a case or investigation. The notice
served to alert the owners that the police department had possession
of the property, and that if the property was not claimed within six
months of receipt of the notice, the department would consider the
property to be unclaimed and subject to disposal. Additionally, sub-
ject to the approval of the police chief, the department allowed its
officers to acquire unclaimed property.

In late 1990 Sergeant Steven Tuel was assigned the duty of Identi-
fication Section assistant, pursuant to which he was to assist Lieuten-
ant Alice Moore in cataloging and purging the various articles of
evidence and property which had accumulated over time in the
department's custody. In the process of cataloging he encountered the
evidence seized from Bradley Books, which included magazines,
books, videotapes, video players, televisions, and like equipment. Sgt.
Tuel consulted with Cpl. Servacek regarding the status of the case. In
turn, Cpl. Servacek asked the State's Attorney Shelly Barrett, who
had assisted in the prosecution of Sobus, whether the materials could
be disposed. Upon receiving no response, Sgt. Tuel advised Lt. Moore
that he had not received an answer. Subsequently, Lt. Moore
prompted Chief Ashton to make a similar inquiry to State's Attorney

                    6
Dorsey, which met with a like result. A month later the matter again
went up the chain of command in the police department. Finally, after
about a year, Sgt. Tuel visited the Office of the State's Attorney and
spoke with Assistant State's Attorney Don Grossnickle regarding the
disposal of the Bradley Books property. Shortly thereafter, State's
Attorney Dorsey called Sgt. Tuel and advised him that he could dis-
pose of the evidence.

On October 14, 1991 Corporal Servacek sent a memorandum to
Chief Ashton requesting permission to take possession for his per-
sonal use some of the Bradley Books property that had not been
claimed, pursuant to the department's policy. Both officers believed
that the property, unclaimed some 16 months after Sobus's guilty
plea, had been abandoned. However, the police department had not
notified Bradley Books that it could retrieve any of its property.

Sometime thereafter, Cpl. Servacek claimed a number of television
sets and video players for his personal use. He believed that they were
in poor condition, and that he was unable to make repairs to make
them operational. The police department also retained one video
player and television to use for showing training videos. Ultimately,
at an uncertain date, Sgt. Tuel on his own initiative decided to dispose
of the remaining books and films at the city landfill. He mistakenly
believed that the materials had been declared contraband in the course
of Sobus's guilty plea. Defendants were not aware of his action at the
time.

II. Procedure

On February 5, 1993 Pinkley, Inc. filed a three-count complaint
against the City of Frederick and the various officials named above.
The complaint alleged jurisdiction pursuant to 28 U.S.C. §§ 1331,
1343(a)(3) and (a)(4), and 42 U.S.C. §§ 1983 and 1988 for alleged
violations of Pinkley's rights under the First, Fourth, and Fourteenth
Amendments. Following a general statement, the three counts were
captioned as follows.

          COUNT ONE
          (Wrongful unconstitutional prior restraint and abridgment of

                    7
          plaintiff's First and Fourteenth Amendment civil rights of
          dissemination by defendants' seizure) . . . .

          COUNT TWO
          (Wrongful unreasonable search and seizure by warrant and
          abridgment of plaintiff's Fourth and Fourteenth Amend-
          ment rights with respect to First Amendment materials) . . . .

          COUNT THREE
          (Loss of Property, profit, etc.) . . . .

Count Three incorporated the allegations of all the preceding para-
graphs by reference, and then stated that the defendants

          have seized and taken away plaintiff's personal property and
          equipment and depriving it of the possession and value
          thereof without lawful authority or reasonable compensation
          and have refused to return, replace or provide adequate com-
          pensation for the same. Further that the plaintiff has been
          wrongfully deprived of the foreseeable profit from such
          property through exhibition, sale and rental.

The next paragraph stated "[t]hat such wrongful unconstitutional con-
duct engaged in by defendants was done knowingly, intentionally and
maliciously."

Following a two day bench trial the district court entered a final
judgment against the plaintiff and in favor of all the defendants as to
Counts One and Two of the Complaint. On Count Three, the court
entered judgment against the City of Frederick only (and not the indi-
vidual defendants) in an amount stipulated by the parties, $20,775.41.
On January 26, 1996 the City of Frederick filed a Motion to Alter or
Amend the Judgment, and Pinkley did the same on February 5, 1996.
The district court denied both motions in orders of March 5, 1996.
The plaintiff filed a supplementary Motion to Alter or Amend and/or
Grant Relief from the March 5 order, which was denied March 11.
The City has appealed and the plaintiff has cross-appealed.

                     8
III. Conversion Claim

The City of Frederick appeals the district court's conclusion that
under Count Three the plaintiff could recover under a state cause of
action for conversion, and that the court had supplemental jurisdiction
over that claim. Following the trial, the district court's initial order
briefly stated that the court had supplemental jurisdiction over the
claim under 28 U.S.C. § 1367(a) and that judgment on Count Three
would be entered against the City of Frederick for the fair market
value of the property at the time of seizure because the defendants "do
not dispute that they failed to give proper notice to Plaintiff concern-
ing the need to claim the seized Bradley Books materials in contra-
vention of . . . [city and police policy]. As such, defendants
wrongfully deprived the Plaintiff of this property." A principal diffi-
culty is that § 1367(a) or supplemental jurisdiction had not been men-
tioned in the case until after the trial.2

In response to the City's Motion to Alter or Amend the Judgment
the court in its order of March 4, 1996 explained its initial ruling on
Count Three. The court explained that although the plaintiffs had not
included the terms "supplemental jurisdiction," "negligence," or "con-
version" in the complaint, and that even though the amended pretrial
order did not specify a claim for conversion, the court had presumed
in its initial Findings of Fact and Conclusions of Law "the parties'
implicit understanding that a claim for conversion remained at issue
during trial." The court acknowledged in a footnote that the parties
"did not expressly address this issue [of conversion]" but noted that
the defendants twice in their arguments insisted that the plaintiff's
complaint was really a conversion claim.

Our review of the district court's opinion necessarily begins with
the basic premises of federal jurisdiction. Federal courts are courts of
limited subject matter jurisdiction, and as such there is no presump-
tion that the court has jurisdiction. See Lehigh Mining & Manufactur-
ing. Co. v. Kelly, 160 U.S. 337, 327 (1895). Thus the facts providing
_________________________________________________________________
2 It is true that the plaintiff's post-trial brief refers to Count Three as
a pendent count but describes the loss as due to unconstitutional seizure,
conversion and destruction of the property without just compensation. It
also describes Count III as one of substantive due process.

                    9
the court jurisdiction must be affirmatively alleged in the complaint.
McNutt v. General Motors Acceptance Corp., 298 U.S. 178 (1936)
(holding "the party who seeks the exercise of jurisdiction in his favor
. . . must allege in his pleadings the facts essential to show jurisdic-
tion"); Dracos v. Hellenic Lines Ltd., 762 F.2d 348, 350 (4th Cir.)
("plaintiffs must affirmatively plead the jurisdiction of the court"),
cert. denied, 474 U.S. 945 (1985). To this end Federal Rule of Civil
Procedure 8(a)(1) requires that pleadings setting forth a claim for
relief provide "a short plain statement of the grounds upon which the
court's jurisdiction depends, unless the court already has jurisdiction
and the claim needs no new grounds of jurisdiction to support it."
Fed. R. Civ. P. 8(a)(1). See 13 Wright, Miller & Kane, Federal Prac-
tice and Procedure, § 3521 (1984).

This said, there is some authority that in the absence of an affirma-
tive pleading of a jurisdictional basis a federal court may find that it
has jurisdiction if the facts supporting jurisdiction have been clearly
pleaded. "The pleading can either refer to the appropriate jurisdic-
tional statute or contain factual assertions that, if proved, establish
jurisdiction." 2 Moore's Federal Practice§ 8.03[3] (3rd ed. 1997).
Accordingly, the only way that the district court could have a basis
to invoke its supplemental jurisdiction and provide relief for the plain-
tiffs under an unpleaded state law conversion claim is if the plaintiff
had actually tried that claim before the court.

The district court found that Fed. R. Civ. P. 15(b) governed the
question of whether the issue of conversion, through the evidence
adduced at trial, had been put before the court by the parties.3 The
court relied on Rule 15 because "[t]he purpose of Rule 15(b) is to
_________________________________________________________________
3 Rule 15(b) provides:

          When issues not raised by the pleadings are tried by express or
          implied consent of the parties, they shall be treated in all respects
          as if they had been raised in the pleadings. Such amendment of
          the pleadings as may be necessary to cause them to conform to
          the evidence and to raise these issues may be made upon motion
          of any party at any time, even after judgment; but failure to
          amend does not affect the result of the trial of these issues.

Fed. R. Civ. P. 15(b).

                     10
allow an amendment of the pleadings to bring them in line with the
actual issues upon which the case was tried."

We do not agree with the district court's reliance on Rule 15(b).
Federal Rule of Civil Procedure 54(c), which provides in pertinent
part that "every final judgment shall grant the relief to which the party
in whose favor it is rendered is entitled, even if the party has not
demanded such relief in the party's pleadings", more properly gov-
erns the situation at hand. Fed. R. Civ. P. 54(c).

Gilbane Building Company v. Federal Reserve Bank of Richmond,
80 F.3d 895, 901 (4th Cir. 1996), controls that aspect of this case. In
Gilbane we explained that amendment pursuant to Rule 15(b)
requires that the "evidence at the hearing proved facts not encom-
passed by its initial pleadings." 80 F.3d at 901. But when the question
is "whether the allegations properly pled and proven support a theory
and type of relief not specified in [the plaintiff's] demand for judg-
ment . . . [t]hat issue is controlled by Rule 54(c)." Gilbane, 80 F.3d
at 901. As in Gilbane, the facts proven at trial here were properly pled
and proven, but the demand for judgment for conversion now made
was not fairly specified for trial under the supplemental jurisdiction
of the district court.

Rule 54(c) does not support the district court's implicit decision
that a state-law conversion claim had been de facto tried by the par-
ties. According to the precedents applying Rule 54(c), alternative
relief is not permitted where it would be unfairly prejudicial. Gilbane,
80 F.3d at 901 (relying on Albemarle Paper Co. v. Moody, 422 U.S.
405, 424 (1975)). Moreover, as the First Circuit stated under similar
circumstances "the rule permits relief predicated on a particular the-
ory `only if that theory was squarely presented and litigated by the
parties at some stage or other of the proceedings.'" Rodriguez v.
Doral Mortgage Corp., 57 F.3d 1168, 1173 (1st Cir. 1995) (quoting
Evans Prods. Co. v. West Am. Ins. Co., 736 F.2d 930, 923-24 (3rd
Cir. 1984)). Here, where the plaintiff failed to plead a conversion the-
ory, and where the surprise ruling patently prejudiced the defendants,
as we set forth below, Rule 54(c) does not support the district court's
decision to invoke supplemental jurisdiction on its own initiative.

                     11
We now explain why Rule 54(c) should control and Rule 15(b) is
an unsatisfactory basis for judgment for the plaintiff on an unpleaded
conversion theory of recovery.

We review the trial court's determination under Rule 15(b) for
abuse of discretion. Elmore v. Corcoran, 913 F.2d 170, 172 (4th Cir.
1990). It is well established that Rule 15(b) applies only if two
requirements are met. "Because notice to the defendant of the allega-
tions to be proven is essential to sustaining a cause of action, Rule
15(b) applies only when the defendant has consented to trial of the
non-pled factual issues and will not be prejudiced by amendment of
the pleadings to include them." Gilbane, 80 F.3d at 901.

We are of opinion that the district court abused its discretion by
deeming the complaint amended under Rule 15(b) to include a con-
version claim. In Quillen v. International Playtex, Inc., 789 F.2d
1041, 1044 (4th Cir. 1986), we recognized the restraint on Rule 15(b)
that "a court will not imply consent to try a claim merely because evi-
dence relevant to a properly pleaded issue incidentally tends to estab-
lish an unpleaded claim." The instant case presents the same situation
which Quillen warned against -- appellate relief because the evidence
offered to support a properly pleaded claim coincidentally supports an
unpleaded theory of recovery. Quillen, 789 F.2d at 1044. Indeed, the
district court acknowledged that the plaintiff's evidence which sup-
ported a conversion claim "was also directed towards the establish-
ment of the Plaintiff's due process claims."

The record lends no support for either of these findings by the dis-
trict court. Not only did the plaintiff never invoke the court's supple-
mental jurisdiction or raise the conversion cause of action at any time
in the proceedings, at one point, as we detail below, the plaintiff affir-
matively denied that there was any claim at issue"for recovery of
property or its value."4 Further, amendment pursuant to Rule 15(b)
was not proper here where the defendant never conceded implicitly
or explicitly that a conversion claim was at issue.

Our review of the record begins with the complaint itself. Rule
_________________________________________________________________

4 See note 2, supra.

                       12
8(a)(2) provides the threshold requirement that a claim for relief shall
contain "(1) . . . the grounds upon which the court's jurisdiction
depends, . . . (2) a short plain statement of the claim showing that the
pleader is entitled to relief . . . . and (3) a demand for judgment." Fed.
R. Civ. P. 8(a)(2). With regard to a claim for conversion, Pinkley's
complaint fails two of these basic requirements. First, nowhere in the
complaint does the plaintiff invoke the supplemental jurisdiction
under 28 U.S.C. § 1367(a), a prerequisite for jurisdiction of a pendent
or ancillary claim. Second, the complaint nowhere states there is a
claim under state law for conversion, the relief granted and now
sought. While the third count bears the title "loss of property, profit,
etc." the body of that count alleges that the taking was "wrongful
unconstitutional conduct." Thus it as much or more closely follows
the constitutional claims of the two preceding counts, and thereby
failed from the outset to give the defendants fair notice that they
might be facing a conversion claim.

We recognize that even where the pleadings initially do not provide
notice of a claim, it is possible, as the district court noted, under Rule
15(b) for a claim to be put into issue at trial if"the issues not raised
in the pleadings have been tried by the parties' express or implied
consent." Quillen, 789 F.2d at 1043. Here, however, the record indi-
cates that the defendant never acceded to the conversion claim, either
expressly or implicitly.

Our conclusion that the conversion claim was never properly at
issue as the case proceeded is supported by the pretrial order. Federal
Rule of Civil Procedure 16(e) provides that the pretrial order "shall
control the subsequent course of action."

The pretrial order was submitted jointly by the parties and lists
under a separate heading "Legal Theories relied upon by Plaintiff in
each claim." It then sets out in seven numbered paragraphs, 1-7 inclu-
sive, its legal theories for recovery. The order sets forth only theories
sounding in the First, Fourth and Fourteenth Amendments to the Con-
stitution. It nowhere mentions a claim for conversion or any state or
pendent claim. Thus, even if the plaintiff initially had a colorable
argument that Count Three of the complaint had somehow stated a
conversion claim, the failure to include a conversion claim in the pre-
trial order would have removed it from issue.

                     13
As the proceedings advanced, there was nothing in the record to
show that the plaintiff introduced a claim for conversion. The plain-
tiff's trial brief, consistent with the earlier pleadings and pretrial
order, alleges violations of the plaintiff's rights under the First, Fourth
and Fourteenth amendments, but none of the nine issues stated pres-
ents a state conversion claim. At this point we note that the word
"convert" is used in question 3(j) with relation to a "federal constitu-
tional" claim, and the word "conversion" in question 8 with relation
to punitive damages. Moreover, the defendants' trial brief, rather than
somehow implicitly admitting that conversion was part of the trial,
does the opposite. The defendants' brief states that although the plain-
tiff is alleging federal constitutional violations, really all the plaintiff
has is the possibility of a state conversion claim, which should appro-
priately have been brought in a state court. "This case, at best, is a
conversion case that belongs in State court, where Plaintiff can pursue
adequate remedies." To take this as acceding to the litigation of a con-
version claim is surely a misunderstanding of the language used.

Defendants note that throughout the trial itself, they never con-
ceded that a state conversion claim was at issue in the trial. They
observe that the plaintiff in its opening statement did not mention a
conversion, state-law, or pendent claim. Further, at the close of the
plaintiff's case, in the defendants' motion for judgment, the defen-
dants explicitly stated that there were no state claims at issue.

          It's our position in this case, very specifically, in framing a
          motion for judgment at this time, that there are two prongs
          that the Plaintiff has alleged. The first prong is the First
          Amendment prong of this case. The second is the due pro-
          cess prong. There are no state law claims in this case.

(Emphasis added). Neither the plaintiff nor the court took issue with
the defendants. The defendants' counsel continued by addressing the
constitutional claims, stating:

           I think Plaintiff has an argument in state court. I think
          there's factual components to dispute that, but they have an
          argument that the property was converted. But, they don't
          have a constitutional claim for due process . . . .

                     14
The plaintiff's rebuttal to this was not to assert it was also stating a
conversion claim, but rather was limited to an argument as to the prin-
ciples underlying the constitutional claims. Plaintiff did not suggest
it was entitled to judgment under a conversion claim, and at no point
did the plaintiff seek to amend its complaint.

The City also properly argues it was prejudiced by the fact that it
had several defenses under state law to a conversion claim which, of
course, it did not present in the district court because the issue was
not tried. Among them are questions of damages; abandonment; con-
traband; notice; timeliness; and negligence or nonfeasance in per-
forming a governmental function. While we express no opinion on the
validity of any of such defenses, we leave them to the state courts and
mention them only to acknowledge that they have arguable merit, and
the denial of an opportunity to present them was prejudicial.

Finally, the plaintiff's post-trial memorandum states explicitly:

          This is not a complaint for recovery of property or of its
          value but it is based on defendant's abridgement of funda-
          mental constitutional rights.

We agree with the First Circuit that "[i]t would not serve the inter-
ests of justice . . . to redeem a totally unpleaded, unlitigated claim in
circumstances that threaten significant prejudice to a defendant."
Rodriguez, 57 F.3d at 1171.

IV.

Pinkley claims error in the district court's judgment in favor of all
of the defendants on Counts One and Two of the complaint. That
judgment is affirmed for the reasons stated by the district court in its
opinions.

Pinkley also claims error in the district court's failure to enter judg-
ment against the defendants Servacek, Gearinger, Lammers and Ash-
ton as to Count Three of the complaint. Because the district court had
no jurisdiction to decide Count Three of the complaint, the dismissal
of Count Three of the complaint on remand without prejudice for lack

                     15
of jurisdiction will also apply to those four defendants, and any claim
of error with respect to any failure to enter judgment against them is
moot.

In summary, the judgment of the district court is affirmed as to its
action with respect to Counts One and Two of the complaint.

As to Count Three of the complaint, the judgment against the City
under state law for conversion, the district court, while it may have
had at the beginning of the case the right to assert its supplemental
jurisdiction under 28 U.S.C. § 1367(a) if properly developed, even
though not initially claimed in the complaint, in view of the agreed-
upon pre-trial order which removed that issue from the case, even if
present; the post-trial memorandum of the plaintiff; the positions the
parties took during this proceeding in the district court; and the preju-
dice to the defendant which is apparent from the record; we are of
opinion the district court abused its discretion in considering the mer-
its of this supplemental or pendent claim under state law.

The judgment of the district court in favor of the plaintiff on Count
Three of the complaint is vacated, and on remand the district court
will dismiss Count Three of the complaint without prejudice for lack
of jurisdiction.

No. 96-1447 - VACATED AND REMANDED
WITH INSTRUCTIONS

No. 96-1448 - AFFIRMED

                     16
