UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                                 No. 15-2312


DALE IHNKEN, trading as Ihnken Productions,

                 Plaintiff − Appellant,

           v.

SHERIFF CHARLES JENKINS, in his individual and official capacity;
LARRY SMITH,

                 Defendants – Appellees,

           and

JAN GARDNER, in her individual and official capacity; DAVID GRAY, in
his individual and official capacity; KAI HAGEN, in his individual and
official capacity; JOHN “LENNIE” THOMPSON; BILL BIGELOW,

                 Defendants.



Appeal from the United States District Court for the District of Maryland, at
Baltimore. Catherine C. Blake, Chief District Judge. (1:11-cv-03508-CCB)


Submitted: November 29, 2016                       Decided: February 3, 2017


Before KEENAN, WYNN, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Neil S. Hyman, LAW OFFICE OF NEIL S. HYMAN, LLC, Bethesda, Maryland,
for Appellant. Kevin Karpinski, Sandra D. Lee, KARPINSKI, COLARESI &
KARP, P.A., Baltimore, Maryland, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

      Appellant Dale Ihnken brought this action challenging the revocation of a

land-use permit he obtained from the Frederick County Health Department in

connection with a music festival Ihnken organized in June 2009. Contending that

Frederick County Sheriff Charles Jenkins and Zoning Commissioner Larry Smith

(collectively, “Defendants”) revoked the permit without sufficient notice and

without providing Ihnken an opportunity to be heard, Ihnken alleged that

Defendants violated his procedural due process rights under the Constitution and

Maryland law. Following a four-day trial, a jury found in favor of Defendants.

      On appeal, Ihnken contests the denial of his pretrial motion for summary

judgment on his federal and state law claims, as well as the denial of his post-trial

motion for judgment as a matter of law or, in the alternative, for a new trial. For

the reasons set out below, we affirm.

                                         I.

      Working through his eponymous production company, Ihnken organized

various music and arts festivals throughout the country in the late 2000s. The

present case arises out of Ihnken’s efforts in early 2009 to organize the Summer

Solstice PROJEKT (the “festival”) in Frederick County, Maryland. The festival,

which was to run from June 18 to June 21, 2009, would be held at a privately-

owned farm in Myersville, Maryland.


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       Upon reaching an agreement with the farm’s owner, Ihnken (along with the

landowner) applied for a land-use permit from the Frederick County Health

Department to allow the farm to be used for the festival. Prompted to provide an

end date and time for the event on the County’s permit application form, Ihnken

indicated only “5:00.” J.A. 1227. Following an inspection by County officials, the

County issued a permit allowing the farm to be used for the festival on the

appointed dates from “8:00–5:00.” Thereafter, the festival began as scheduled on

June 18, 2009.

       Around 10:00 p.m. that evening, the Frederick County Sheriff’s Office

began receiving noise complaints from residents living in the vicinity of the

festival.   In response, the Sheriff’s Office dispatched officers to the festival

grounds, where they eventually encountered Ihnken.          When officers advised

Ihnken that state and local laws generally prohibited music events late in the

evening, he insisted that the permit he obtained from the County allowed the

festival to continue throughout the night. An argument ensued, with officers

explaining that the late-night festival likely violated the terms of his permit and

Ihnken refusing to end the festival before an upcoming act concluded its

performance.     Unable to immediately confirm the terms of Ihnken’s permit,

officers convinced Ihnken to reduce the volume of the festival’s music system and

commit to ending the festival no later than 3:30 a.m. that evening.


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      Before leaving the scene, the officers informed Ihnken that the Sheriff’s

Office would continue to investigate Ihnken’s permit application when the permit

office opened the next morning. The officers further advised Ihnken that continued

noise complaints could result in the festival being shut down immediately and the

revocation of Ihnken’s land-use permit. These admonishments notwithstanding,

the festival continued well into the early hours of the next morning. Nearby

residents later testified that music from the festival continued until approximately

5:00 a.m., which prompted several additional noise complaints.

      Upon learning of these complaints the next morning, Defendant Smith

reexamined Ihnken’s permit and concluded that it authorized the festival to

continue no later than 5:00 p.m. each afternoon. With this in mind, Defendants

together traveled to the festival grounds to discuss the noise concerns with Ihnken

and attempt to resolve the situation amicably. After waiting for several hours to

speak with Ihnken, Defendant Jenkins explained that, given the likelihood of

further noise complaints, he hoped to find a way to allow the festival to continue

while avoiding the possibility of nearby residents calling officers to the festival

grounds that evening and potentially ending the event late at night. With Ihnken

again insisting the festival was authorized to continue until 5:00 a.m. each night,

Defendant Jenkins proposed a compromise whereby music would instead be

allowed to continue until dusk.


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      When Ihnken rejected this proposal, Defendant Jenkins ordered the festival

to be shut down immediately. Defendant Jenkins later testified that, given the

number of festival attendees and presence of alcohol on the festival grounds, he

was concerned that shutting down the event in the middle of the night would

“cause a huge public safety concern.” J.A. 817. As such, he concluded that it was

in the “best interests of public safety, the [Sheriff’s Office], and the [festival’s]

patrons” to end the event immediately. J.A. 845. Upon conferring with Defendant

Jenkins, and in light of Ihnken’s apparent intention to continue the festival well

after 5:00 p.m., Defendant Smith revoked Ihnken’s permit and the festival did not

go forward as planned.

      Contending that the decision to revoke his permit and prematurely end the

festival forced him to refund ticketholders and damaged his reputation as a concert

producer, Ihnken initiated this action against various Frederick County officials in

December 2011. In addition to other constitutional and state law claims, Ihnken

claimed that the revocation of his permit without adequate notice or a meaningful

opportunity to contest Defendants’ interpretation of the permit’s terms violated his

procedural due process rights under the Fourteenth Amendment and the Maryland

Declaration of Rights.

      After an initial motion for summary judgment, the district court dismissed

all of Ihnken’s claims except his state and federal procedural due process claims.


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Some time later, the county defendants again moved for summary judgment as to

the remaining claims, with Ihnken cross-moving for summary judgment in his

favor. On September 3, 2014, the district court denied Ihnken’s cross-motion and

granted partial summary judgment to the county officials, dismissing Ihnken’s

claims against all defendants other than Defendants Jenkins and Smith. Citing

outstanding factual issues, the district court allowed Ihnken’s claims against

Defendants Jenkins and Smith to proceed to trial.

      A four-day trial followed, during which the jury heard testimony from

Defendants Jenkins and Smith—along with various county and Sheriff’s Office

officials—and Ihnken regarding their interpretation of the contested permit and

their interactions during the weekend of the festival. At the close of evidence,

Ihnken did not move for judgment as a matter of law pursuant to Federal Rule of

Civil Procedure 50(a) before the case was submitted to the jury. The jury returned

a verdict in Defendants’ favor.

      After the jury issued its verdict—and notwithstanding that Ihnken did not

file a Rule 50(a) motion before the court submitted the case to the jury—Ihnken

moved for judgment as a matter of law or, in the alternative, for a new trial

pursuant to Federal Rules of Civil Procedure 50(b) and 59. The district court

denied these post-trial motions on September 28, 2015, leading to this timely

appeal.


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                                          II.

      On appeal, Ihnken advances three challenges to the rulings below. First,

Ihnken argues that the district court erred in denying his pretrial motion for

summary judgment on his procedural due process claims against Defendants.

Second, Ihnken suggests that, after the close of evidence, the district court errantly

failed to award a directed verdict in his favor in lieu of submitting the case to the

jury. Finally, Ihnken contends that the district court incorrectly denied his post-

trial motion for judgment notwithstanding the jury’s verdict or, in the alternative,

for a new trial. As explained below, because each of these claims suffers from a

fatal procedural flaw, we affirm the judgment below in its entirety.

                                         A.

      First, Ihnken argues that the evidence presented by the parties in connection

with their respective pretrial motions demonstrated that he was deprived of

adequate process before Defendants revoked his permit and abruptly ended the

festival. For this reason, Ihnken contends that the district court erred in denying

his request for summary judgment on his procedural due process claims and

instead allowing these claims to proceed to trial.

      But, Ihnken may not challenge this aspect of the judgment below because

the denial of a motion for summary judgment is not subject to appeal after a full

trial and final judgment on the merits of a given claim. See Chesapeake Paper


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Prods. Co. v. Stone & Webster Eng’g Corp., 

, 1237 (4th Cir. 1995)

(holding that we “will not review, under any standard, the pretrial denial of a

motion for summary judgment after a full trial and final judgment on the merits”);

see also Varghese v. Honeywell Int’l, Inc., 

, 420 (4th Cir. 2005)

(same). Such review is “inappropriate because the denial [of the pretrial summary

judgment motion] was based on an undeveloped, incomplete record, which was

[then] superseded by evidence adduced at trial.” Chesapeake Paper 

. This preference for live evidence presented at trial is particularly

applicable when, as here, the resolution of a claim or defense turns in large

measure on the jury’s ability to weigh the credibility of the parties’ witnesses. See

jury viewing the live testimony of Ihnken and Defendants concluded

that the land-use permit expired at 5:00 p.m. each day and that Defendants gave

Ihnken sufficient notice and opportunity to contest the revocation of his land-use

permit before ending the festival. Following a full trial on the merits, the jury thus

rejected Ihnken’s claims that he was deprived of adequate process by Defendants,

and the district court entered a final judgment in Defendants’ favor. Accordingly,

Ihnken’s challenge to the denial of his pretrial motion for summary judgment is not

properly before us and must be denied.




                                          9
                                           B.

      Next, Ihnken argues that Defendants failed to adduce sufficient evidence at

trial to support a verdict in their favor and, therefore, that the district court erred in

submitting the case to the jury. Somewhat confusingly, Ihnken frames this aspect

of his appeal as a challenge to the district court’s failure “to grant judgment as a

matter of law to [Ihnken] . . . at trial.” Appellant’s Br. at 22.

      Ihnken’s failure to move for a directed verdict pursuant to Federal Rule of

Civil Procedure 50(a) before the court submitted the case to the jury fatally

undermines his argument. Under Rule 50(a), after a “party has been fully heard on

an issue during a jury trial,” an opposing party may move for judgment as a matter

of law on the grounds that “a reasonable jury would not have a legally sufficient

evidentiary basis to find for the [nonmoving] party” on a particular issue and,

under the controlling law, a claim or defense “can be maintained or defeated only

with a favorable finding on that issue.” FED. R. CIV. P. 50(a)(1). Importantly, such

a motion may only “be made . . . before the case is submitted to the jury.” FED. R.

CIV. P. 50(a)(2).

      Here, however, Ihnken made no such motion before the submission of the

case to the jury. As a result, “we are substantially foreclosed from reviewing the

sufficiency of the evidence” supporting the jury’s verdict for Defendants. Bristol

Steel & Iron Works v. Bethlehem Steel Corp., 

, 186 (4th Cir. 1994).


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Indeed, we have explained that, “[i]n such a procedural posture, our scope of

review is exceedingly confined, being limited to whether there was any evidence to

support the jury’s verdict, irrespective of its sufficiency, or whether plain error was

committed which, if not noticed, would result in a manifest miscarriage of justice.”

(emphasis in original) (internal quotation marks and citations omitted).

      Under this deferential standard, we find no basis for reversing the judgment

below. In reaching its verdict, the jury found that Defendants did not violate

Ihnken’s due process rights by “failing properly to provide [Ihnken] notice and an

opportunity to be heard before revoking the permit [and] shutting down the music

festival.” J.A. 1175. Evidence adduced by Defendants at trial supported this

conclusion. Most notably, testimony elicited from Defendants regarding their

interpretation of the apparent ambiguity in Ihnken’s permit application supports the

conclusion that Defendants legitimately perceived Ihnken’s intransigence as a

refusal to comply with the permit’s terms.            Moreover, given Defendants’

understandable public safety concerns and efforts to reach a mutually agreeable

arrangement that would permit the festival to continue on an abbreviated schedule,

the jury could reasonably have concluded that Ihnken’s rejection of this proposal

provided a basis to immediately revoke the permit and end the festival.




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       For these reasons, we find no error amounting to a manifest miscarriage of

justice relating to the jury’s rejection of Ihnken’s procedural due process claims.

Accordingly, the district court did not err in submitting the case to the jury.

                                          C.

       For much the same reason, we reject Ihnken’s argument that the district

court erred in denying his request for a judgment notwithstanding the jury’s verdict

or, alternatively, a new trial.

       Entitled “Renewing the Motion After Trial; Alternative Motion for a New

Trial,” Federal Rule of Civil Procedure 50(b) provides that, when a court “does not

grant a motion for judgment as a matter of law made under Rule 50(a), the court is

considered to have submitted the action to the jury subject to the court’s later

deciding the legal questions raised by the motion.” FED. R. CIV. P. 50(b). Should

the jury ultimately decide an issue against a party that sought judgment as a matter

of law, that party may, within 28 days, “file a renewed motion for judgment as a

matter of law and may include an alternative or joint request for a new trial under

Rule 59.” 

       In this case, as previously noted, Ihnken did not move for a directed verdict

under Rule 50(a) before the submission of the case to the jury. Having not done

so, his subsequent post-trial motion was “effectively a nullity, since a Rule 50(b)

motion may only be made as a renewal of a motion previously made on the same


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grounds under Rule 50(a).” Nichols v. Ashland Hosp. Corp., 

, 501

n.1 (4th Cir. 2001). As before, our review of the denial of such a motion is

“limited to whether there was any evidence to support the jury’s verdict,

irrespective of its sufficiency.”    

(internal quotation marks omitted)

(emphasis in original) (quoting Bristol 

).

      As discussed above, the evidence presented by Defendants at trial provided

ample basis for the jury to conclude that Defendants afforded Ihnken sufficient

process before revoking Ihnken’s land-use permit due to his refusal to abide by the

terms set out by the County. Consequently, the district court did not reversibly err

in denying Ihnken’s alternative request for judgment notwithstanding the jury’s

verdict or a new trial on his procedural due process claims.

                                          III.

      For the reasons set out above, each of Ihnken’s challenges to the dismissal of

his procedural due process claims against Defendants fails.       Accordingly, we

affirm the judgment of the district court in all respects.

                                                                       AFFIRMED




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