Kyle Soltesz, doing business as Top Dog Enterprises Plaintiff- Appellee
Rushmore Plaza Civic Center, a political subdivision of the City of Rapid City; City of Rapid City, a political subdivision of the State of South Dakota Defendants-Appellants
Submitted: October 20, 2016
from United States District Court for the District of South
Dakota - Rapid City
MURPHY, GRUENDER, and SHEPHERD, Circuit Judges.
SHEPHERD, Circuit Judge.
Soltesz ran a concession stand in the Rushmore Plaza Civic
Center in Rapid City, South Dakota. He sued the Civic Center
and the City after his lease was terminated-supposedly
without due process-and his property seized. At trial,
Soltesz alleged municipal liability premised on the decision
of a final policymaker. See Pembaur v. City of
Cincinnati, 475 U.S. 469, 482-83 (1986). The district
court failed to identify the final policymaker as a matter of
state law. Because the Supreme Court demands a district court
make such an identification, we reverse and remand.
Soltesz operated as a food vendor in the Rushmore Plaza Civic
Center under a five-year lease agreement. The Civic Center
could terminate the agreement at any time with 45 days
notice. Soltesz ran his concession stand-Top Dog Pizza-for
two years until a video surveillance camera captured him
assaulting one of his employees. The video was later viewed
by the Civic Center's General Manager, Brian Maliske.
then took a series of steps to end the business relationship
between Soltesz and the Civic Center. Maliske first called
Soltesz into a meeting and confronted him with the video.
Maliske next issued Soltesz a "no trespass" warning
and then had security escort him out of the building. Soltesz
understood the warning to mean that he would be arrested if
he returned to the Civic Center. Several days later, the
Civic Center's Board of Directors met. The record reveals
no evidence whatsoever of what the Board did or did not
discuss at its meeting. But shortly after the meeting ended,
Soltesz's attorney received a letter signed by Maliske
terminating the lease agreement immediately.
the next few months, Soltesz unsuccessfully sought to
retrieve his property from the Civic Center and transfer his
lease to another food vendor. But the "no trespass"
warning remained in effect-he could not return to his
concession stand to retrieve any of his property. Eventually
two employees were allowed into the Civic Center; by that
time, much of the food had spoiled. Soltesz also arranged to
sell his business to another pizza vendor, so long as the
Civic Center would transfer the lease from Soltesz to the new
vendor. The Board rejected this request and shortly
thereafter leased out Soltesz's old space.
sued the Civic Center and the City of Rapid City-a
municipality and a political subdivision of the State of
South Dakota that owns and operates the Civic Center-under 42
U.S.C. § 1983. The suit alleged violations of federal
and state law. Under federal law, Soltesz claimed a
deprivation of his constitutional rights by the municipality.
Specifically, he alleged that terminating the lease without
the mandated 45 days notice violated the due process
protections of the Fourteenth Amendment and that keeping his
property locked in the concession stand was an unreasonable
seizure under the Fourth Amendment. Under state law, Soltesz
claimed breach of the lease, conversion, and tortious
interference with business relationships. The Civic Center
counter-claimed for breach of contract, failure to restore
premises, fraud and deceit, and rescission.
brought his federal claims under the Pembaur theory
of municipal liability: a decision of an official responsible
for establishing final policy attaches liability to the
municipality. See Pembaur, 475 U.S. at 483. The case
was tried to a jury. After Soltesz presented his case, the
Civic Center moved for judgment as a matter of law
("JMOL"), arguing that Soltesz had failed to
establish the identity of the final policymaker for the
municipality in regards to his lease. The district court
denied the motion and allowed the case to proceed. At the
close of the Civic Center's case, the Civic Center again
moved for JMOL, asserting that "the issue of who the
final policy decision-maker is is a legal issue for the Court
[to determine]." The district court again denied the
motion, stating, "It's a fact issue, not a legal
one. And I am not going to instruct the jury on who the
person acting under color of law is." Indeed, the
district court did not instruct the jury as to the identity
of the official responsible for establishing final policy for
the municipality. The jury ultimately found in favor of
Soltesz on all of his claims.
Civic Center raised the final-policymaker issue a third time
in its renewed motion for JMOL following entry of judgment.
The Center argued that state law designated the Board as the
final policymaker and that Soltesz had failed to present
evidence showing the Board had violated his constitutional
rights. The district court once again denied the motion. In
its order, the court ruled that sufficient evidence was
presented at "trial from which the jury could conclude
that Mr. Maliske was the final policymaker for the Rushmore
Civic Center." The court also suggested that the Civic
Center's Board of Directors both ratified Maliske's
decisions and delegated authority to him. In a footnote, the
court alternatively held that, as a matter of law,
"Maliske was the final decision-maker for the Rushmore
Plaza Civic Center and the City of Rapid City with regard to
their relationship with Mr. Soltesz." In a separate
order, the district court granted Soltesz's motion for
attorneys' fees under 42 U.S.C. § 1988(b). The Civic
Center appeals the district court's denial of its renewed
motion for JMOL and the award of attorneys' fees.
review the denial of a motion for a judgment as a matter of
law de novo, and we view the evidence in the light most
favorable to the jury's verdict." Bonenberger v.
St. Louis Metro. Police Dep't, 810 F.3d 1103, 1107
(8th Cir. 2016) (internal quotation marks omitted). JMOL
"is appropriate when 'a party has been fully heard
on an issue during a jury trial and the court finds that a
reasonable jury would not have a legally sufficient
evidentiary basis to find for the party on that
issue.'" Duban v. Waverly Sales Co., 760
F.3d 832, 835 (8th Cir. 2014) (quoting Fed.R.Civ.P.
50(a)(1)). "[I]n reviewing a jury verdict, we draw every