* The Honorable Bernice Bouie Donald, United States Di strict Judge for the Western District of Tennessee, sitting by designation. RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206
File Name: 06a0008p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

R ALPH N ADER ; P ETER M IGUEL C AMEJO ; R ALPH N ADER FOR P RESIDENT 2004; R EFORM P ARTY OF
THE U NITED S TATES OF A MERICA , by and through its National Chair Shawn O’Hara; S HAWN O’H ARA , in his individual capacity as Chair of the Reform Party of the United States of America, Plaintiffs-Appellants,

v

.

T ERRI L YNN L AND , Michigan Secretary of State; M ATTHEW C REHAN , Defendants-Appellees. 

### X - - - -

> 

### , - - - - - - - - - - N No. 04-2428

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 04-72830—Bernard A. Friedman, Chief District Judge.
Argued: December 1, 2005
Decided and Filed: January 10, 2006
Before: KENNEDY and GIBBONS, Circu it Judges; DONALD, District Judge. *

_________________ COUNSEL

ARGUED: Bruce I. Afran, Princeton, New Jersey, for Appellants. Heather S. Meingast, MICHIGAN DEPARTMENT OF ATTORNEY GENERA L, Lansing, Michigan, Michael J. Hodge, MILLER, CANFIELD, PADDOCK & STONE, Lansing, Michigan, for Appellees. ON BRIEF: Bruce I. Afran, Princeton, New Jersey, Ralph J. Sirlin, REOSTI, JAMES & SIRLIN, Pleasant Ridge, Michigan, Bruce T. Wick, Westlake, Ohio, for Appellants. Heather S. Meingast, Patrick J. O’Brien, MICHIGAN DEPARTMENT OF ATTORNEY GENE RAL, Lansing, Michigan, for Appellees.

1No. 04-2428 Nader, et al. v. Land, et al. Page 2

_________________ OPINION

_________________ KENNEDY, Circuit Judge. Plaintiffs brought this declaratory action requesting that the court find that during the Presidential Election in2004, the Michigan Secretary of State had a duty to certify one faction of the Reform Party’s candidates for President. The district court dismissed Plaintiffs’ case under Federal Rule of Civil Pro cedure 41(b) for failure to prosecute and because Plaintiff Nader elected to appear on the ballot as an independent candidate. For the following reasons, we AFFIRM the dismissal of election claims 1-5 and REVERSE the dismissal of causes of action 6 and 7.

BACKGROUND
Plaintiffs, Nader, Camejo, Ralph Nader for President 2004, the Reform Party of the United States and Chairman O’Hara, filed the instan t declaratory judgment action after the Michigan Secretary of State refused to certify Nader and Came jo as the Reform Party’s nominees for President and Vice President of the United States. As the hi story of disagreement within the Reform Party of Michigan is critical to our decision, a brief overview of past elections is necessary.
The 2000 Election Cycle
The first disagreements between the members of the Reform Party of Michigan came to light during the 2000 election when the Secretary of St ate of Michigan, Secretary Land, received two certifications from the Reform Party of Michig an. The first certification named Mark Forton as chairperson and Tracy DeNise as secretary a nd certified Patrick Buchan an as the nominee for President and Ezola Foster as the party’s nomin ee for Vice President. The second certification named Diane McKelvey as the chairperson, Eleanor Renfrew as the secretary and nominated John Hagelin for President and Nat Goldhaber for Vice President.
Prior to this confusion, Perry Spence was unque stionably the Reform Party of Michigan’s chairperson until July 14, 2000, at which point he resigned. McKelvey was the vice-chairperson at this time and was selected chairperson on July 28, 2000, at a board meeting. However, on August 5, 2000, Forton arranged a meeting where those present purported to recall four individuals from the executive board of the Reform Party of Michigan and then fill those vacancies. The “new” members of the board then elected Forton as chairperson and DeNise as secretary. Thus, the two factions of the Reform Party of Michigan were created, leadi ng to Secretary Land’s receipt of two requests for certification.
Pursuant to Michigan Election Law, the Secr etary of State is required to certify the candidates for the offices of President and Vice Pres ident of the United States who have been named by the chairperson and secretary of the state party committees. MCL § 168.686. However, in light of this dispute, the Secretary of State refused to certify nominees from either faction. Buchanan, Foster and Forton subsequently filed suit in st ate court requesting a writ of mandamus compelling the Secretary to place the Buchan an faction of nominees on the ballot. The Ingham County Circuit Court ruled that because a substantial factual di spute regarding who led the Reform party existed, the Secretary of State had no clear legal duty to place those names on the Michigan PresidentialNo. 04-2428 Nader, et al. v. Land, et al. Page 3

1 Additionally, two members of the Buchanan faction, Watson and Robinson, filed a Complaint for Declaratory and Injunctive Relief and a Motion for Preliminary Injunction inthe United States District Court for the Eastern District of Michigan, arguing that the Secretary of State’s failure to certify Buchanan and Foster as the Reform Party’s nominees violated their rights under the First and Fourteenth Amendments of the United States Constitution. Watson v. Secretary of State , USDC, Eastern Dist., S. Div., Case No. 00-40336. The district court denied their motion and concluded the plaintiffs were essentially seeking a writ of mandamus, whic h the Michigan courts had already denied to Buchanan and Foster, and that the plaintiffs were unlikely to succeed on the merits of the claim. Watson and Robinson then filed an Emergency Motion for Immediate Consideration and Request for Injunction Pending Appeal in this court which was denied. They then filed an Emergency Application for In junction Pending Appeal with the United States Supreme Court that was denied. Finally they stipulated to dismiss the app eal to this court and dismissed the case pending in the district court. ballot. 1 Thus, the 2000 election litigation ended without a resolution as to which faction should be recognized.
2002 Election Cycle
In May 2002, Forton informed the Bureau of El ections that the Reform Party of Michigan voted to disaffiliate from the Reform Party of th e United State of America, the national organization. Then on July 27, 2002, the Reform Party of Mich igan convened and nominated candidates for several offices in the 2002 general election. The Secretary of State accepted those nominations as it appeared the conflict had been resolved and th ere was no objection from any other faction of the Reform Party of Michigan. Thus, those candidate s were listed on the ballot without any objection and it appeared the Buchanan faction, with Fort on acting as chairperson, led the Reform Party of Michigan. Notably, under MCL § 168.685(6), if the Reform Party of Michigan had not nominated candidates for the 2002 election cycle, it would have lost its ballot access for the 2004 cycle.
2004 Election Cycle
On June 25, 2004, the Bureau of Elections recei ved a certification of nomination from the Reform Party of Michigan (from Muntz as chairp erson, and Renfrew, as secretary), listing Ralph Nader for President and Peter Camejo for Vice President. On July 6, 2004, however, Defendant Crehan told the Bureau of Elections that the certification of Nader/Camejo was “fraudulent” as he, Crehan, was the elected chairperson of the Reform Party of Michigan and that Muntz/Renfrew were actually officers of the Independence Party of Mi chigan, a group attempting to become qualified as a political party.
On or about July 8, 2004, Plain tiff O’Hara, as undisputed chai rperson of the Reform Party of the United States of America, addressed a lette r to the Bureau of Elections, asserting that the national party recognized Muntz and Renfrew as the chairperson and secretary of the Reform Party of Michigan.
On July 9, 2004, the Secretary of State informed Crehan and Muntz that she was unable to accept the certification of Nader/Camejo as nominees of a qualified political party as “it is apparent that two individuals claim to be Chairperson of the Reform Party of Michigan and two individuals claim to be Secretary of the Reform Party of Mi chigan.” Since this dispute arose earlier in the election cycle than it had in 2000, the Secretary of State urged the two factions to resolve their differences.

The two factions did not work out their differences and on July 26, 2004, the Bureau of Elections received a letter from Crehan as chai rperson and Charlene Truskzkowski as secretary, of the Reform Party of Michigan. The Crehan/Tru skzkowski faction did not nominate anyone for the offices of President and Vice-President, but they did nominate candidates for other positions. The Muntz/Renfrew faction, also as alleged chairperson and secretary of the Reform Party of Michigan,No. 04-2428 Nader, et al. v. Land, et al. Page 4

2 Some dispute existed as to whether the signatures we re sufficient and whether Nader should appear on the ballot; however, in Deleeuw v. State Bd of Canvassers , 263 Mich. App. 497 (2004), the Michigan Court of Appeals issued an opinion concluding that the signatures werevalid and ordered the qualifying petition be certified. submitted nominations for Nader/Camejo for President and Vice-President as well as candidates for other state offices. The Secretary of State refuse d to certify the nominations from either faction.
However, Nader/Camejo did eventually app ear on the Michigan ballot as candidates for President and Vice-President. Under Michig an Election Law, a person seeking office without a political party(as the Secretary never certified them) may file a “qualifying petition” to appear on a ballot as an independent candidate if they gather the requisite number of signatures from registered voters throughout the state. MCL §168.590b(1). OnJuly 15, 2004, the Michigan Republican Party filed an estimated 45,040 elector signatures on behalf of Plaintiff Nader to run as an independent candidate and Nader filed 5,463 elector signatures. The Bureau of Elections accepted the qualifying petition and the signatures submitted by the Republicans and Nader. 2 Notably, Plaintiff Nader did not withdraw the qualifying petition within three days of filing, as he was permitted under MCL §168.590c(3). Thus, Nader ran as an independent candidate in 2004.
Procedural History
After the filing of this action on August 23, 2004, Plaintiffs moved in the district court by order to show cause for a declaratory judgment and injunction directing the Secretary of State to place Nader/Camejo on the ballot as the presidential and vice-presidential candidates of the Reform Party. The district court entered a bench opini on denying the requested relief as there was an unresolved dispute as to who controlled the Reform Party of Michigan and thus, the Secretary had no clear duty under Michigan law to accept certification from either faction. The court also held that since Nader/Camejo failed to withdraw from a separate, non-Reform party independent ballot position, Nader was precluded from maintaining a clai m to the Reform Party nomination. The basis for this ruling was that Michigan law prohibits a candidate from seeking nomination on both independent and party columns. On Septembe r 10, 2004, Plaintiffs filed a Notice and Claim of Appeal with this Court from the di strict court’s order asking this court to hear the appeal as an order denying a motion to show cause is not final, but inte rlocutory. Plaintiffs did not move for a stay in the district court and when the Plaintiffs failed to appear at a scheduled pre-trial conference, the district court dismissed Plaintiffs’ complaint fo r lack of prosecution and entered judgment in favor of Defendants. We denied Plain tiffs’ Motion to Expedite the Appeal as untimely as no relief could be granted with respect to the November General Election ballot.
Plaintiffs appeal both the Order denying the s how-cause motion and the Order of involuntary dismissal.

I. Mootness Under the “case or controversy” requirement inArticle III of the United States Constitution, federal courts only have jurisdiction to decide cases that affect the rights of litigants. Southwest Williamson County Cmty Assoc v. Slater , 243 F.3d 270, 276 (6th Cir. 2001). Thus, as a preliminary matter we must first determine whether, as Defendants allege, this case is moot. The Supreme Court has held that when considering the potential mootne ss of a claim for declaratory relief, “the question is ‘whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal in terests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.’” Super Tire Eng'g Co. v. McCorkle, 416 U.S. 115, 122, 94 S.Ct. 1694 (1974) (quoting Maryland Cas. Co. v. Pa cific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510 (1941)). “[I]f an event occurs wh ile a case is pending on appeal that makes it impossible for the court to grant any effectual relie f whatever to a prevailing party, the appeal mustNo. 04-2428 Nader, et al. v. Land, et al. Page 5

3 We note that while the district court did not decide the case under the mootness doctrine, the court did base part of its decision on the fact that because Nader and Came jo ran as independent candidates, they were prevented under Michigan law from also running as Reform Party candidates. be dismissed.” Church of Scientology of California v. United States, 506 U.S. 9, 12 (1992) (quotation omitted).
Defendants argue that this case is moot for tw o reasons: first, relief can no longer be granted because the 2004 election is over and, second, because Nader/Camejo appeared on the ballot as independents and under Michigan Election law a ca ndidate cannot run as both an independent and as a candidate of a political party. Plaintiffs c ounter by arguing that this case fits under an the “capable of repetition yet evading review” excep tion to the mootness doctrine, under which matters are to be reviewed on appeal ev en after the conclusion of the event for which relief is sought. Plaintiffs note that elections, because of their ephemeral nature are particularly suited for this doctrine.
Without reaching Defendants’ first argumen t, we find Defendants’ second argument persuasive. 3 Under MCL §168.590g(1), a “person who files a qualifying petition... shall not be nominated as a candidate...by a political party convention ....” (emphasis added). A qualifying petition was filed on behalf of Na der and Camejo and they never sought to withdraw that petition under MCL §168.590c(3) (a candidate who “files a qualifying petition shall not be permitted to withdraw his...candidacy unless a written notice of withdrawal is filed withthe filing officer who received the petition. The notice shall be filed not late r than 4 p.m. of the third day after the last day of filing a qualifying petition.”).
Thus, because a candidate cannot run as both an independent and with a party under Michigan Election Law, the Plaintiffs voluntarily and willingly gave up their claim to run on the ballot under the Reform Party ticket by submitti ng and by not withdrawing a qualifying petition. MCL §168.590g(1). As we are unable to grant Plaintiffs “any effectual relief” and declare Nader/Camejo as the 2004 nominees of the Reform Party of Michigan, we fi nd Plaintiffs’ claim that the Secretary of State was under a duty to certify a particular faction of Reform Party candidates moot. See Church of Scientology of California , 506 U.S. at 12.

II. Involuntary Dismissal of Plaintiffs’ Complaint

Plaintiffs also contend the district court abused its discretion by dismissing Plaintiffs’ complaint, with prejudice, pursuant to Fed.R.Ci v.P. 41(b) for failure to prosecute because the Plaintiffs did not appear for the scheduled pre-trial conference on September 30, 2004. Plaintiffs admit that the Nader Plaintiffs did not wish to pur sue their claims because th e issues with which they were concerned are matters addressed on the order to show cause; however, the Reform Party of the United States argues that the Sixth and Seventh Causes of action concern factual questions as to control of the state party that still require resoluti on in a fact-finding forum, either federal or state. The Reform Party of the United States does not pl an on proceeding with these claims at this time; however, it points out that the district court’s order was a dismissal with prejudice which would prevent them from adjudicating these claims in the future.

In this circuit we often have reversed a di strict court’s decision to dismiss a complaint because litigants failed to appear, especially absent bad faith, or absent notice to the Plaintiffs that the court is contemplating involuntary dismissal. See Harris v. Callwood , 844 F.2d 1254, 1256 (6th Cir. 1988) (extracting the principle from similar cas es that “in the absence of notice that dismissal is contemplated by a district court should impos e a penalty short of dismissal unless the derelict party has engaged in ‘bad fa ith or contumacious conduct’”) ; see Carter v. City of Memphis, 636 F.2d 159, 161 (6th Cir. 1980) (courts should dismiss only in “extreme situations” of deliberate delay orNo. 04-2428 Nader, et al. v. Land, et al. Page 6

“contumacious conduct”); Holt v. Pitts, 619 F.2d 558, 562 (6th Cir. 1980) (same); Patterson v. Township of Grand Blanc, 760 F.2d 686, 688 (1985) (same); Bishop v. Cross, 790 F.2d 38, 39 (6th Cir. 1986) (dismissal requires a “degree of willfulness, bad faith or contumacious conduct”).
Thus, as it appears no notice was given to the Plai ntiffs that the district court was considering involuntary dismissal and as the Plaintiffs only mi ssed one appearance, we find the district court abused its discretion by dismissing this complaint with prejudice.

CONCLUSION
For the foregoing reasons we AFFIRM the district court’s order dismissing Plaintiffs’ case. We REVERSE the district court’s dismissal, with prej udice, of counts 6 and 7 of the Plaintiffs’ complaint and REMAND to the district court with instructions to grant appellant’s request that claims 6 and 7 be voluntarily dismissed w ithout prejudice under Fed. R. Civ. P. 41(a).