Ralph Nader v. Kenneth Bennett ( 2012 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 02 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RALPH NADER; DONALD N. DAIEN, No. 11-15548
Plaintiffs - Appellants, D.C. No. 2:04-cv-01699-FJM
v.
MEMORANDUM*
KENNETH BENNETT, in his official
capacity as Arizona Secretary of State,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding
Submitted January 11, 2012**
San Francisco, California
Before: SCHROEDER, THOMAS, and GOULD, Circuit Judges.
Plaintiffs-appellants Ralph Nader and Donald Daien appeal from the district
court’s order denying attorney’s fees for hours spent seeking a preliminary
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
injunction. This is the fourth time that the case has been before this court. See
Nader v. Brewer, 386 F.3d 1168 (9th Cir. 2004); Nader v. Brewer, 531 F.3d 1028(9th Cir. 2008); Nader v. Bennett, 407 Fed. App’x 190 (9th Cir. 2010). Our most
recent decision affirmed the district court’s order in part, and remanded in part for
the district court to determine whether “hours spent in the unsuccessful effort to
obtain a preliminary injunction” counted toward “all of the hours that contributed
to the eventual victory,” and therefore qualified for the fee award. 407 Fed. App’x
at 191.
Upon remand, appellants had the burden to produce records to establish the
number of hours that contributed to the ultimate victory on the merits. See
Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986). Appellants
did not produce such records. The district court relied on its earlier conclusion that
the preliminary injunction effort was a dilatory strategy meant to force a hasty
decision, and that it did not contribute to the ultimate victory on the merits. The
court did not abuse its discretion in finding that the hours spent litigating the
motion for preliminary injunction and the appeal of the order denying the
preliminary injunction “did not contribute to the ultimate victory in the lawsuit.”
AFFIRMED.
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