Ralph Nader v. Kenneth Bennett

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                           NOT FOR PUBLICATION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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