                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                    Pursuant to Sixth Circuit Rule 206
                                            File Name: 06a0008p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                          X
                                                           -
 RALPH NADER; PETER MIGUEL CAMEJO; RALPH
                                                           -
 NADER FOR PRESIDENT 2004; REFORM PARTY OF
                                                           -
 THE UNITED STATES OF AMERICA, by and through its

                                                           -
                                                               No. 04-2428
 National Chair Shawn O’Hara; SHAWN O’HARA, in
                                                           ,
 his individual capacity as Chair of the Reform Party       >
 of the United States of America,                          -
                                  Plaintiffs-Appellants, -
                                                           -
                                                           -
                                                           -
            v.
                                                           -
                                                           -
 TERRI LYNN LAND, Michigan Secretary of State;
                                                           -
                                 Defendants-Appellees. -
 MATTHEW CREHAN,

                                                           -
                                                          N
                           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, Circuit Judges; DONALD, District Judge.*
                                            _________________
                                                 COUNSEL
ARGUED: Bruce I. Afran, Princeton, New Jersey, for Appellants. Heather S. Meingast,
MICHIGAN DEPARTMENT OF ATTORNEY GENERAL, 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 GENERAL, Lansing, Michigan, for Appellees.




        *
           The Honorable Bernice Bouie Donald, United States District Judge for the Western District of Tennessee,
sitting by designation.


                                                        1
No. 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 in 2004, 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 Procedure 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 instant declaratory judgment action after the Michigan
Secretary of State refused to certify Nader and Camejo as the Reform Party’s nominees for President
and Vice President of the United States. As the history 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 State of Michigan, Secretary Land, received two
certifications from the Reform Party of Michigan. The first certification named Mark Forton as
chairperson and Tracy DeNise as secretary and certified Patrick Buchanan as the nominee for
President and Ezola Foster as the party’s nominee 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 unquestionably 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, leading to Secretary Land’s receipt of two requests for
certification.
        Pursuant to Michigan Election Law, the Secretary of State is required to certify the
candidates for the offices of President and Vice President 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 state court requesting a writ of mandamus compelling
the Secretary to place the Buchanan faction of nominees on the ballot. The Ingham County Circuit
Court ruled that because a substantial factual dispute regarding who led the Reform party existed,
the Secretary of State had no clear legal duty to place those names on the Michigan Presidential
No. 04-2428               Nader, et al. v. Land, et al.                                                           Page 3


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 Elections that the Reform Party of Michigan
voted to disaffiliate from the Reform Party of the United State of America, the national organization.
Then on July 27, 2002, the Reform Party of Michigan 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 there was no objection from any other faction of the
Reform Party of Michigan. Thus, those candidates were listed on the ballot without any objection
and it appeared the Buchanan faction, with Forton 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 received a certification of nomination from the
Reform Party of Michigan (from Muntz as chairperson, 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 Michigan, a group attempting to become qualified as
a political party.
       On or about July 8, 2004, Plaintiff O’Hara, as undisputed chairperson of the Reform Party
of the United States of America, addressed a letter 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 Michigan.” 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 chairperson and Charlene Truskzkowski as secretary, of
the Reform Party of Michigan. The Crehan/Truskzkowski 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,


         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 in the 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, which 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 Injunction Pending Appeal with the United States Supreme Court
that was denied. Finally they stipulated to dismiss the appeal to this court and dismissed the case pending in the district
court.
No. 04-2428             Nader, et al. v. Land, et al.                                                     Page 4


submitted nominations for Nader/Camejo for President and Vice-President as well as candidates for
other state offices. The Secretary of State refused to certify the nominations from either faction.
         However, Nader/Camejo did eventually appear on the Michigan ballot as candidates for
President and Vice-President. Under Michigan 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). On July 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 opinion 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 claim 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 September 10, 2004, Plaintiffs filed a Notice and Claim of
Appeal with this Court from the district court’s order asking this court to hear the appeal as an order
denying a motion to show cause is not final, but interlocutory. 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 for lack of prosecution and entered judgment in favor
of Defendants. We denied Plaintiffs’ 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 show-cause motion and the Order of involuntary
dismissal.
                                                 I. Mootness
        Under the “case or controversy” requirement in Article 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 mootness 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 interests, 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. Pacific Coal & Oil Co., 312 U.S. 270, 273,
61 S.Ct. 510 (1941)). “[I]f an event occurs while a case is pending on appeal that makes it
impossible for the court to grant any effectual relief whatever to a prevailing party, the appeal must

        2
          Some dispute existed as to whether the signatures were 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 were valid and ordered the qualifying petition be certified.
No. 04-2428               Nader, et al. v. Land, et al.                                                         Page 5


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 two 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 candidate cannot run as both an independent and
as a candidate of a political party. Plaintiffs counter by arguing that this case fits under an the
“capable of repetition yet evading review” exception to the mootness doctrine, under which matters
are to be reviewed on appeal even 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 argument, 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 Nader 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 with the filing officer who
received the petition. The notice shall be filed not later 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 submitting 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 find 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.Civ.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 pursue their claims because the 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 resolution in a fact-finding forum, either federal or state.
The Reform Party of the United States does not plan 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 district 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 cases that “in the absence of notice that dismissal
is contemplated by a district court should impose a penalty short of dismissal unless the derelict
party has engaged in ‘bad faith 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 or

         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 Camejo ran as independent candidates, they were prevented under
Michigan law from also running as Reform Party candidates.
No. 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 Plaintiffs that the district court was considering
involuntary dismissal and as the Plaintiffs only missed 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 prejudice, 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 without prejudice under Fed. R. Civ. P. 41(a).
