Hsu v. UBS Financial Services, Inc.

Filing 110

ORDER DENYING 107 MOTION FOR WRIT. (whalc1, COURT STAFF) (Filed on 9/8/2020)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 10 DARRU K HSU, Plaintiff, United States District Court Northern District of California 11 12 13 14 No. C 11-02076 WHA v. UBS FINANCIAL SERVICES, INC., ORDER RE MOTION FOR WRIT Defendant. 15 16 INTRODUCTION 17 This order arises from a putative class action dismissed in August 2011. Pro se plaintiff 18 moves for a writ under the All Writs Act. For the reasons stated below, the motion is DENIED. 19 STATEMENT 20 The background of this case is set forth in prior orders (Dkt. Nos. 35, 69). In short, pro 21 se plaintiff Darru K. “Ken” Hsu entered into a wrap agreement with defendant UBS Financial 22 Services, Inc. for investment and advisory services. In April 2011, Hsu commenced this action 23 under the Investment Advisers Act, alleging that defendant provided services “in its capacity as 24 an investment advisor,” but that a “hedge clause” in his agreement with defendant 25 impermissibly required him to waive certain rights under the Act (see Dkt. No. 17). An 26 August 2011 order dismissed Hsu’s first amended complaint for failure to state a claim. 27 Although the dismissal order permitted Hsu an opportunity to propose a second amended 28 complaint, Hsu did not amend. Judgment was ultimately entered in defendant’s favor. Hsu 1 appealed. In February 2013, our court of appeals affirmed the dismissal, and later denied an en 2 banc hearing. The Supreme Court denied a petition for a writ of certiorari in October 2013. In 2014, Hsu moved to set aside the judgment under FRCP 60(b)(6) and FRCP 60(d)(3). 3 4 A March 2014 order denied the motion. Our court of appeals affirmed the denial of the 5 motion, and the Supreme Court denied a petition for writ of certiorari (Dkt. Nos. 57, 69, 74– 6 79). 7 In 2018, Hsu again moved to set aside the judgment under FRCP 60(b)(4) based 8 primarily on the same arguments he previously used. An April 2018 order denied the motion 9 (Dkt. Nos. 80, 87). 10 In 2019, Hsu moved for reconsideration of the April 2018 order, making arguments United States District Court Northern District of California 11 similar to those he previously made. A March 2019 order denied the motion. Our court of 12 appeals affirmed the ruling and the Supreme Court denied a petition for writ of certiorari (Dkt. 13 Nos. 101, 103, 106). 14 15 Hsu now moves under the All Writs Act for a writ to certify a class and appoint class counsel. The Defendant, if served, has not filed any opposition. ANALYSIS 16 17 Similar to his previous motions, defendant alleges that defendant falsified two documents 18 in connection with a previous motion to dismiss: (1) a signed agreement between Hsu and 19 Horizon, independent of the wrap contract, and (2) the FINRA arbitration panel ruling. He 20 also again alleges that the 2011 dismissal order had improperly relied on these materials 21 without converting the motion to dismiss into a motion for summary judgment. 22 The All Writs Act authorizes a federal court “to issue such commands . . . as may be 23 necessary or appropriate to effectuate and prevent the frustration of orders it has previously 24 issued in its exercise of jurisdiction otherwise obtained.” United States v. New York Telephone 25 Co., 434 U.S. 159, 172 (1977). 26 “Where a statute specifically addresses the particular issue at hand, it is that authority, 27 and not the All Writs Act, that is controlling.” Pennsylvania Bureau of Correction v. U.S. 28 Marshals Serv., 474 U.S. 34, 43 (1985). Thus although the Act allows federal courts to fashion 2 1 extraordinary remedies when there is a need, “it does not authorize them to issue ad hoc writs 2 whenever compliance with statutory procedures appears inconvenient or less appropriate.” 3 Ibid. 4 Although difficult to understand, Hsu seems to argue that a writ should be granted 5 because the 2011 dismissal order relied on allegedly fraudulent documents and that the motion 6 itself should have been converted to a summary judgment motion because of those documents. 7 Hsu thus seems to be requesting reconsideration of the dismissal order, which was already 8 denied. Furthermore, the requested remedy is exactly what Pennsylvania Bureau cautioned 9 against. Here, there are already specific rules that govern these issues. For example, FRCP 12(b) provides the rules regarding motions to dismiss and when conversion to summary 11 United States District Court Northern District of California 10 judgment is appropriate, all of which was considered in the 2011 order. The Federal Rules of 12 Civil Procedure thus control, and just because plaintiff believes the outcome is inconvenient or 13 against his wishes, it does not grant this Court the authority to issue the extraordinary remedy 14 of a writ and circumvent these rules. 15 16 The motion for a writ is thus DENIED. The September 17 hearing is VACATED. The Clerk shall CLOSE the file. 17 18 IT IS SO ORDERED. 19 20 Dated: September 8, 2020. 21 22 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 3

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