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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DARRU K HSU,
Plaintiff,

United States District Court
Northern District of California

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No. C 11-02076 WHA

v.
UBS FINANCIAL SERVICES, INC.,

ORDER RE MOTION FOR WRIT

Defendant.

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INTRODUCTION

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This order arises from a putative class action dismissed in August 2011. Pro se plaintiff

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moves for a writ under the All Writs Act. For the reasons stated below, the motion is DENIED.

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STATEMENT

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The background of this case is set forth in prior orders (Dkt. Nos. 35, 69). In short, pro

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se plaintiff Darru K. “Ken” Hsu entered into a wrap agreement with defendant UBS Financial

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Services, Inc. for investment and advisory services. In April 2011, Hsu commenced this action

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under the Investment Advisers Act, alleging that defendant provided services “in its capacity as

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an investment advisor,” but that a “hedge clause” in his agreement with defendant

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impermissibly required him to waive certain rights under the Act (see Dkt. No. 17). An

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August 2011 order dismissed Hsu’s first amended complaint for failure to state a claim.

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Although the dismissal order permitted Hsu an opportunity to propose a second amended

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complaint, Hsu did not amend. Judgment was ultimately entered in defendant’s favor. Hsu

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appealed. In February 2013, our court of appeals affirmed the dismissal, and later denied an en

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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).

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A March 2014 order denied the motion. Our court of appeals affirmed the denial of the

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motion, and the Supreme Court denied a petition for writ of certiorari (Dkt. Nos. 57, 69, 74–

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79).

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In 2018, Hsu again moved to set aside the judgment under FRCP 60(b)(4) based

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primarily on the same arguments he previously used. An April 2018 order denied the motion

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(Dkt. Nos. 80, 87).

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In 2019, Hsu moved for reconsideration of the April 2018 order, making arguments

United States District Court
Northern District of California

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similar to those he previously made. A March 2019 order denied the motion. Our court of

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appeals affirmed the ruling and the Supreme Court denied a petition for writ of certiorari (Dkt.

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Nos. 101, 103, 106).

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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

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Similar to his previous motions, defendant alleges that defendant falsified two documents

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in connection with a previous motion to dismiss: (1) a signed agreement between Hsu and

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Horizon, independent of the wrap contract, and (2) the FINRA arbitration panel ruling. He

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also again alleges that the 2011 dismissal order had improperly relied on these materials

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without converting the motion to dismiss into a motion for summary judgment.

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The All Writs Act authorizes a federal court “to issue such commands . . . as may be

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necessary or appropriate to effectuate and prevent the frustration of orders it has previously

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issued in its exercise of jurisdiction otherwise obtained.” United States v. New York Telephone

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Co., 434 U.S. 159, 172 (1977).

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“Where a statute specifically addresses the particular issue at hand, it is that authority,

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and not the All Writs Act, that is controlling.” Pennsylvania Bureau of Correction v. U.S.

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Marshals Serv., 474 U.S. 34, 43 (1985). Thus although the Act allows federal courts to fashion
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extraordinary remedies when there is a need, “it does not authorize them to issue ad hoc writs

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whenever compliance with statutory procedures appears inconvenient or less appropriate.”

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Ibid.

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Although difficult to understand, Hsu seems to argue that a writ should be granted

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because the 2011 dismissal order relied on allegedly fraudulent documents and that the motion

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itself should have been converted to a summary judgment motion because of those documents.

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Hsu thus seems to be requesting reconsideration of the dismissal order, which was already

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denied. Furthermore, the requested remedy is exactly what Pennsylvania Bureau cautioned

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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

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United States District Court
Northern District of California

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judgment is appropriate, all of which was considered in the 2011 order. The Federal Rules of

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Civil Procedure thus control, and just because plaintiff believes the outcome is inconvenient or

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against his wishes, it does not grant this Court the authority to issue the extraordinary remedy

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of a writ and circumvent these rules.

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The motion for a writ is thus DENIED. The September 17 hearing is VACATED. The
Clerk shall CLOSE the file.

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IT IS SO ORDERED.

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Dated: September 8, 2020.

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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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