Hsu v. UBS Financial Services, Inc.

Background

This order concerned a putative class action that had been dismissed in August 2011. Hsu, appearing without a lawyer, had entered into a wrap agreement with UBS Financial Services, Inc. for investment and advisory services. He sued under the Investment Advisers Act, alleging that UBS acted as an investment adviser and that a provision in the agreement impermissibly required him to waive rights under that law.

The court dismissed Hsu’s first amended complaint for failure to state a claim and allowed him an opportunity to propose another amended complaint. The court of appeals later affirmed the dismissal, denied a request for rehearing by the full court, and the Supreme Court denied review. Hsu’s later motions to set aside or reconsider the judgment were also denied, with the court of appeals affirming the denial of one such motion and the Supreme Court again denying review.

Motion and arguments

Hsu moved under the All Writs Act for a writ certifying a class and appointing class counsel. The All Writs Act allows a federal court to issue commands necessary or appropriate to carry out and protect orders issued in a case over which it already has jurisdiction. The opinion states that UBS, if served, had not filed an opposition.

Hsu again alleged that two documents connected with an earlier motion to dismiss had been falsified: a signed agreement between Hsu and Horizon that was separate from the wrap contract, and a ruling by a Financial Industry Regulatory Authority arbitration panel. He also again argued that the 2011 dismissal improperly relied on those materials without converting the motion to dismiss into a motion for summary judgment.

Court’s reasoning

The court concluded that Hsu appeared to be seeking reconsideration of the 2011 dismissal, which had already been denied. It explained that when a statute or rule specifically addresses an issue, that authority controls instead of the All Writs Act. The Federal Rules of Civil Procedure, including Rule 12(b), govern motions to dismiss and when consideration of materials outside the pleadings requires conversion to summary judgment. Because those rules had been considered in the 2011 order, the court held that Hsu could not use an extraordinary writ to bypass them merely because he disagreed with or found inconvenient the earlier result.

Disposition

The court denied the motion for a writ. It also vacated the September 17 hearing and directed the clerk to close the file. Judge William Alsup signed the order.