United States District Court, N.D. California, San Francisco Division
ANTHONY P. MIELE, III, Plaintiff,
FRANKLIN RESOURCES, INC., et al., Defendants.
ORDER DENYING THE PLAINTIFF'S MOTION FOR EXIGENT
RELIEF UNDER 28 U.S.C. § 1651 RE: ECF NO. 76
BEELER United States Magistrate Judge.
Miele III moves for exigent relief under the All Writs Act on
his remaining claims against Franklin
Resources. Under the All Writs Act, courts “may
issue all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and
principles of law.” 28 U.S.C. § 1651(a).
Injunctive relief under the Act is, however, “to be
used sparingly and only in the most critical and exigent
circumstances.” Brown v. Gilmore, 533 U.S.
1301, 1303 (2001) (internal quotations omitted). Indeed, an
injunction is appropriate “only if the legal rights at
issue are indisputably clear.” Id. (internal
quotations omitted). The Act thus does not grant
“plenary power to the federal courts[;] [r]ather, it is
designed to aid the courts in the exercise of their
jurisdiction.” Plum Creek Lumber Co. v.
Hutton, 608 F.2d 1283, 1289 (9th Cir. 1979).
the All Writs Act, Mr. Miele III asks that the court order
Franklin Resources to re-issue the allegedly misplaced
securities and pay accrued but unpaid dividends under
Delaware Code section 8-405 and Delaware Corporations Code
section 168(b). Section 8-405 provides that in the case of
a lost, destroyed, or stolen certificated security, the
security-issuer must issue a new certificate if the
security-owner: “(1) so requests before the issuer has
notice that the certificate has been acquired by a protected
purchaser; (2) files with the issuer a sufficient indemnity
bond; and (3) satisfies other reasonable requirements imposed
by the issuer.” 6 Del. C. § 8-405(a). Even where
these requirements are satisfied, an issuer need not re-issue
a certificate if “[1)]the owner fails to notify the
issuer” that the security was lost, destroyed, or
stolen “within a reasonable time after the owner has
notice of it and [2)] the issuer registers a transfer of the
security before receiving notification [from the
owner].” Id. § 8-406.
court denies Mr. Miele III’s motion. The relief that he
seeks does not aid in the court’s jurisdiction, but
instead attempts to “resolve finally the captioned
action” in its entirety. The All Writs Act is not the
proper mechanism here: Mr. Miele III effectively leap-frogs
the remaining discovery, dispositive motions, and trial to
reach a decision on the merits.
support his use of the All Writs Act to accomplish this end,
Mr. Miele III cites Stern v. South Chester Tube Co.,
390 U.S. 606 (1968). In that case, the plaintiff-stockholder
sued to inspect the books and records of the
defendant-corporation. Id. at 606-07. Because the
plaintiff had an undoubtable right to inspect the
defendant’s records under applicable state law (and
because there was no adequate remedy at law), the district
court could enforce this right under the All Writs Act.
Id. at 609-10.
unlike Stern, it is not indisputably clear that Mr.
Miele III is entitled to the relief he seeks. Contrary to his
assertions, the One Beacon indemnity bond does not resolve
the matter; there are remaining disputes as to the other
elements of section 8-405 and the applicability of the
section 8-406 defense. And, that One Beacon “is under
no obligation to keep its commitment open” does not
amount to critical and exigent circumstances to grant summary
relief Mr. Miele III may in the end be victorious
- e.g. if Franklin Resources cannot produce evidence
that the section 8-406 defense applies - but that is an issue
for summary judgment or trial, not the All Writs Act.
these reasons and those stated on the record, and having
considered Mr. Miele III ’s August 4 submission,
court denies Mr. Miele III’s motion for exigent relief.
disposes of ECF No. 76.
IS SO ORDERED.
 See Amended Compl. - ECF No.
17, ¶¶ 148-160; Order - ECF No. 45 at 35; Motion
for Writ - ECF No. 76. Record citations refer to material in
the Electronic Case File (“ECF”); pinpoint
citations are to the ECF-generated page numbers at the top of
documents. The court incorporates by reference the statement
of facts in its order at ECF No. 45 and assumes familiarity
with those facts here. (See Order - ECF No. 45 at
 See Motion for Writ - ECF No.
Id. at 1; Reply - ECF No. 91