Arizona, State of et al v. Michael D Lansky LLC et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
State of Arizona, ex rel. Kristin K.
Mayes, Attorney General; et al.,
Plaintiffs,
v.
Michael D. Lansky, L.L.C., dba Avid
Telecom; et al.,
Defendants.
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No. CIV 23-233-TUC-CKJ
ORDER
Pending before the Court is the Motion for Leave to File Further Supplemental
Motion to Dismiss ("Motion to Supplement") (Doc. 150) filed by Defendants Michael D.
Lansky, et al ("Defendants" or "Avid"). Plaintiffs State of Arizona, ex rel. Kristin K.
Mayes, et al. ("Plaintiffs" or "AGs") have filed a response (Doc. 160) and Avid has filed a
reply (Doc. 164).
Applicable Procedural History
In its original Motion to Dismiss, Avid sought dismissal of the claim of personal
liability against Michael D. Lansky ("Lansky") based on a common law piercing of the
corporate veil and on the alleged inadequacy of Plaintiffs' claims arising under the
Telecommunications Consumer Protection Act ("TCPA") (Doc. 39).
Avid sought to supplement its Motion to Dismiss, citing new case law which had
determined no personal liability existed even where a defendant personally participated in
or directed a TCPA violation (Doc. 62). The Court denied the request, finding the case law
was not binding precedent and was not issued before the filing of the original Motion (or
Case 4:23-cv-00233-CKJ-MAA Document 181 Filed 11/20/25 Page 1 of 4

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relied on those prior decisions). May 8, 2024, Order (Doc. 64).
On September 12, 2025, Avid filed the pending Motion to Supplement. Avid asserts
new Supreme Court authority warrants supplementing his Motion to Dismiss. See e.g.
Loper Bright Enters. v. Raimondo, 603 U.S. 369, 412–13 (2024); McLaughlin Chiropractic
Assocs., Inc. v. McKesson Corp., 606 U.S. 146, 168 (2025). Avid's Motion to Supplement
also argues that, as interpreted by the Ninth Circuit, Fed.R.Civ.P. 12(g) allows consideration
of the issues. See In re Apple iPhone Antitrust Litig., 846 F.3d 313, 319 (9th Cir. 2017),
aff'd sub nom. Apple Inc. v. Pepper, 587 U.S. 273 (2019). Finding "practical wisdom" in
authority from the Third Circuit, the Tenth Circuit, and district court cases, as well as 2–12
Moore's Federal Practice—Civil § 12.23 ("[B]ecause [a 12(b)(6) defense] is so basic and
was not waived, [a district] court might properly entertain a second motion if it were
convinced it was not interposed for delay and that addressing it would expedite disposition
of the case on the merits."), the Ninth Circuit determined "practical wisdom" leads to be
"forgiving of a district court's ruling on the merits of a late-filed Rule 12(b)(6) motion."
Avid also argues Fed.R.Civ.P. "15(d) gives district courts broad discretion to allow
supplemental pleadings, including after a motion to dismiss[.]" Reply (Doc. 164, p. 2.).
They further assert reconsideration is appropriate because there is an intervening change in
law.
Plaintiffs assert, however, a Motion to Supplement is an inappropriate vehicle to
request consideration of intervening law and, therefore, Avid's request should be denied.
Even if the Court considers the request as a motion for reconsideration, Plaintiffs assert the
request should be denied because Avid did not include the argument in their original Motion
to Dismiss and is untimely.
The Court disagrees with Avid that Fed.R.Civ.P. 15(d) affords the Court broad
discretion to allow Avid to amend its motion to dismiss. By its terms, Fed.R.Civ.P. 15(d),
only applies to pleadings. Fed.R.Civ.P. 7 makes clear there is a distinction between
pleadings and motions. See also Fed.R.Civ.P. 15, Committee Notes on Rules – 2009
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Amendment ("a motion is not a 'pleading' as defined in Rule 7").
However, Ninth Circuit authority recognizes the practical wisdom of considering a
late-filed motion to dismiss. Whether entitled a late-filed motion to dismiss, a supplemental
motion to dismiss, or a motion to reconsider, the Court finds it appropriate to consider the
substance of Avid's arguments. See e.g. Andersen v. United States, 298 F.3d 804, 807 (9th
Cir. 2002) ("The substance of the motion, not its form, controls its disposition."); Prudential
Real Estate Affiliates, Inc. v. PPR Realty, Inc., 204 F.3d 867, 880 (9th Cir.2000) ("[T]he
label attached to a motion does not control its substance."); United States v. Dieter, 429 U.S.
6, 8-9 (1976) ("It is true that the Government's post-dismissal motion was not captioned a
'petition for rehearing,' but there can be no doubt that in purpose and effect it was precisely
that, asking the District Court to 'reconsider (a) question decided in the case' in order to
effect an 'alteration of the rights adjudicated.'").
Asserting a change in controlling law, Avid seeks dismissal of the personal liability
claims based on the application of the TCPA. Avid asserts the deference afforded to the
interpretation of the Federal Communications Commission ("FCC") that personal liability
may be imposed is no longer required under Loper Bright and McLaughlin. Avid asserts:
Indeed, the only basis for the application of personal and vicarious liability has been
the unilateral interpretation of the TCPA by the FCC that personal liability can be
applied. Thus, while the Chevron Doctrine was the "law of the land", courts
generally fell in line and deferred to the FCC’s interpretation, finding that personal
liability can be applied.3
3FCC's interpretation of TCPA stating that "The agency has clarified that the
sender subject to liability under the statute is the person "on whose behalf [the
faxes] are transmitted,". See In re Rules and Regulations Implementing the
Telephone Consumer Protection Act of 1991, 10 FCC Rcd. 12391, 12407
(1995) [hereinafter 1995 Order]. City Select Auto Sales Inc. v. David Randall
Assocs., Inc., 885 F.3d 154, 159 (3d Cir. 2018) & also relied in Palm Beach
Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245 (11th Cir.
2015). Even the Supreme Court, when determining whether vicarious
Liability applies under the TCPA, has deferred to the FCC’s interpretation of
the statute. See Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 168, 136 S.
Ct. 663, 193 L. Ed. 2d 571 (2016) (citing In re Joint Petition Filed by DISH
Network, LLC, 28 FCC Rcd. 6574 (F.C.C. 2013)).
Motion to Supplement Motion to Dismiss (Doc. 150, p. 4).
The issuance of McLaughlin, which made clear Loper Bright applied to the TCPA,
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constitutes "new . . . legal authority that could not have been brought to [the Court's]
attention earlier with reasonable diligence." LRCiv 7.2(g). Further, because those opinions
were issued more than 14 days after the Court's May 8, 2024, Order, good cause exists to
accept the document if it is treated as a Motion for Reconsideration.
The Court finds it appropriate to grant Avid's Motion to Supplement (Doc. 150) and
treat Avid's lodged Supplement to Defendants' Motion to Dismiss (Doc. 151) as a Motion
for Reconsideration. The Court will schedule a response and reply time for the Motion for
Reconsideration. See LRCiv 72.2(g)(2) (motion for reconsideration may not be granted
without providing opposing party an opportunity to respond).
Accordingly, IT IS ORDERED:
1. 	Avid's Motion to Supplement (Doc. 150) is GRANTED.
2. 	Avid shall docket its lodged Supplement to Defendants' Motion to Dismiss
(Doc. 151) as a Motion for Reconsideration on or before November 25, 2025.
3. 	Plaintiffs shall file any response on or before December 19, 2025; Avid shall
file any reply on or before January 5, 2026.
DATED this 19th day of November, 2025.
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