Avid Telecom LLC v. Frankel

1 WO 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Avid Telecom LLC, et al., No. CV-22-00558-TUC-JCH 10 Plaintiffs, ORDER v. David Frankel, et al., 13 Defendants.

15 In this case, Plaintiff Avid Telecom1 alleges Defendant David Frankel2 defamed Avid to telecom business groups, the public, and to multiple states attorneys general. Doc.

17 49 at 7, 9–11. On June 9, 2023, Avid filed its second amended complaint, asserting six claims for relief. Id. at 13–24. On June 29, Frankel answered. Doc. 53.

19 On August 8, Frankel filed a "Second Motion to Dismiss Case Under Arizona's Anti-SLAPP Statute A.R.S. § 12-751." Doc. 66. Following Ninth Circuit guidance for anti- SLAPP motions in federal court, the Court construed Frankel's motion under Rule 56 of the Federal Rules of Civil Procedure and ordered a response “consistent with this Order.”

23 Doc. 69 at 4.

24 On September 25, Avid responded to Frankel's anti-SLAPP motion through pro hac vice counsel. See Doc. 77 at 17. Avid's response re-construes Frankel's anti-SLAPP motion under both Rule 12 and Rule 56 of the Federal Rules of Civil Procedure and focuses 1 Michael D. Lansky, L.L.C. dba Avid Telecom and Michael Lansky, individually. For convenience, the Court will use “Avid Telecom” or “Avid” to mean both Plaintiffs.

28 2 Together with ZipDX LLC, whose sole member is Frankel. The Court will use “Frankel” in the singular to mean both Defendants.

1 || primarily on the Rule 12 challenge. Compare Doc. 77 at 3-17 (responding under Rule 12), 2|| with Doc. 77 at 17 (responding in a single paragraph under Rule 56). The Court || subsequently scheduled oral argument for November 8. See Doc. 78. The deadline for fact 4|| discovery is December 15, 2023; the deadline for expert discovery is April 19, 2024. Doc.

52 at 2-3.

6 Avid's response does not adequately prepare the Court to hear oral argument. The || Court will therefore order a sur-reply. Avid shall respond only to those aspects of Frankel's || Reply related to Rule 56. See, e.g., Doc. 80 at 2:12—24, 3:10-22, 4:26—7:2, 11:19-23. To || the extent Avid addresses Frankel's arguments under Rule 56(d), Avid shall explain what || specific facts further discovery would reveal that are essential to justify Avid's opposition.

See, e.g., Stevens v. Corelogic, Inc., 899 F.3d 666, 678 (9th Cir. 2018). Avid is further || advised to review the Local Rules governing briefing requirements, particularly those || referred to in the Court's case management order. Line numbering would also be helpful.

14 Accordingly, 15 IT IS ORDERED DIRECTING Plaintiff Avid Telecom to file a sur-reply || consistent with this Order no later than October 27, 2023. Plaintiff's sur-reply shall not || exceed seven pages, exclusive of attachments.

18 Dated this 16th day of October, 2023.

20 f 4) . | HK Aa— 09 / / John C. Hinderaker _/United States District Judge -2-