ANDRICH v. BRENNAN

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

DEVIN ANDRICH, Plaintiff/Appellant,

v.

RILEY BRENNAN, et al., Defendants/Appellees.

No. 1 CA-CV 25-0273

FILED 12-12-2025

Appeal from the Superior Court in Maricopa County
No. CV2024-011323
The Honorable Michael D. Gordon, Judge

AFFIRMED

COUNSEL

Devin Andrich, Phoenix
Plaintiff/Appellant

Ballard Spahr LLP, Phoenix
By Matthew E. Kelley
Counsel for Defendants/Appellees ALM Global LLC

Ballard Spahr LLP, Phoenix
By Craig C. Hoffman
Counsel for Defendants/Appellees Ballard Spahr, LLP, Matthew E. Kelley, and
Sarah C. Kelley
 ANDRICH v. BRENNAN, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which
Judge Samuel A. Thumma and Judge Kent E. Cattani joined.

M c M U R D I E, Judge:

¶1 Devin Andrich appeals from the superior court’s orders
dismissing his complaint and denying leave to amend. Because Andrich
failed to state a claim upon which relief could be granted and an
amendment would have been futile, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 ALM Global, LLC (“ALM”) published an online article
written by Riley Brennan on a decision from this court involving Andrich.
Andrich sued Brennan and ALM, alleging a single count of defamation
because the article stated, “[c]ontact information for Andrich, in Phoenix,
could not be located.” Andrich asked the defendants to waive service, but
after two months with no response, Andrich served ALM by process server.
Three days later, ALM waived service and asked Andrich to provide a
working phone number for a good-faith consultation on a motion to
dismiss. That afternoon, and before hearing from Andrich, ALM moved to
dismiss for failure to state a claim under Arizona Rule of Civil Procedure
(“Civil Rule”) 12(b)(6).

¶3 The court granted Anrich leave to file an amended complaint,
but explained it would conduct a de novo review if the defendants objected.
Andrich sought to amend the complaint to include ALM’s counsel, his wife,
and counsel’s firm as named defendants; four more claims against Brennan
and ALM for defamation, false light invasion of privacy, and violations of
Arizona’s Consumer Fraud Act; three abuse of process claims against
counsel, his firm, and ALM for their actions during the case; and a request
for punitive damages. The defendants objected, arguing in part that the
amended complaint was futile. The court agreed, revoked leave to amend,
and dismissed the original complaint for failure to state a claim. Andrich
appealed, and we have jurisdiction under Arizona Revised Statutes
§§ 12-120.21(A)(1) and -2101(A)(1).

2
 ANDRICH v. BRENNAN, et al.
Decision of the Court

DISCUSSION

A. The Superior Court Correctly Granted the Motion to Dismiss.

¶4 Andrich argues the superior court erred by dismissing his
original complaint because (1) he was entitled to discovery before dismissal
and (2) dismissal was improper because he objected to the authenticity of
the news article the defendants attached to their motion to dismiss.1 We
review both the dismissal of a complaint for failing to state a claim and
issues of law, including the interpretation of procedural rules, de novo.
Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7 (2012) (motion to dismiss);
Gonzales v. Nguyen, 243 Ariz. 531, 533, ¶ 8 (2018) (rules).

¶5 A party may not seek discovery without the court’s leave
before it serves the initial disclosure statement. Ariz. R. Civ. P. 26(f)(1). A
party need not serve its initial disclosure statement before the first
responsive pleading to the complaint. Ariz. R. Civ. P. 26.1(f)(1). A motion
to dismiss is not a responsive pleading, and it must be asserted before any
responsive pleading is filed. See Ariz. R. Civ. P. 7, 12(b). Thus, a motion to
dismiss is proper before the parties have a right to conduct discovery. See
Starr Pass Resort Devs., LLC v. Pima County, 257 Ariz. 505, 512, ¶¶ 28, 30
(App. 2024) (Conversion of a dismissal motion to a summary judgment
motion under Civil Rule 12(d) generally occurs before discovery begins.).
Andrich did not serve his initial disclosure statement, did not seek leave to
conduct discovery, and the court did not grant early discovery. Thus, he
was not entitled to discovery.

¶6 Andrich’s objection to the news article attached to the
dismissal motion does not bolster his argument. Relying on evidence not
contained in the complaint in a 12(b)(6) motion to dismiss may convert it
into a motion for summary judgment, after which the parties may request
discovery. See Ariz. R. Civ. P. 12(d), 56(d)(1); Starr Pass, 257 Ariz. at 512-13,
¶¶ 30-31. But the court did not convert the motion to dismiss here, and
Andrich did not submit an affidavit explaining the need for discovery, the
estimated time required for the discovery, and other specific information
required under Civil Rule 56(d)(1) to obtain discovery. See Starr Pass, 257

1 Andrich also argues in his reply brief that the statement at issue is
capable of defamatory meaning, but issues first raised in a reply brief are
waived. Ramos v. Nichols, 252 Ariz. 519, 523, ¶ 11 (App. 2022).

3
 ANDRICH v. BRENNAN, et al.
Decision of the Court

Ariz. at 512-13, ¶¶ 30-31; Ariz. R. Civ. P. 56(d)(1)(A). For this reason as well,
Andrich was not entitled to discovery.

¶7 Finally, Andrich’s objection to the evidence does not provide
an independent ground for relief. The superior court did not rely on the
evidence attached to the motion to dismiss in granting the motion, so any
error about the evidence’s authenticity did not affect its ruling. Cf. Strategic
Dev. & Constr., Inc. v. 7th & Roosevelt Partners, LLC, 224 Ariz. 60, 63, ¶ 8 (App.
2010) (“Rule 56 treatment [of a motion to dismiss] is not required when the
court does not rely on the proffered extraneous materials.”). We affirm the
dismissal of the original complaint.

B. Andrich’s Proffered Amended Complaint Was Futile.

¶8 Andrich also claims the court erred by denying leave to
amend the complaint because it ignored his claims for consumer fraud and
abuse of process.

¶9 A court should liberally grant a party leave to amend absent
undue delay, dilatory motives, undue prejudice, or futility in the
amendment. Ute Mountain Ute Tribe v. Ariz. Dep’t of Revenue, 254 Ariz. 410,
416, ¶ 22 (App. 2023); Ariz. R. Civ. P. 15(a)(2) (“Leave to amend must be
freely given when justice requires.”). We review the denial of leave to
amend a pleading for an abuse of discretion, In re Torstenson’s Est., 125 Ariz.
373, 376 (App. 1980), but review de novo whether a request to amend is
futile, presuming all well-pled factual allegations in the proposed
amendment to be true, Ute Mountain Ute Tribe, 254 Ariz. at 416, ¶ 22. We
will affirm the denial of a motion for leave to amend a complaint if it is
correct for any reason. Tumacacori Mission Land Dev., Ltd. v. Union Pac. R.
Co., 231 Ariz. 517, 519, ¶ 4 (App. 2013). Thus, we review whether the claims
would have been futile.

1. Arizona’s Consumer Fraud Act Claim

¶10 Arizona’s Consumer Fraud Act, A.R.S. §§ 44-1521 to -1534,
grants a private cause of action if a plaintiff proves “a false promise or
misrepresentation made in connection with the sale or advertisement of
merchandise and the [plaintiff’s] consequent and proximate injury.” Dunlap
v. Jimmy GMC of Tucson, Inc., 136 Ariz. 338, 342 (App. 1983); A.R.S.
§ 44-1522(A). The seller must intend that others rely on the falsehood “in
connection with the sale or advertisement of any merchandise,” A.R.S.
§ 44-1522(A), meaning there must be a sale between the parties or an
advertisement in relation to a sale between the parties, see Sullivan v. Pulte

4
 ANDRICH v. BRENNAN, et al.
Decision of the Court

Home Corp., 231 Ariz. 53, 60-61, ¶¶ 36-37 (App. 2012), vacated in part by, 232
Ariz. 344, 347, ¶ 15 (2013) (vacating ¶¶ 24-31).

¶11 Andrich does not allege that ALM or Brennan sold him
anything or sought to do so. Instead, he claims that consumers must buy an
ALM subscription before reading the article that contains the alleged
falsities. The statements made in the article were not made in relation to any
sale or advertisement of ALM’s or Brennan’s merchandise, because the sale
had already occurred when customers bought a subscription. The claim for
consumer fraud is futile.

2. Abuse of Process Claims

¶12 A party who uses a legal process “primarily to accomplish a
purpose for which it is not designed[] is subject to liability to the other for
harm caused by the abuse of process.” Nienstedt v. Wetzel, 133 Ariz. 348, 353
(App. 1982) (quoting Restatement (Second) of Torts § 682 (1977)). “Process,”
in this context, encompasses the entire range of litigation procedures and
practices. Crackel v. Allstate Ins. Co., 208 Ariz. 252, 257, ¶ 11 (App. 2004). An
abuse of process claim has two elements: “(1) a willful act in the use of
judicial process; (2) for an ulterior purpose not proper in the regular
conduct of the proceedings.” Cruz v. City of Tucson, 243 Ariz. 69, 72, ¶ 9
(App. 2017) (quotation omitted). Further, a plaintiff must allege that the
defendant used a court process for a mainly improper purpose and that the
defendant’s action could not logically be explained without referencing the
improper purpose. See Crackel, 208 Ariz. at 259, ¶¶ 18-19.

¶13 Andrich alleged three abuses of process by ALM, its counsel,
and counsel’s firm: that they refused to waive service but repeatedly
attested to the court that they did waive service; that they moved to dismiss
without a good-faith attempt to confer; and that they moved to dismiss with
unauthenticated evidence attached. We consider each in turn.

i. Waiver of Service

¶14 Andrich alleges that the defendants abused the judicial
process by refusing to waive service and falsely stating to the court that
they had waived service. He alleges the defendants did so to avoid
reimbursing Andrich for the costs of service under Civil Rule 4.1(c)(2). But
the civil procedural rules allow parties to avoid service costs by waiving
service. See Ariz. R. Civ. P. 4, 4.1, 4.2. Indeed, one of the intended benefits
of waiving service is to avoid the costs associated with service of process.
Ariz. R. Civ. P. 4.1(c)(2) (A corporation that fails to waive service without
good cause may bear the expenses of making service.). Avoiding costs is a

5
 ANDRICH v. BRENNAN, et al.
Decision of the Court

legitimate reason to waive service. Moreover, when a defendant fails
without good cause to waive service when requested, the court “must
impose on the defendant . . . expenses later incurred in making service” and
reasonable expenses, including attorney’s fees, of a motion required to
collect such expenses. Id. The superior court did not err by concluding that
the waiver-of-service claim was futile because the defendants did not
improperly use or begin the court process. See Fappani v. Bratton, 243 Ariz.
306, 312, ¶¶ 19-20 (App. 2017) (An abuse of process requires using the court
system “for a purpose other than that for which it is designed.”).

ii. Good-Faith Consultation

¶15 Andrich alleges that the defendants abused the judicial
process by failing to engage in good-faith consultation under Civil Rules
12(j) and 7(h) before moving to dismiss. He alleges the improper purpose
was to undermine the consultation requirement. Andrich’s claim fails, even
if a claim’s improper motive can be the abuse of process. See, e.g., Morn v.
City of Phoenix, 152 Ariz. 164, 168 (App. 1986) (“The improper purpose
usually takes the form of coercion to obtain a collateral advantage, not
properly involved in the proceeding itself.”) (quoting Prosser and Keeton
on the Law of Torts § 121 at 897-99 (5th ed. 1984)). An abuse of process must
use a “judicially sanctioned process[].” Crackel, 208 Ariz. at 257, ¶ 14; see also
Nienstedt, 133 Ariz. at 353 (“Arizona case law recognizes that the gist of the
tort is the misuse of process, justified in itself” for an improper purpose.
(emphasis added)). But Andrich alleges that the defendants violated the
Civil Rules by failing to consult. Andrich offers no authority suggesting
that, in this context, the defendants’ alleged inaction constitutes the required
“willful act in the use of judicial process.” Cruz, 243 Ariz. at 72, ¶ 9
(quotation omitted). For these reasons, this claim is futile.

iii. Attaching Unauthenticated Evidence

¶16 Andrich alleges that the defendants abused the judicial
process by moving to dismiss with unauthenticated evidence attached to
prevent Andrich from obtaining new evidence. This claim fails because the
defendants’ actions can be explained without reference to an ulterior
motive. See Crackel, 208 Ariz. at 259, ¶¶ 18-19.

¶17 Arizona authorizes a court to consider evidence beyond the
complaint in considering a motion to dismiss for failure to state a claim
when such materials, “although not appended to the complaint, are central
to [it].” Strategic Dev. and Const., 224 Ariz. at 64, ¶ 14. The context of an
allegedly defamatory statement is “crucial to the court’s analysis,” making

6
 ANDRICH v. BRENNAN, et al.
Decision of the Court

it a central concern of the complaint. See BLK III, LLC v. Skelton, 252 Ariz.
583, 588, ¶ 15 (App. 2022). This legitimate purpose explains the defendants’
actions without an improper motive. Thus, the claim is futile.

CONCLUSION

¶18 We affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

7