Lockert v. Lockert et al

Filing 36

ORDER: Pltf's 30 Motion to Strike Affidavit is GRANTED. Deft's 13 Motion for Summary Judgment is GRANTED and this matter DISMISSED WITH PREJUDICE. Signed by Senior Judge Thomas Wiseman on 03/04/2010. (ab)

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION CHARLES R. LOCKERT, M.D., Plaintiff, v. ERIC K. LOCKERT, ESQ., LOCKERT LAW FIRM, PLLC, and ELSA LOCKERT, Defendants. ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 3:09-cv-622 Judge Thomas A. Wiseman, Jr. ORDER Before the Court are (1) Defendants' Motion for Summary Judgment (Doc. No. 13) and (2) Plaintiff's Motion to Strike Affidavit of Eric K. Lockert and to Exclude its Attachments (Doc. No. 30). The Court construes the Motion to Strike as a motion in limine to exclude certain evidence as inadmissible hearsay. Because the Defendants have not carried their burden of establishing that the authenticity of the trial transcript attached to the Affidavit, the motion to exclude the Transcript (Doc. No. 30) is hereby GRANTED. However, as explained in the accompanying Memorandum Opinion, the Court finds that (1) the Plaintiff admitted in his response to Defendants' Statement of Undisputed Fact that he in fact testified as set forth in the excluded trial transcript; (2) that the prior testimony directly conflicts with his present sworn position; and (3) Plaintiff has failed to offer an explanation for the discrepancies that withstands legal scrutiny. Thus, under Tennessee law, Plaintiff's prior sworn statement "precludes him from denying its truth," and the prior testimony functions "not merely [as] an admission, but an absolute bar" to his ability to bring his present claims. Cracker Barrel Old Country Store, Inc. v. Epperson, 284 S.W.3d 303, 314 (Tenn. 2009). Accordingly, Defendants' Motion for Summary Judgment (Doc. No. 13) is GRANTED and this matter DISMISSED WITH PREJUDICE. It is so ORDERED. Thomas A. Wiseman, Jr. Senior U.S. District Judge

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