Robertson v. Lanni et al

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
DARRELL ROBERTSON,
Plaintiff,
v.
DENNIS LANNI, et al.,
Defendants.
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NO. 3:24-cv-00919
JUDGE RICHARDSON
MEMORANDUM OPINION AND ORDER
Pending before the Court is a “Motion for Partial Summary Judgment” (Doc. No. 18,
“Motion”) filed by Plaintiff, Darrell Robertson. Via the Motion, Plaintiff seeks summary judgment
on Count I of his “Second Amended Complaint.” (Doc. No. 14, “SAC”). Supporting the Motion
is a “Statement of Undisputed Material Facts” (Doc. No. 18-1, “Plaintiff’s Undisputed Material
Facts”), the affidavit of Darrell Robertson (Plaintiff) (Doc. No. 18-2, “Plaintiff’s Affidavit”), and
an opening brief (Doc. No. 18-3). Defendants Jessica Binkley and J. Phillip Jones (collectively,
the “Trustees”) have filed a response (Doc. No. 28, “Trustees’ Response”) in opposition to the
Motion, along with a response (Doc. No. 28-1) to Plaintiff’s Undisputed Material Facts, and
objections (Doc. No. 28-2) to portions of Plaintiff’s Affidavit. Defendants Dennis Lanni, Housing
Group Fund 401(k) Pension Plan, Housing Group Fund Corporation, Pacific Climbing Society,
and HGF Management Company, LLC (collectively, “Other Defendants”) have filed a response
(Doc. No. 33, “Other Defendants’ Response”) in opposition to the Motion, along with a response
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(Doc. No. 33-1) to Plaintiff’s Undisputed Material Facts. Plaintiff has filed a reply (Doc. No. 30)
to the Trustees’ Response.1
Also pending before the Court is a “Late-Filed Motion for Leave to File Motion for Partial
Summary Judgment” (Doc. No. 35, “Motion for Leave”) wherein Plaintiff requests leave to file
his Motion. No response to the Motion for Leave has been filed.
For the reasons described herein, the Motion for Leave (Doc. No. 35) is GRANTED, and
the Motion (Doc. No. 18) is DENIED.
MOTION FOR LEAVE
As an initial matter the Court will first consider Plaintiff’s Motion for Leave. As noted
above, via the Motion for Leave Plaintiff seeks the Court’s leave to file his Motion (which is a
motion for partial summary judgment), albeit after the Motion was already filed and after briefing
on the Motion had concluded. As crucial here, Plaintiff filed his Motion (Doc. No. 18) (and his
Motion for Leave (Doc. No. 35)) prior to the Initial Case Management Order (Doc. No. 42,
“ICMO”) being entered in this action. The ICMO in this action provides (as is typical of cases
involving the undersigned) that “[n]o motion for partial summary judgment shall be filed except
by permission of the Court. Any party wishing to file such a motion shall first file a separate motion
that gives the justification for filing a partial summary judgment motion in terms of overall
economy of time and expense for the parties, counsel, and the Court.” (Doc. No. 42 at 6).
Plaintiff argues that the Motion for Leave should be granted because:
17. Undersigned counsel does not regularly practice in this Court and was unaware
that the editable version of the Court’s template ICMO contained procedural rules
prohibiting the filing of a partial summary judgment motion absent leave of Court.
18. Although the filing of a motion for partial summary judgment at the outset of
the case is out-of-the ordinary, because plaintiff filed his [Motion] “prior to the
initial case management conference in this case the restriction on motions for partial
1 Plaintiff did not file a reply to the Other Defendants’ Response.
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summary judgment was not yet in place.” Sorey v. Wilson County Review
Committee, 2023 WL 5257623, at *4 (M.D. Tenn. Aug. 15, 2023).
19. Undersigned is now aware of the Court’s aversion for partial summary
judgment motions, however, given the resources expended to date, fairness and
judicial economy favor proceeding with disposition of the [Motion] as brief[ed] and
filed.
20. Proceeding with the [Motion] will substantially narrow the issues for trial and
all parties should save a considerable amount of expense in trial preparation.
(Doc. No. 35 at 3). These arguments are well-taken. Plaintiff’s counsel perhaps should have
recognized, prior to filing the Motion without first seeking leave of court, this Court’s presumptive
aversion to motions for partial summary judgment, particularly given that the undersigned’s
template initial case management order contains procedural rules that prohibit the filing of motions
for partial summary judgment absent the leave of the Court.2 However, the ICMO in this action,
and its corresponding prohibition on parties filing motions for partial summary judgment absent
leave of the Court, was not yet entered at the time that Plaintiff filed his Motion. Moreover, the
briefing on the Motion has concluded and the Motion for Leave appears to be unopposed. Given
all of this, the Court can discern little reason to deny the relief requested in the Motion for Leave.
Accordingly, the Motion for Leave (Doc. No. 35) is GRANTED, Plaintiff is granted leave to file
his Motion and, therefore, the Court will consider the Motion herein.
The Court will next turn to the Motion. In so doing, the Court will begin by describing the
legal standards that govern motions for summary judgment, like the instant Motion.
2 	A 	copy 	of 	the 	undersigned’s 	template 	initial 	case 	management 	order 	may 	be 	found 	at:
https://www.tnmd.uscourts.gov/sites/tnmd/files/Sample%20Initial%20Case%20Management%20Order%
20-%20Judge%20Richardson%2010302018.pdf.
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LEGAL STANDARD
Summary judgment is appropriate where there is no genuine issue as to any material fact
and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). “By its very terms,
this standard provides that the mere existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247–48 (1986). In other words, even if genuine, a factual dispute that is irrelevant under applicable
law is of no value in defeating a motion for summary judgment. See id. at 248. On the other hand,
“summary judgment will not lie if the dispute about a material fact is ‘genuine[.]’” Id.
A fact is “material” within the meaning of Rule 56(c) “if its proof or disproof might affect
the outcome of the suit under the governing substantive law.” Reeves v. Swift Transp. Co., 446
F.3d 637, 640 (6th Cir. 2006) (citing Anderson, 477 U.S. at 248), abrogated on other grounds by
Young v. United Parcel Serv., 575 U.S. 206 (2015). A genuine dispute of material fact exists if the
evidence is such that a reasonable jury could return a verdict for the non-moving party. Harris v.
Klare, 902 F.3d 630, 634-35 (6th Cir. 2018).
The party bringing the summary judgment motion has the initial burden of identifying
portions of the record that demonstrate the absence of a genuine dispute over material facts.
Pittman v. Experian Info. Sols., Inc., 901 F.3d 619, 627-28 (6th Cir. 2018) (quoting Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986)). Alternatively, the moving party may meet its initial burden
by otherwise “show[ing]”—even without citing materials of record—that the nonmovant “cannot
produce admissible evidence to support the [existence of a] material fact,” Fed. R. Civ. P.
56(c)(1)(B), for example, the existence of an element of a nonmovant plaintiff’s claim. If the
summary judgment movant meets its initial burden, then in response the non-moving party “must
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set forth specific facts showing that there is a genuine issue for trial.” Pittman, 901 F.3d at 628
(quoting Anderson, 477 U.S. at 250).3 Importantly, “[s]ummary judgment for a defendant [that has
met its initial burden as the movant] is appropriate when the plaintiff ‘fails to make a showing
sufficient to establish the existence of an element essential to [her] case, and on which [she] will
bear the burden of proof at trial.’” Cleveland v. Pol’y Mgmt. Sys. Corp., 526 U.S. 795, 805–06
(1999) (quoting Celotex, 477 U.S. at 322). See also Overstreet v. Lexington-Fayette Urb. Cnty.
Gov't, 115 F. App'x 806, 811 (6th Cir. 2004) (“The non-moving party may not rely on mere
allegations and assertions in his pleadings, but rather must present specific facts that show that
there is some material issue warranting a trial. If the non-moving party cannot meet this burden,
summary judgment is appropriate.” (citing Nichols v. Moore, 2004 WL 2039356, at *3 (E.D. Mich.
Sept. 3, 2004)).
Any party asserting that a fact cannot be or genuinely is disputed (i.e., any party seeking
summary judgment and any party opposing summary judgment, respectively) can support the
assertion either by: (a) citing to materials in the record, including, but not limited to, depositions,
documents, affidavits, or declarations, Fed. R. Civ. P. 56(c)(1)(A), or (b) “showing” (i) that the
adverse party cannot produce admissible evidence to raise a genuine dispute as to that fact or (ii)
that contrary to the claim of the adverse party, the materials cited by the adverse party do not
actually establish the absence or presence (as the case may be) of a genuine dispute as to that fact.
Fed. R. Civ. P. 56(c)(1)(B).
In considering a motion for summary judgment, the court must view the evidence in the
light most favorable to the non-moving party. Tlapanco v. Elges, 969 F.3d 638, 647 (6th Cir. 2020)
3 Courts (appropriately) at times refer interchangeably to (i) a party being able (or unable) to raise a genuine
issue as to fact and (ii) a reasonable jury being able (or unable) to find in the party’s favor on that fact. This
Court does likewise herein.
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(citing Anderson, 477 U.S. at 248). Likewise, the “court should view the facts and draw all
reasonable inferences in favor of the non-moving party.” Pittman, 901 F.3d at 628 (citing
Matushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). Credibility
judgments and weighing of evidence are improper. Hostettler v. College of Wooster, 895 F.3d 844,
852 (6th Cir. 2018).
As noted above, where there is a genuine dispute as to any material fact, summary judgment
is not appropriate. Id. The court determines whether sufficient evidence has been presented to
make the issue of fact a proper jury question. Id. The mere existence of a scintilla of evidence in
support of the non-moving party’s position will be insufficient to survive summary judgment;
rather, there must be evidence upon which the jury could reasonably find for the non-moving party.
Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003).
DISCUSSION
As noted above, Plaintiff moves for summary judgment solely as to Count I of the SAC.
As background, via Count I of the SAC, Plaintiff asserts a claim to quiet title over the property
located at 128 Stone Briar Court, Nashville, Tennessee 37211-6991 (the “Property”). (Doc. No.
14 at ¶¶ 79-85). Plaintiff contends that the undisputed facts show that any and all of the
Defendants’ claims to the Property based on a “Deed of Trust” implicated by the SAC4 are time-
barred by Tenn. Code Ann. § 28-2-111(a). (Doc. No. 18 at 1).
Ordinarily, having described the general standards for summary judgment and provided a
review of the claim(s) (here, Count I) implicated by the motion for summary judgment, the Court
would next begin to review the facts that the movant (here, Plaintiff) contends are undisputed for
the purposes of the motion, then analyze the parties’ arguments on the motion (including by
4 The “Deed of Trust” to which Plaintiff refers was filed as an exhibit at Docket No. 14-3 to the SAC.
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addressing any other relevant legal standards). However, in this particular case, the Court will
eschew that approach. Why? Because Plaintiff’s Undisputed Material Facts (Doc. No. 18-1)—and
thus Plaintiff’s Motion—relies almost exclusively on Plaintiff’s (self-serving) Affidavit (Doc. No.
18-2).5 As will be explained below, this is far from a sufficient basis to sustain a motion for
summary judgment, such as the instant Motion.
I. 	Self-Serving Affidavits Generally
District courts in this Circuit (and throughout the country) regularly conclude that
“[w]ithout more, self-serving affidavits are insufficient to sustain a motion for summary
judgment.” Jadco Enters., Inc. v. Fannon, 991 F. Supp. 2d 947, 955 (E.D. Ky. 2014). See also
Burley v. Quiroga, No. 16-CV-10712, 2019 WL 4316499, at *8 (E.D. Mich. June 6, 2019)
(“Without more, self-serving affidavits are insufficient to sustain a motion for summary
judgment.” (quoting Jadco, 991 F. Supp. 2d at 955)), report and recommendation adopted, No.
16-CV-10712, 2019 WL 3334810 (E.D. Mich. July 25, 2019); LNV Corp. v. Gebhardt, No. 3:12–
CV–468, 2014 WL 1092109, at *4 (E.D. Tenn. Mar. 18, 2014) (“While defendant argues that
several of the signatures on the Note were forged, defendant has presented no evidence
substantiating this claim other than her own affidavits, and it is well-established that such ‘self-
serving affidavits’ are insufficient to sustain . . . a motion for summary judgment.” (citation
omitted)). Although the case law cited above is somewhat unclear on the following point, the Court
5 The Court notes that the term “self-serving affidavit,” as used herein, refers to the affidavit of a party to
the action in which the affidavit is submitted. Such usage by the Court aligns with other courts’ use of the
term “self-serving affidavit.” See e.g., Winter Enters., LLC v. W. Bend Mut. Ins. Co., No. 1:17-CV-360,
2021 WL 4193213, at *9 (S.D. Ohio Sept. 15, 2021) (“That affidavit is ‘self-serving’ in the sense that it is
from a party (or at least the owner of a party) and supports that party’s argument.”); Hann v. Michigan, No.
05-CV-71347-DT, 2010 WL 1006206, at *10 (E.D. Mich. Feb. 25, 2010) (“any affidavit by a party to a
case is by nature self-serving.”), report and recommendation adopted, No. CIV.A. 05-CV-71347, 2010 WL
1002611 (E.D. Mich. Mar. 16, 2010); In re Rahaim, 324 B.R. 29, 38 (Bankr. E.D. Mich. 2005) (“The
assertion is supported solely by a self-serving affidavit drafted and signed by Defendant.”).
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understands the thrust of the proposition that self-serving affidavits are insufficient to sustain (as
opposed to, say, defeat) a motion for summary judgment in practice to mean that such affidavits
are insufficient for the purposes of satisfying a movant’s initial burden of identifying portions of
the record that demonstrate the absence of a genuine dispute over material facts.6 In short, a self-
serving affidavit generally can serve to show testimony that could be elicited (and credited by the
jury) at a jury trial and that would sufficient to enable the affiant to prevail at trial. But a self-
serving affidavit is generally ill-suited to showing that the affiant would necessarily win at trial;
this is because (among numerous other reasons) a self-serving affidavit rarely is able to show that
the testimony therein would have to be accepted by the jury, and thus it is rarely able to show that
the affiant necessarily would prevail at trial.
Importantly, as other district courts in this Circuit have noted, “‘any affidavit by a party to
a case is by nature self-serving,’ and this fact alone should not discredit the party’s statements.”
Burley, 2019 WL 4316499 at *8 (quoting Hann v. Michigan, No. 05-CV-71347, 2010 WL
1006206, at *10 (E.D. Mich. Feb. 25, 2010)). To put it another way, the primary concern with
“self-serving affidavits” is not really whether the affidavit is “self-serving,” but rather whether the
affidavit is actually supported by something in the record beyond the ipse dixit of the party who
prepared the affidavit. See e.g., Jadco, 991 F. Supp. 2d at 955 (“Without more, self-serving
6 This seems to the Court a somewhat different analytical proposition than when a non-movant facing a
motion for summary judgment uses a self-serving affidavit in an effort to defeat a motion for summary
judgment. In such cases, courts frequently hold that “self-serving affidavits without factual support in the
record will not defeat a motion for summary judgment.” Huelett v. Louisville Paving Co., Inc., No. 3:23-
CV-00420, 2025 WL 552686, at *3 (W.D. Ky. Feb. 19, 2025), aff’d, No. 25-5241, 2025 WL 3688924 (6th
Cir. Dec. 19, 2025). The Court discerns that what courts really mean when they say that self-serving
affidavits cannot defeat a motion for summary judgment is that a non-movant cannot use a self-serving
affidavit to create a genuine issue of material fact where the movant has met their initial burden to show
that there is no such issue. Cf. Wolfe v. Vill. of Brice, Ohio, 37 F. Supp. 2d 1021, 1026 (S.D. Ohio 1999)
(“Self-serving affidavits, alone, are not enough to create an issue of fact sufficient to survive summary
judgment.”).
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affidavits are insufficient to sustain a motion for summary judgment.”); LNV Corp., 2014 WL
1092109, at *4 (finding that where “defendant has presented no evidence substantiating this claim
other than her own affidavits” such affidavits are “insufficient to sustain . . . a motion for summary
judgment.”). See also Butts v. Aurora Health Care, Inc., 387 F.3d 921, 925 (7th Cir. 2004) (“self-
serving statements in affidavits without factual support in the record carry no weight on summary
judgment”). To put it another way, a self-serving affidavit by a party is insufficient to satisfy a
movant’s initial burden at summary judgment when that affidavit is not sufficiently supported by
the record—that is, such an affidavit does not satisfy a movant’s initial burden at summary
judgment of identifying portions of the record that demonstrate the absence of a genuine dispute
over material facts. Why? Because a self-serving affidavit is especially ineffective at showing that
the testimony therein would have to be credited by the jury when the affiant fails to point to
corroborating evidence that makes the affiant’s testimony virtually undeniable; thus, the failure of
the affiant to point to support in the record tends to highlight that the affiant’s testimony is subject
to rejection by the jury.7
II. 	Application
With the above in mind, the Court will now examine the Motion, Plaintiff’s briefing in
support of the Motion, and the filings made in support of the Motion and the briefing thereto. These
filings are comprised (as noted above) of Plaintiff’s Undisputed Material Facts (Doc. No. 18-1)
and Plaintiff’s Affidavit (Doc. No. 18-2). Notably, a review of Plaintiff’s Undisputed Material
Facts and Plaintiff’s Affidavit reveals that these filings are simply insufficient to sustain a motion
for summary judgment, like the instant Motion.
7 To be clear, if an affiant’s averments in an affidavit are not supported by the record, the lack of support
does not impair the evidentiary competence of the averments. What it does impair (severely), however, is
the ability of those averments to show the absence of a genuine issue of material fact as to the matters
addressed via the averments.
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To begin with, Plaintiff’s Affidavit is in large part unsupported by the record (or at least
the record as it existed at the time the Motion was filed). To the extent (if any) that Plaintiff’s
Affidavit is supported by the record, it is supported only by sporadic citations to exhibits attached
to the SAC. (Doc. No. 18-2 at ¶¶ 10, 13-15, 20). Otherwise, the majority of Plaintiff’s Affidavit
is comprised of assertions without reference or citation to the record. (Id. at ¶¶ 4-9, 11, 12, 16-19,
21). Likewise, Plaintiff’s Undisputed Material Facts contains sixteen (purportedly) undisputed
facts, and yet eleven of these facts are supported solely by citations to Plaintiff’s Affidavit. (Doc.
No. 18-1 at ¶¶ 1, 2, 4, 5, 9-12, 14-16). The remaining five facts are supported by a combination of
citations to Plaintiff’s Affidavit and citations to exhibits attached to the SAC. (Doc. No. 18-1 at ¶¶
3, 6-8, 13). In other words, the citations in Plaintiff’s Undisputed Material Facts are made almost
exclusively to Plaintiff’s Affidavit, which itself (as noted above) is comprised for the most part of
assertions made without reference or citation to any source in the record.
In total then, Plaintiff’s Motion is supported predominantly (and, in fact, almost entirely)
by a self-serving affidavit (Plaintiff’s Affidavit) that is unsupported (for the most part) by citations
or references to the record. This is exactly the kind of evidentiary showing that district courts
regularly find insufficient to sustain a motion for summary judgment. In other words, where a
party, like Plaintiff in this action, “has presented no evidence substantiating” claims but for their
own affidavits, such affidavits “are insufficient to sustain . . . a motion for summary judgment.”
LNV Corp., 2014 WL 1092109, at *4. Therefore, as the movant with respect to the instant Motion,
Plaintiff plainly has failed to satisfy his initial burden of identifying portions of the record that
demonstrate the absence of a genuine dispute of material fact. Therefore, the Motion must be
denied. See e.g., Celotex, 477 U.S. at 332 (Brennan, J., dissenting) (“If the moving party has not
fully discharged this initial burden . . ., its motion for summary judgment must be denied, and the
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Court need not consider whether the moving party has met its ultimate burden of persuasion.”
(quoted in Angelo v. Kroger Co., 828 F.2d 19 (6th Cir. 1987))).
CONCLUSION
Accordingly, for the reasons discussed herein, the Motion for Leave (Doc. No. 35) is
GRANTED, and the Motion (Doc. No. 18) is DENIED.
IT IS SO ORDERED.
___________________________________
ELI RICHARDSON
UNITED STATES DISTRICT JUDGE
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