Upchurch et al v. National Rifle Association et al (PLR2), No. 2:2019cv00149 - Document 45 (E.D. Tenn. 2020)

Court Description: MEMORANDUM OPINION AND OPINION: The time for Plaintiff's response has come and gone, and Plaintiff has failed to provide a basis on which his TCPA allegation could be viable. As this Courts October 6, 2020 order noted, failure to respond by the October 19, 2020 deadline would result in a dismissal of the TCPA claim. Id. ("Plaintiff shall file a response by October 19, 2020 or else his claim under the TCPA will be dismissed for failure to state a claim upon which relief can be granted."). Accordingly, and as per the clear terms of this Court's October 6, 2020 order, Plaintiff's TCPA claim is DISMISSED WITH PREJUDICE. Signed by District Judge Clifton L Corker on 10/27/2020. (CAT)

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Upchurch et al v. National Rifle Association et al (PLR2) Doc. 45 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT GREENEVILLE ) ) ) ) ) ) Plaintiff, ) ) v. ) NATIONAL RIFE ASSOCIATION and LIFE ) INSURANCE COMPANY OF NORTH ) ) AMERICA, ) ) Defendants. RICKY UPCHURCH, as Executor of the Estate of JUANITA UPCHURCH, for the Use and benefit of the Next of Kin, CLAYTON UPCHURCH, NO. 2:19-CV-00149-DCLC MEMORANDUM OPINION AND ORDER This matter is before the Court pursuant to the Court’s earlier order in this case, dated October 6, 2020 [Doc. 44]. At that time, and upon consideration of Defendants’ Motion to Dismiss [Doc. 36], as well as Plaintiff’s Motion in Opposition [Doc. 39], the Court ruled that Defendants’ Motion to Dismiss was denied in part and granted in part [Doc. 44]. The Court denied Defendants’ Motion to Dismiss with regard to all but one claim, which involved an allegation by the Plaintiff that Defendants violated the Tennessee Consumer Protection Act (“TCPA”) [Doc. 44, pg. 9-10]. To this end, the Court ordered Plaintiff “to address whether, considering Tenn. Code. Ann. § 56-8-113, he may proceed with a claim under the TCPA against Defendants.” Id. at 10. More specifically, “it appears that Plaintiff is pursuing a claim under the TCPA that has been preempted by Tenn. Code Ann. § 56-8-113.” Id. at 9. The Court provided that Plaintiff would have until October 19, 2020 to provide his response. Id. at 10. 1 Case 2:19-cv-00149-DCLC-CRW Document 45 Filed 10/27/20 Page 1 of 2 PageID #: 399 Dockets.Justia.com The time for Plaintiff’s response has come and gone, and Plaintiff has failed to provide a basis on which his TCPA allegation could be viable. As this Court’s October 6, 2020 order noted, failure to respond by the October 19, 2020 deadline would result in a dismissal of the TCPA claim. Id. (“Plaintiff shall file a response by October 19, 2020 or else his claim under the TCPA will be dismissed for failure to state a claim upon which relief can be granted.”). Accordingly, and as per the clear terms of this Court’s October 6, 2020 order, Plaintiff’s TCPA claim is DISMISSED WITH PREJUDICE. SO ORDERED: s/Clifton L. Corker United States District Judge 2 Case 2:19-cv-00149-DCLC-CRW Document 45 Filed 10/27/20 Page 2 of 2 PageID #: 400

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