Janet Jackson were unsuccessful in their bid to have a lawsuit against her thrown out.

Manhattan Supreme Court Justice Rolando Acosta ruled on Tuesday that a $120 million assault suit against Jackson can move forward, requiring the singer to give a deposition under oath.

Forty-one-year-old Leonard Salati alleges that two of Jackson’s bodyguards grabbed him and choked him when he attempted to pass the singer a note at Club Marquee during February 2004.

Janet’s lawyers hoped to have the case dismissed by arguing that Jackson and her boyfriend, co-defendant Jermaine Dupri, were accompanied by only one bodyguard that evening, who they described as a 5-foot-8 Caucasian man, weighing 180 pounds. A copy of the guard’s driver’s license was submitted to support their claim. Salati had previously described his assailants as two African-American men, one weighing around 300 pounds.

Judge Acosta ruled to allow the case to move forward, and remarked that despite Jackson’s claims, representatives for Club Marquee (which is also being sued) said that at least three bodyguards were present with Jackson on the evening in question, two of whom were African-American. The judge also added that the bodyguard’s license “did not show that he is Caucasian. Indeed, to this court’s untrained eye, he appears to be a medium dark Latino, [who] could pass as being African American.”

Judge Acosta described Jackson’s lawyers’ legal maneuvering as a failed “Hail Mary” attempt to keep Jackson and Dupri from testifying.

“Notwithstanding counsel’s valiant effort to shield Ms. Jackson,” the law grants “no exemptions based on celebrity status,” the judge wrote, and she will have to give a deposition.

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