Hibbett Retail Inc v. TCH Development Inc

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

HIBBETT RETAIL, INC., )

)

Plaintiff, )

)

v. ) Case No.: 2:23-cv-00558-JHE

)

TCH DEVELOPMENT, INC., )

)

Defendant. )

MEMORANDUM OPINION AND ORDER1

In this action, Plaintiff Hibbett Retail, Inc. (“Hibbett”) seeks a declaratory judgment against

Defendant TCH Development, Inc. (“TCH” or “Contractor”), claiming that TCH breached the

contract between them by failing to timely complete construction work on a Hibbett retail store in

Dallas, Texas. (See Doc. 11 (“Amended Complaint” or “Amd. Compl.”)). Now before the

undersigned are two pending motions. The first is TCH’s filing captioned, “Defendant’s Answer

and Motion to Dismiss Plaintiff’s [Amended] Complaint Pursuant to Federal Rules of Civil

Procedure 12(b)(1) and 12(b)(3).” (Doc. 27). The second is a motion by Hibbett seeking summary

judgment pursuant to Rule 56, Fed. R. Civ. P. (Doc. 30). Upon consideration, the undersigned

concludes that TCH’s motion to dismiss (Doc. 27) is due to be denied and Hibbett’s motion for

summary judgment (Doc. 30) is due to be granted in part and denied in part. Specifically, Hibbett’s

motion is due to be granted to the extent it seeks a declaration that TCH breached the parties’

contract, but denied in all other respects.

1 The parties have consented to an exercise of plenary authority by a United States Magistrate

Judge pursuant to 28 U.S.C. § 636(c) and Rule 73, Fed. R. Civ. P. (Doc. 15).

I. Background

Hibbett is a fashion retailer headquartered in Birmingham, Alabama, and has

approximately 1,150 stores located in 36 states. (Doc. 31-1, Declaration of Jeremy Brown

(“Brown Decl.”) ¶ 2). On or about October 10, 2021, Hibbett entered into a contract (hereinafter

the “Contract,” Doc. 1 at 6-19; Docs. 31-2 & 31-3) with TCH under which TCH was to construct

a Hibbett retail store in Dallas, Texas. (Brown Decl. ¶ 3). TCH was obligated to complete the

work by December 15, 2022. (See Contract § 1.2; Brown Decl. ¶ 4). Based on those terms, Hibbett

scheduled the store to open on January 18, 2023. (Brown Decl. ¶ 5). However, TCH failed to

complete the work by the agreed-upon date and did not turn over the space until April 2023. (Id.)

Hibbett claims it “lost approximately $140,000 per month in sales” due to the delay. (Id.)

The “total cost” of the Contract was $495,000. (Brown Decl. ¶ 6). However, Hibbett paid

only 90% of that amount ($445,500) and “withheld the remaining [10%] payment,” or $49,500.

(Id.) Hibbett says the terms of the Contract authorized the withholding because TCH failed to

complete the work on time. (See id.) The Contract states, in relevant part:

1.4 lf Contractor fails to complete the Work in accordance with the Project

Schedule, … Contractor shall be liable for any damages to HIBBETT … caused

by Contractor’s delay, including, but not limited to, the additional costs, expenses

and damages to HIBBETT … resulting from the delay, additional rent and/or

penalties on the facility under construction, or any part of it, extended financing

costs, additional insurance premiums, extended Project administration costs[,]

additional occupancy costs for alternative premises, counsel fees and other direct

and indirect damages. … All amounts owed to HIBBETT . . . under this Article

shall be deducted by HIBBETT from any amount otherwise due to Contractor or,

if deductions are not sufficient to compensate HIBBETT fully, shall be paid to

HIBBETT by Contractor upon written demand.

* * *

12.1 All time limits stated in the Contract Documents are of the essence, and

Contractor, upon award hereof, shall commence and pursue with all due diligence

until completion of all work necessary for completion within time limits, …

otherwise, HIBBETT, in addition to any and all other remedies available to

HIBBETT … shall assess liquidated damages equal to the actual costs to HIBBETT

… occasioned by the delay, and the same may be withheld from any payment due

from HIBBETT to Contractor under this Contract or any other contract between

them, including the final payment.

* * *

13.2 Payment may be withheld from Contractor … for failing to comply fully with

this Contract, including, but not limited to, … (f) failing to prosecute the Work in

accordance with the Project Schedule … and (i) otherwise failing to comply with

other terms of this Contract...

(Contract §§ 1.2, 1.4, 12.1, 13.2).

On May 5, 2023, Hibbett filed this action, invoking diversity jurisdiction under 28 U.S.C.

§ 1332. (See Compl. ¶ 4). The only relief Hibbett sought was a declaratory judgment under the

Declaratory Judgment Act, 28 U.S.C. §§ 2201-02 and Rule 57, Fed. R. Civ. P., establishing the

parties’ respective rights and obligations under the Contract. (See Compl. ¶¶ 1,15). Hibbett’s

Complaint acknowledged that it withheld unspecified amounts otherwise owed to TCH based on

the terms of the Contract and TCH’s delay in completing work and alleged that TCH was “now

demanding final payment.” (See id. ¶¶ 7-13).

TCH moved to dismiss the original Complaint on two grounds. (Doc. 6). First, TCH

argued pursuant to Rule 12(b)(1), Fed. R. Civ. P., that diversity jurisdiction is lacking, claiming

that the amount in controversy did not exceed $75,000. (Id. ¶¶ 2-4). In support, TCH accused

Hibbett of having itself breached the Contract by withholding payment of sums owed and argued

that the only amount in controversy is the $53,050 TCH claims to be owed. (Id. ¶ 4). Second,

TCH alleges improper venue under Rule 12(b)(3), Fed. R. Civ. P. (Doc. 6 ¶¶ 5-8). TCH claimed

that Alabama is not the proper venue because the subject property where it supplied all work and

materials is in Dallas, Texas. (Id.) TCH further noted that its Lien was recorded in Texas pursuant

to Texas state law, and argued that this court “lacks the authority to redress [TCH’s] statutorily

protected … lien rights which cannot be waived by contract.” (Id. ¶¶ 7-8).

Hibbett opposed TCH’s motion to dismiss, arguing that the amount in controversy

requirement was met. (See Doc. 10 ¶¶ 1-4). Hibbett noted that, while TCH claimed to be owed

only $53,050, Hibbett was entitled not only to have withheld such amount but also to recover

additional “counsel fees and other direct and indirect damages, (e.g., lost sales for at least several

months’ delay in opening the store).” (Doc. 10 ¶ 3) (emphasis omitted). On venue, Hibbett

emphasized that TCH agreed that any controversy arising out of the Contract would be resolved

in the state or federal courts in Jefferson County, Alabama (where this court sits), and to waive

any objections to such venue. (Id. ¶¶ 5-8). Hibbett further argued that TCH recording the Lien in

Texas subsequent to the filing of this suit should not allow TCH to avoid the Contract’s venue

clause. (Id.)

Shortly after filing its opposition to the motion to dismiss, Hibbett also filed an “Amended

Complaint for Interpleader and Declaratory Judgment.” (Doc. 11). Hibbett re-asserts its claim

that TCH breached the Contract by failing to complete its work on time. (Amd. Compl. ¶¶ 6-11).

The Amended Complaint also includes allegations that TCH “demanded final payment in the

amount of $53,050.00” and that Hibbett had learned that TCH recorded the Lien against Hibbett

and the owner of the shopping center from TCH’s motion to dismiss. (Id. ¶¶ 12, 14). The relief

demanded in the Amended Complaint is similar but not identical to that of its predecessor. Count

II of the Amended Complaint again prays for a declaratory judgment regarding the parties’ rights

and duties under the Contract, but also includes provision asking for a determination of the validity

vel non of the Lien. (Id. ¶¶ 21-31; Unnumbered Ad Damnum Clause following ¶ 31). In the newly

asserted Count I, Hibbett asks to interplead the $53,050 that TCH claims to be owed pursuant to

Rule 22, Fed. R. Civ. P. (Amd. Compl. at 1; ¶¶ 15-20). Hibbett contemporaneously filed a motion

to interplead those funds. (Doc. 12). Based upon the filing of the Amended Complaint, TCH’s

motion to dismiss the original Complaint was termed as moot. (Doc. 13). Hibbett’s interpleader

motion, which went unopposed, was granted. (Doc. 22).

On September 1, 2023, TCH filed a document styled, “Defendant’s Answer and Motion to

Dismiss Plaintiff’s [Amended] Complaint Pursuant to Federal Rules of Civil Procedure 12(b)(1)

and 12(b)(3).” (Doc. 27). Caption notwithstanding, the filing is not, in substance, an Answer.2

Rather, it is devoted entirely to reasserting the Rule 12(b) defenses that TCH raised in its prior

motion to dismiss, i.e., lack of subject-matter jurisdiction and improper venue. (Compare Doc. 27

with Doc. 6).3 As such, this court will address the filing as if it were styled solely as a motion to

dismiss the Amended Complaint. While Hibbett filed an opposition to TCH’s now moot “first”

motion to dismiss (Doc. 10), it did not file a response to the renewed motion. TCH also did not

file a reply brief in support of either its original or renewed motion to dismiss.

On April 1, 2024, with the discovery period having closed, Hibbett moved for summary

judgment on its claim (Doc. 30) and filed a supporting brief (Doc. 31). Hibbett’s motion and brief

2 Rule 7, Fed. R. Civ. P., “draw[s] a distinction between pleadings, which include ‘an answer to a

complaint,’ and motions.” United States v. Kaniadakis, 2017 WL 2986269, at *2 (M.D. Fla. July

13, 2017). “The purpose of a responsive pleading is to put everyone on notice of what the

defendant admits and what it intends to contest.” Peak v. ReliaStar Life Ins. Co., 2018 WL

6380772, at *2 (N.D. Ga. Sept. 28, 2018) (quoting Edelman v. Belco Title & Escrow, LLC, 754

F.3d 389, 395 (7th Cir. 2014)). Thus, a defendant’s Answer must “admit or deny the allegations

asserted against it.” Rule 8(b)(1)(B), Fed. R. Civ. P. TCH’s “Answer and Motion to Dismiss”

does not admit or deny any allegations. Rather, it reiterates that the action is due to be dismissed

for lack of jurisdiction and/or improper venue. (Doc. 27).

3 Although TCH’s filing is in substance a renewed motion to dismiss, when filing it in the court’s

CM/ECF electronic filing system, TCH’s counsel designated the document as an “Answer,”

thereby causing it to be identified in the system as a pleading rather than pending motion. (See

Docket Sheet, Doc. 27 (“ANSWER to 11 Amended Complaint by TCH Development Inc. (Wiley,

Kevin) (Entered: 09/01/2023)”).

are accompanied by four exhibits: (1) a declaration made pursuant to 28 U.S.C. § 1746 by Jeremy

Brown, Hibbett’s Director for Construction and Design (Doc. 31-1); (2) a copy of the Contract

(Doc. 31-2); (3) a copy of the Contract’s “Project Schedule” (Doc. 31-3); and (4) a “Final Waiver

of Lien - Material or Labor” (Doc. 31-4). The undersigned entered a Submission Order providing

TCH until April 23, 2024, to file any opposition to the motion for summary judgment. (Doc. 32).

TCH has not filed any response as of the date of this Memorandum Opinion and Order. Hibbett

filed a supplemental “reply” brief to its motion, highlighting the lack of any opposition by TCH.

(Doc. 33).

II. Discussion

Pending before the undersigned are: (1) TCH’s motion to dismiss the Amended Complaint

for (a) lack of subject-matter jurisdiction and/or (b) improper venue (doc. 27) and (2) Hibbett’s

motion for summary judgment (doc. 30). TCH’s motion must be resolved before Hibbett’s,

because a federal court cannot address a determination on the merits, such as a motion for summary

judgment, unless it has jurisdiction. See Sierra v. City of Hallandale Beach, Fla., 996 F.3d 1110,

1115 (11th Cir. 2021). Either of TCH’s contentions can be addressed first. See Sinochem Int’l

Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 431 (2007) (“[A] federal court has leeway ‘to

choose among threshold grounds for denying audience to a case on the merits.’” (quoting Ruhrgas

AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999); Steel Co. v. Citizens for a Better Environment,

523 U.S. 83, 100-01 n. 3 (1998)). Subject-matter jurisdiction “concerns a court’s competence to

adjudicate a particular category of cases,” and a court must consider it sua sponte even if no party

contests it, while the issue of venue “is waived if not timely raised.” Wachovia Bank v. Schmidt,

546 U.S. 303, 316 (2006). Because federal subject-matter jurisdiction presents the “far weightier”

matter, id., the undersigned addresses it first.

A. TCH’s Motion to Dismiss for Lack of Subject-Matter Jurisdiction

Federal district courts are courts of limited jurisdiction and may hear only the types of cases

authorized by the Constitution and federal statute. See Exxon Mobil Corp. v. Allapattah Servs.,

Inc., 545 U.S. 546, 552 (2005); Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377

(1994). Subject-matter jurisdiction cannot be created by waiver, forfeiture, or consent of the

parties. See Ashcroft v. Iqbal, 556 U.S. 662, 671 (2009). Thus, federal courts have an independent

duty to raise and consider subject-matter jurisdiction whenever it may be lacking. See Gonzalez

v. Thaler, 565 U.S. 134, 141 (2012). If a district court determines that subject-matter jurisdiction

does not exist, the action must be dismissed. Rule 12(h)(3), Fed. R. Civ. P. To invoke this court’s

diversity jurisdiction, Hibbett must meet two elements: (1) the amount in controversy must exceed

$75,000, exclusive of interest and costs, and (2) the parties must be citizens of different states. 28

U.S.C. § 1332(a)(1). (See Amd. Compl. ¶ 3). TCH’s jurisdictional challenge goes only to the

amount in controversy.4

i. Standard of Review to Determine Amount in Controversy

Hibbett seeks a declaratory judgment pursuant to 28 U.S.C. §2201 et seq. (See Amd.

Compl. at 8, Ad Damnum Clause following ¶¶ 22, 31; see also Doc. 31 at 11). “When a plaintiff

seeks injunctive or declaratory relief, the amount in controversy is the monetary value of the object

of the litigation from the plaintiff’s perspective.” Fastcase, Inc. v. Lawriter, LLC, 907 F.3d 1335,

1342 (11th Cir. 2018) (quoting Federated Mut. Ins. Co. v. McKinnon Motors, LLC, 329 F.3d 805,

4 There is no dispute that Hibbett and TCH are citizens of different states. Both parties are alleged

to be corporations. (Amd. Compl. ¶¶ 1, 2). Each is therefore a citizen of every State in which it

is incorporated and of the State where it has its principal place of business. 28 U.S.C. § 1332(c)(1).

Hibbett has pled that it is incorporated in Delaware and has its principal place of business in

Alabama (Amd. Compl. ¶ 1) and that TCH is both incorporated and has its principal place of

business in Texas. (Id. ¶ 2). Because TCH has not challenged those allegations, they are sufficient

to establish that the parties are diverse. See Allapattah, 545 U.S. at 553.

807 (11th Cir. 2003) (“McKinnon Motors”) (quoting in turn Cohen v. Office Depot, Inc., 204 F.3d

1069, 1077 (11th Cir. 2000)). “Stated another way, the value of declaratory relief is ‘the monetary

value of the benefit that would flow to the plaintiff if the [relief he is seeking] were granted.” South

Fla. Wellness, Inc. v. Allstate Ins. Co., 745 F.3d 1312, 1316 (11th Cir. 2014) (quoting Morrison v.

Allstate Indem. Co., 228 F.3d 1255, 1268 (11th Cir. 2000)).

Hibbett has pled that the amount in controversy exceeds $75,000, exclusive of interest and

costs. (Amd. Compl. ¶ 3). Under the Supreme Court’s seminal decision in St. Paul Mercury

Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288 (1938) (“Red Cab”), such a formal allegation is

normally sufficient to establish the jurisdictional sum if made in “good faith.” See Dart Cherokee

Basin Operating Co., LLC v. Owens, 574 U.S. 81, 87 (2014) (“When a plaintiff invokes federal-

court jurisdiction, the plaintiff’s amount-in-controversy allegation is accepted if made in good

faith.” (citing Red Cab, 303 U.S. at 288)); Opelika Nursing Home, Inc. v. Richardson, 448 F.2d

658, 665 (5th Cir. 1971) (“[A] formal allegation [that the amount in controversy exceeds the

statutory minimum] is sufficient, unless the bill contains others which qualify or detract from it in

such measure that when all are considered together it cannot fairly be said that jurisdiction appears

on the face of the complaint …” (quoting KVOS, Inc. v. Associated Press, 299 U.S. 269, 277

(1936)). 5

The Red Cab “good faith” standard is an objective one,6 and can be expressed as a

determination that it does not appear “to a legal certainty that the claim is really for less than the

jurisdictional amount.” Opelika Nursing Home, 448 F.2d at 663. The “legal certainty” standard

5 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the Eleventh

Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior

to October 1, 1981.

6 See Burns v. Anderson, 502 F.2d 970, 971-72 (5th Cir. 1974).

authorizes courts to exclude from the amount in controversy the value of types and amounts of

damages and other relief that, as a matter of law, cannot be awarded. See Thomas v. Generac

Power Sys. Inc., 2022 WL 4091735, at *2 (11th Cir. Sept. 7, 2022); 14B Wright and Miller, Fed.

Prac. & Proc. (“Wright & Miller”) § 3702 (5th ed. June 2024 Update).

The undersigned notes, however, that the Eleventh Circuit held in McKinnon Motors,

supra, that “where jurisdiction is based on a claim for indeterminate damages, the Red Cab. Co.

‘legal certainty’ test gives way, and [the plaintiff] seeking to invoke federal jurisdiction bears the

burden of proving by a preponderance of the evidence that the claim on which it is basing

jurisdiction meets the jurisdictional minimum.” 329 F.3d at 807 (citing Tapscott v. MS Dealer

Serv. Corp., 77 F.3d 1353, 1356–57 (11th Cir. 1996), abrogated on other grounds by Cohen v.

Office Depot, Inc., 204 F.3d 1069, 1072–77 (11th Cir. 2000)). McKinnon Motors imported that

“preponderance” standard from Tapscott where it had been held that a removing defendant must

establish the amount in controversy and the plaintiff “has made an unspecified demand for

damages” in state court. see 329 F.3d at 807; Tapscott, 77 F.3d at 1357. The McKinnon Motors

court deemed its case, in which the plaintiff filed the case in federal court and sought a declaratory

judgment, to be in an “analogous” and “converse context” to a removal like Tapscott. Id. (quoting

St. Paul Reinsurance Co. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998)).

In McKinnon Motors, the insurer asserted that its claim for a declaratory judgment put more

than $75,000 in controversy, even though the policy at issue was limited to $50,000 of coverage,

because the insured had also threatened to sue the insurer for the tort of bad faith. See id. at 807-

08. The Eleventh Circuit concluded that, because the defendant insured had “not placed any dollar

amount on the various damages it is seeking under its bad faith claim,” the alleged damages were

“indeterminate” and the plaintiff insurer had to establish the value of that claim by a preponderance

of the evidence in order to show that the amount in controversy requirement had been met. Id. at

808.

Since McKinnon Motors, the Eleventh Circuit has applied its “preponderance” standard in

two more published decisions involving actions originally filed in federal court: Fastcase, supra,

and McIntosh v. Royal Caribbean Cruises, Ltd., 5 F.4th 1309 (11th Cir. 2021). The former, like

McKinnon Motors, involved a diversity action in which the plaintiff sought only a declaratory

judgment. See Fastcase, 907 F.3d at 1339. The court in Fastcase clarified, however, that

McKinnon Motors did not imply that its “preponderance” standard “applies to all declaratory

judgments.” Id. at 1342 n. 5. Rather, the court said, that the “heightened standard only applies to

claims involving unspecified or indeterminate damages,” id. (citing McKinnon Motors, 329 F.3d

at 807; Tapscott, 77 F.3d at 1356-57), where it is “‘warranted because there simply is no estimate

of damages to which a court may defer.’” Id. at 1342 (quoting Tapscott, 77 F.3d at 1356-57). The

Eleventh Circuit explained: “It is not the type of relief that triggers the preponderance requirement,

but instead the specificity with which the plaintiff pleads the amount in controversy.” Id. Most

recently, the Eleventh Circuit extended the applicability of the “preponderance” standard to pure

damages claims brought by plaintiffs suing in federal court in McIntosh.7 In considering whether

diversity jurisdiction existed, the Eleventh Circuit held, quoting Fastcase, that, because the

7 The plaintiffs there were ticketholders for a cruise who claimed that the defendant cruise line

had, despite being aware of a large hurricane set to make landfall near the port of departure,

unreasonably refused to cancel the trip or authorize refunds until the day the voyage was set to

begin. See McIntosh, 5 F.3d at 1311.

plaintiffs had “‘ple[d] an unspecified amount of damages,’” they had the burden to prove by a

“preponderance of the evidence” that the amount in controversy was met. Id. at 1312.8

Unlike the Red Cab standard, under a “preponderance” standard, a court weighs whether

it is more likely true or not true that the amount in controversy is met, without any presumption or

deference afforded to the plaintiff’s estimation of the value of the claims. See Fastcase, 907 F.3d

at 1342. Whether a plaintiff filing suit in federal court is entitled to rely on the Red Cab standard

or must instead prove by a “preponderance of the evidence” that the amount in controversy

requirement is met may be practically significant. In short, the latter represents a materially

“heightened standard” for the diversity plaintiff. Fastcase, 907 F.3d at 1342 & n. 5.

TCH has not contested Hibbett’s invocation of the Red Cab standard. Nor does TCH argue

in favor of the “preponderance” standard or cite McKinnon Motors, Fastcase, or McIntosh. (See

Doc. 27). Nevertheless, to the extent that those cases would require the “preponderance” standard

to be employed in determining the amount in controversy, the undersigned would be bound to

apply it. See Doe v. Predator Catchers, Inc., 2023 WL 4107084, at *3 (M.D. Fla. June 21, 2023)

(recognizing that given its “independent obligation to ensure that subject matter jurisdiction exists,

… the Court must apply the correct legal standard to the analysis.”). Following a review of the

8 Since McKinnon Motors, the Eleventh Circuit has also applied or acknowledged its

“preponderance” standard in multiple unpublished decisions involving actions originally filed in

federal court. See King v. Epstein, 167 F. App’x 121, 123 (11th Cir. 2006); Bradley v. Kelly Servs.,

Inc., 224 F. App’x 893, 895 (11th Cir. 2007); Rance v. D.R. Horton, Inc., 316 F. App’x 860, 863

(11th Cir. 2008); Kivisto v. Kulmala, 497 F. App’x 905, 907 (11th Cir. 2012); Doane v. Tele Cir.

Network Corp., 852 F. App’x 404, 406–07 (11th Cir. 2021). However, such opinions are not

binding precedent. See 11th Cir. R. 36-2; Hunter v. Social Sec. Admin., Comm'r, 808 F.3d 818,

821 n. 2 (11th Cir. 2015).

filings, the undersigned finds that Hibbett meets the amount in controversy threshold under both

the Red Cab and “preponderance” standards. 9

ii. Analysis

TCH attached to its motion to dismiss the Complaint an affidavit and other documentation

related to a mechanic’s and materialman’s lien in the amount of $53,050 (the “Lien”) that TCH

recorded against the subject store property. (See Doc. 6 ¶¶ 4 & 7; Doc. 6-1). The affidavit

supporting the Lien was sworn by TCH’s president, Abdul Karriem, who asserted that “[a]fter

allowing all just and lawful offsets, payments and credits, the amount of $53,050.00 remains

9 All of that said, the undersigned opines that Red Cab and not the “preponderance” standard is the

appropriate standard of review, because the undersigned doubts that McKinnon Motors, Fastcase,

or McIntosh are valid and binding precedents insofar as they would suggest that the Red Cab

standard “gives way” to a “preponderance” standard under the circumstances here. Under the

“prior panel” rule, where there is a conflict between panel decisions of the Eleventh Circuit, or

between panel decisions of the Eleventh Circuit and its predecessor, the old Fifth Circuit, appellate

panels and district courts in the Eleventh Circuit are bound to follow the earliest court of appeals

decision. See Cohen, 204 F.3d at 1072; United States v. Steele, 147 F.3d 1316, 1318 (11th Cir.

1998) (en banc). In the 65 years between the Supreme Court’s decision in Red Cab in 1938 and

the Eleventh Circuit handing down McKinnon Motors in 2003, both the old Fifth Circuit and then

the Eleventh Circuit applied the Red Cab “good faith” and “to a legal certainty” test in many

dozens of cases to assess the amount in controversy of actions filed originally in federal court

without ever suggesting that such test might be displaced by a “preponderance of the evidence”

standard. See, e.g., Brown v. United Gas Pub. Serv. Co., 96 F.2d 264, 264 (5th Cir. 1938); Olan

Mills, Inc., of Tenn. v. Enterprise Pub. Co., 210 F.2d 895, 896 (5th Cir. 1954); Burks v. Texas Co.,

211 F.2d 443, 445 (5th Cir. 1954); Payne v. State Farm Mut. Auto. Ins. Co., 266 F.2d 63, 64 (5th

Cir. 1959); Anderson v. Moorer, 372 F.2d 747 (5th Cir. 1967); Jones v. Landry, 387 F.2d 102, 104

(5th Cir. 1967); Opelika Nursing Home, 448 F.2d at 663; Dassinger, 505 F.2d at 673-74; Adolph

Coors Co. v. Movement Against Racism & the Klan, 777 F.2d 1538, 1544 (11th Cir. 1985); Holley

Equip. Co. v. Credit All. Corp., 821 F.2d 1531, 1535 (11th Cir. 1987); Morrison, 228 F.3d at 1268;

Occidental Chem. Corp. v. Bullard, 995 F.2d 1046, 1048 (11th Cir. 1993); Baltin v. Alaron

Trading Corp., 128 F.3d 1466, 1472 (11th Cir. 1997); Ericsson GE Mobile Comm’s, Inc. v.

Motorola Comm’s & Electronics, Inc., 120 F.3d 216, 220-21 (11th Cir. 1997); Broughton v.

Florida Int'l Underwriters, Inc., 139 F.3d 861, 863 (11th Cir. 1998); Cohen v. Office Depot, Inc.,

204 F.3d 1069, 1077 & n. 10 (11th Cir. 2000); Siren, Inc. v. Estes Express Lines, 249 F.3d 1268,

1274 n. 6 (11th Cir. 2001). Applying the “prior panel” rule, the Red Cab standard carries the day

and is the appropriate standard of review. However, in an abundance of caution, this court will

apply both the Red Cab and “preponderance” standards to ensure Hibbett’s filings meet the amount

in controversy to attach federal diversity jurisdiction.

unpaid and is due and owing to TCH for the labor and materials furnished to the Property.” (Doc.

6-1 at 3-5 (“Karriem Affidavit” or “Karriem Aff.” ¶ 8)). Other documents indicate that the total

amount TCH claims is comprised of $49,500, representing a “10% Hold Back” (Doc. 6-1 at 8-9),

plus $3,550 for certain itemized “Additional Services” that TCH claims to have provided. (See id.

at 6-7).

Hibbett has formally pled that the amount in controversy exceeds $75,000, exclusive of

interest and costs. (Amd. Compl. ¶ 3). Hibbett also pled supporting allegations that a dispute

remains whether Hibbett is liable to pay the $53,050 that TCH claims to be owed under the

Contract. (See Amd. Compl. ¶¶ 7-14, 22-27; Doc. 27 ¶¶ 2-3). However, another $21,951 must be

accounted for in order for the amount in controversy to exceed $75,000 and meet the jurisdictional

minimum. To bridge that gap, Hibbett asserts that it might recover additional sums under the

Contract, including “direct and indirect damages” and “counsel fees” incurred as a result of TCH’s

failure to complete its work on time. (See Amd. Compl., ¶ 7 (quoting Contract §§ 1.2-1.4); id. at

8, Ad Damnum Clause, following ¶ 31; Doc. 27 ¶ 3).

TCH has not responded to Hibbett’s claim that, presuming TCH’s breach, Hibbett may

recover additional damages and attorney’s fees under the Contract, and the undersigned finds that

Hibbett might be legally eligible to recover such items. See 28 U.S.C. § 2202 (“Further necessary

or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice

and hearing, against any adverse party whose rights have been determined by such judgment.”);

Mack v. USAA Cas. Ins. Co., 994 F.3d 1353, 1357 (11th Cir. 2021) (a “plaintiff may follow any

successful claim for a declaratory judgment with a request for supplemental relief” which may

include damages and, where applicable, attorney’s fees). Further, TCH has not offered any

argument or authority alleging that the value of such damages and fees may not be included in the

amount in controversy. See Holley Equip. Co., 821 F.2d at 1536 (lost profits and other damages

available for breach of contract are part of the amount in controversy); Smith v. GTE Corp., 236

F.3d 1292, 1305 (11th Cir. 2001) (the amount in controversy includes a “reasonable estimate” of

attorney’s fees when their recovery is authorized by contract or statute).

a. The Red Cab Standard

Under the Red Cab standard, the action is not subject to dismissal unless “it is apparent to

a legal certainty” that the claims are worth less than the jurisdictional sum. Morrison, 228 F.3d at

1268 (quoting Red Cab, 303 U.S. at 289). Again, the parties agree that $53,050 is in controversy,

meaning that more than another $21,950 is needed for jurisdiction to attach. Hibbett maintains

that such requirement is met based on damages and attorney’s fees that Hibbett claims it might

itself recover under the Contract once TCH is declared in breach. As explained previously,

although Hibbett has presented evidence that it lost approximately $420,000 in “sales” as a result

of TCH’s delay, neither that proof nor the pleadings affirmatively disclose that Hibbett might

potentially recover more than $25,501 in damages and attorney’s fees. Such is not necessary to

sustain jurisdiction, however, given the “permissive nature of [Red Cab’s] ‘legal certainty’

standard for the sufficiency of a plaintiff’s amount in controversy allegation.” Cohen, 204 F.3d at

1080 n. 10.

While TCH has argued that only the $53,050 it claims it is owed is truly in controversy,

TCH has done so in a conclusory fashion, without citing any argument or authority disputing

Hibbett’s claim that it might be eligible for additional damages and attorney fees pursuant to the

terms of the Contract. (See Doc. 27, ¶¶ 3-4). TCH also has not offered any evidence or argument

tending to show that the amount of such additional damages and fees would, as a matter of law, be

less than that required for the total value in controversy to exceed $75,000. Given TCH’s failure

to contest either point and Hibbett’s allegation of approximately $420,000 in lost “sales,” as well

as potential attorney’s fees, the undersigned cannot say that “it is apparent to a legal certainty” that

the value of the declaratory judgment sought by Hibbett could not exceed the $75,000 required for

jurisdiction. See Hunt, 432 U.S. at 346-48 (finding jurisdiction under the Red Cab standard based

on consideration of substantial lost sales, which, the Court recognized, “could lead to diminished

profits”). As such, Hibbett’s claims meet the amount in controversy requirement to attach federal

jurisdiction to this matter.

b. The “Preponderance” Standard

The Amended Complaint does not allege or demand a specific amount for the “direct and

indirect damages” and “counsel fees” Hibbett claims eligibility for or plead supporting facts for

calculating them. Rather, Hibbett offers Brown’s declaration, which asserts that TCH was three

months late finishing the store and that Hibbett “lost approximately $140,000 per month in sales.”

(Brown Decl. ¶ 5). That would translate to about $420,000 in “lost … sales.” The problem,

however, is that Brown’s articulation reflects lost gross revenue. Gross revenue is not the proper

measure of damages under Alabama contract law, which the parties have stipulated governs. (See

Contract, § 19.1). Alabama contract law allows damages to be awarded for lost profits, requiring

the reduction of gross revenue by Hibbett’s applicable overhead costs. See Intergraph Corp. v.

Bentley Sys. Inc., 58 So. 3d 63, 78–79 (Ala. 2010) (holding that trial court erred by awarding “lost

revenues, not lost profits” by failing to account for “what it would have cost the injured party if

the contract had been performed without the breach”). Hibbett has not alleged or proven an amount

for lost profits, nor has Hibbett alleged a basis by which they might be ascertained.

Under the Contract, Hibbett might recover not only lost profits caused by TCH’s alleged

breach, but also an equal amount in liquidated damages. (See Contract, § 12.1). Again, while

Hibbett claims to have lost “approximately” $420,000 in “sales” as a result of TCH’s alleged three-

month delay, no allegations or evidence indicate how much of that figure might represent

recoverable lost profits. Hibbett also acknowledges withholding ten percent of the $495,000 of

the Contract price, or $49,500. ((Doc. 31 at 6 (citing Brown Decl. ¶ 6)). Likewise, while Hibbett

asserts that it might also recover attorney’s fees, it has not placed any dollar amount on those nor

has Hibbett offered allegations or evidence of attorney time, hourly rates, or attorney’s fees

awarded in similar cases. Because Hibbett has not “placed any dollar amount” on the additional

contract damages or attorney’s fees it claims or explained how they might be calculated, those

damages are wholly “indeterminate” for purposes of applying the “preponderance” standard set

forth in McKinnon Motors and its progeny. See McKinnon Motors, 329 F.3d at 808; see also

Fastcase, 907 F.3d at 1343 (holding that plaintiff’s claim that, without a declaratory judgment, it

would lose its contract with a third party and that such “contract is worth well over $75,000” was

“a claim for an indeterminate amount of damages”).

Because Hibbett has alleged indeterminate damages, McKinnon Motors, Fastcase, and

McIntosh would demand that the Red Cab standard to “give[ ] way,” to the “preponderance”

standard to verify that the amount in controversy threshold his met. McKinnon Motors, 329 F.3d

at 807. Since $53,050 is agreed by the parties to be in controversy, Hibbett must establish by a

preponderance of the evidence that the damages and attorney fees Hibbett might be eligible to

recover would exceed between $21,951, exclusive of interest and costs. The courts are authorized

to rely upon their “judicial experience” and “common sense” when applying the “preponderance”

standard to determine whether the amount in controversy threshold is met. See Roe v. Micelin

North America, Inc., 613 F.3d 1058, 1065 (11th Cir. 2010). Likewise, “Eleventh Circuit precedent

permits district courts to make ‘reasonable deductions, reasonable inferences, or other reasonable

extrapolations’ from the pleadings to determine whether it is facially apparent” that the amount in

controversy is met. Id. at 1061-62 (quoting Pretka v Kolter City Plaza, II, Inc., 608 F.3d 744, 754

(11th Cir. 2010)).

This court finds it to be a very short logical step to infer that, once overhead is taken from

$420,000 in lost sales, Hibbett’s lost profits alone would exceed $21,951. This is even without

taking into account the liquidated damages and/or attorney’s fees, to which Hibbett alleges

entitlement under the Contract and which the undersigned has already determined, supra, that

Hibbett may be eligible to recovery such items. As such, the undersigned finds that Hibbett’s

Amended Complaint shows, by a preponderance of the evidence, that the amount in controversy

exceeds $75,000 and meets the requirements of the “preponderance” standard to allow federal

jurisdiction to attach.

Because Hibbett’s claims meet the amount in controversy required to attach federal

jurisdiction, under either standard mentioned herein, TCH’s motion to dismiss the Amended

Complaint is due to be denied.

B. TCH’s Motion to Dismiss for Improper Venue

The undersigned now turns to TCH’s motion to dismiss due to improper venue pursuant to

Rule 12(b)(3), Fed. R. Civ. P. (See Doc. 27 at 3-4). Although not expressly citing the general

federal venue statute, TCH references its provisions, which confer venue in any judicial district in

which the defendant resides; in which a substantial part of the events or omissions giving rise to

the claim occurred; or a substantial part of the property that is the subject of the action is situated.

28 U.S.C. § 1391(b). (See Doc. 27 at 3). TCH emphasizes that it does not reside in Alabama, the

events giving rise to this action occurred in Texas, and the real property subject to TCH’s Lien is

also in Texas. (See Doc. 27 at 3).

In response, Hibbett maintains that TCH has waived any objection to venue in the Northern

District of Alabama by virtue of the Contract (see Doc. 6 ¶ 5), which provides:

This Contract shall be interpreted in accordance with the law of the State of

Alabama. In the event of controversy which results in the filing of any suit at law

or in equity, such action shall be brought and maintained in court of competent

jurisdiction (state or federal) in Jefferson County, Alabama. Hibbett and Contractor

waive all objections they might otherwise have as to jurisdiction and venue and

voluntarily submit to the jurisdiction of those courts and venue in Jefferson County,

Alabama. . .

(Contract § 19.1).

Because venue is a waivable right, a normal venue analysis is not required if a defendant

has waived their right to contest venue in a valid forum selection agreement. See AFC Franchising,

LLC v. Purugganan, 43 F.4th 1285, 1296 (11th Cir. 2022). Hibbett argues that the Contract’s

venue provision applies and is enforceable. TCH’s opposition filing does not contest that the

provision applies to the claims in this action. TCH argues, instead, that the Contract is not

“enforceable to support venue in this district” because this court “lacks the authority to redress”

TCH’s rights with respect to the Lien. (Doc 27 ¶¶ 6,8). TCH contends that its “right to record and

enforce a mechanics lien in Texas cannot be contractually waived,” citing the Texas Property

Code:

Notwithstanding any other law and except as provided by Section 53.282, any

contract, agreement, or understanding purporting to waive the right to file or

enforce any lien or claim created under this chapter is void as against public policy.

(Doc. 27 ¶ 7, (citing Tex. Prop. Code Ann. § 53.286 (West)).

The undersigned understands TCH’s argument to relate to Hibbett’s demand in the

Amended Complaint for a declaratory judgment that TCH’s Lien in Texas “is fraudulent, in that

[TCH] executed a lien waiver stating that it had been paid in full and any indebtedness had been

discharged and that it waived its right to claim a lien.” (Amd. Compl. at 8; see also id. ¶ 14).

When Hibbett initially filed this action on May 3, 2023, TCH had not even recorded the Lien, so

the original Complaint did not mention it, never mind seek to invalidate it. (See generally Compl.).

TCH recorded the Lien on May 31, 2023 (see Doc. 6-1 at 2), whereupon TCH sought to leverage

the Lien as a basis for its initial motion to dismiss for improper venue. (See Doc. 6 ¶¶ 4-8).

However, Hibbett has sought declaratory relief from this court that would not purport to determine

the validity of TCH’s Lien.

Even presuming that the Texas statute cited by TCH implies that Hibbett is not entitled, as

a substantive matter, to a declaration that the Lien on the store property in Texas is fraudulent or

otherwise invalid, TCH has offered no argument, citation to authority, or explanation to support

why that circumstance renders the Contract’s venue provision unenforceable. The undersigned

concludes, therefore, that the Contract’s venue provision applies to the claims in this action and is

enforceable. TCH’s motion to dismiss for improper venue is due to be denied.

C. Hibbett’s Motion for Summary Judgment

Finally, the undersigned turns to Hibbett’s motion for summary judgment. (See Docs. 30

& 31). Summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure. Under

that Rule, the “court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Rule

56(a), Fed. R. Civ. P. Where, as here, the movant would bear the burden of proof at trial on the

claim for which it seeks summary judgment, the movant “‘must show affirmatively the absence of

a genuine issue of material fact: it must support its motion with credible evidence ... that would

entitle it to a directed verdict if not controverted at trial.’” Baker v. Upson Reg’l Med. Ctr., 94

F.4th 1312, 1317 (11th Cir. 2024) (quoting United States v. Four Parcels of Real Prop., 941 F.2d

1428, 1438 (11th Cir. 1991) (en banc) (internal quotation marks omitted)). At summary judgment,

the record evidence is viewed in the light most favorable to the non-movant. See id. at 1316-17

(citing Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1311 (11th Cir. 2001).

TCH failed to file any opposition or other response to Hibbett’s motion for summary

judgment. Hibbett contends that such failure entitles Hibbett “to judgment in its favor,” because,

by failing to respond, TCH has “abandoned” all “arguments” that might have “existed in support

of [TCH’s] position.” (Doc. 33 at 2). TCH’s failure to respond to Hibbett’s motion does not,

however, authorize the court to simply grant summary judgment to Hibbett absent any analysis.

See Trustees of Cent. Pension Fund of Int'l Union of Operating Engineers & Participating Emps.

v. Wolf Crane Serv., Inc., 374 F.3d 1035, 1039 (11th Cir. 2004); Rule 56, Advisory Committee

Notes to 2010 Amendment (“[S]ummary judgment cannot be granted by default even if there is a

complete failure to respond to the motion ….”). Rather, the court still “must consider the merits

of the motion.” United States v. One Piece of Real Prop. Located at 5800 SW 74th Ave., Miami,

Fla., 363 F.3d 1099, 1101 (11th Cir. 2004).

TCH’s failure to respond to Hibbett’s motion does, however, authorize the undersigned to

consider the facts alleged in the motion to be undisputed. See Rule 56(e)(2), Fed. R. Civ. P.;

Harrison v. Culliver, 746 F.3d 1288, 1302 n. 22 (11th Cir. 2014). Such treatment does not extend

to Hibbett’s legal arguments or conclusions. See Attison v. Whiting Door Mfg. Corp., 2021 WL

4816835, at *2 (C.D. Cal. May 21, 2021) (“The Court deems the facts proffered in the [Defendant’s

Statement of Undisputed Facts] which are not legal arguments or conclusions to be undisputed, as

Plaintiff failed to respond to or dispute these facts.” (citing Rule 56(e)(2), Fed. R. Civ. P.)). The

undersigned may “grant summary judgment if the motion and supporting materials—including the

facts considered undisputed—show that the movant is entitled to it.” Rule 56(e)(3), Fed. R. Civ.

P. To show “entitlement” to summary judgment, the facts as shown by the evidence or deemed

undisputed under Rule 56(e)(2) must be sufficient to support judgment as a matter of law in favor

of the movant. See Rules 56(a), (e)(3), Fed. R. Civ. P.

Underlying Hibbett’s claim for a declaratory judgment is the parties’ dispute over the

Contract – which party or parties might have breached it and how and whether the Lien TCH

recorded against the subject store property is valid. Under Alabama law, a breach-of-contract

claim requires proof of the following elements: (1) a valid contract binding the parties; (2) the

plaintiff’s performance under the contract; (3) the defendant’s nonperformance; and (4) resulting

damages. 10 National Fire & Marine Ins. Co. v. Wells, 301 F. Supp. 3d 1082, 1096 (N.D. Ala.

2018) (citing Reynolds Metals Co. v. Hill, 825 So. 2d 100, 105–06 (Ala. 2002)).

Hibbett’s motion seeks a declaration establishing six specific legal propositions:

. . . Hibbett respectfully prays that the Court grant its Motion for Summary

Judgment and that the Court enter an Order and Judgment that (i) Defendant [TCH]

breached its obligations under the Construction Contract; (ii) Hibbett is not and was

not in default of its obligations under the Construction Contract; (iii) Hibbett is

entitled to any remedies for Defendant’s failure to perform its obligations under the

Construction Contract, including, but not limited to, the right to withhold payment

from Defendant, attorney’s fees and other direct and indirect damages, including

lost profits; (iv) Defendant’s lien is fraudulent, in that Defendant executed a lien

waiver stating that it had been paid in full and any indebtedness had been

discharged and that it waived its right to claim a lien; (v) Hibbett is entitled to

remedies under Tex. Civ. Prac. & Rem. Code § 12.002 (1999), as Defendant filed

a fraudulent lien against Hibbett; [and] (vi) Defendant’s lien is invalid, to the extent

that Defendant requests that the lien attach to the real property, instead of Hibbett’s

leasehold interest. . .

(Doc. 31 at 11). The declarations sought are addressed individually below.

i. Declaration that TCH Breached the Contract

Hibbett first maintains it is entitled to a declaration that TCH breached its obligations under

the Contract. Given TCH’s failure to respond to Hibbett’s motion for summary judgment, the

10 As discussed, supra, the Contract provides that it will be interpreted in accordance with

Alabama state law. (Contract, § 19.1).

undersigned considers the factual statements set forth in Hibbett’s brief (see Doc. 31 at 2-7) to be

undisputed. See Rule 56(e)(2), Fed. R. Civ. P.; Harrison, 746 F.3d at 1302 n. 22. Those facts

establish that the Hibbett and TCH had a valid and binding contract, which neither party disputes.

(See Doc. 31 at 2-5; see also generally Contract). The facts in Hibbett’s brief further establish that

TCH breached the Contract by failing to complete its work by December 15, 2022, in accordance

with the construction schedule and, instead, turned over the space to Hibbett approximately three

months late. (Doc. 31 at 5-6). Hibbett’s motion for summary judgment is, therefore, due to be

granted to the extent Hibbett seeks a declaration that TCH breached its obligations under the

Contract.

ii. Declaration that Hibbett is Not in Default Under the Contract

Hibbett also seeks a declaration that it did not itself breach the Contract. (See Amd. Compl.

at 8; Doc. 31 at 11). For its part, TCH asserted that Hibbett is guilty of breach by failing to pay

TCH $53,050 that remains outstanding. (See Doc. 27, ¶¶ 1 & 3). Although TCH has not responded

to Hibbett’s motion for summary judgment, TCH did file in support of its initial motion to dismiss

a copy of an affidavit from its president, Abdul Karriem, claiming that Hibbett owes that amount.

(Karriem Aff., ¶ 8). Further, while Hibbett says it paid 90% of the $495,000 “contract price,” or

$445,500, Hibbett expressly admits to having “withheld the remaining ten percent,” or $49,500.

(Doc. 31 at 6; see also Brown Decl. ¶ 6). Documents produced by TCH claims Hibbett has

wrongfully withheld that ten percent and owes an additional $3,550 for certain other items. (See

Doc. 6-1 at 6-9).

Hibbett insists that the withholding was not in breach of the Contract but, instead,

authorized by it. Specifically, Hibbett claims the Contract gives Hibbett the right to withhold

payments should TCH fail to finish the work on time. (See Doc. 31 at 9). The undersigned agrees

that the Contract imposes liability against TCH for both actual losses and an equal amount of

liquidated damages. (See Contract, §§ 1.2, 1.4, 12.1). The undersigned further agrees that the

Contract authorizes Hibbett to recoup amounts owed to it for a breach by withholding payments.

(See id., §§ 1.2, 1.4, 12.1, 13.2).

However, Hibbett has not shown that TCH’s breach caused Hibbett to incur actual losses

recoverable under Alabama contract law in the amount of $49,500 or more. As discussed, Hibbett

has presented evidence that it lost “approximately” $140,000 per month in “sales.” (Brown Decl.

¶ 6). As previously noted, Alabama contract law does not authorize recovery of damages

representing lost gross sales revenue; it potentially authorizes recovery for lost profits that would

subtract all of Hibbett’s costs were it to have been operating the store. See Intergraph Corp., 58

So. 3d at 78–79; International Paper Co. v. Madison Oslin, Inc., 985 So. 2d 879 at 886, 890-91

(Ala. 2007); American Res. Ins. Co. v. Evoleno Co., LLC, et al., 2008 WL 5071896, at *2 (S.D.

Ala. Nov. 24, 2008). “To recover lost profits, Plaintiff must allege and prove ‘not only (a) what

he would have received from the performance so prevented, but also (b) what such performance

would have cost him (or the value to him thereof). Unless he proves both of those facts, he cannot

recover as damages the profits he would have earned from full performance of the contract.’” WM

Mobile Bay Env't Ctr., Inc. v. City of Mobile Solid Waste Auth., 2015 WL 4856285, at *3 (S.D.

Ala. Aug. 13, 2015), aff'd, 672 F. App’x 931 (11th Cir. 2016) (quoting Integraph Corp., 58 So. 3d

63, 78 (Ala. 2010) (further citation omitted).

To prevail on its claim for a declaration that it did not breach the Contract by withholding

payment, Hibbett has the burden as the movant to show that there is no genuine dispute of material

fact and that it is entitled to judgment as a matter of law on the issue. Hibbett has not done so.

Although the Contract may authorize Hibbett to withhold payments beyond the 90% of the

Contract price, Hibbett has not presented evidence sufficient to establish relevant costs or lost

profits. Therefore, the undersigned cannot determine the amount of either lost profits or liquidated

damages. Further, the undersigned also cannot determine the amount Hibbett might have been

authorized to withhold or if Hibbett has withheld too much, thereby potentially breaching the

Contract.

iii. The Legal Effect of the Final Waiver of Lien and the Validity of the Lien

Hibbett also argues that TCH’s lien is invalid based on the “Final Waiver of Lien –

Materials and Labor” (Doc. 31-4 (“Final Waiver of Lien”)), that it has submitted in support of its

summary judgment motion. Hibbett further alleged that the Lien itself is fraudulent in nature. (See

Doc. 31 at 10). The Final Waiver of Lien was executed by a TCH representative and notarized on

February 20, 2023. (Final Waiver of Lien). The signature appears to match that of TCH’s

president, Abdul Karriem when compared to the affidavit TCH filed along with the Lien. (See

Doc. 31-4 and Doc. 6-1 at 5). The operative language of the Final Waiver of Lien is as follows:

The undersigned being duly sworn deposes and says that all labor, materials and

services included in all previous and final payments have been fully paid and

indebtedness discharged.

In consideration of $495,000, receipt and sufficiency of which is acknowledged,

the undersigned waives any right that the undersigned now has or in the future may

have to claim a mechanic’s or materialman’s lien against the improvements located

[on the property] to secure payment for labor and materials furnished by the

undersigned.

The undersigned has executed this waiver voluntarily and with full knowledge of

their rights under the laws of the state of Texas.

(Doc. 31-4)(emphasis removed).

Hibbett argues summarily that, by executing the Final Waiver of Lien, TCH waived both

“its claim to further payment” and “any right to claim a mechanic’s or materialman’s lien.” (Doc.

31 at 10 (internal quotation marks and citation omitted)). Hibbett relates that, despite TCH’s

execution of the Final Waiver of Lien, TCH demanded that Hibbett pay an additional $53,050 and

filed the Lien against the store property. (Id.) Hibbett characterizes the Lien as “fraudulent” and

claims that Hibbett is entitled to remedies under a Texas statute, Texas Civ. & Rem. Code § 12.002.

(Id. at 10 & n. 1).

The above recitation effectively presents the entirety of Hibbett’s discussion of these

claims regarding the purported legal character and effect of both the Final Waiver of Lien and the

Lien. Hibbett’s argument on these points consists of conclusory legal assertions with no citations

to authority. (See id. at 10). Moreover, these arguments are the only proffered basis for Hibbett’s

motion for summary judgment to the extent it demands a declaratory judgment providing that:

(iv) [TCH’s] lien is fraudulent, in that [TCH] executed a lien waiver stating that it

had been paid in full and any indebtedness had been discharged and that it waived

its right to claim a lien;

(v) Hibbett is entitled to remedies under Tex. Civ. Prac. & Rem. Code § 12.002

(1999), as [TCH] filed a fraudulent lien against Hibbett; [and]

(vi) [TCH’s] lien is invalid, to the extent that [TCH] requests that the lien attach to

the real property, instead of Hibbett’s leasehold interest.

(Doc. 31 at 11).

Hibbett’s offer of bare legal assertions and characterizations with respect to the Final

Waiver of Lien and the Lien itself without citing any authority is grounds to deny Hibbett’s motion.

As one member of this court has aptly explained:

Numerous cases indicate that the burden rests on the parties to present arguments to

the court, and that issues not substantively and meaningfully argued are waived. See

Old West Annuity and Life Insurance Co. v. Apollo Group, 605 F.3d 856, 860 n.1

(11th Cir. 2010) (finding waiver when a party “has not presented substantive

argument”); Jones v. Secretary of the Department of Corrections, 607 F.3d 1346,

1353-54 (11th Cir. 2010) (“We have repeatedly required litigants to ... provide

arguments about their entitlement to relief” and relief will not be granted when a

litigant fails “to elaborate or provide any citation of authority in support of the ...

allegation.”); U.S. Steel Corp. v. Astrue, 495 F.3d 1272, 1287 n.13 (11th Cir. 2007)

(refusing to address a party's “perfunctory and underdeveloped argument”) (citing

Flanigan's Enterprises, Inc. v. Fulton County, 242 F.3d 976, 987 n.16 (11th Cir.

2001) (holding that “fail[ure] to elaborate or provide any citation of authority in

support [of an argument]” results in waiver) ) (alterations supplied); see also Lyes v.

City of Riviera Beach, 126 F.3d 1380, 1388 (11th Cir. 1997) (explaining that “the

onus is upon the parties to formulate arguments”); Resolution Trust Corp. v. Dunmar

Corp., 43 F.3d 587, 599 (11th Cir. 1995) (“There is no burden upon the district court

to distill every potential argument that could be made based upon the materials

before it.”).

Rolle v. Montgomery, 2013 WL 12349544, at *5 (N.D. Ala. July 19, 2013).

Because Hibbett has not supported its arguments, Hibbett’s motion for summary judgment

is due to be denied to the extent that Hibbett has demanded a declaratory judgment providing: (1)

that TCH’s Lien is “fraudulent,” (2) that Hibbett is entitled to remedies under the Texas statute for

TCH’s filing of a “fraudulent” lien, (3) that the Lien is “invalid to the extent it attaches to the store

property rather than just to Hibbett’s leasehold interest, or (4) that Hibbett has not breached the

Contract on the theory that the Final Waiver of Lien releases Hibbett from any “claim for further

payment” (Doc. 31 at 10).11

11 The undersigned would further note that there appears to be some question whether the Final

Waiver of Lien is valid. In particular, while that document recites that it was given by TCH in

consideration of $495,000, the receipt of which was acknowledged, it undisputed that Hibbett did

not, in fact, deliver that sum to TCH. Rather, Hibbett has admitted to paying only 90% of that

amount and withholding the remaining $49,500. It has been recognized in this context that one

party “‘cannot insist on the one hand that they are entitled to have the benefit of the cancellation

and release of the property from the lien of the mortgage and at the same time deny to [the other

party] the consideration which alleged[ly] moved [the other party] to enter such cancellation and

to execute such relief.’” Acme Roofing & Sheet Metal Co. v. Air Team USA, Inc., 2014 WL

1278078, at *13 (N.D. Ala. Mar. 27, 2014) (quoting Mitchell v. Cobb, 118 So. 2d 918, 921 (Ala.

1960)). Thus, when “the parties have agreed to a release based on specified consideration and the

specified consideration was not in fact paid …., the Alabama Supreme Court has refused to enforce

the release.” Id. (citing Mitchell, 118 So. 2d at 921-22).

ITI. Conclusion

Based on the foregoing, Defendant TCH’s motion to dismiss (Doc. 27) is DENIED in its

entirety while Plaintiff Hibbett’s motion for summary judgment (Doc. 30) is GRANTED IN

PART AND DENIED IN PART. Specifically, Hibbett’s motion for summary judgment is

GRANTED to the extent that Hibbett seeks a declaratory judgment that TCH breached its

obligations under the parties’ Contract, but the motion is DENIED in all other respects.

DONE this 10th day of January, 2025.

JOHN H. ENGLAND, III

UNITED STATES MAGISTRATE JUDGE

27