# J.C. Penney Corporation, Inc. v. Oxford Mall, LLC

> District Court, N.D. Alabama · August 5, 2021

URL: https://www.frixlaw.com/law-library/cases/9990467

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** August 5, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9990467

## How later opinions describe it (automated extraction)

- finding that “no binding precedent” existed for a party’s proposition that the court “was required to support its finding of bad faith by clear and convincing evidence”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION

J.C. PENNEY CORPORATION, )
INC., )
)
Plaintiff, )
) Civil Action No.: 1:19-cv-560-KOB
vs. )
)
OXFORD MALL, LLC )
)
Defendant. )

MEMORANDUM OPINION
The court has before it Plaintiff J.C. Penney’s motion for relief pursuant to Fed. R.
Civ. P. 37 and this court’s inherent powers (doc. 120) and Defendant Oxford Mall’s
motion for Fed. R. Civ. P. 11 sanctions (doc. 132). Both motions have been fully briefed,
and the court held a hearing on the motions on July 26, 2021. For the reasons stated on
the record at the hearing, the court DENIES Oxford Mall’s motion for Rule 11 sanctions
(doc. 132) and DENIES IN PART J.C. Penney’s motion for relief (doc. 120), finding
that Rule 37 sanctions against Oxford Mall are not appropriate. But, as explained further
below, the court GRANTS IN PART J.C. Penney’s motion for relief (doc. 120), finding
that sanctions against Oxford Mall under the court’s inherent powers are warranted
because it is highly probable that Oxford Mall acted in bad faith. At the outset, the court
notes that sanctions against Oxford Mall are warranted; the court specifically finds that
sanctions against Oxford Mall’s outside counsel are not appropriate because no evidence
even suggested that Oxford Mall shared knowledge of the lack of diversity jurisdiction
with counsel when Oxford Mall learned of the diversity-destroying member.
I. Background

On April 12, 2019, J.C. Penney brought this action pursuant to 28 U.S.C. §
1332(a)(1). (Doc. 1). On May 8, 2019, Oxford Mall filed an answer and counterclaim,
also pleading diversity jurisdiction. (Doc. 9). Oxford Mall also filed a corporate
disclosure statement that did not show a lack of diversity. (Doc. 12). For over two years,
the parties and the court operated under the assumption that the court had subject matter

jurisdiction in this case. But the court did not have subject matter jurisdiction because
both J.C. Penney and Oxford Mall are citizens of Delaware.
On April 23, 2021—after the court ruled on the parties’ motions for summary
judgment (doc. 88) and Oxford Mall’s motion for reconsideration (doc. 99); Oxford Mall
got J.C. Penney to agree to waive Bankruptcy Court jurisdiction (doc. 85-1); and the

parties participated in an unsuccessful mediation—Defendant Oxford Mall filed a motion
to dismiss this case for lack of subject matter jurisdiction (doc. 107). In its motion to
dismiss, Oxford Mall stated that while reviewing materials after the parties’ March 2021
mediation, it discovered that the court lacked subject matter jurisdiction. (Id.). Oxford
Mall submitted a chart with its motion to dismiss, showing the ownership structure of

Oxford Mall, LLC. (Doc. 107-1). The chart showed that Richard Carlson, a member of
Brandywine Manager, LLC—down the line in Oxford Mall’s ownership structure—is a
2
citizen of Delaware. (Id.). Because “a limited liability company is a citizen of any state of
which a member of the company is a citizen,” Mr. Carlson’s Delaware citizenship
destroys diversity jurisdiction. See Rolling Greens MHP, L.P. v. Comcast SCH Holdings,

L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004) (per curiam).
On April 28, 2021, after a conference call with the parties, the court stayed
proceedings in this case for 60 days to allow J.C. Penney to conduct limited discovery on
the jurisdictional question and the timing related to that question. (Doc. 114). On June 8,
2021, Oxford Mall filed a supplemental corporate disclosure statement, naming Richard

Carlson as a member in Oxford Mall’s ownership structure. (Doc. 119). On the same
date, J.C. Penney filed a motion for attorney’s fees and expenses pursuant to Fed. R. Civ.
P. 37 and the court’s inherent powers, asserting that Oxford Mall knew about Mr.
Carlson’s Delaware citizenship as early as February 2020 and failed to disclose the
information to both J.C. Penney and the court. (Doc. 120).

On June 16, 2021, the court dismissed this case for lack of subject matter-
jurisdiction and vacated all its numerous prior orders. (Doc. 124). In so doing, the court
retained jurisdiction over collateral matters in this case, as “[i]t is well established that a
federal court may consider collateral issues after an action is no longer pending.” Cooter
& Gell v. Hartmax Corp., 496 U.S. 384, 395 (1990). Considering sanctions is such a

collateral matter.

3
II. Legal Standard
When “a party has acted in bad faith, vexatiously, wantonly, or for oppressive
reasons,” the court “may exercise its inherent power to assess attorney’s fees.” Chambers

v. Nasco, Inc., 501 U.S. 32, 45−46 (1991). When issuing sanctions for bad faith conduct,
the court has “broad discretion to impose sanctions and the nature or amount of those
sanctions.” Peer v. Lewis, 606 F.3d 1306, 1316 (11th Cir. 2010). “The key to unlocking a
court’s inherent power [to sanction] is a finding of bad faith.” Barnes v. Dalton, 158 F.3d

1212, 1214 (11th Cir. 1998).
When issuing sanctions under inherent powers, courts in the Eleventh Circuit are
required to follow the subjective bad-faith standard. Purchasing Power, LLC v. Bluestem
Brands, Inc., 851 F.3d 1218, 1223 (11th Cir. 2017). Subjective bad faith is “not the same
as simple recklessness, which can be a starting point but requires something more to

constitute bad faith.” Id. at 1224 (citing Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir.
1998)). When no evidence of subjective bad faith is present, the subjective bad faith
standard “can be met if [a party’s] conduct is so egregious that it could only be committed
in bad faith.” Id. (citing Roadway Exp., Inc. v. Piper, 447 U.S. 752, 767 (1980))
(emphasis added). “Courts considering whether to impose sanctions under their inherent
power should look for disobedience and be guided by the purpose of vindicating judicial

authority.” Id. at 1225.

4
The Eleventh Circuit has not clearly specified the appropriate evidentiary standard
to apply when issuing sanctions for bad-faith conduct under its inherent powers. See
Zeltser v. Little Rest Twelve, Inc., 662 F. App’x 887, 889 (11th Cir. 2016) (finding that

“no binding precedent” existed for a party’s proposition that the court “was required to
support its finding of bad faith by clear and convincing evidence”). This court has
previously applied the clear and convincing evidence standard “out of an abundance of
caution” in a case involving bad-faith behavior and will follow the “out of an abundance
of caution” approach here. See Roche Diagnostics Corp. v. Priority Health, No. 18-cv-

1479, 2020 WL 2308319, at *4 (N.D. Ala. May 8, 2020). The clear and convincing
evidence standard “falls on the spectrum between preponderance of the evidence and
beyond a reasonable doubt.” Id. (citation omitted); see also Nejad v. AG, Ga., 830 F.3d
1280, 1289 (11th Cir. 2016) (“Clear and convincing evidence is a demanding but not
insatiable standard, requiring proof that a claim is highly probable.”).

In sum, this court will only issue sanctions for bad faith conduct under its inherent
powers if it finds that it is highly probable that Oxford Mall’s conduct in this case was so
egregious that Oxford Mall could only have committed it in bad faith.
III. Discussion
J.C. Penney asks the court to award it attorney’s fees and expenses under the

court’s inherent powers for Oxford Mall’s conduct in this case, which J.C. Penney argues
constitutes bad faith and abused the judicial process. (Doc. 129). J.C. Penney argues that
5
(1) Oxford Mall created the misimpression that this court had diversity jurisdiction; (2)
Oxford Mall has known since January 2020 that the court lacked subject matter
jurisdiction and selectively disclosed and used jurisdictional information; (3) Oxford

Mall’s tactics caused J.C. Penney to waive Bankruptcy Court jurisdiction; and (4) Oxford
Mall withheld jurisdictional information while actively litigating and mediating this case.
(Id.).
In response, Oxford Mall argues that inherent power sanctions are not warranted
because J.C. Penney did not meet its burden to invoke and prove diversity jurisdiction

when it filed this case and because Oxford Mall did not act in bad faith. (Doc. 138).
Oxford Mall states that it would have had every reason to tell the court if it knew before
April 2021 that the court lacked subject matter jurisdiction and that J.C. Penney provided
no evidence that Oxford Mall intended to deceive the court as it relates to jurisdiction.
(Id. at 4, 29).

At the beginning of the hearing on July 26, 2021, the court noted the difficulties of
establishing jurisdiction for 21st-century business entities. The court found that J.C.
Penney dropped the ball when it did not follow-up with a motion to compel after Oxford
Mall failed to provide the necessary information to establish diversity jurisdiction in its
answer to J.C. Penney’s first interrogatory and that J.C. Penney failed to meet its burden

to establish diversity jurisdiction. The court found that Oxford Mall dropped the ball
when it filed a counterclaim asserting diversity jurisdiction without checking to make
6
sure that jurisdiction existed. And the court stated that it dropped the ball by not taking
additional steps to ensure that it had diversity jurisdiction in this case. See, e.g.,
Purchasing Power, 851 F.3d at 1220 (“It is in everyone’s best interest, both the litigants’

and the courts’, to verify that diversity jurisdiction exists before proceeding with the
case.”). The court noted that it would focus the hearing on whether Oxford Mall had
actual knowledge of the court’s lack of diversity jurisdiction from January 2020 until
April 2021 and whether Oxford Mall’s conduct during that time period was so egregious
that it constituted bad faith. The court considered the circumstances of Hibbett Sporting

Goods, Inc. v. Oxford Mall, LLC, No. 1:19-cv-1424-CLM, the only other case Oxford
Mall had pending in federal court at the time this case was being litigated; e-mail
correspondence related to the Hibbett case the parties submitted as evidence; Oxford
Mall’s knowledge of the lack of subject matter jurisdiction and its conduct regarding that
knowledge; and two cases that shed light on the difficulty of issuing sanctions under the

court’s inherent powers in circumstances involving LLCs and diversity. The court
considers each of these more fully below.
A. The Hibbett Case
First, the court finds it useful to provide a brief overview of the Hibbett case. Five
months after J.C. Penney filed suit against Oxford Mall, Hibbett Sporting Goods filed suit

against Oxford Mall, and the case was assigned to Judge Corey L. Maze. Hibbett
Sporting Goods, Inc. v. Oxford Mall, LLC, No. 1:19-cv-1424-CLM. The e-mails the
7
court recounts more fully below show that in September 2019, Oxford Mall was looking
for a diversity-destroying member to divest the Hibbett court of jurisdiction. (Doc. 129-2
at 1−5). Oxford Mall abandoned its search until December 16, 2019, when Judge Maze

sua sponte issued an order to show cause why the court should not dismiss the case for a
lack of subject matter jurisdiction. (Hibbett Doc. 14). On January 16, 2020, Judge Maze
held a telephone conference on the show cause order and ordered Oxford Mall to file a
supplemental disclosure listing all of the members and/or partners of Oxford Mall’s

members and their citizenships “through every layer of members and/or partners.”
(Hibbett Doc. 19). On January 28, 2020, Oxford Mall learned about Richard Carlson—a
resident of Delaware and a member of Brandywine Managers, LLC, a member down the
line in Oxford Mall’s ownership chain. (Doc. 129-2 at 12−14). On January 29, 2020,
Oxford Mall filed a complaint against Hibbett in Richmond County, Georgia. Then on

March 5, 2020, Oxford Mall filed a motion to dismiss in the Hibbett case for lack of
subject matter jurisdiction because of Mr. Carlson’s citizenship. (Hibbett Doc. 23). On
March 19, 2020, Judge Maze dismissed the Hibbett case because the court lacked subject
matter jurisdiction. (Hibbett Doc. 26).
B. The E-mails

Both parties submitted e-mail correspondence as evidence in support of their
positions. The court has carefully considered the e-mail correspondence.

8
On September 10, 2019, Caroline Hatcher, Oxford Mall’s vice president, e-mailed
Isaac Pesin, a principal of Eightfold Opportunity Fund II, LP—owner of Yellowjacket
Holdings, LLC, one of the members of Oxford Mall—and asked him to provide the

structure and breakdown of general partners and limited partners of Eightfold
Opportunity Fund II, LP, for use in the Hibbett case. (Doc. 129-2 at 2). On September 12,
2019, Wayne Grovenstein, general counsel for Oxford Mall, e-mailed Mr. Pesin’s
counsel, Barry Lapides, asking about diversity-destroying members for the Hibbett suit.
(Doc. 129-2 at 4−5). In his e-mail, Mr. Grovenstein accurately set out the law of diversity

jurisdiction, stating:
I am trying to determine diversity jurisdiction for Oxford Mall, LLC. Diversity
jurisdiction ignores the state of incorporation of a limited liability company or
limited partnership but instead looks at (i) the state of residence of any individual
member or partner and (ii) the state of incorporation and principal place of
business of any INC. corporation.

(Id. at 5).

In response, Mr. Lapides told Mr. Grovenstein that all the principals of Eightfold
were Florida residents but that if he needed the residences of investors, it would “take
some digging.” (Id.). Mr. Grovenstein responded that if any members were Alabama
residents, the court would lack jurisdiction in Hibbett. (Id. at 4). He continued: “Likewise
for J.C. Penney, if one or more of the members is a Texas or Delaware resident, then we
may be able to relocate their lawsuit to Georgia.” (Id. at 5) (emphasis added). These
emails show that Mr. Grovenstein knew, in September 2019, what diversity jurisdiction
9
entailed and that finding a Delaware resident would destroy jurisdiction in the J.C.
Penney case.
Shortly after this exchange, in the J.C. Penney case, on September 17, 2019,

Oxford Mall plead federal diversity jurisdiction in its Amended Counterclaim for
Unlawful Detainer. (Doc. 28).
On October 3, 2019, Mr. Lapides followed up with Mr. Grovenstein, saying that a
representative of one of Eightfold’s primary investors wanted to have a phone call about
the “potential ‘rabbit hole’ concerning the disclosure.” (Doc. 129-2 at 4). On October 7,

2019, Mr. Lapides followed up with Mr. Grovenstein again, asking if they needed to have
a call. (Id.). Mr. Grovenstein responded, “Skip it.” (Id.).
Both Ms. Hatcher and Mr. Grovenstein were closely involved with the J.C. Penney
case during this time frame. For example, Ms. Hatcher verified interrogatory responses in
J.C. Penney on July 18, 2019, October 30, 2019, and November 19, 2019; was deposed

on August 12, 2019 and November 15, 2019; and submitted an affidavit to the court on
September 30, 2019. (Doc. 129 at 11 n. 24). Likewise, Mr. Grovenstein attended six of
seven depositions taken in J.C. Penney between August and November 2019. (Doc. 129
at 10 n. 22).
Then, in December 2019, Judge Maze issued an order to show cause in the Hibbett

case and followed up by ordering Oxford Mall to file a supplemental disclosure listing all
of the members and/or partners of Oxford Mall’s members and their citizenships in
10
January 2020. At that time, Mr. Grovenstein again e-mailed Mr. Lapides. (Doc. 129-2 at
7−8). In a January 23, 2020, e-mail, Mr. Grovenstein wrote:

My assumption is that the judge does not want to spend time on a diversity action
for which diversity jurisdictions [sic] does not actually exist and have the
proceedings vacated at some later date because diversity does not actually exist.

(Doc. 129-2 at 6). This e-mail shows that Mr. Grovenstein understood the consequences
of a court’s lack of diversity jurisdiction. On February 3, 2020, John Markwalter, counsel
for Hull Property Group, e-mailed Mr. Grovenstein about research he conducted on a
court’s lacking jurisdiction and even mentioned finding an opinion from this court
discussing the issues. (Doc. 129-2 at 17).
As stated above, the Hibbett case was dismissed in March 2020, but litigation
continued in the case at hand. On April 20, 2021—after unfavorable rulings against
Oxford Mall and after the parties had completed mediation—Mr. Grovenstein reached
out to Kenneth Largess, counsel for Abrams Capital Management. (Doc. 138-5 at 1). Mr.
Grovenstein asked Mr. Largess to confirm that the affidavit he signed about the diversity-
destroying Delaware resident in the Hibbett case was still accurate. (Id.). Mr. Grovenstein
wrote—furtively, in this court’s opinion—that “Oxford Mall, LLC, now has a separate
case with JCPenney involving the same type of jurisdictional claim of diversity of
citizenship. We need the same type of affidavit to cause JC Penney’s case in federal court

to be dismissed.” (Id.) (emphasis added). Mr. Grovenstein spoke of the present case as if

11
it were a new cause of action. But the present case had been pending since April 2019—
months before Hibbett.
C. Oxford Mall’s Knowledge

Oxford Mall tells the court that on April 19, 2021, Mr. Grovenstein told counsel,
Michael Brown, that he had failed to realize that diversity jurisdiction in this case did not
exist. (Doc. 138 at 16; Doc. 120-1 at Resp. to Int. No. 11). According to Oxford Mall,
Mr. Grovenstein realized the jurisdictional issue after reviewing the First Amended
Complaint in preparation for trial. (Doc. 138 at 16). Oxford Mall argues that “if [it] knew

before April 2021 that jurisdiction did not exist, it had every reason to alert this court.”
(Id. at 4).
From its review of the e-mails discussing jurisdiction, the court finds that Mr.
Grovenstein had a conscious understanding of the law as it relates to diversity jurisdiction
and that he understood the consequences of a court’s not having diversity jurisdiction—

i.e. dismissal of the case and vacating prior rulings. Mr. Grovenstein provided an accurate
summary of the law on diversity jurisdiction in his September 12, 2019 e-mail. (Doc.
129-2 at 2). Then, as of at least January 28, 2020, he had actual knowledge that one of
Oxford Mall’s members down-the-line destroyed diversity. Instead of alerting this court
to that information at that time, Oxford Mall waited for 15 months to tell the court—after

J.C. Penney agreed to the lifting of a stay in bankruptcy proceedings (doc. 85-1), after the
court had ruled upon the summary judgment motions (doc. 88), after the court denied
12
Oxford Mall’s motion for reconsideration (doc. 99), and after the parties completed
mediation. Then Oxford Mall informed the court of its lack of jurisdiction. Oxford Mall
says that it did not “make the connection” until after mediation. (Doc. 138 at 14). But it

provides no evidence in support of that assertion; for example, it offers no affidavit from
Mr. Grovenstein saying that he forgot or was confused. The court infers from the
evidence it has—the email showing that Mr. Grovenstein knew in September 2019 what
diversity jurisdiction is and that a Delaware resident would destroy diversity jurisdiction
in this case, and Mr. Grovenstein’s actual knowledge in January 2020 that Oxford Mall

did, indeed, have a member who was a resident of Delaware—that Mr. Grovenstein had
actual knowledge that diversity jurisdiction did not exist in this case.
Under basic agency principles, Mr. Grovenstein’s knowledge is imputed to Oxford
Mall. The general rule is well established that “that a principal is chargeable with and
bound by the knowledge of his agent while acting within the scope of his authority.” First

Ala. Bank v. First State Ins. Co., Inc., 899 F.2d 1045, 1061 n. 8 (11th Cir. 1990) (citing
Carnival Cruise Lines, Inc. v. Goodin, 535 So. 2d 98, 103 (Ala. 1988)).
The court finds that clear and convincing evidence shows that Mr. Grovenstein’s
conduct—imputed to Oxford Mall—is tantamount to bad faith.
D. Authority Guiding the Court

The court does not take issuing bad-faith sanctions lightly. The court looked to two
cases with somewhat analogous facts for guidance in determining whether sanctions are
13
appropriate in this case: Purchasing Power, LLC v. Bluestem Brands, Inc., 851 F.3d 1218
(11th Cir. 2017) and Atkins Nuclear Secured, LLC v. Aptim Federal Services, LLC, No.
1:18-cv-1112, 2019 WL 179137, at *1 (E.D. Va. April 24, 2019). In Purchasing Power,

the Eleventh Circuit reversed a district court’s imposition of bad-faith sanctions in a case
the district court had entertained for two years before finding out it lacked jurisdiction
upon remand from the Eleventh Circuit. 851 F.3d at 1222. The defendant in that case had
removed the case to federal court, had taken the word of the plaintiff that diversity
jurisdiction existed, and failed to verify the jurisdiction. Id. The district court sanctioned

the firm representing the plaintiff, finding that it “acted in bad faith when it failed to
investigate adequately [plaintiff’s] citizenship before it represented to [defendant] and the
court that diversity jurisdiction existed.” Id. at 1223.
The Eleventh Circuit found that the district court set out the wrong standard for
issuing bad-faith sanctions; it looked only for recklessness, which “alone does not

constitute conduct tantamount to bad faith.” Id. at 1223. The Court found that “[c]ourts
considering whether to impose sanctions under their inherent power should look for
disobedience and be guided by the purpose of vindicating judicial authority,” and that
neither of those concerns were present in Purchasing Power. Id. at 1225. In its
conclusion, the Eleventh Circuit noted that “[n]o party in this case acted with bad

intentions, but the result was a colossal waste of time and effort.” Id. at 1228.

14
This court has found Purchasing Power to be very instructive in this case. But,
unlike the court in Purchasing Power, the court finds that, here, the concern of
vindicating judicial authority is present and that the evidence shows that it is highly

probable that Oxford Mall acted with bad intentions; its conduct was more than just
reckless.
The court also reviewed Atkins Nuclear Secured, LLC, No. 1:18-cv-1112, 2019
WL 179137, at *1 (E.D. Va. April 24, 2019). In that case, counsel for plaintiff asked in-
house counsel for defendant if any of the members of the defendant LLC were residents

of certain states. Id. at *2. Without researching the unique challenges posed by LLCs and
diversity jurisdiction, defendant’s in-house counsel responded that he did not object to
the court’s subject-matter jurisdiction. Id. Just a few months later, defendant’s trial
counsel discovered the jurisdictional defect and advised plaintiff’s counsel and the court.
Id.

In deciding not to issue sanctions against defendant under its inherent powers, the
Virginia district court explained that although defendant did not do “what would have
been useful, beneficial, or even commendable,” the court did not “find any evidence that
either [defendant’s] in-house or outside counsel actually possessed any intent to delay or
disrupt the litigation in failing to investigate [defendant’s] corporate citizenship sooner.”

Atkins, No. 1:18-cv-1112, 2019 WL 1793137, at *7. The Virginia district court stated that
although in-house counsel’s failure to conduct any investigation into the citizenship of its
15
own companies before answering an interrogatory about the citizenship gave the court
“pause and concern,” the court could not “assume from the record . . . that Defendant
had an improper motive in responding as it did.” Id. The court also noted that defendant

was “not affirmatively representing or confirming that the [c]ourt had jurisdiction.” Id.
Unlike the defendant in Atkins, Oxford Mall itself invoked diversity jurisdiction
when it filed a counterclaim (doc. 9) and then an amended counterclaim (doc. 28). And,
as explained above, the e-mails about the jurisdictional issue strongly suggest that Oxford
Mall had an improper motive and sought to delay the litigation.

Unlike these other cases, Oxford Mall delayed at least 15 months from the time it
knew about the diversity-destroying member until it notified the court of its lack of
jurisdiction. And during that time, the court ruled on the parties’ motions for summary
judgment (doc. 88) and Oxford Mall’s motion for reconsideration (doc. 99); Oxford Mall
got J.C. Penney to agree to waive Bankruptcy Court jurisdiction (doc. 85-1); and the

parties participated in an unsuccessful mediation. Oxford Mall’s delay in disclosing lack
of diversity jurisdiction caused J.C. Penney to expend unnecessary time and effort and
incur unnecessary expenses—all of which could have been avoided if Oxford Mall had
timely revealed the lack of diversity jurisdiction.
E. Conclusion

For the reasons discussed at both the hearing and in this memorandum opinion, the
court finds that it is highly probable that Oxford Mall acted in bad faith by withholding
16
information related to the jurisdictional question from both J.C. Penney and this court.
The evidence shows that Oxford Mall’s general counsel understood the requirements of
diversity jurisdiction, understood what was at stake if the court lacked diversity
jurisdiction, knew as of January 2020 that a member down the line in Oxford Mall’s
ownership chain was a resident of Delaware, and failed to inform this court or J.C.
Penney of that information until April 2021. Thus, the court GRANTS IN PART J.C.
Penney’s motion for relief (doc. 120) and will issue bad-faith sanctions against Oxford
Mall under its inherent powers.
The court finds it appropriate for Oxford Mall to pay J.C. Penney’s attorney’s fees
and expenses from March 5, 2020—the date that Oxford Mall filed a motion to dismiss
for lack of subject matter jurisdiction in the Hibbett case. But before the court awards a
dollar amount to J.C. Penney, the court will provide Oxford Mall an opportunity to brief
the issue of the reasonableness of J.C. Penney’s legal fees. The court asks J.C. Penney to
submit an updated affidavit outlining its fees and expenses from March 5, 2020 to the
current date on or before August 12, 2021. Oxford Mall must submit a brief on the
reasonableness of the fees by August 19, 2021.
DONE and ORDERED this 5th day of August, 2021.
Aire Lo wt
KARONOWENBOWDRE
UNITED STATES DISTRICT JUDGE
17

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9990467. Public record. Not legal advice.