                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


 JERVON HERBIN,

                Plaintiff,

        v.                                                 Civil Action No. 17-1136 (RDM)

 SHAWNITA WILKINS SEAU,

                Defendant.


                             MEMORANDUM OPINION AND ORDER

       This matter is before the Court on Plaintiff Jervon Herbin’s motions for default judgment.

Dkt. 15; Dkt. 18. Because Herbin has not met his burden of establishing subject matter

jurisdiction and has not made a prima facie showing of personal jurisdiction, the Court will

DENY both motions for default judgment without prejudice. The Court will further require that

Herbin file additional evidence regarding jurisdiction, liability, and damages.

                                       I. BACKGROUND

       This case arises from a putative business dispute between Plaintiff Jervon Herbin and

Defendant Shawnita Wilkins Seau. During the relevant events, Herbin was incarcerated in

Virginia, where he remains today. See Dkt. 1 at 1. According to Herbin, he developed an idea

for “a dating/social networking website” that would “target[] [b]lack consumers.” Id. at 3–4

(Compl. ¶ 5). He decided to go into business with Seau, “a former college classmate,” id. at 3–4

(Compl. ¶¶ 4–5), with whom Herbin had “reconnect[ed] after . . . a 17[-]year hiatus in their . . .

friendship,” id. at 7–8 (Compl. ¶ 12). They “entered into a [p]artnership agreement,” and Herbin

gave Seau a “copy of [his] business plan.” Id. (Compl. ¶ 5). Although the two friends worked

well together at first, Herbin eventually grew dissatisfied with what he perceived to be Seau’s
lack of follow-through. Id. (Compl. ¶ 5). He alleges that she “failed to meet her partnership

obligations [by] failing to execute the task[s] needed to bring the business to fruition.” Id.

(Compl. ¶ 5). In particular, Herbin asserts, Seau did not register a domain name for the website,

skipped a workshop at the D.C. “Bar Entrepreneurship Pro Bono Program,” and failed to email

potential investors. Id. (Compl. ¶ 5); see id. at 5–6 (Compl. ¶¶ 8–11). Disillusioned, Herbin

asked Seau “to return his business plan,” warned her not to “steal” his idea, and “informed her

. . . that the partnership was to be dissolved.” Id. at 3–4, 7–8 (Compl. ¶¶ 5, 12). Although Seau

agreed to return the document and said she would not compete with him, she allegedly has not

returned Herbin’s business plan to him despite multiple requests. Id. at 7–8 (Compl. ¶ 12).

Herbin alleges that, as a result, he has missed out on “professional assistance in launching the

business,” including “assistance from potential investors.” Id. at 3–4 (Compl. ¶ 5).

       Herbin, proceeding pro se, filed this diversity action against Seau. Dkt. 1. He asserts a

variety of contract and tort claims based on her alleged “fail[ure] to honor the partnership

agreement” as well as unspecified intellectual property claims stemming from her “refusal to

return [his] business plan.” Id. at 9–10 (Compl. ¶¶ 14, 17). He seeks compensatory damages in

the amount of $152 million as well as punitive damages. Id. at 11–12 (Compl. Prayer).

       Seau was served on July 24, 2017, Dkt. 11 at 3, and has failed to respond to the

complaint. Herbin moved for a default judgment on December 4, 2017, before the Clerk of the

Court had entered a default. Dkt. 15. Three days later, the Clerk entered the default. Dkt. 14.

Herbin renewed his motion for default judgment on March 27, 2018. Dkt. 18.

                                    II. LEGAL STANDARD

       Federal Rule of Civil Procedure 55 governs the entry of a default judgment. See Fed. R.

Civ. P. 55. If a defendant “has failed to plead or otherwise defend” against the action, the



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plaintiff may “apply to the [C]ourt for a default judgment.” Id. Entry of a default judgment,

however, “is not automatic.” Mwani v. bin Laden, 417 F.3d 1, 6 (D.C. Cir. 2005). In particular,

“the procedural posture of a default does not relieve a federal court of its ‘affirmative obligation’

to determine whether it has subject matter jurisdiction over the action.” Cohen v. Islamic

Republic of Iran, 238 F. Supp. 3d 71, 79 (D.D.C. 2017) (quoting James Madison Ltd. v. Ludwig,

82 F.3d 1085, 1092 (D.C. Cir. 1996)). In addition, the Court “should satisfy itself that it has

personal jurisdiction before entering judgment against an absent defendant.” Mwani, 417 F.3d at

6. In the absence of an evidentiary hearing on personal jurisdiction, the plaintiff can satisfy his

“burden of proving personal jurisdiction . . . with a prima facie showing” based on the

“pleadings, bolstered by . . . affidavits and other written materials.” Id. at 7 (emphasis omitted)

(citing Edmond v. U.S. Postal Serv. Gen. Counsel, 949 F.2d 415, 424 (D.C. Cir. 1991)). The

plaintiff “has the burden of establishing both subject matter jurisdiction over the claim[] and

personal jurisdiction over the defendant[].” Friends of Mayanot Inst., Inc. v. Islamic Republic of

Iran, --- F. Supp. 3d ---, 2018 WL 2023498, at *3 (D.D.C. May 1, 2018) (quoting Thuneibat v.

Syrian Arab Republic, 167 F. Supp. 3d 22, 33 (D.D.C. 2016)).

       A complaint that is “filed pro se is ‘to be liberally construed,’” and, “however inartfully

pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106

(1976)). A pro se plaintiff, however, still “bears the burden of establishing that the Court has

subject matter jurisdiction.” Bickford v. United States, 808 F. Supp. 2d 175, 179 (D.D.C. 2011)

(internal quotation marks and citations omitted); see Kokkonen v. Guardian Life Ins. Co. of Am.,

511 U.S. 375, 377 (1994). To determine whether it has jurisdiction, the Court may “consider the

complaint supplemented by undisputed facts evidenced in the record.” Coal. for Underground



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Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (quoting Herbert v. Nat’l Acad. of

Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)). If the complaint “fails facially to plead facts

sufficient to establish” subject matter jurisdiction, the Court may dismiss the complaint.

Achagzai v. Broad. Bd. of Governors, 170 F. Supp. 3d 164, 173 (D.D.C. 2016).

                                           III. ANALYSIS

A.      Subject Matter Jurisdiction

        Before reaching the merits of Herbin’s motions for entry of a default judgment, the Court

must satisfy itself that it has Article III jurisdiction. See Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83, 94–95 (1998). Because Herbin has not established that the Court has subject matter

jurisdiction, the Court will deny the motions without prejudice.

        Herbin has invoked the Court’s diversity jurisdiction under 28 U.S.C. § 1332. See Dkt. 1

at 1 (Compl.). “Federal diversity jurisdiction exists only in cases in which no plaintiff is a

citizen of the same state as any defendant.” McKee v. U.S. Dep’t of Justice, 253 F. Supp. 3d 78,

82 (D.D.C. 2017). For purposes of assessing diversity jurisdiction, an individual is a citizen of

the state in which she is domiciled. See Prakash v. Am. Univ., 727 F.2d 1174, 1180 (D.C. Cir.

1984). Domicile requires “physical presence in a state” as well as the “intent to remain there for

an unspecified or indefinite period of time.” Id. If there are “any litigants from the same state on

opposing sides,” then diversity jurisdiction is “lacking.” Saadeh v. Farouki, 107 F.3d 52, 55

(D.C. Cir. 1997) (citation and internal quotation marks omitted). Although Herbin is

incarcerated in Virginia, he asserts that he is “a citizen and resident of the District of Columbia.”

Dkt. 1 at 1 (Compl.). The Court, accordingly, lacks jurisdiction if Seau resides in the District as

well.

        On this score, the record is mixed. According to the complaint, Herbin “is not exactly

sure of where” Seau “resides” because “there is some discrepancy as to her exact address.” Dkt.
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1 at 3 (Compl. ¶ 4). She allegedly provided Herbin with “two different addresses” located in

Stafford, Virginia, and “also occasionally resides at her brother’s house in Alexandria, Virginia.”

Id. (Compl. ¶ 4). Further confusing matters, Seau allegedly informed Herbin that she “use[s] . . .

other relative[s’] address(es)” in the District of Columbia “as her place of residence.” Id.

(Compl. ¶ 4). In subsequent filings, Herbin has continued to express uncertainty as to Seau’s

place of residence. See Dkt. 2 at 1 (“There is [a] discrepancy as to [Seau’s] residential address

. . . and the only other address [Herbin] has . . . is a work address in Alexandria, Virginia.”); Dkt.

8 at 3 (noting that Seau “list[s] several addresses in different jurisdictions as her place of

residence”).

       The return of service affidavit, moreover, does not shed any additional light on Seau’s

domicile. Because Herbin is proceeding in forma pauperis, the U.S. Marshals Service effected

service. To do so, the Marshals Service looked to the addresses that Herbin provided for Seau in

his complaint. The Marshals Service reported that Seau was served at the first of those

addresses, but that it was her workplace in Alexandria, Virginia. Dkt. 11 at 1–2. The Marshals

Service further reported that the second address—the Stafford, Virginia address—was Seau’s

“old house.” Id. at 1. Beyond providing these addresses—neither of which establishes Seau’s

domicile—Herbin has not provided any evidence that Seau is a citizen of Virginia.

       In sum, it is unclear whether Seau is domiciled in Virginia, which would allow this case

to proceed under the Court’s diversity jurisdiction, or, alternatively, whether she lives in the

District of Columbia, which would preclude this Court from considering the merits. The burden

of establishing the Court’s jurisdiction rests with Herbin, and he has not done so. As a result, the

Court cannot consider Herbin’s motions for the entry of a default judgment. Moreover, in order

to permit the Court to decide whether this case is properly before it, the Court will order Herbin



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to submit evidence regarding Seau’s domicile. If Herbin is not able to meet his burden of

establishing the Court’s subject matter jurisdiction, the Court will dismiss this action without

prejudice.

B.     Personal Jurisdiction

       In addition to establishing subject matter jurisdiction, to obtain a default judgment Herbin

must make a prima facie showing that the Court has personal jurisdiction over Seau. The Court

may exercise personal jurisdiction over a non-resident with respect to a claim that arises from the

person’s

       (1)     transacting any business in the District of Columbia;
       (2)     contracting to supply services in the District of Columbia;
       (3)     causing tortious injury in the District of Columbia by an act or omission in
               the District of Columbia; [or]
       (4)     causing tortious injury in the District of Columbia by an act or omission
               outside the District of Columbia if he regularly does or solicits business,
               engages in any other persistent course of conduct, or derives substantial
               revenue from goods used or consumed, or services rendered, in the District
               of Columbia . . . .
D.C. Code § 13–423. Assuming that Seau is not domiciled in the District of Columbia, it is

unclear from Herbin’s complaint and other filings that she is subject to personal jurisdiction in

the District of Columbia. Herbin was incarcerated in Virginia during the relevant events, see

Dkt. 1 at 1, and Seau’s whereabouts during the formation and dissolution of the alleged

partnership cannot be discerned from the filings. The only (sparse) link to the District of

Columbia appears to be Herbin’s allegation that Seau failed to attend a workshop “at the DC Bar

. . . in the District of Columbia.” Id. at 5 (Compl. ¶ 9). Herbin, accordingly, has not made a

prima facie showing of personal jurisdiction, which provides an additional basis for denying his

motions for default judgment. The Court will allow Herbin to provide additional allegations and

evidence regarding personal jurisdiction.



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C.     Other Matters

       Even if Herbin can establish that the Court has both subject matter jurisdiction and

personal jurisdiction, he is not automatically entitled to a default judgment. Rather, the

“determination of whether default judgment is appropriate is committed to the discretion of the

trial court.” CapitalKeys, LLC v. Democratic Republic of Congo, 278 F. Supp. 3d 265, 284

(D.D.C. 2017) (quoting Int’l Painters & Allied Trades Indus. Pension Fund v. Auxier Drywall,

LLC, 531 F. Supp. 2d 56, 57 (D.D.C. 2008)). Although the “defaulting defendant is deemed to

admit every well-pleaded allegation in the complaint,” Fanning v. Hotel Mgmt. Advisors–Troy,

LLC, 282 F.R.D. 280, 283 (D.D.C. 2002) (citation omitted), failure to answer or to move to

dismiss is “not an absolute confession” of liability, Jackson v. Corr. Corp. of Am., 564 F. Supp.

2d 22, 26–27 (D.D.C. 2008). The Court may, in its discretion, “require some proof of the facts

that must be established in order to determine liability.” 10A Charles Alan Wright et al., Federal

Practice & Procedure § 2688.1 (4th ed.). If liability is established, moreover, the Court must

make a further “independent determination” of damages. Robinson v. Ergo Solutions, LLC, 4 F.

Supp. 3d 171, 178 (D.D.C. 2014) (citation and internal quotation marks omitted). In assessing

damages, the court “may conduct hearings” to calculate the appropriate award, “establish the

truth of any allegation by evidence,” or “investigate any other matter.” Fed. R. Civ. P. 55(b)(2);

see CapitalKeys, 278 F. Supp. 3d at 285.

       Given the nature of the claims against Seau, the size of the award that Herbin has

requested, the fact that he has not provided any evidence in support of his claims, and serious

questions about whether a binding contractual relationship was ever formed and, if so, what the

terms of that agreement were, the Court will require an evidentiary submission on both liability

and damages in the event that Herbin is able to establish the Court’s subject matter jurisdiction

and personal jurisdiction.
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                                          CONCLUSION

       For the foregoing reasons, it is hereby ORDERED that Plaintiff’s motions for default

judgment, Dkt. 15; Dkt. 18, are DENIED without prejudice; and it is further

       ORDERED that Plaintiff shall, on or before September 14, 2018, (1) show cause why

this case should not be dismissed for lack of subject matter jurisdiction and (2) submit evidence

regarding subject matter jurisdiction, personal jurisdiction, and, if appropriate, liability and

damages; and it is further

       ORDERED that the United States Marshals Service shall serve a copy of this

memorandum opinion and order on Defendant.

       SO ORDERED.



                                                       /s/ Randolph D. Moss
                                                       RANDOLPH D. MOSS
                                                       United States District Judge

Date: July 11, 2018




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