                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

____________________________________
                                    )
SHAHEDA RIZVI,                      )
                                    )
            Plaintiff,              )
                                    )
      v.                            )                Civil Action No. 08-2011 (RMC)
                                    )
RICHARD P. McCLURE,                 )
                                    )
            Defendant.              )
____________________________________)

                                 MEMORANDUM OPINION

               Shaheda Rizvi brought this suit against Richard McClure, alleging that her due

process rights were violated when a Massachusetts county court rendered default judgment against

her. In that suit, the plaintiff who brought suit against Ms. Rizvi was represented by Mr. McClure.

Because this case is barred by res judicata, this Court lacks jurisdiction and the case will be

dismissed.

                                            I. FACTS

               This suit arises from a default judgment rendered against Ms. Rizvi in Massachusetts.

See Pl.’s Mot. for J. on Pleadings [Dkt. # 6], addendum 6, default judgment in NRT New England,

Inc. v. Shaheda Rizvi, Civ. No. 06-2253 (Mass. Superior Ct., Middlesex Cty., June 25, 2007). In that

case, NRT New England, Inc. d/b/a/ Coldwell Banker Residential Brokerage brought suit against Ms.

Rizvi alleging breach of an exclusive right-to-sell brokerage agreement on her property in Groton,

Massachusetts. The Massachusetts Superior Court entered a default judgment in the amount of

$5,309 plus interest, to cover attorney’s fees and costs as provided by the contract. Id. In support

of the request for default judgment, NRT’s counsel, Richard McClure, filed an affidavit of attorney
fees. Pl.’s Mot. for J. on Pleadings [Dkt. # 6], addendum 5. See Mass. Rules of Civ. P. 55(a) (a

party who has failed to plead or otherwise defend may be defaulted).

               Ms. Rizvi filed an appeal to the Commonwealth of Massachusetts Appeals Court, and

the Appeals Court affirmed the entry of default judgment. See NRT New England, Inc. v. Shaheda

Rizvi, Case No. 07-P-1479, Mass. App. Ct. (Mem. Op. & Order filed Nov. 10, 2008) (attached to

Def.’s Mot. to Dismiss). On appeal, Ms. Rizvi complained that the default was in error because she

had defended the breach of contract claim, as evidenced by her objections to a motion for attachment

of real estate and by an unfiled counterclaim. The Massachusetts Appeals Court reviewed Ms.

Rizvi’s objections to the attachment and found that Ms. Rizvi “filed no formal answer or pleading.

Rather, she filed a series of documents that neither constituted an answer to the complaint nor

amounted to a coherent defense of the suit filed against her.” Id. at 2. She admitted in an affidavit

that she signed the exclusive right-to-sell agreement at issue in the case, and then merely alleged

countercharges: that NRT failed to bring offers or viewers to her property, that NRT was engaged

in harassing her, and that NRT should be liable for malicious lies and misrepresentation of character.

Id. at 4. The Appeals Court found:

               It does not appear here that [Ms. Rizvi] “otherwise defended” — at
               least in any coherent or recognizable sense. She essentially admitted
               many of the key averments in the complaint, only then digressing into
               other matters and complaints. She asserted no recognizable
               affirmative defenses, and her unfiled counterclaim more or less
               amounts to a record of gripes and unsupported claims. . . . We see no
               abuse of discretion by the motion judge in entering a default judgment
               ....

Id. at 6.

               Ms. Rizvi filed an amended complaint in this Court, challenging the same default



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judgment and alleging that her due process rights were violated. See Am. Compl. [Dkt. # 2]. Mr.

McClure moves to dismiss based on res judicata. Ms. Rizvi objects to dismissal and seeks judgment

on the pleadings.

                                     II. LEGAL STANDARDS

                Under the doctrine of res judicata, also known as claim preclusion, “a judgment on the

merits in a prior suit bars a second suit involving identical parties or their privies based on the same

cause of action.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327 n.5 (1979); Apotex Inc. v. FDA,

393 F.3d 210, 217 (D.C. Cir. 2004). “Res judicata plays a central role in advancing the ‘purpose for

which civil courts have been established, the conclusive resolution of disputes within their

jurisdictions.’” Id. (quoting Montana v. United States, 440 U.S. 147, 153 (1979)). “To preclude parties

from contesting matters that they have had a full and fair opportunity to litigate protects their

adversaries from the expense and vexation attending multiple lawsuits, conserves judicial resources,

and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions.”

Montana, 440 U.S. at 153-54. In short, the doctrine embodies the principle “that a party who once has

had a chance to litigate a claim before an appropriate tribunal usually ought not to have another chance

to do so.” SBC Comms. Inc. v. FCC, 407 F.3d 1223, 1229 (D.C. Cir. 2005) (quoting the Restatement

(Second) of Judgments ch. 1 at 6 (1982) (emphasis added)).

                The four res judicata elements traditionally applied by this Court are: (1) an identity

of parties; (2) a judgment from a court of competent jurisdiction; (3) a final judgment on the merits; and

(4) an identity of the cause of action. See, e.g., Am. Forest Res. Council v. Shea, 172 F. Supp. 2d 24,

29 (D.D.C. 2001); see also U.S. Indus., Inc. v. Blake Const. Co., Inc., 765 F.2d 195, 205 (D.C. Cir.

1985). Courts find that there is “an identity of the causes of action” where the cases are based on the

“same nucleus of facts.” Page v. United States, 729 F.2d 818, 820 (D.C. Cir. 1984).

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                The defense of res judicata is jurisdictional in character. Stanton v. Dist. of Columbia

Ct. of Appeals, 127 F.3d 72, 77 (D.C. Cir. 1997). Thus, a motion for dismissal based on res judicata

properly falls under Federal Rule of Civil Procedure 12(b)(1). On a motion to dismiss for lack of

subject matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing

that the court has subject matter jurisdiction. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.

1999); Rasul v. Bush, 215 F. Supp. 2d 55, 61 (D.D.C. 2002) (citing McNutt v. Gen. Motors

Acceptance Corp., 298 U.S. 178, 182-83 (1936)). To determine whether it has jurisdiction over a

claim, a court may consider materials outside the pleadings. Herbert v. Nat’l Acad. of Scis., 974 F.2d

192, 197 (D.C. Cir. 1992).

                                           III. ANALYSIS

                In this case, Ms. Rizvi has failed to establish that the Court has jurisdiction.

Jurisdiction is lacking because the suit is barred by res judicata. This suit, alleging that the attorney

who represented the plaintiff in the Massachusetts case interfered with Ms. Rizvi’s right of due

process, fails because a final default judgment was rendered by the Middlesex County Court. Ms.

Rizvi appealed, alleging denial of due process, and the Massachusetts Appeals Court affirmed the

default judgment. The Appeals Court noted that Ms. Rizvi admitted that she signed the exclusive

right-to-sell agreement at issue, and she failed to answer or otherwise defend the breach of contract

suit against her. NRT New England, Civ. No. 06-2253 at *2 & 4. Ms. Rizvi already has had a full

and fair opportunity to litigate this matter, and she “ought not to have another chance to do so.” SBC

Comms., 407 F.3d at 1229 .

                                        IV. CONCLUSION

                For the reasons set forth above, Mr. McClure’s motion to dismiss will be granted


                                                  -4-
[Dkt. # 8], and Ms. Rizvi’s motion for judgment on the pleadings [Dkt. # 6] will be denied. All

other pending motions will be denied as moot.       A memorializing order accompanies this

Memorandum Opinion.




Date: February 17, 2009                                          /s/
                                               ROSEMARY M. COLLYER
                                               United States District Judge




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