OLVEIN VELEZ v. JORGE BETANCUR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3588-04T23588-04T2

OLVEIN VELEZ,

Plaintiff-Respondent,

v.

JORGE BETANCUR,

Defendant-Appellant.

 
 

Submitted October 19, 2005 - Decided

Before Judges Weissbard, Winkelstein and Francis.

On appeal from the Superior Court of New

Jersey, Law Division, Hudson County, LT-12751-04.

Ferrara & Hantman, attorneys for appellant

(Robert J. Hantman, on the brief).

Respondent did not file a brief.

PER CURIAM

Defendant Jorge Betancur appeals the interlocutory order of the Special Civil Part denying his motion to dismiss the complaint filed by plaintiff Olvein Velez. We granted defendant's motion for leave to appeal.

Plaintiff and defendant are, respectively, landlord and tenant under a one-year lease of an apartment in Union City which began on February 12, 2003. Defendant lives in the apartment with his wife and son. Defendant works as First Secretary at the Permanent Mission of Colombia to the United Nations in New York City, a position he has held since March 26, 2003. Defendant has an A1 diplomatic visa and a diplomatic passport, as well as an assigned diplomatic identification number.

During the winter of 2003, defendant complained to plaintiff about the lack of adequate heat in the apartment, which he claimed caused his one-year-old son to become seriously ill. After plaintiff ignored his complaint, defendant reported the lack of heat to the "police inspector," who verified that the apartment's temperature was sixty-seven degrees and informed plaintiff that he should increase the heat. When plaintiff did not comply, another tenant in the building reported the situation to the Office of Rent Control of Union City ("Rent Control"). Although defendant's neighbor provided plaintiff with a copy of a Rent Control document addressing the minimal temperature for a rental apartment, plaintiff allegedly continued to shut off the heat at night and turn it back on in the morning. Several days later, defendant again reported the situation to the inspector who checked the apartment and spoke with plaintiff about the lack of heat. Afterwards, plaintiff threatened to turn the heat "very high." Three days later, defendant spoke with plaintiff about excessive heat in his apartment.

On January 21, 2004, plaintiff sent defendant a "Notice to Quit with Notice of Rent Increase," offering a new tenancy with a five-percent increase in the base rent ("as per lease") to a total of $1050 monthly, plus an increase of $9.53 for a "[s]ewerage pass-along" and $14.80 for a "net tax surcharge." The new lease also changed the payment deadline from the first five days of the month to the first day of the month.

Defendant showed the new lease to Rent Control, which advised that plaintiff could raise the rent by five-percent, but could not charge for the two additional items. Defendant then informed plaintiff that he would pay the five-percent increase in the rent, but not the additional charges. The record does not contain a copy of the new lease or any evidence that defendant signed it.

Defendant apparently paid the rent minus the additional charges through May 2004. Although plaintiff apparently cashed defendant's checks through May, he advised defendant by letter dated May 10, 2004, that he would evict him if he did not receive the full rental amount.

On Saturday, May 16, 2004, a cousin of defendant's wife visited with defendant and his family and stayed until the following Monday, when plaintiff told defendant's wife that they could not have visitors without his prior permission. On May 20, 2004, plaintiff sent a notice to cease pursuant to N.J.S.A. 2A:18-61.1, advising defendant that he would be evicted unless he ceased allowing additional people to live at the apartment without his permission or authorization. In June and July 2004, two different relatives from Colombia visited defendant.

Defendant paid the rent for June 2004. In a notice to quit, dated June 22, 2004, plaintiff informed defendant that he had violated the original agreement by allowing additional people to live at the premises without plaintiff's permission or authorization, and therefore, the lease would terminate as of August 1, 2004. On June 25, 2004, defendant advised plaintiff that family members visited from Colombia for a period no longer than three weeks.

Defendant paid the rent for July 2004, but plaintiff returned the check. On July 30, 2004, after defendant's attorney sent a letter to plaintiff's attorney seeking a "reasonable solution" to the situation, plaintiff filed the complaint seeking to evict defendant.

Defendant moved to dismiss the complaint based on diplomatic immunity. In an oral decision, the trial judge determined that the court had jurisdiction over the matter. Relying primarily on the briefs and allowing very limited oral argument, the judge found that plaintiff's brief was "more compelling" based, in part, on his belief that there was no law granting diplomatic immunity in an action to evict under the circumstances set forth in plaintiff's complaint. The judge, however, granted defendant leave to file an interlocutory appeal on the threshold issue of jurisdiction "in its traditional sense," i.e., as it relates to the question of whether the court has the right to take testimony ab initio.

On appeal defendant argues:

POINT I

IN APPLYING THE WRONG LAW IN DECIDING THE ISSUE OF DEFENDANT'S IMMUNITY TO SUIT, THE TRIAL COURT PURPORTED TO EXERCISE JURISDICTION IT DOES NOT HAVE UNDER THE CONSTITUTION AND LAWS OF THE UNITED STATES AND ESTABLISHED PRECEPTS OF INTERNATIONAL LAW.

a. The Trial Court Incorrectly Applied To Betancur The Law Applicable To "Consular Employees"

b. The Pending Landlord-Tenant Action Does Not Come Within The Exception To The Diplomatic Convention

POINT II

UNDER THE CONSTITUTION, THE FEDERAL COURTS HAVE EXCLUSIVE SUBJECT MATTER JURISDICTION OVER MATTERS INVOLVING THE REPRESENTATIVES OF FOREIGN NATIONS SUCH AS BETANCUR.

Because subject matter jurisdiction implicates a matter of law, it is subject to de novo review. Lawson Mardon Wheaton, Inc. v. Smith, 160 N.J. 383, 398 (1999); Slater v. Biehl, 793 A.2d 1268, 1271 (D.C. 2002). Subject matter jurisdiction presents a threshold question as to whether the court is legally authorized to decide the question presented. Gilbert v. Gladden, 87 N.J. 275, 280-81 (1981); Carroll v. United Airlines, Inc., 325 N.J. Super. 353, 357 (App. Div. 1999). "It concerns the forum or venue in which such jurisdiction is established by statute or rule." Carroll, supra, 325 N.J. Super. at 357. If the court lacks subject matter jurisdiction, then consideration of the cause is "wholly and immediately foreclosed." Gilbert, supra, 87 N.J. at 281 (quoting Baker v. Carr, 369 U.S. 186, 198, 82 S. Ct. 691, 699, 7 L. Ed. 2d 663, 674 (1962)).

The primary goal in any matter requiring interpretation of a statute is to discern and implement legislative intent. State v. Reiner, 180 N.J. 307, 311 (2004). The first step in the analysis is to consider the statutory language because the clearest indication of a statute's meaning is its plain language. Camden v. S. Jersey Port Corp., 312 N.J. Super. 387, 396 (App. Div.), certif. denied, 157 N.J. 542 (1998) (citing Nat'l Waste Recycling, Inc. v. Middlesex County Improvement Auth., 150 N.J. 209, 223 (1997)). "If the meaning of the text is clear and unambiguous on its face, we enforce that meaning." Reiner, supra, 180 N.J. at 311 (citing State v. Brannon, 178 N.J. 500, 505-06 (2004)).

The statute at issue, 28 U.S.C.A. 1351, provides as follows:

The district courts shall have original jurisdiction, exclusive of the courts of the States, of all civil actions and proceedings against --

(1) consuls or vice consuls of foreign states; or

(2) members of a mission or members of their families (as such terms are defined in section 2 of the Diplomatic Relations Act).

The Diplomatic Relations Act defines the term "members of a mission" to mean:

(A) the head of a mission and those members of a mission who are members of the diplomatic staff or who, pursuant to law, are granted equivalent privileges and immunities,

(B) members of the administrative and technical staff of a mission, and

(C) members of the service staff of a mission.

[22 U.S.C.A. 254a.]

The plain language of 28 U.S.C.A. 1351 is clear and unambiguous. It expressly confers original jurisdiction to the federal courts, "exclusive of the courts of the States," over certain civil cases, including civil cases brought against members of the diplomatic staff of a diplomatic mission. 28 U.S.C.A. 1351(2). Thus, "[t]he supremacy of federal law dictates that the Superior Court is without subject matter jurisdiction over civil claims covered by 28 U.S.C. 1351." Slater, supra, 793 A.2d at 1272 (holding subject matter jurisdiction of civil suit against diplomat's wife was vested exclusively in federal district court under 28 U.S.C.A. 1351).

As noted, defendant works as First Secretary at the Permanent Mission of Colombia to the United Nations in New York City. Plaintiff does not contend otherwise given his failure to file a response in this appeal or to argue the issue of subject matter jurisdiction at the motion hearing. Because defendant is a member of the Colombian mission, jurisdiction is governed by 28 U.S.C.A. 1351, which gives original jurisdiction to United States courts over all actions against the mission's diplomatic staff.

Defendant's diplomatic status, however, first must be conclusively confirmed by the United States Department of State ("State Department"). See Lacks v. Sepahbodi, 356 N.Y.S.2d 949, 951-52 (N.Y. Sup. Ct. 1974) (holding 28 U.S.C.A. 1351 governed jurisdiction over subject matter where State Department conclusively confirmed Consul General's status); Arcaya v. Paez, 145 F. Supp. 464, 467 (S.D.N.Y. 1956) (State Department's determination as to defendant's diplomatic status and immunity was binding upon court), aff'd, 244 F.2d 958 (2d Cir. 1957).

Defendant also argues that the privileges and immunities given to representatives of the United Nations deprive all courts except the United States Supreme Court of jurisdiction of this suit against him. 28 U.S.C.A. 1251. That statute provides the following:

(a) The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States.

(b) The Supreme Court shall have original but not exclusive jurisdiction of:

(1) All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties;

(2) All controversies between the United States and a State;

(3) All actions or proceedings by a State against the citizens of another State or against aliens.

[28 U.S.C.A. 1251.]

That argument cannot prevail. There are no facts in the record showing defendant served as ambassador or public minister at the time of the lawsuit's initiation. Moreover, as defendant argued elsewhere in his brief, he did not serve as consul or vice consul of Colombia. Thus, defendant is not entitled to the privileges and immunities given to United Nations' representatives under 28 U.S.C.A. 1251.

Since we agree that the court lacked jurisdiction over the suit, we need not address defendant's alternative argument based on diplomatic immunity. We only note in that regard that the judge erred in applying the Vienna Convention on Consular Relations and Optional Protocol on Disputes, Apr. 24, 1963, 23 U.S.T. 3227. Defendant is not a consular officer. Id. at 21 U.S.T. 77, art. 1. Rather, defendant is a "diplomatic agent" entitled to diplomatic immunity under the Vienna Convention on Diplomatic Relations and Optional Protocol on Disputes, Apr. 18, 1961, 23 U.S.T. 3227.

Reversed and remanded with directions to dismiss the complaint subject to certification by the State Department as to defendant's diplomatic status. We do not retain jurisdiction.

 

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A-3588-04T2

November 10, 2005