The opinion of the court was delivered by: OBERDORFER
An Order filed August 22, 1997 stated that "unless defendant Lionel Alain Dupuis files an opposition to the Motion to Reinstate Complaint on or before September 1, 1997, the Motion will be treated as conceded and default will be reinstated." This Memorandum explains that Order and the reasons it must now be vacated.
Should the Lessee by reason of his official duties be transferred from the District of Columbia, and/or the Washington area by order of the Canadian Government or cease to be an employee of the Canadian Foreign Service and/or of the Government of Canada, this Lease shall be terminated on a rent date upon giving sixty (60) days advance notice to the Lessor in writing.
The Diplomatic Clause is contained in a special addendum to the lease entitled: "Addendum to the Lease Agreement Signed By Brian Logan, Landlord and Lessor, and Lionel Alain Dupuis, Alternate Representative of Canada At the Organization of American States, Washington, D.C., Lessee and Tenant, Signed at the Embassy on November 28, 1994."
According to the complaint, Dupuis notified Logan on January 26, 1994 that he planned to vacate the property by March 31, 1996, pursuant to the Diplomatic Clause of the lease. However, Logan now alleges that Dupuis was not in fact transferred from the Washington, D.C. area, a prerequisite for invoking the Diplomatic Clause, nor did he meet other requirements for early termination of the lease. Logan also alleges that Dupuis violated other miscellaneous provisions of the lease.
This would be a garden-variety breach of contract case, but for the diplomatic status of Dupuis, which potentially shields him from the personal jurisdiction of this Court.
The question of diplomatic immunity has raised both procedural and substantive complications in this case. With respect to procedure, Dupuis was duly served with the complaint on May 14, 1997, but has not filed an answer or other pleading, and apparently has no intention of doing so.
On June 4, 1997, a three-page document was filed with the Court by unknown persons, which contained a certification from the Assistant Chief of Protocol of the Department of State that (1) defendant Dupuis is a diplomatic agent entitled to the privileges and immunities set forth in the Vienna Convention on Diplomatic Relations, 23 U.S.T. 3227; T.I.A.S. 7502; 500 U.N.T.S. 95, and (2) the government of Canada does not intend to waive any immunity enjoyed by Dupuis. However, such document was apparently never served upon the plaintiff, see Pl's Mot. to Reinstate at 1, who, in accordance with Rule 55 of the Federal Rules of Civil Procedure, filed an affidavit in support of default on June 19, 1997. Default was entered by the Clerk of the Court that day, and on June 27, 1997, plaintiff moved for default judgment.
A Memorandum & Order of July 11, 1997 noted that Dupuis had asserted diplomatic immunity on June 4, 1997, and that plaintiff's motion provided no reason why such immunity did not obtain under the Vienna Convention; accordingly, the motion for entry of default judgment was denied, and the complaint was dismissed without prejudice. On July 25, 1997, however, plaintiff Logan filed a motion to reinstate the complaint, stating that he had been unaware of the defendant's assertion of immunity, and arguing on several grounds that the defendant's diplomatic status does not confer immunity in the context of this lawsuit.
Shortly thereafter, on August 7, 1997, the Court (and the plaintiff) received a letter from the Office of the Legal Adviser at the Department of State, to which was attached a second certification of immunity from the Assistant Chief of Protocol. The certification, like that filed on June 4, 1997, stated that Dupuis is a diplomatic agent who is accorded "privileges and immunities as provided in the Vienna Convention on Diplomatic Relations." The certification included, inter alia, an excerpt of Article 31 of the Convention, which provides that:
1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
(a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending ...