Appeal from the Superior Court of the District of Columbia (CA-1311-98) (Hon. Joan Zeldon, Trial Judge)
Before Terry, Ruiz, and Washington, Associate Judges.
The opinion of the court was delivered by: Ruiz, Associate Judge
James Slater sued Gloria Biehl, the wife of the Ambassador from Chile to the United States, in the Superior Court of the District of Columbia for damages arising from an automobile collision alleged to have been caused by the negligence of Biehl. Biehl answered the complaint denying negligence, and later moved to dismiss for lack of jurisdiction. The trial court dismissed the case pursuant to 28 U.S.C. § 1351 (2) (1994 & Supp. IV 1998), which provides that federal "district courts shall have original jurisdiction, exclusive of the courts of the states, of all civil actions and proceedings against . . . members of a mission or members of their families." We hold that 28 U.S.C. § 1351 divests the Superior Court of subject matter jurisdiction, a fundamental defect which may not be waived by a litigant who files a general appearance in the Superior Court without first asserting the defense of lack of jurisdiction. Because the plain language of the statute, buttressed by long historical precedent, clearly directs that civil cases against ambassadors or their families must be brought exclusively in the federal district courts, we further hold that, upon the filing of a proper motion, an award of costs and attorneys' fees to appellee is appropriate under District of Columbia Appellate Rule 38 as "just compensation" for having to defend a frivolous appeal.
Slater and Biehl were involved in an automobile accident on February 21, 1995, in the District of Columbia. The automobile Biehl was driving bore diplomatic tags. On February 20, 1998, Slater filed the present civil suit in the Superior Court alleging negligence by Biehl. On March 20, 1998, Biehl filed an answer to Slater's complaint which denied each allegation in the complaint, but did not challenge the court's jurisdiction. On June 4, 1998, the Assistant Chief of Protocol of the United States Department of State issued a Certificate of Diplomatic Status regarding Biehl. Thereafter, on June 18, 1998, Biehl filed a motion to dismiss the case for lack of jurisdiction based on her diplomatic status, referring to the certificate from the State Department. After a hearing on the issue, the trial court dismissed the case for lack of subject matter jurisdiction pursuant to 28 U.S.C. § 1351. In a letter dated December 21, 1998, after the case had been dismissed by the Superior Court and Slater had noted his appeal to this court, Biehl's counsel notified Slater's counsel that Biehl would seek sanctions pursuant to District of Columbia Appellate Rule 38 if Slater continued to pursue what Biehl believed to be a frivolous appeal.
The central question in this case is whether 28 U.S.C. § 1351 refers to the subject matter jurisdiction of a state court *fn1 or merely to such court's personal jurisdiction over a diplomat. Slater argues that the statute concerns only personal jurisdiction and that Biehl waived the defense of lack of personal jurisdiction by failing to timely raise it in her first pleading. Because "[t]he issue of subject matter jurisdiction is a question of law," Bible Way Church of Our Lord Jesus Christ of the Apostolic Faith of Washington, D.C. v. Beards, 680 A.2d 419, 427 (D.C. 1996), our standard of review is de novo.
It is axiomatic that in order to act a court must have jurisdiction over both the person and the subject matter. Personal jurisdiction is not "fundamentally preliminary in the sense that subject-matter jurisdiction is, for [personal jurisdiction is a] personal privilege of the defendant, rather than [an] absolute stricture on the court." Leroy v. Great Western United Corp., 443 U.S. 173, 180 (1979). "Challenges to a court's subject matter jurisdiction cannot be waived," Arrington v. United States, 585 A.2d 1342, 1344 n.2 (D.C. 1991); Super. Ct. Civ. R. 12 (h) (3) ("Whenever it appears by suggestion of the parties or otherwise that the Court lacks jurisdiction of the subject matter, the Court shall dismiss the action."), whereas a failure to plead lack of personal jurisdiction by motion or responsive pleading results in waiver of the defense, see Super. Ct. Civ. R. 12 (h) (l) ("A defense of lack of jurisdiction over the person . . . is waived . . . (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course."). As a court of general jurisdiction, "`the Superior Court has jurisdiction of any civil action or other matter (at law or in equity) brought in the District of Columbia' unless jurisdiction is vested exclusively in a federal court." Begum v. Auvongazeb, 695 A.2d 112, 113 (D.C. 1997) (quoting D.C. Code § 11-921 (a) (2001)).
The statute at issue, 28 U.S.C. § 1351, provides that
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 [22 U.S.C. ...