Phillips v. Oosterbaan
| Citation | 508 F.Supp.3d 1103 |
| Decision Date | 18 December 2020 |
| Docket Number | Case No. 2:18-cv-508 |
| Parties | Warren PHILLIPS, Plaintiff, v. Alexander OOSTERBAAN, and Doe Occupants I through X, inclusive, Defendants. |
| Court | U.S. District Court — District of Utah |
Bastiaan K. Coebergh, Wrona Dubois PLLC, Park City, UT, for Plaintiff.
Robert T. Spjute, Shumway Van LLC, Salt Lake City, UT, for Defendants.
Alexander Oosterbaan ("Oosterbaan") moves to dismiss this action for lack of personal jurisdiction based on immunity under the Vienna Convention. Oosterbaan was on assignment from the Netherlands to work with the United States on a coordinated program involving F-16 aircraft at Hill Air Force Base. He was not classified as a diplomatic agent for the assignment, but he did have status as a technical or administrative staff member for the mission. Oosterbaan lived in Utah for part of his assignment and leased a house. When the house was sold to Warren Phillips ("Phillips"), subject to the lease, Phillips sought immediate entry to conduct repairs. Oosterbaan refused immediate entry due, in part, to confidential mission documents and computers kept at the home. Oosterbaan offered to allow entry at another time, with appropriate supervision, but the offer was not acceptable to Phillips. Accordingly, Phillips filed suit for breach of contract and unlawful detainer. Because the court concludes Oosterbaan acted in furtherance of his mission, and had diplomatic immunity, the court grants the motion to dismiss.
On May 6, 2016, Oosterbaan entered into a Lease Agreement with Daniel Howard ("Howard") to lease a house from July 1, 2016 through June 30, 2019 (the "Residence"). Lease Agmt., at 2 (ECF No. 2-1).1 In 2017, Howard decided to market the property. At about that same time, he and Oosterbaan renegotiated the lease terms to state that the lease would end on July 31, 2018 and Oosterbaan would have free rent from April 2018 through July 2018. Lease Cancellation & Termination Agmt., at 2 (ECF No. 2-2).
In April 2018, Phillips entered a contract to purchase the home from Howard. During his due diligence period, Phillips took pictures of water damaged areas and melting snow running off the house, and on May 1, 2018, he received an inspection report stating mold was present from potential ongoing water leaks. Phillips Aff'd, ¶ 11, 14 (ECF No. 8-2), Mold Rpt., at 11–13 (ECF No. 8-2); Pictures, 27–30 (ECF No. 8-2). Although Oosterbaan asked to be informed if mold was found, so he could have Howard make repairs, Oosterbaan was not told about it until June 1, 2018. Phillips Aff'd, ¶¶ 12, 15–16. Phillips also did not seek to have the water leaks and mold problem repaired before closing.
Instead, Phillips sought entry into the Residence on June 6, 2018, via a 24-hour notice of intent to enter.2 See Notice, at 2 (ECF No. 2-3). When Oosterbaan delayed entry, Phillips filed suit. Ultimately, repairs were made after Oosterbaan vacated the Residence on July 20, 2018. Phillips claims damages allegedly arising from that delay and for breach of contract.
Oosterbaan is "a citizen of the Kingdom of the Netherlands" and works for the "Ministry of Defense to the Embassy of the Kingdom of the Netherlands." Aff'd of Alexander Oosterbaan, ¶ 2 (ECF No. 5-1) (hereinafter "First Oosterbaan Aff'd"). He was in the United States as a project officer on a coordinated program with the United States and other nations involving the F-16 program. Id. ¶¶ 2–3. He had a "USA A2 Visa." Embassy Lttr., at 6 (ECF No. 5-1); Visa, at 36 (ECF No. 9-1). Additionally, the United States Department of State issued Oosterbaan an "Official Identification Card."3 The card stated Oosterbaan's mission was with the "Netherlands F-16 Program," it had a green border on it, and the back of the card stated Oosterbaan had "immunity from criminal jurisdiction ... and all appropriate steps shall be taken to prevent any attack on the bearer's person, freedom, or dignity. " Identification Card, 38–39 (ECF No. 9-1) (emphasis added).
The color of the border and the language on the back of the card show that Oosterbaan was classified as a technical or administrative staff member of the mission. See State Dep't Guide, at 25, 38 (ECF No. 8-5). Accordingly, he enjoyed the privileges and immunities afforded by Article 37 of the Vienna Convention on Diplomatic Relations (1961) during his time in the United States on the F-16 mission, second only in scope to the immunity afforded to diplomatic agents and officers.4 See id. at 15.
Oosterbaan's specific duty assignment was to work on "the F16 modernization software and hardware program, and hardware integration." Second Aff'd of Alexander Oosterbaan, ¶ 4.a. (ECF No. 9-1) (hereinafter "Second Oosterbaan Aff'd"). Mr. Oosterbaan contends he performed his duty functions both at Hill Air Force Base and at the Residence. Id. ¶¶ 3, 4; see also First Oosterbaan Aff'd, ¶ 12 (ECF No. 5-1). He provided a letter from the Embassy of the Kingdom of the Netherlands that states the Residence was one of Mr. Oosterbaan's duty stations. Embassy Lttr., at 6 (ECF No. 5-1). The letter has a seal on it, but the seal is not raised. Id.
Mr. Oosterbaan attests he "was the lead in F16 tablet cockpit integration," and kept "tablets related to that work" at the Residence. Second Oosterbaan Aff'd, ¶ 4.b (ECF No. 9-1). He also "maintained laptop computers and files containing" official documents, including "restricted, confidential, and ‘Dutch eyes only’ materials at the" Residence. Id. ¶ 4.c. He "helped perform acquisition and integration of new weapons for the F16 program," and his "own flight, tests and exam preparation related to the F16 program were done from [the Residence] on special computers located there." Id. ¶¶ 4.e, 4.f.
Oosterbaan contends he delayed access to the Residence in June 2018 for two reasons. He contends he did so pursuant to an agreement not to be disturbed in June and July 2018. See id. ¶¶ 7, 17. He also contends he did so in furtherance of his mission because he was out of town and "concerned about the confidential information that [he] maintained at the [home]." Id. ¶ 17. Because Phillips asserts Oosterbaan lied and fraudulently represented the facts and his status, the court states the facts more specifically below.
Oosterbaan's Lease Agreement states the landlord has a right of entry, with or without the tenant's presence, "[u]nless otherwise restricted by law." Lease Agmt., at 3 (ECF No. 2-1). It also states any modifications to the agreement had to be done "in writing [and] signed by all parties." Id. at 4.
On July 26, 2017, Oosterbaan notified Howard about a water leak that appeared to be coming from an upper floor. Email, at 22–23 (ECF No. 9-1). On August 16, 2017, Howard informed Oosterbaan there was a buyer interested in viewing the property, and said that his real estate agent, Dave Stokoe, would communicate with Oosterbaan to schedule a showing at a time convenient to the Oosterbaans. Email, at 20 (ECF No. 9-1). On August 25, 2017, Howard informed Oosterbaan that Stokoe also would coordinate a time for a contractor to fix the leak. Email, at 22 (ECF No. 9-1). Thus, Stokoe became Oosterbaan's contact for scheduling and repair matters.
In March 2018, Stokoe informed Oosterbaan that Howard planned to start marketing the property anew. Email, at 12 (ECF No. 9-1). Stokoe noted that he planned to set up the showing requests, and stated, "I imagine your preferece [sic] will be to be home during the showings and you would prefer to let the showing agent and buyers in." Id. at 11–12. In response, Oosterbaan asked that their quiet enjoyment not be compromised, and he set forth times when showings could occur. Id. at 11. Oosterbaan further asked that "June and beginning of July ... be reserved for our move & move preparation" because they would be packing. Id. Stokoe responded that they would "schedule showings around the guidelines [Oosterbaan] outlined." Id.
Phillips viewed the Residence for the first time on April 10, 2018, and made an offer to purchase it on April 12, 2018. Phillips Aff'd, ¶¶ 4, 7 (ECF No. 8-2). He said he had been warned by his agent that the Oosterbaans "would be difficult during viewings." Id. ¶ 4. Phillips attests "[t]he preview was very odd and rushed and [he] was ushered out of the home in a very short amount of time." Id. He said the same thing happened during his second visit on April 21, 2018, and that "Oosterbaan's wife shadowed [him] at every turn." Id. ¶ 5.
After talking with Phillips on April 21st, Oosterbaan expressed concern to Stokoe about how the lease would operate and how his security deposit would be refunded.
Email, at 28 (ECF No. 9-1). Stokoe told Oosterbaan that he uses the same lease agreement for all of his rentals, and Stokoe explained how the lease functioned legally. Id. at 27–28. Stokoe also told him that Phillips was aware of the lease terms, including the right of entry at will, and other agreements between the parties. Id. Stokoe further told Oosterbaan that Howard had authorized Stokoe to release the security deposit to Oosterbaan at the time of the final walkthrough with Phillips. Id. at 28. Stokoe noted that was a deviation from the lease terms, but he thought the change would be acceptable to Oosterbaan. Id. Stokoe told Oosterbaan he anticipated the final walkthrough would occur on May 17, 2018, and that he had set up a time for a five-hour inspection on April 24, 2018. Id. In response, Oosterbaan informed Stokoe that he would be at the Residence when the inspector arrived. Id. at 27.
Inspections were conducted on or about April 24th (general inspection), April 26th (mold inspection), and April 27th (stucco inspection). On April 29, 2018, Stokoe informed Oosterbaan that the inspector had found "a number of property repairs" that needed to be addressed and informed...
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