Cassirer v. Kingdom of Spain, 06-56325.
| Citation | 580 F.3d 1048 |
| Decision Date | 08 September 2009 |
| Docket Number | No. 06-56325.,No. 06-56406.,06-56325.,06-56406. |
| Parties | Claude CASSIRER, Plaintiff-Appellee, v. KINGDOM OF SPAIN, a foreign state, Defendant, and Thyssen-Bornemisza Collection Foundation, an agency or instrumentality of the Kingdom of Spain, Defendant-Appellant. Claude Cassirer, Plaintiff-Appellee, v. Kingdom of Spain, a foreign state, Defendant-Appellant, and Thyssen-Bornemisza Collection Foundation, an agency or instrumentality of the Kingdom of Spain, Defendant. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
William M. Barron of Alston & Bird, LLP, New York City, NY; Anthony A. De Corso of Beck, De Corso, Daly, Kreindler & Harris, for defendant-appellant the Kingdom of Spain.
Thaddeus J. Stauber and Walter T. Johnson of Nixon Peabody, LLP, Los Angeles, CA, for defendant-appellant Thyssen-Bornemisza Collection Foundation.
Stuart R. Dunwoody of Davis Wright Tremaine, LLP, Los Angeles, CA, for plaintiff-appellee Claude Cassirer.
Appeal from the United States District Court for the Central District of California, Gary A. Feess, District Judge, Presiding. D.C. No. CV-05-03459-GAF.
Before: THOMAS G. NELSON, SANDRA S. IKUTA, and N. RANDY SMITH, Circuit Judges.
Opinion by Judge N.R. SMITH; Partial concurrence and Partial Dissent by Judge IKUTA.
Claude Cassirer ("Cassirer") filed this action in federal district court against the Kingdom of Spain ("Spain") and the Thyssen-Bornemisza Collection Foundation (the "Foundation")1 to recover a Camille Pissarro painting now on display at the Foundation's museum in Madrid, Spain. Cassirer alleges that the painting was taken from his grandmother in violation of international law in 1939 by an agent of the government of Nazi Germany. On appeal, Appellants challenge the district court's denial of their respective motions to dismiss for lack of (1) personal jurisdiction, (2) standing, (3) a justiciable case or controversy, and (4) subject matter jurisdiction based on sovereign immunity.
We dismiss this appeal with regard to Appellants' challenges to personal jurisdiction, standing, and the existence of a justiciable case or controversy. We lack appellate jurisdiction because there has been no final judgment and these issues are not immediately appealable under the collateral order doctrine.
However, under the collateral order doctrine, we have jurisdiction to consider the issue of sovereign immunity. Gupta v. Thai Airways Int'l, Ltd., 487 F.3d 759, 763, 764 n. 6 (9th Cir.2007). We consider for the first time whether the expropriation exception of the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1605(a)(3), applies when the foreign state (against whom a claim is made) is not the entity that expropriated the property in violation of international law. We hold that it does. We also hold that advertising and promotional activity, purchase and sale of goods and services, and the exchange of artwork with persons and entities, all within the United States, are sufficient to constitute "commercial activity in the United States" under § 1605(a)(3). Finally, based on guidance in our recent decision in Sarei v. Rio Tinto, PLC, 550 F.3d 822, 832 (9th Cir.2008) (en banc) (plurality opinion), we remand to the district court to determine, in the first instance, whether the circumstances of this case warrant judicial imposition of an exhaustion requirement.
For the purposes of this appeal, we take the factual allegations in this case as true.2 At the heart of the present dispute is the Rue Saint-Honoré, après-midi, effet de pluie (the "Painting"), an oil painting by the French impressionist master Camille Pissarro. The Painting was originally purchased in 1898 by Cassirer's great-grandfather, Julius Cassirer, a member of a wealthy Jewish family living in Germany. The Painting remained in the family for the next forty years. First passing upon Julius's death to his son, Fritz, and later to Fritz's widow, Lilly Cassirer.
In 1939, as persecution of Jews living in Nazi Germany increased, Lilly and her new husband sought official permission to leave Germany and take their possessions, which included the Painting. Before granting permission, the Nazi government appointed Munich art dealer Jakob Scheidwimmer as the official appraiser to evaluate the works of art that Lilly wished to take with her. After his appraisal, Scheidwimmer refused to allow Lilly to take the Painting out of Germany and demanded that she sell it to him for approximately $360. Because she feared she would not be allowed to leave Germany, she relinquished the Painting, knowing that she would never receive the funds she was promised.3
Scheidwimmer traded the Painting to another art dealer who, also persecuted by the Nazis, fled Germany and took the Painting to Holland. After Germany invaded Holland, the Gestapo confiscated the Painting and returned it to Germany, where it was sold at auction to an anonymous purchaser in 1943. The Painting surfaced at a New York gallery in 1952 and was then sold to a private collector in St. Louis. It was sold again in 1976 to an unknown dealer, who subsequently sold it to Baron Hans-Heinrich Thyssen-Bornemisza (the "Baron"), a resident of Switzerland and one of the world's foremost private art collectors.
In 1988, Spain paid the Baron $50 million to lease his collection for ten years. Five years into the lease, Spain paid the Foundation approximately $327 million to purchase the Baron's entire collection, including the Painting. Under the terms of the purchase, Spain provided the Foundation a palace in Madrid, free of charge, for use as the Thyssen-Bornemisza Museum (the "Museum"). In addition, the purchase agreement requires that the collection be exhibited at the Museum in Spain and sets limits regarding loans to other art institutions. If the collection is not used in accordance with the purchase agreement or if the Foundation ceases to exist, Spain will become the owner of the collection.4
In 2000, Claude Cassirer,5 the grandson and heir of Lilly Cassirer, discovered that the Painting was on display in Madrid at the Museum. He petitioned Spain's Minister for Education, Culture and Sports (who was also chair of the Foundation's Board), requesting the return of the Painting. His request was denied. In July 2003, five United States Congressmen wrote to the Minister, again requesting that Appellants return the Painting to Cassirer. The request was again denied. Cassirer never attempted to obtain the Painting through judicial proceedings in Spain.
On May 10, 2005, Cassirer filed suit against the Foundation and Spain in the Central District of California. On February 28, 2006, the Foundation filed a motion to dismiss, contending that the district court lacked subject matter and personal jurisdiction and that venue did not lie in the Central District of California. While the Foundation's motion was pending, Cassirer moved the court for leave to conduct jurisdictional discovery.
On April 5, 2006, the district court reviewed, as a question of law, whether the expropriation exception to sovereign immunity in § 1605(a)(3) of the FSIA applied to a sovereign entity that was not alleged to have taken property in violation of international law. After receiving further briefing from the parties, the district court ruled that § 1605(a)(3) requires only that property was seized in violation of international law, not that the foreign sovereign itself violated international law. The district court also granted sixty days to conduct discovery for the purpose of determining whether the Foundation conducted "commercial activity in the United States within the meaning of the FSIA."
On June 9, 2006, Spain filed its own motion to dismiss, contending lack of subject matter jurisdiction due to sovereign immunity and various other grounds. On August 30, 2006, after hearing argument, the district court issued a Memorandum and Order denying both the motions to dismiss. The district court held that 1) Cassirer presented a case or controversy against both the Foundation and Spain; 2) Cassirer was not required to exhaust judicial remedies; 3) § 1605(a)(3) of the FSIA applies to the Foundation and Spain, despite Cassirer's admission that neither took the Painting in violation of international law (affirming its earlier decision on this point); 4) the Foundation and Spain engage in commercial activity in the United States within the meaning of § 1605(a)(3), such that they are not entitled to sovereign immunity; 5) under the language of the FSIA, personal jurisdiction exists over the Foundation and Spain by virtue of the fact that subject matter jurisdiction existed; and 6) venue is proper in the Central District of California. See Cassirer v. Kingdom of Spain, 461 F.Supp.2d 1157 (C.D.Cal.2006).
The Appellants brought this timely interlocutory appeal. Cassirer subsequently filed a Motion to Dismiss, contending that this court lacks appellate jurisdiction over any issues other than whether the Appellants are entitled to sovereign immunity.
We first address the issue of appellate jurisdiction raised by Cassirer. We have jurisdiction to review "final decisions" of the district court. 28 U.S.C. § 1291. "Final decisions end the litigation on the merits and leave nothing for the court to do but execute the judgment." Am. States Ins. Co. v. Dastar Corp., 318 F.3d 881, 884 (9th Cir.2003) (internal quotations and alterations omitted). Typically, a district court's denial of a motion to dismiss is not final for purposes of 28 U.S.C. § 1291. See Marx v. Government of Guam, 866 F.2d 294, 296 (9th Cir.1989). Under the "collateral order doctrine," we may nonetheless review that "small category of decisions" that are "conclusive [because they] resolve important questions separate from the merits, and that are effectively unreviewable on appeal from the final judgment in the...
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