Howard Univ. v. Borders

• Docket Number: 20-cv-4716 (LJL)
• Decision Date: 01 March 2022
• Citation: 588 F.Supp.3d 457
• Parties: HOWARD UNIVERSITY, Plaintiff v. Larry BORDERS and Virginia Borders, Defendants, and Centralia Madonna, A Drawing, Defendant-in-rem.
• Court: U.S. District Court — Southern District of New York

588 F.Supp.3d 457

HOWARD UNIVERSITY, Plaintiff

v. Larry BORDERS and Virginia Borders, Defendants,andCentralia Madonna, A Drawing, Defendant-in-rem.

20-cv-4716 (LJL)

United States District Court, S.D. New York.

Signed March 1, 2022

Erik Haas, Clinton Wells Morrison, Peter C. Harvey, Patterson, Belknap, Webb & Tyler LLP, New York, NY, for Plaintiff.

Paul Cossu, Olsoff Cahill Cossu LLP, New York, NY, for Defendants.

OPINION AND ORDER

LEWIS J. LIMAN, United States District Judge:

Plaintiff Howard University ("Plaintiff" or "Howard" or "the University") moves, pursuant to Federal Rule of Civil Procedure 56, for summary judgment in its favor on each of its claims and for summary judgment dismissing the remaining counterclaim and affirmative defenses of defendants Larry Borders and Virginia Borders (collectively, "Defendants" or "the Borders").¹ Dkt. No. 37.

For the following reasons, the motion for summary judgment is granted in part and denied in part.

BACKGROUND

This case revolves around the dispute over the ownership of a 1947 drawing by Charles White titled Centralia Madonna (the "Artwork").²

The broad contours of this case are undisputed. Howard, a federally chartered HBCU³ located in Washington, D.C., possessed the Artwork beginning in the fall of 1947. Dkt. No. 38 ¶ 6; Dkt. No. 46 ¶ 6. According to an October 26, 1947 Washington Post article, the "Barnet-Aden [sic] Gallery" held an exhibition of paintings by Charles White; the article states that "[i]n 1945, he was artist-in-residence at Howard University," and that "Howard owns" a different Charles White artwork, and "from the current show has acquired the drawing, ‘Centralia Madonna.’ " Dkt. No. 40, Ex. 8; see also Dkt. No. 38 ¶ 6; Dkt. No. 46 ¶ 6. The Barnett-Aden Gallery was "the first privately owned black gallery in the United States," and was co-founded by the chair of the University's Department of Art and the curator of the Howard University Gallery of Art. Dkt. No. 40, Ex. 9.

In the early 1970s, the Artwork came to be possessed by the Borders. Dkt. No. 38 ¶ 42; Dkt. No. 46 ¶ 83. How this came about is the central question in this case; the parties’ competing narratives are outlined below. The instant dispute arose when, in January 2020, the Borders decided to explore selling the Artwork. Dkt. No. 38 ¶ 70; Dkt. No. 46 ¶ 70. They reached out to Sotheby's, an auction house located in New York City; Sotheby's provided estimates of $300,000 to $500,000 for the Artwork. Dkt. No. 38 ¶¶ 71–72; Dkt. No. 46 ¶¶ 71–72. On February 28, 2020, the Borders signed a consignment agreement with Sotheby's, authorizing Sotheby's to sell the Artwork on the Borders’ behalf at an auction scheduled to take place in New York City in May 2020. Dkt. No. 38 ¶ 73; Dkt. No. 46 ¶ 73. In March 2020, the Artwork was retrieved from the Borders’ private residence in Durham, North Carolina, by a shipping service coordinated by Sotheby's. Dkt. No. 38 ¶ 75; Dkt. No. 46 ¶ 75. The Artwork was delivered to Sotheby's in New York City, where it has remained. Dkt. No. 38 ¶ 75; Dkt. No. 46 ¶ 75.

On May 12, 2020, Howard was contacted by a representative of Sotheby's by email—the email raised a "question ... regarding provenance for a work by Charles White which we are including in our upcoming American Art sale," saying that "our specialists believe that this may in fact have been owned by Howard University in the 1950s," and asking "if there is any record of this work in Howard's collection," because "[a]ny further information ... would be extremely helpful for the purposes of our cataloguing." Dkt. No. 40, Ex. 35; see also Dkt. No. 38 ¶ 76; Dkt. No. 46 ¶ 76. After several calls with Sotheby's, on June 1, 2020, a representative of Howard notified the Borders via a telephone call on which representatives from Sotheby's were present that the Artwork "belonged to" Howard and that Howard "wanted it back." Dkt. No. 38 ¶ 84; Dkt. No. 46 ¶ 84. The Borders did not agree to return the Artwork to Howard, instead telling the University's representatives that they wanted to sell the Artwork. Dkt. No. 38 ¶ 85; Dkt. No. 46 ¶ 85. The Borders agreed that Sotheby's had the right to withdraw the Artwork from the American Art auction based on the University's claims, but they did not agree to transfer possession of the Artwork to Howard. Dkt. No. 38 ¶ 86; Dkt. No. 46 ¶ 86. As the matter stands now, the Artwork has remained in Sotheby's in New York City; both Howard and the Borders assert that they have proper title to the Artwork.

As noted above, the parties have different narratives as to how the Artwork left the University's possession and came to be possessed by the Borders.

The Borders’ narrative is as follows: They assert that the University either consigned the Artwork to the Barnett-Aden Gallery or otherwise voluntarily disposed of the Artwork, likely via loan, in or about 1973. Dkt. No. 46 ¶¶ 125, 135. In the early 1970s, a friend of the Borders named J.D. Kibler ("Kibler") gave them the Artwork as a gift. Id. ¶ 94. At the time, the Borders did not believe that the Artwork was particularly valuable. Id. ¶ 95. The gift was accompanied by the gift of another work of art, which was not then and is not now particularly valuable, and which is not claimed by the University to have been stolen from its collection. Id. ¶ 96.

For its part, the University does not dispute for purposes of this motion that the Borders received the Artwork from Kibler in the early 1970s as a gift, along with another piece of art which is not valuable and which the University does not claim was stolen from its collection. Dkt. No. 52 ¶¶ 94, 96. It disputes, however, how the Artwork left its possession. Its narrative is as follows. It asserts that the Artwork was removed from its collection without authorization. Dkt. No. 39 at 1. It states that the only loan agreement relating to the Artwork in Howard's records is a loan agreement executed in December 1969 between the University and the Museum of Fine Arts in Boston; the loan was for an exhibition from February 9 to March 10, 1970. Dkt. No. 38 ¶ 13. In January 1973, several years after that loan agreement, Scott Baker, the current Assistant Director of the Howard University Gallery of Art, personally viewed and documented the Artwork on the University's campus; at the time, he was a graduate student at the University. Id. ¶¶ 8, 14. According to the University, there is no record of the Artwork being loaned to any other third party. Id. ¶ 15. Nor is there any record of the University selling or loaning the Artwork to Kibler, id. ¶¶ 34, 36, or of the University selling the Artwork to any other third party, id. ¶ 35.

PROCEDURAL HISTORY

The complaint in this case was filed on June 19, 2020; it asserts a claim for declaratory judgment that the University is the true owner of the Artwork, a claim to quiet title, and a claim for replevin under New York common law. Dkt. No. 1. The Borders filed their answer along with three counterclaims—a claim for declaratory judgment that the Borders have the proper right, title, and interest in and to the Artwork, a claim for slander of title, and a claim for tortious interference with contract—on June 22, 2020. Dkt. No. 6. On July 10, 2020, Howard filed a motion to dismiss the second and third counterclaims, Dkt. No. 13; on July 17, 2020, the parties entered a stipulation of voluntary dismissal of the second and third counterclaims, and the then-pending motion was denied as moot, Dkt. No. 16. Howard filed its answer to the sole remaining counterclaim on July 30, 2020. Dkt. No. 17.

Howard filed a motion for summary judgment on both its claims and the sole remaining counterclaim on May 3, 2021. Dkt. No. 37. The Borders filed an opposition to the motion on June 28, 2021, and the University filed a reply on July 21, 2021. Dkt. Nos. 45, 51.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 56, a court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "When the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the non-movant's claim." Jaramillo v. Weyerhaeuser Co. , 536 F.3d 140, 145 (2d Cir. 2008). If the movant meets its burden, "the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment." Id. "An issue of fact is ‘material’ for these purposes if it ‘might affect the outcome of the suit under the governing law,’ " while "[a]n issue of fact is ‘genuine’ if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ " Konikoff v. Prudential Ins. Co. of Am. , 234 F.3d 92, 97 (2d Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). In determining whether there are any genuine issues of material fact, the Court must view all facts "in the light most favorable to the non-moving party," Holtz v. Rockefeller & Co., Inc. , 258 F.3d 62, 69 (2d Cir. 2001), and the movant bears the burden of demonstrating that "no genuine issue of material fact exists," Marvel Characters, Inc. v. Simon , 310 F.3d 280, 286 (2d Cir. 2002) (citations omitted).

"[A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Hicks v. Baines , 593 F.3d 159, 166 (2d Cir. 2010) (quoting Fletcher v. Atex, Inc. , 68 F.3d 1451, 1456 (2d Cir. 1995) ). Nor may the non-moving party "rely on conclusory allegations or unsubstantiated speculation." F.D.I.C. v. Great Am. Ins. Co. , 607 F.3d 288, 292 (2d Cir. 2010) (quoting Scotto v. Almenas , 143 F.3d 105, 114 (2d Cir. 1998) ). Rather, to survive a summary judgment motion, the opposing party must establish a genuine issue of...