Malewicz v. City of Amsterdam

• Decision Date: 30 March 2005
• Docket Number: No. CIV.A. 04-0024(RMC).,CIV.A. 04-0024(RMC).
• Citation: 362 F.Supp.2d 298
• Parties: Leonard MALEWICZ, et al. Plaintiffs, v. CITY OF AMSTERDAM Defendant.
• Court: U.S. District Court — District of Columbia

Page 298

362 F.Supp.2d 298

Leonard MALEWICZ, et al. Plaintiffs, v. CITY OF AMSTERDAM Defendant.

No. CIV.A. 04-0024(RMC).

United States District Court, District of Columbia.

March 30, 2005.

COPYRIGHT MATERIAL OMITTED

Harvey Joseph Volzer, Shaughnessy, Volzer & Gagner, PC, Jennifer L. Spina, L. Eden Burgess, Thomas R. Kline, Andrews Kurth LLP, Washington, DC, Amelia Jane Keuning, Howard Neil Spiegler, Lawrence M. Kaye, Herrick, Feinstein LLP, New York City, for Plaintiffs.

Christopher M. Curran, White & Case LLP, Samuel C. Kaplan, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

COLLYER, District Judge.

This lawsuit attempts to correct an alleged wrong committed by the City of Amsterdam, a political subdivision of the Kingdom of the Netherlands, when it expropriated eighty-four (84) works of art created by Kazimir Malewicz. Brought by heirs of Mr. Malewicz, who died in 1935, (the "Malewicz Heirs") the suit arises in replevin, rescission and conversion and seeks the return of the artwork as well as damages. The first question is whether this Court has jurisdiction to hear the merits of the complaint. Having before it a fully-briefed motion to dismiss on jurisdictional grounds, and a Statement of Interest filed by the United States to which both parties have filed responses, the Court concludes that it cannot determine on this record whether the City of Amsterdam's contacts with the United States were "substantial" within the meaning of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1603(e), to support jurisdiction.

I. BACKGROUND

A. The Malewicz Collection

Kazimir Malewicz was a world-renowned Russian artist in the years before World War II; "[h]e founded the Suprematist Movement, which had an enormous influence on abstract art."¹ Mr. Malewicz took more than one hundred of his works of art to Berlin for exhibition in 1927.² Am. Compl. ¶ 8. When he had to return unexpectedly to Russia, he entrusted his art pieces to four friends in Germany: Gustav von Riesen, Hugo Häring, Hans Richter, and Dr. Alexander Dorner. When the exhibition closed, the art works were packed in crates and shipped to Dr. Dorner for safekeeping and storage since they could not safely be returned to Russia because "Stalinist condemnation of abstract art would undoubtedly have led to their confiscation and destruction." Id. ¶ 9.

The art works were stored in the basement of the Landesmuseum in Hannover, Germany, of which Dr. Dorner was the director. Id. ¶ 10. Alfred Barr, then-director of the Museum of Modern Art in New York ("MoMA"), visited Dr. Dorner in 1935 and persuaded him to ship some of the works to MoMA to be held on loan. Id. Kazimir Malewicz died in May of 1935. Id. ¶ 13. Dr. Dorner fled Nazi Germany in 1937, taking two other works by Mr. Malewicz with him. Id. ¶ 11. Because the Malewicz works would not have been acceptable for display to the governments of either Russia or Germany, Dr. Dorner sent the crates of Malewicz paintings and drawings to Mr. Häring who, alone of the original group of friends, remained in Berlin, Germany. Id. ¶ 13. Mr. Häring safeguarded the works in Berlin until that city was bombed in 1943, and then removed them to his native town, Biberach. Id. Mr. Häring died in Biberach in 1958. Id.

Dr. Dorner died in November 1957. He bequeathed the two Malewicz works that he had taken out of Germany to the Busch-Reisinger Museum at Harvard University in Cambridge, Massachusetts, to be held on loan and for the benefit of "the rightful owners." Id. ¶ 11. Upon demand from the Malewicz Heirs, MoMA has resolved their demands by returning one of the Malewicz works and the Busch-Reisinger Museum returned both works to the Heirs. Id. ¶ 12.

The Malewicz Collection at issue is housed, when not on exhibit elsewhere, at the Stedelijk Museum in Amsterdam. Id. ¶ 6. Between the years of 1951 and 1956, Dr. W.J.H.B. Sandberg, then-director of the Stedelijk, and other museum directors, tried to persuade Mr. Häring to send the Malewicz Collection to the Stedelijk for restoration and exhibition. Id. ¶ 15. Mr. Häring refused to do so and repeatedly "emphasized that he was only a custodian of the works, responsible for their safekeeping and that he had no right to convey ownership of them to anyone." Id. Mr. Häring took the same position with anyone who attempted to purchase any works from the Malewicz Collection. When Mr. Sandberg attempted to acquire a Malewicz painting that Mr. Häring had loaned for an exhibition at the Stuttgart Staatsgalerie, he was advised that Dr. O. Domnick of Domnick Verlag of Stuttgart had attempted to buy a Malewicz painting, but that Mr. Häring had refused to sell it, declaring "that he could not sell it to me because he is not the owner and only considers himself to be the trustee of the Malewicz works." Id. ¶ 16. Mr. Sandberg visited Mr. Häring in a hospital in Biberach in February 1956, where Mr. Häring "was recovering from many illnesses." Id. ¶ 19. Mr. Häring explained again that "he was not the owner and that therefore he could not sell anything." Id. This time, however, Mr. Häring finally agreed to lend the works to the Stedelijk. Id.

Mr. Sandberg prepared a short proposal stating the terms of the contemplated loan of the Malewicz Collection, which he left with Ms. Margot Aschenbrenner, Mr. Häring's trusted secretary. Id. ¶¶ 19, 20. The note read:

Proposal of Mr. Sandberg, Director, Stedelijk Museum, Amsterdam

Mr. Hugo Häring suggested to me that the pictures and studies by Kazimir Malewicz in his possession should be made available against an annual annuity of DM 12,000. At the moment it is not possible to guarantee such an annuity over a period of many years because the people expected to contribute to it are not sufficiently familiar with the collection. For that reason, may I suggest that the collection initially be lent to the Stedelijk Museum in Amsterdam for a year for purposes of exhibition in various other museums, with an option for extending it for further years.

For this purpose, I would guarantee DM 12,000. — to Mr. Hugo Häring for this year (the first payment of DM 4,000. — would take place immediately as soon as the pictures are sent to Amsterdam).

During said year we would make Malewicz's work well-known and thus glean the possibility of guaranteeing a similar annuity to Mr. Hugo Häring for further years.

Dated: Biberach, February 29, 1956 signed: Sandberg

Director, Stedelijk Museum Amsterdam

Id. ¶ 20.

The response sent by Ms. Aschenbrenner, dated May 8, 1956, for the first time suggested the possible sale of the Malewicz Collection for DM 120,000 (less the sum of annual rental payments made during the loan period). Mr. Sandberg readily agreed to the terms of the loan but, by letter dated June 4, 1956, he asked, "On what conditions can we purchase the collection since Mr. Häring can transfer possession but not ownership. `Nemo plus juris in alium transferre potest quam ipse habet.' [One cannot transfer to another a right which he has not.]." Id. ¶ 22. In response, a letter dated June 23, 1956, signed "on behalf of" Mr. Häring but not by him, "announced that, under German law, ownership of the Malewicz works had passed to Häring in 1955; that Häring had in his possession a `notarial exposition' of his acquisition of ownership based on a purported gift causa mortis by Malewicz to Häring of the works left in Berlin; and that Häring thus had the power to sell the works to Amsterdam." Id. ¶ 27. Plaintiffs' amended complaint alleges that these documents were obvious frauds and were known by Mr. Sandberg to be frauds because of his prior direct conversations with Mr. Häring, who never claimed that Mr. Malewicz intended to transfer the collection to Mr. Häring upon Mr. Malewicz's death. Id. ¶¶ 29 — 34.

Based on these communications, however, the City of Amsterdam, through Mr. Sandberg and other representatives, entered into a loan contract with Mr. Häring in November 1956 that contained an option to purchase the Malewicz Collection. Id. ¶ 35. "[T]hereafter, in 1958, [the City] purported to exercise that option in the face of its awareness that Häring had no authority to convey title and that he had consistently denied that he had any such authority...." Id. The amended complaint further alleges that Amsterdam and the Stedelijk concealed the nature of the acquisition of the Malewicz Collection in its Annual Report for 1958, in catalogues on the collection, and through a lack of customary publicity for this kind of acquisition. Id. ¶¶ 36, 37, 38.

"It took several years after the fall of the Iron Curtain for all of Malewicz's living heirs to locate and contact each other and begin the difficult process of recovering the family's property...." Id. ¶ 42. Plaintiffs comprise the 35 living heirs of Kazimir Malewicz, two of whom are citizens of the United States and none of whom resides in, or is a citizen of, The Netherlands. Id. ¶ 1. The Malewicz Heirs first asked Amsterdam to return the Malewicz Collection to them in 1996. Id. ¶ 42. A formal response from Amsterdam in September 2001 stated that:

its purported acquisition of the Malewicz Collection was valid and that it became the owner of the Malewicz Collection at that time, but that if this were not so, it nevertheless became the owner on January 1, 1993, through acquisitive prescription under Article 3:105 of the Dutch Civil Code in connection with Article 93 of the Transitory Act.

Id. ¶ 40. The Malewicz Collection continues to be housed at the Stedelijk.

B. The Malewicz Collection in the United States

Fourteen of the eighty-four pieces in the Malewicz Collection were exported to the United States in 2003 to be part of a temporary exhibition of artwork at the Solomon R. Guggenheim Museum in New York City (from May 22, 2003 until September 7, 2003) and the Menil Collection in Houston (from October 2, 2003 until January 11, 2004). Def. Mem. at 4. These exhibitions were arranged under the...