U.S. v. Oil Painting Entitled "Femme En Blanc"

• Decision Date: 31 March 2005
• Docket Number: No. CV 04-8333FMCAJWX.,CV 04-8333FMCAJWX.
• Citation: 362 F.Supp.2d 1175
• Court: U.S. District Court — Central District of California
• Parties: UNITED STATES of America, Plaintiff, v. ONE OIL PAINTING ENTITLED "FEMME EN BLANC" BY PABLO PICASSO, Defendant.

362 F.Supp.2d 1175

UNITED STATES of America, Plaintiff, v. ONE OIL PAINTING ENTITLED "FEMME EN BLANC" BY PABLO PICASSO, Defendant.

No. CV 04-8333FMCAJWX.

United States District Court, C.D. California.

March 31, 2005.

COPYRIGHT MATERIAL OMITTED

John E. Lee, AUSA-Office of U.S. Attorney Asset Forfeiture Division, Los Angeles, CA, for Plaintiff.

Polly Towill, Sheppard Mullin Richter & Hampton, Los Angeles, CA, David M Rownd, Richard H. Chapman, Chicago, IL, Christopher M. Loveland, Mark E. Nagle, Roscoe C. Howard, Jr., Sheppard Mullin Richter and Hampton, Washington, DC, for Defendant.

ORDER DENYING CLAIMANT'S MOTION TO DISMISS COMPLAINT FOR FORFEITURE AND ORDER DENYING CLAIMANT'S MOTION TO TRANSFER ORDER DENYING MOTION TO DISMISS CROSS-COMPLAINT OF THOMAS BENNIGSON

COOPER, District Judge.

This matter is before the Court on Claimant Marilynn Alsdorf's ("Alsdorf") Motion to Dismiss Complaint for Forfeiture or Alternatively to Transfer Case (docket no. 24), filed December 13, 2004, and Alsdorf's Motion to Dismiss Cross-Complaint (docket no. 31), filed January 20, 2005. The Court has read and considered the moving, opposition, reply, and sur-reply documents submitted in connection with this motion. Following oral argument on March 28, 2005, the Court took this matter under submission. For the reasons and in the manner set forth below, the Court hereby DENIES the motion to dismiss and to transfer. The Court DENIES the motion to dismiss the cross-complaint.

I. Background

This civil forfeiture action concerns an oil painting entitled "Femme en Blanc," which was allegedly stolen from its owner by the Nazis during World War II. The following summary is based on the Government's allegations.

The painting was created by Pablo Picasso in 1922. Complaint for Forfeiture ("Compl."), at ¶ 4. In 1926 or 1927, Carlotta Landsberg or her husband bought the painting. Id. at ¶ 9. In 1938 or 1939, Mrs. Landsberg sent the painting to Paris art dealer Justin K. Thannhauser for safekeeping. Id. at ¶ 10. In August 1939, Thannhauser fled Paris to escape Nazi persecution. Id. at ¶ 11. In 1940, the contents of Thannhauser's home, including the painting, were looted by the Nazis. Id.

On June 12, 1958, Thannhauser wrote to Mrs. Landsberg that, "[u]pon the occupation of Paris in 1940, when we were no longer in Paris and the house was closed, the entire contents of the four-story building-and with it your painting-were stolen." Id. at ¶ 12. Thannhauser wrote that, "during the four day long violent German national socialist plundering everything was taken out of the four-story house during the night and in trucks" by the Nazis. Id. After the war, Mrs. Landsberg searched for the painting, but was unable to locate it.

In 1947, the painting was included, with a small photo, in an inventory of looted paintings compiled by the Allied Command. Id. at ¶ 15. In 1975, a French art dealer named Maurice Covo asked New York art dealer Stephen Hahn whether Hahn would be interested in buying the painting, which Covo stated he might be able to acquire. Id. at ¶ 16. After Covo acquired the painting on consignment, in June 1975, Hahn traveled to Paris, where he purchased it. Id. at ¶ 17. In September 1975, Hahn sold the painting to claimant Alsdorf. Id. at ¶¶ 18-19. Hahn later stated that Covo had not told him that the painting was a product of Nazi looting. Id. at ¶ 18.

In 2001, Alsdorf sent the painting to David Tunkl of David Tunkl Fine Art in Los Angeles, California, for an exhibition that took place between September 20, 2001 and October 28, 2001. Id. at ¶ 20. After the exhibition ended, Tunkl returned the painting to Alsdorf, who was and is living in Chicago. Id.

In January 2002, Tunkl suggested to Alsdorf that he could sell the painting for her. Id. at ¶ 21. The painting was shipped from Chicago to Geneva Switzerland, at Tunkl's request. Id. In Geneva, the painting was viewed by Paris art dealer Didier Imbert, who was acting as an advisor to an unidentified European collector. As part of his due diligence, Imbert contacted the Art Loss Register ("ALR") in London, England. Id. at 22.

Sarah Jackson, the Historic Claims Director of the ALR, investigated the provenance of the painting in Swiss, German, and French archives and advised Imbert that the painting had been looted by the Nazis during the war. Id. at ¶¶ 25-25.

On April 17, 2002, Imbert wrote to Adam Cirker of Cirker's Fine Art in New York, advising him of the ALR's finding and asking Cirker to notify the owner of the finding. Id. at ¶ 27. On April 25, 2002, the ARL advised Imbert and Tunkl that the painting had been confiscated by the Nazis from its Jewish owner during World War II. Id. at ¶ 28.

On May 2, 2002, Imbert told Alsdorf that the ALR had advised him that the painting had been confiscated by the Nazis from its Jewish owner during World War II. Id. at ¶ 30.

In June 2002, Jackson located Mrs. Landsberg's sole heir in Berkeley, California, claimant Thomas C. Bennigson. Id. at ¶ 33.

On June 7, 2002, Jackson advised Alsdorf's attorney, Stephen Bernard, that the painting had been confiscated by the Nazis during World War II and that the ALR had "extensive documentation" from three countries showing the confiscation of the painting by the Nazis. Id. at 34.

In July 2002, Jackson flew to Los Angeles and told Bernard and Tunkl at a lunch meeting that the painting had been looted by the Nazis from Thannhauser's home, that Thannhauser had been holding it for its true owner, and that the owner's grandson was her sole heir. Id. at ¶ 35. Jackson also presented Bernard and Tunkl with many documents uncovered from archives showing that the painting had been "looted" by the Nazis. Id. These documents were later sent to Alsdorf in Chicago. Id. at ¶ 36.

On December 13, 2002, Alsdorf instructed Bernard and Tunkl to transport the painting from Los Angeles back to Chicago. Id. That same day, Alsdorf also telephoned Tunkl's assistant, Michele Burt, and instructed her to send the painting to her in Chicago. Id. at ¶ 44.

On December 19, 2002, Benngison filed suit against Alsdorf in California Superior Court, Los Angeles County, and notified counsel for Alsdorf. Id. at ¶ 48. On December 20, 2002, the painting was transported to Chicago. Id. at ¶ 49. On June 16, 2003, the Superior Court found that it lacked personal jurisdiction over Alsdorf and granted her Motion to Quash the Summons. The California Court of Appeal affirmed the Superior Court's Order on April 15, 2004. The California Supreme Court accepted review of this decision on July 28, 2004, and the parties are currently awaiting a decision.

On September 10, 2004, Alsdorf filed a federal quiet title action pursuant to 28 U.S.C. § 1655 against Bennigson in Chicago ("Illinois action"). Id. at ¶ 50. No process has been served on the painting in that action. The docket sheet for that action reveals that the complaint was filed, and a stay was entered pending the decision of the California Supreme Court. No other action has been taken.

On October 6, 2004, the government filed this action for civil forfeiture pursuant to 18 U.S.C. §§ 981(a)(1)(C), 2314, and 2315, alleging that Alsdorf transported property she knew was stolen in interstate commerce. On October 21, 2004, the government served process on the painting. On November 8, 15, and 22, 2004, notice of the action was published. On January 3, 2005, the government and Alsdorf entered into a stipulated order, allowing her to retain physical possession of the painting.

On December 13, 2004, Alsdorf brought the instant motion to dismiss for lack of subject matter jurisdiction, or in the alternative, to transfer to the Northern District of Illinois. Alsdorf argues that this court lacks jurisdiction and that the Northern District of Illinois is a preferable venue. Also on December 13, 2004, Bennigson brought a cross-claim against Alsdorf for (1) replevin; (2) relief under Cal.Penal Code § 496; and (3) declaratory relief and constructive trust. On January 20, 2005, Alsdorf moved to dismiss the cross-claim for lack of personal jurisdiction.

II. Motion to Dismiss Complaint for Forfeiture

Federal civil forfeiture actions are actions in rem. United States v. One 1985 Cadillac Seville, 866 F.2d 1142 (9th Cir.1989). Federal quiet title actions, which do not "determine interests in specific property as against the whole world," but are brought against a defendant personally, are quasi in rem actions; "the [parties'] interest[s] in the property ... serve[] as the basis of the jurisdiction." See State Engineer v. South Fork Bank of the Te-Moak Tribe of Western Shoshone Indians, 339 F.3d 804, 811 (9th Cir.2003). The doctrine of prior exclusive jurisdiction applies to both in rem and quasi in rem actions. Id. The traditional distinction between in rem and quasi in rem jurisdiction has largely disappeared. See Restatement (Second) of Judgments, § 6, comment a. (1982).

The doctrine of prior exclusive jurisdiction prohibits a court from "assuming in rem jurisdiction over a res that is already under the in rem jurisdiction of another court." Cadillac Seville, 866 F.2d at 1145 (citing Penn Gen. Casualty Co. v. Pennsylvania, 294 U.S. 189, 195, 55 S.Ct. 386, 79 L.Ed. 850 (1935)). The purpose of the doctrine is to promote comity between courts, Penn General, 294 U.S. at 195, 55 S.Ct. 386, and to avoid the "logical and practical difficulty of two courts simultaneously vying for possession or control of the same property." United States v. $79,123.49, 830 F.2d 94, 97 (7th Cir.1987).

"Where the assertion of jurisdiction by the two courts is nearly simultaneous, it becomes important, as in the present case, to determine the precise time when the jurisdiction attaches." Penn General, 294 U.S. at 196, 55 S.Ct. 386. The sine qua non of in rem jurisdiction is seizure, control, or custody of the res. See, e.g., Penn General, 294 U.S. at 196, 55 S.Ct. 386 (holding that jurisdiction attaches when a complaint is filed...