Williams v. Nat'l Gallery Art
| Decision Date | 21 September 2017 |
| Docket Number | 16-CV-6978 (VEC) |
| Parties | OLIVER WILLIAMS, IRIS FILMER, and MARGARETE GREEN, Plaintiffs, v. THE NATIONAL GALLERY OF ART, LONDON; THE AMERICAN FRIENDS OF THE NATIONAL GALLERY, LONDON, INC; and GREAT BRITAIN, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Plaintiffs Oliver Williams, Iris Filmer, and Margarete Green, heirs of Margaret Moll ("Greta Moll" or "Greta"), seek to recover from the National Gallery, London (the "National Gallery" or the "Gallery"), a painting by Henri Matisse entitled Portrait of Greta Moll ("Painting"). Greta Moll owned the Painting but lost it in the aftermath of World War II. After passing through the hands of various owners, the Painting became part of the National Gallery's collection. Defendants the National Gallery and the American Friends of the National Gallery, London Inc. (the "American Friends," and collectively, "Gallery Defendants") have moved to dismiss Plaintiffs' Amended Complaint arguing primarily that the National Gallery is immune pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C. § 1330, et seq. ("FSIA").1 Defendant Great Britain has moved separately to dismiss the Amended Complaint, also primarilyon foreign sovereign immunity grounds. For the following reasons, Defendants' motions are granted.
Greta Moll and her husband Oskar were art students of Henri Matisse. Am. Compl. ¶ 51. Oskar Moll commissioned Matisse to paint a portrait of Greta, and he purchased the portrait from Matisse in 1908. Id. The Molls lived in Berlin when World Word II started, and they and the Painting survived the war. Id. ¶¶ 52-54. In 1946, due to the upheaval after the war and the impending partition of Berlin, the Molls decided to move to Wales, where their daughter had moved previously. Id. ¶ 54. In order to protect the Painting from looting, the Molls decided to send it to Switzerland for deposit with an art dealer. Id. Oskar's former student, Gertrude Djamarani, who was preparing to emigrate to Iran, offered to take the painting with her to Switzerland. Id. ¶ 55. Before that could happen, Oskar died, and Greta became the owner of the Painting. Id. ¶ 56.
Following Oskar's death in 1947, Greta gave the Painting to Djamarani to take to the Swiss art dealer, but Djamarani illegally converted the Painting, by sale or by otherwise taking money for it, and kept the proceeds, without Greta's authorization or knowledge. Id. ¶ 57. Greta, who had moved to Wales, lost track of the painting. Id. ¶ 58. In 1949, Knoedler & Co. ("Knoedler"), an art gallery in New York City, acquired the Painting and imported it to New York. Id. ¶¶ 5, 58. Plaintiffs allege that Knoedler lacked good title to the Painting because it did not conduct proper due diligence given that the Painting was famous, was known to have been owned by Oskar Moll, and was coming from post-war Europe Id. ¶ 59. Moreover, the U.S.government had issued warnings to art dealers that it was seeking to return art that had been looted in war areas and that no clear title could be passed on property that had been looted abroad. Id. ¶¶ 6, 59. After Knoedler, the Painting had several owners: Knoedler sold the Painting to Lee Blaffer in Texas; Blaffer sold it to a private collection in Switzerland; and the Swiss collector sold it to the Alex Reid & Lefevre Ltd. gallery ("Lefevre Gallery") in London. Id. ¶¶ 5, 8. In 1979, two years after Greta had died, the Lefevre Gallery sold the Painting to the National Gallery. Id. ¶¶ 8, 60.
At some point after 1979, Plaintiffs informed the National Gallery that the Painting had been stolen from Greta Moll and provided allegedly supporting documentation.3 Id. ¶¶ 61-62. After unsuccessful discussions with the National Gallery, on March 14, 2014, Plaintiffs filed a request with Britain's Spoliation Advisory Panel ("SAP"), an administrative body tasked with deciding Holocaust era art claims, for the return of the Painting. Id. ¶ 63. On March 25, 2015, SAP decided that it lacked jurisdiction to adjudicate Plaintiffs' request because the Painting was lost in 1947, and its jurisdiction covers only the Nazi era, which ended in 1945. Id. ¶ 64. On April 27, 2015, Plaintiffs, as the alleged rightful owners of the Painting, demanded its return from the National Gallery. Id. ¶¶ 10, 22, 65. On September 21, 2015, the National Gallery notified Plaintiffs' counsel by letter sent to New York that it refused to return the Painting. Id. ¶¶ 10, 22, 66.
The next year, on September 6, 2016, Plaintiffs initiated this lawsuit. Dkt. 1. Plaintiffs' claims include conversion, replevin, constructive trust, restitution based upon unjust enrichment,and declaratory relief. Am. Compl. ¶¶ 12, 68-93. Because the National Gallery, a public instrumentality of Great Britain, and Great Britain are foreign sovereigns, the Foreign Sovereign Immunities Act applies to Plaintiffs' claims against those entities. Plaintiffs have also sued the American Friends, a U.S. not-for-profit with its principal place of business in New York, which operates for the benefit of the National Gallery. Id. ¶ 16. Plaintiffs assert that American Friends is the alter ego of the National Gallery. Id. On April 5, 2017, this case was reassigned to the Undersigned. The Gallery Defendants and Great Britain moved to dismiss the Amended Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure on February 13, 2017, and May 8, 2017, respectively.4 Dkts. 28, 38.
FSIA "provides the sole basis for obtaining jurisdiction over a foreign state in the courts of this country." Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443 (1989). FSIA defines a "foreign state" to include its "agenc[ies] and instrumentalit[ies]," 28 U.S.C. § 1603(a), such as the National Gallery. Pursuant to FSIA, "a foreign state shall be immune from the jurisdiction of the United States and of the States," subject to specific exceptions. 28 U.S.C. § 1604; Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993). Plaintiffs allege that three exceptions apply here: (1) the expropriation exception, which limits immunity in certain actions involving "property taken in violation of international law," 28 U.S.C.§ 1605(a)(3); (2) the commercial activity exception, which limits immunity in certain actions that are "based upon" commercial activities carried out by the foreign state, 28 U.S.C. § 1605(a)(2); and (3) the waiver exception, which limits immunity in any case "in which the foreign state has waived its immunity," 28 U.S.C. § 1605(a)(1).
"Questions of FSIA subject-matter jurisdiction are resolved through a three-part burden shifting framework." Arch Trading Corp. v. Republic of Ecuador, No. 13 CV 4445 (PAC), 2015 WL 3443906, at *2 (citing Virtual Countries, Inc. v. Republic of South Africa, 300 F.3d 230, 242 (2d Cir. 2002)), aff'd, 839 F.3d 193 (2d Cir. 2016). "In a motion to dismiss on FSIA grounds, the movant must first make a prima facie showing that it is a 'foreign state' under the Act."5 Freund v. Republic of France, 592 F. Supp. 2d 540, 552 (S.D.N.Y. 2008), aff'd sub nom. Freund v. Société Nationale des Chemins de fer Francais, 391 F. App'x 939 (2d Cir. 2010). The plaintiff then "has the burden of going forward with evidence showing that, under exceptions to FSIA, immunity should not be granted." Cargill Int'l S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1016 (2d Cir. 1993). "[T]he ultimate burden of persuasion remains with the alleged foreign sovereign." Id.
"In the context of a Rule 12(b)(1) challenge to jurisdiction under FSIA . . . the district court 'must look at the substance of the allegations' to determine whether one of the exceptions to FSIA's general exclusion of jurisdiction over foreign sovereigns applies." Robinson v. Gov't of Malaysia, 269 F.3d 133, 140 (2d Cir. 2001) (quoting Cargill Int'l, 991 F.2d at 1019). To do so, "the district court must review the pleadings and any evidence before it, such as affidavits." Cargill, 991 F.2d at 1019. Although a district court does not decide the merits of the case inorder to decide jurisdiction, it "may examine the defendant's activities to determine whether they confer subject matter jurisdiction on the federal courts." Robinson, 269 F.3d at 141-42.
To establish subject matter jurisdiction pursuant to the expropriation exception of FSIA, a plaintiff must demonstrate the following:
Garb v. Republic of Poland, 440 F.3d 579, 588 (2d Cir. 2006) (alterations in original) (quoting 28 U.S.C. § 1605(a)(3)). As the Garb court's emphasis makes clear, the fourth element of the taking exception is disjunctive. Here, Plaintiffs proceed only pursuant to the "4(b)" provision of the fourth element because the Painting is not in the United States. The parties dispute whether Plaintiffs have satisfied several of these elements, including: (1) whether the Painting was "taken," as defined by FSIA; (2) whether the Painting was taken in violation of international law; and (3) whether the National Gallery engages in commercial activity in the United States sufficient to satisfy FSIA. Because the Painting was not "taken" as defined by FSIA, the expropriation exception does not apply, and the Court need not address the other disputed issues regarding the...
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