The opinion of the court was delivered by: MICHAEL B. MUKASEY
MICHAEL B. MUKASEY, U.S.D.J.
Defendants Conseil Regional de Haute-Normandie (the "Conseil"), Catherine Vaudour, and Patricia Blaiset (collectively, the "Conseil Defendants") move to dismiss all claims against them -- including plaintiff Michael Aschenbrenner's claims and defendants Compagnie Nationale Air France
and Cosmopolitan Trucking Corporation's cross-claims -- for lack of subject matter jurisdiction, lack of personal jurisdiction, and forum non conveniens. For the reasons discussed below, the Conseil Defendants motions to dismiss are granted.
The following facts are alleged by plaintiff. Aschenbrenner is a New York-based artist. (Complt. P 1) In March 1991, Vaudour travelled to New York and solicited Aschenbrenner's participation in an exhibition of contemporary international glasswork (the "Exposition") that the Conseil was planning to hold in Rouen, France. (Complt. PP 8-9) In April 1991, and on a return trip to New York in May 1991, Vaudour made arrangements for the inclusion of two of Aschenbrenner's works in the Exposition. (Complt. P 10-13). The works were titled "Damaged Bone Series" and "Boneyard," respectively, and each consisted of 15 to 25 component sculptures. (Complt. P 13) In accordance with arrangements made by the Conseil Defendants, Aschenbrenner shipped the works to Rouen, where they arrived undamaged in December 1991 and were exhibited at the Exposition from December 18, 1991 to February 29, 1992. (Complt. PP 13, 16, 34-35) After the Exposition closed, the Conseil Defendants sent Aschenbrenner's works of art back to New York via Air France and Cosmopolitan Trucking. (Complt. PP 18-19, 36, 38, 52, 54) The Conseil Defendants' role included arranging the packing, shipping, and insurance coverage. (Complt. P 18) In late April 1992, the works arrived at Aschenbrenner's New York residence severely broken. (Complt. PP 20, 29, 39, 47, 55, 63) The damage -- valued by plaintiff at $ 94,175 was caused by improper and negligent packing, shipping or handling. (Complt. PP 20, 30, 39, 43, 47-48, 55, 59, 63-64).
Because the Conseil Defendants' motion challenges this court's jurisdiction, it is proper to rely on affidavits in addition to the pleadings. Kline v. Kaneko, 685 F. Supp. 386, 389 (S.D.N.Y. 1988). The following uncontroverted facts are supported by sworn statements submitted by the parties. The Regional de Haute-Normandie ("Normandy") is a territorial subdivision of France. (Rufenacht Decl. P 2) Under French law, the people of Normandy elect the Conseil to govern the region. (Vaudour Decl. P 3; Rufenacht Decl. P 4) French law provides further that the Conseil is "competent to promote the economic, social, health, cultural and scientific development" of Normandy. (Rufenacht Decl. P 5 & Exh. A) "Under this provision, the French view the organization and control of museums and similar cultural activity as being within the exclusive province of the French government." (Rufenacht Decl. P 5) Normandy's budget "is generated through taxes, loans and other governmental subsidies." (Rufenacht Decl. P 3) While engaged in the activities underlying plaintiff's claims against them, Vaudour and Blaiset were acting on behalf of the Conseil. (Vaudour Decl. P 4; Rufenacht Decl. PP 6-10)
The Exposition was a not-for-profit event, the "sole purpose" of which was to "promote education, the arts and culture." (Vaudour Decl. P 7) The participating artists were not paid to exhibit their works. (Vaudour Decl. P 8) The Conseil Defendants "had no pecuniary or other interest in the sale or placement of any work." (Vaudour Rep. Decl. P 4) The Exposition charged members of the public a "nominal" admission fee of 15 francs (about US $ 2.50), but extended free admission to soldiers and students. (Vaudour Decl. P 8) Over-all, the Conseil lost more than 3.2 million francs on the Exposition. (Vaudour Rep. Decl. P 6)
In an "explanatory brochure" (Vaudour Rep. Decl. P 5) furnished to potential participants in the Exposition (Aschenbrenner Aff. P 12), the Conseil explained its rules regarding the "sale of works" during the Exposition. This brochure provides:
The eventual sale of works will not be directly negotiated during the exhibition. However:
* Potential buyers may, with the authorization of the artists and/or that of the galleries representing them, obtain the contact details of the artists concerned.
* Purchase orders have already been received from patrons of the arts and public bodies for selected works from the exhibition.
* Every attention will be given, further [sic] to the artists' agreement, to finding a new owner for their works after the exhibition.
(Aschenbrenner Aff. Exh. 2) In addition, the Conseil apparently had a policy
of providing pricing information to potential purchasers of exhibited works upon request if the artist provided the information to the Conseil and authorized the Conseil to disclose it. (Vaudour Rep. Decl. P 3)
When Vaudour first visited Aschenbrenner in March 1991 to discuss his participation in the Exposition, he also agreed to provide photographs of his works for a book on contemporary glass art that she was preparing. (Aschenbrenner Aff. P 6) The precise link between this book and the Exposition is unclear. The explanatory brochure mentioned above sends mixed signals about the relationship between the book and the Exposition. The section of the brochure which discusses the book -- and is entitled "Catalogue" -- states that the "book does not constitute the exhibition catalogue." (Aschenbrenner Aff. Exh. 2) The brochure continues: "Works figuring in the album are not necessarily those exhibited. Similarly, certain artists not present at the exhibition may be present in the book." (Aschenbrenner Aff. Exh. 2) On the other hand, the brochure states that the book was to be sold during the Exposition, that "photographs should illustrate: Where ...