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June 19, 1998

JAMES H. JOHNSON, individually and as Personal Representative of the Distributees of the Estate of William H. Johnson, Deceased, Plaintiff, against THE SMITHSONIAN INSTITUTION and MICHAEL ROSENFELD GALLERY, INC., Defendants.

The opinion of the court was delivered by: MOTLEY


 Motley, J.

 Plaintiff James H. Johnson, individually and as personal representative of the distributees of the estate of William H. Johnson ("Johnson"), commenced this action on July 16, 1997 against defendants, the Smithsonian Institution ("Smithsonian") and the Michael Rosenfeld Gallery, Inc. ("Rosenfeld"), charging defendants with conversion, replevin, and constructive trust under the Federal Tort Claims Act, 28 U.S.C. § 2671, and violations of New York General Business Law § 349(a). Johnson was an artist in New York City in the 1930's and 1940's who died in 1970 following a lengthy period of involuntary confinement in a New York State psychiatric institution. His paintings are now in the custody of the defendants and others, primarily the Smithsonian.

 Defendants have asserted numerous defenses. They allege, inter alia, that plaintiff lacks standing; that the court lacks subject matter or diversity jurisdiction; that plaintiff has failed to state a claim for conversion or replevin; that the statute of limitations on the claims has run; that plaintiff cannot sue in a representative capacity; that plaintiff has suffered no damages; that plaintiff has waived and abandoned his claims; that plaintiff's claims are barred by laches, res judicata, collateral estoppel, and the doctrine of unclean hands; that plaintiff has failed to join indispensable parties, including the parties plaintiff purports to represent as well as any other "distributees" who plaintiff does not represent; and that defendants have good title to the artwork.

 On January 26, 1998, the court held a hearing to address defendants' various motions. The court then referred the parties to mediation. The mediation was not successful and the parties requested that the court rule on the previously argued motions.

 The court finds and concludes that pursuant to the Rooker-Feldman doctrine there is a lack of subject matter jurisdiction over claims regarding artwork that was the subject of a 1956 New York State Supreme Court determination (the "1956 Order"). For purposes of these motions, the court will assume, as plaintiff has alleged, that an entity which is not a party to this action unlawfully kept some of Johnson's artwork prior to his incompetency, thus creating a class of paintings which were not subject to the 1956 Order.

 A. Chronology of Events

 The following are the facts which are either alleged or undisputed by plaintiff. William H. Johnson was born in 1901 in South Carolina and was formally educated as an artist in the early 1920's at schools in New York and Massachusetts. Following his education, Johnson embarked on a successful painting career. From 1926 until 1947, Johnson created over 1000 artworks, many of which were allegedly exhibited at prestigious venues in the United States and abroad. During the same time period, Johnson received several awards and favorable reviews for his work, including a gold medal in 1929 from the Harmon Foundation for his distinguished achievements. The Harmon Foundation (the "Foundation") is allegedly a New York not-for-profit corporation. In 1947, while in Denmark, where he was living at the time, Johnson was diagnosed as suffering from syphilis-induced paresis and pronounced mentally incompetent. Johnson was then involuntarily confined in a mental institution in Central Islip, New York from 1947 until his death in 1970.

 In connection with Johnson's hospitalization, the Supreme Court of New York State appointed a Committee of the Person and Property of Johnson ("Committee") to administer the assets of Johnson's estate during his incompetency. The Committee stored Johnson's artwork in a warehouse facility between 1948 and 1956. In 1955, the Committee applied to the Supreme Court for leave to file a final accounting of the estate. The Court granted the motion and appointed a Special Guardian to represent Mr. Johnson's interest. The Court also ordered that the Committee serve notice of the filing of its final account on, among others, the Special Guardian, Johnson, and Johnson's mother, who was a resident of and living in South Carolina. The Committee attempted to sell the artwork, apparently to no avail.

 During the proceedings, the Committee informed the Court that the artwork, which had been in a warehouse for some eight years, and which the Committee had been unable to sell, had only nominal value. The Committee sought leave to abandon the artwork because it had no cash value. This petition for leave to abandon the artwork, like the notice of the filing of the final account, was served on the special guardian and on Johnson's mother. It is not clear whether Johnson's mother or any other member of Johnson's family was represented by counsel or aided by any informed party during the proceedings. There is no agreement as to what interests, if any, the family had or tried to exercise between 1947 and the 1956. On April 30, 1956, the New York State Supreme Court filed an unopposed Order granting the petition to abandon the art as worthless and to otherwise settle the final account of Johnson.

 About one month later, the Harmon Foundation took possession of the artwork and allegedly expended considerable funds restoring it. In 1967, the Harmon Foundation transferred 1154 of Johnson's items to the Smithsonian, allegedly without consideration. The Smithsonian is currently in the possession, custody or control of some or all of those pieces.

 Although there is a lack of clarity and consensus on past alleged claims by Johnson family members to obtain some of their relative's art, there is some evidence which points to the possibility that a demand was made of the Smithsonian as early as 1971 which resulted in two pictures being produced to two male family members.

 At some point in the 1980's or 1990's, Rosenfeld, which, according to plaintiff, is a New York corporation, acquired certain pieces of Johnson's artwork. The complaint is unclear as to how Rosenfeld acquired the artwork. P 21 ("Those [Rosenfeld's] pieces were among the items of Johnson artwork held by the Harmon Foundation . . . or, alternatively, were among the items of stored Johnson artwork . . .") In 1995, plaintiff allegedly demanded that Rosenfeld return to Johnson's heirs all of Johnson's artwork in its possession. This demand has not been met.

 Most recently, on February 24, 1997, plaintiff allegedly demanded that the Smithsonian pay him money damages arising out of the Smithsonian's possession of ...

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