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SANCHEZ v. UNIV. OF PENNSYLVANIA MUSEUM OF ARCH. AND ANTHR.

United States District Court, S.D. New York


July 19, 2004.

LUIS E. SANCHEZ, et al., Plaintiffs,
v.
UNIVERSITY OF PENNSYLVANIA MUSEUM OF ARCHAEOLOGY AND ANTHROPOLOGY, THE TRUSTEES OF THE UNIVERSITY OF PENNSYLVANIA, and AMSINCK, SONNE & COMPANY, as Successor in Interest to AMSINCK & CO., Defendants.

The opinion of the court was delivered by: JED RAKOFF, District Judge

MEMORANDUM ORDER

Plaintiffs move to remand this case to New York State court on the ground that there is here no diversity of citizenship because both plaintiff Luis E. Sanchez and defendant Amsinck, Sonne & Co. ("Amsinck"), the successor-in-interest to Amsinck & Co., are citizens of New York. The University of Pennsylvania defendants oppose on the ground that Amsinck was "fraudulently" named as a co-defendant to defeat diversity.

By way of background, the plaintiffs, according to their Amended Complaint, are the grandchildren and heirs of Pablo Isias Sanchez, a citizen of Colombia, South America. In 1909, while building a distillery on his property in Colombia, Mr. Sanchez allegedly discovered a collection of pre-Colombian American Indian gold art objects, which, plaintiffs allege, were subsequently stolen from Mr. Sanchez at some time between 1909 and 1920. See Amended Complaint ¶ 10, 11. Thereafter, in 1920, defendant Amsinck — which allegedly had come into possession of the gold art collection — sold the collection to the University of Pennsylvania defendants. Id. at ¶ 12. It was not until early 2003, however, that the plaintiffs discovered that the University held the collection. Id. at ¶ 22. After plaintiffs' attempts to recover the collection from the University failed, plaintiffs commenced the instant action in the Supreme Court of the State of New York, County of New York, on January 13, 2004. The University of Pennsylvania defendants timely removed the action to this Court on February 17, 2004, thereby precipitating the instant motion.

  Upon consideration, the Court concludes that, assuming plaintiff Luis E. Sanchez and defendant Amsinck are both citizens of New York, the University defendants have carried their burden to show that Amsinck has been fraudulently joined in order to defeat diversity jurisdiction. It should be noted, however, that "fraudulent joinder" is something of a term of art. "In order to show that naming a non-diverse defendant is a `fraudulent joinder' effected to defeat diversity, the defendant must demonstrate, by clear and convincing evidence, either that there has been outright fraud committed in the plaintiff's pleadings, or that there is no possibility, based on the pleadings, that a plaintiff can state a cause of action against the non-diverse defendant in state court." Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459 (2d Cir. 1998). It is the latter prong that is here pertinent. Specifically, there is no possibility that plaintiffs could prevail in New York state court on their one and only claim against Amsinck — a claim for conversion — because such a claim is plainly time-barred under New York law.

  This is because section 214 of the New York Civil Practice Law and Rules provides a uniform three-year statute of limitations for recovery of a chattel. See CPLR § 214. Where the party in possession of the chattel is a thief, the statute of limitations runs from the time of the theft. Solomon R. Guggenheim Foundation v. Lobell, 77 N.Y.2d 311, 318 (1991). Where, by contrast, possession of the property is originally lawful, a conversion claim accrues when the defendant refuses to return the property after a demand or sooner disposes of the property. See Leveraged Leasing Administration Corp. v. Pacificorp Capital, Inc., 87 F.3d 44, 49 (2d Cir. 1996), citing White v. City of Mount Vernon, 221 A.D. 345 (2d Dept. 1995).*fn1

  Thus, even though the Amended Complaint does not allege precisely how Amsinck came to be in possession of the gold art collection, under either hypothesis a claim against Amsinck is time-barred: for if Amsinck were a thief, the conversion claim accrued some time between 1912 and 1923, i.e. three years following a theft that allegedly would have occurred some time between 1909 and 1920, while if Amsinck were a good faith purchaser, the conversion claim accrued in 1923, i.e., three years after Amsinck disposed of the property.

  Since, therefore, there is no possibility that plaintiffs can state a claim against Amsinck, it is clear that Amsinck was "fraudulently" joined in this action. Accordingly, the Court dismisses all claims against Amsinck with prejudice, and, because the remaining and only true parties in the case are diverse, hereby denies plaintiffs' motion to remand the case to New York State court.

  SO ORDERED.


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