The opinion of the court was delivered by: William H. Pauley III, District Judge
Defendants and Counterclaim-Plaintiffs Milos Vavra ("Vavra") and Leon Fischer ("Fischer") (together, the "Heirs") move pursuant to Rule 23 of the Federal Rules of Civil Procedure to certify a defendant class comprised of six subclasses. The subclasses consist of private individuals, museums, art dealers and others involved with artworks that were part of the estate of Fritz Grunbaum ("Grunbaum"). The Heirs seek to name the following Counterclaim-Defendants as class representatives: David Bakalar ("Bakalar"), The Museum of Modern Art ("MoMA"), Neue Galerie, Oberlin College ("Oberlin"), Sotheby's, Inc. ("Sotheby's") and Schenker, Inc. ("Schenker") (collectively, the "Counterclaim-Defendants"). For the following reasons, the Heirs' motion for class certification is denied.
On March 21, 2005, David Bakalar commenced this action seeking a declaratory judgment that he is the rightful owner of a drawing by Austrian expressionist artist Egon Schiele ("Schiele") known as Seated Woman with Bent Left Leg (Torso) (the "Drawing"). (Complaint, dated Mar. 21, 2005 ("Complaint" or "Compl.") ¶ 4.) It is estimated that prior to his death in 1918, Schiele created over 2,700 drawings. (Declaration of Jane Kallir, dated Jan. 27, 2006 ("Kallir Decl.") at ¶ 2; Transcript of Oral Argument on Apr. 27, 2006 ("Tr.") at 7.)
Bakalar is a prominent Massachusetts businessman and philanthropist. (Compl. ¶ 4.) In 1964, he purchased the Drawing from a New York art dealer for a nominal sum. (Declaration of William L. Charron in Support of Bakalar's Opposition to Motion for Class Certification, dated Mar. 10, 2006 ("Charron Decl.") ¶ 14.) He kept the Drawing until 2004, when he consigned it to Sotheby's for sale. (Charron Decl. ¶ 15.) In February 2005, Sotheby's auctioned the Drawing in London for approximately $726,000. (Charron Decl. ¶ 15.) The sale was never consummated because the Heirs asserted a claim to the Drawing. (Compl. ¶ 10.) Through their attorney, the Heirs informed Sotheby's that the Nazis expropriated the Drawing from Grunbaum in 1938, and that as his legal heirs they are the proper titleholders. (Compl. ¶ 10.)
In 2002, an Austrian court declared Vavra and Fischer to be the legal heirs of Grunbaum's estate. (First Amended Counterclaims and Answer, dated Feb. 6, 2006 ("Answer") ¶¶ 243, 247.) Grunbaum was a well-known cabaret performer who resided with his wife Elisabeth in Vienna prior to World War II. (Compl. ¶ 22.) Grunbaum and his wife were Jewish. (Answer ¶ 252.) They owned an extensive art collection, including many works by Schiele. (Compl. ¶ 22.) On April 1, 1938, the Nazis arrested Fritz Grunbaum and placed him in the Dachau concentration camp, where he died in 1941. (Answer ¶ 91; Declaration of Herbert Gruber in Support of Class Certification, dated Jan. 5, 2006 ("Gruber Decl.") at ¶ 29.) Thereafter, on July 20, 1938, the Nazis evicted Elisabeth Grunbaum from the apartment. She was arrested and died in the Maly Trostinec concentration camp in 1942. (Answer ¶ 245; Gruber Decl. ¶ 29.)
Following Elisabeth Grunbaum's eviction, Dr. Franz Kieslinger, an alleged agent of the Nazis, inventoried the Grunbaum art collection in the Vienna apartment. (Answer ¶¶ 103, 249 & Ex. B: Inventory of Grunbaum Art Collection by Dr. Kieslinger ("Kieslinger Inventory"); Gruber Decl. ¶ 29.) The Kieslinger Inventory reflects over 450 individual works, including 81 by Schiele, which are described as follows:*fn1
1. E. Schiele The Self Seers, oil on canvas
2. " Portrait of a Woman, oil on canvas
3. " Town by a River (Dead City)
4. " Small Landscape with Trees
5. " Ships in the Harbor ***
37. Large drawings by Schiele, 55 works colored a. 20 drawings and 1 print from Schiele
(Answer Ex. B.) Only five of the 81 Schieles included in the Inventory are identified by title. (Answer Ex. B.)
Following Kieslinger's inventory, approximately 420 Grunbaum works were deposited with a storage company, Schenker & Co. A.G. ("Schenker & Co."). (Answer ¶ 257 & Ex. C: Schenker & Co. Request for Export Permit, dated Sept. 8, 1938). An invoice prepared by Schenker & Co. (the "Schenker Invoice") describes this artwork in broad categories such as "10 Drawings" and "278 Drawings, some in color." (Answer Ex. C.) The Heirs contend that in 1931, the German Railways, a Nazi enterprise, acquired Schenker & Co. and, thus, Schenker & Co. "was acting as an instrumentality of the Nazis and . . . expropriating [Grunbaum] property." (Answer ¶¶ 112-13, 260.)
What happened to the Grunbaum art collection between 1938 and 1952 is a mystery. (Compl. ¶ 25.) Beginning in 1952, many works resurfaced in Switzerland. (Compl. ¶ 29.) Eberhard Kornfeld ("Kornfeld"), a gallery owner in Bern, Switzerland, maintains that between 1952 and 1955, Mathilde Lukacs ("Lukacs"), the sister of Elisabeth Grunbaum, delivered many works to him for auction or private sale. (Charron Decl. ¶ 16 & Ex. 8: Collection of Kornfeld Correspondence.) At least 45 of these pieces were Schiele works. (Charron Decl. Ex. 8(g): Lists of Schiele Work Purchased from Lukacs.) Kornfeld contends that in 1998 he learned that the Lukacs artwork came from the Grunbaum collection when the Reif family approached him as purported Grunbaum heirs.*fn2 (Charron Decl. Ex. 8(f): Letter from Kornfeld to Gruber, dated Feb. 7, 2006.)
Vavra and Fischer dispute Kornfeld's account. (Answer ¶¶ 272-75.) Herbert Gruber ("Gruber"), the Heirs' genealogical consultant, attests that "[o]ver time, Kornfeld has told many inconsistent stories to the press and in correspondence about what Matilde [sic] Lukacs told him about the provenance of the works that she allegedly sold to him." (Gruber Decl. ¶ 35.) On February 7, 2006, Kornfeld responded to these assertions by ...