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Pierre Konowaloff, Paris, France v. the Metropolitan Museum of Art

December 18, 2012

PIERRE KONOWALOFF, PARIS, FRANCE, PLAINTIFF-APPELLANT,
v.
THE METROPOLITAN MUSEUM OF ART, NEW YORK, NEW YORK, DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Kearse, Circuit Judge:

11-4338-cv

Konowaloff v. Metropolitan Museum of Art

5 (Argued: April 20, 2012

14 Before: JACOBS, Chief Judge, KEARSE and McLAUGHLIN, Circuit Judges.

15 Appeal from a judgment of the United States District Court for the Southern District 16 of New York, Shira A. Scheindlin, Judge, dismissing, on the basis of the act of state doctrine, 17 plaintiff's action against defendant museum for its acquisition, possession, display, and retention of 18 a painting confiscated by the Russian revolutionary government from plaintiff's great-grandfather in 19 1918. See 2011 WL 4430856 (Sept. 22, 2011). 20 Affirmed.

12 Plaintiff Pierre Konowaloff appeals from a judgment of the United States District Court 13 for the Southern District of New York, Shira A. Scheindlin, Judge, dismissing his action against 14 defendant Metropolitan Museum of Art (the "Museum") for its acquisition, possession, display, and 15 retention of a painting that had been confiscated by the Russian Bolshevik regime from Konowaloff's 16 great-grandfather in 1918. The district court granted the Museum's motion to dismiss Konowaloff's 17 Amended Complaint, ruling that the pleading reveals that his claims are barred by the act of state 18 doctrine. On appeal, Konowaloff contends principally that the district court erred in holding that the 19 painting was taken pursuant to a valid act of state despite factual allegations in his Amended 20 Complaint to the contrary. For the reasons that follow, we find Konowaloff's contentions to be 21 without merit, and we affirm the judgment of the district court.

I. BACKGROUND

2 The allegations in Konowaloff's Amended Complaint are described in detail in the 3 September 22, 2011 Opinion and Order of the district court, reported at 2011 WL 4430856, familiarity 4 with which is assumed. The factual allegations material to Konowaloff's challenge to the court's act- 5 of-state ruling, taken as true and with all reasonable inferences drawn in favor of Konowaloff for 6 purposes of our review of a dismissal based on the pleading, included the following.

7 A. The Allegations of the Amended Complaint

8 Konowaloff is the sole heir to the estate of his great-grandfather Ivan Morozov, a 9 Russian national who prior to 1920 lived in Moscow, and who prior to World War I had a modern art 10 collection that ranked "among the finest in Europe" (Amended Complaint ¶ 8; see id. ¶¶ 6-7, 12). In 11 1911, Morozov acquired, for value, a Cezanne painting known as Madame Cezanne in the 12 Conservatory or Portrait of Madame Cezanne (the "Painting"). (See id. Introductory paragraph and 13 ¶ 6.)

14 The March 1917 revolution in Russia overthrew Tsar Nicholas II and installed a 15 Provisional Government, which was promptly recognized by the United States. (See id. ¶ 9.) In 16 November 1917, "the Bolsheviks (the Bolshevik faction of the Russian Social Democratic Workers 17 Party) seized power from the Provisional Government." (Id.) The Bolshevik--or "Soviet"--regime, 18 called the Russian Socialist Federated Soviet Republic ("RSFSR") (see id.), and its official successor, 19 called the Union of Soviet Socialist Republics (or "U.S.S.R.") (see id. ¶ 36), are referred to 1 collectively as the "Soviet Union" or the "Soviet government." The United States did not recognize 2 the Soviet government until November 16, 1933. (See id. ¶ 36.) 3 Immediately after gaining power in 1917, the Bolsheviks set about issuing "numerous 4 decrees" nationalizing property, "[f]or example, . . . abolish[ing] the private ownership of land" on 5 November 8, 1917, and "making museums . . . property of the state." (Id. ¶ 13.) "The Bolsheviks 6 confiscated artworks, particularly of Tsarist origins, for possible sale abroad." (Id. ¶ 15.) They also 7 took steps to conceal or destroy evidence of the origins of the artwork. (See id.) 8 "On December 19, 1918, . . . the Bolsheviks decreed that the 'art collection [] of I.A. 9 Morozov,' including the Painting, was 'state property' . . . ." (Amended Complaint ¶ 11; see id. ¶ 57 10 ("The Painting was confiscated by the RSFSR in 1918, in an act of theft. Morozov did not voluntarily 11 relinquish the Painting.").) As a result of that decree "Morozov was deprived of all his property rights 12 and interests in the Painting" and "did not . . . receive any compensation for being deprived of his 13 rights and interests in the Painting." (Id. ¶ 11.) "The December 19, 1918 order"--which was directed 14 only at the art collections of Morozov and one other family--"was tantamount to a bill of attainder, 15 meting out punishment to particular individuals without legal process and on account of no sin." (Id. 16 ¶ 14.)

17 The Amended Complaint alleged that in May 1933, the Painting was acquired by 18 Stephen C. Clark "in a transaction that may have violated Russian law" (id. ¶ 22), including decrees 19 issued in September and October 1918 prohibiting "the export of objects of particular and historical 20 importance," including "artworks" (id. ¶ 29; see also id. ¶ 33). It alleged that "[t]he Soviet state, 21 including its institutions and laws, was distinct from the Communist Party of the Soviet Union" (id. 1 ¶ 32); that "[t]he Politburo was the executive arm of the [Communist Party]" (id.); that "[t]he 2 Politburo made the decisions on art sales" (id. ¶ 34) and "secretly approved the sale" of the Painting 3 and other works to Clark (id. ¶ 30); and that "[t]he sale of . . . the Painting[] to Clark in 1933, like the 4 confiscation of the Painting in 1918, was an act of party, not an act of state. Party actions in selling 5 the art abroad violated Soviet laws. The Politburo members who ordered the sale of the Painting were 6 acting independently of the Soviet state and were engaged in illegal private trade with western 7 capitalists" (id. ¶ 31).

8 The Amended Complaint contained extensive descriptions of Clark and the conduct 9 of other persons Konowaloff contends dealt in "stolen art from the Soviet government and 10 transferr[ed] funds into Soviet accounts" (id. ¶ 18; see also id. ¶¶ 15-28) and likely assisted in Clark's 11 purchase of the Painting (see id. ¶¶ 26-28). It alleged that "Clark may have known" that the Painting 12 had been "taken . . . from Morozov without compensation" (id. ¶ 35) and that Clark "made no attempt 13 to contact Morozov's heirs prior to, or at any time after, his purchase of the Painting" (id. ¶ 27). It 14 alleged that Clark "employed a Soviet laundering operation to acquire the Painting" (id. ¶ 26) and 15 "concealed the" Painting's "provenance" (id. ¶ 39).

16 Clark, who had been a trustee of the Museum (see Amended Complaint ¶ 24), died in 17 1960 and bequeathed the Painting to the Museum (see id. ¶ 39-40). The Amended Complaint alleged 18 that "the Museum may have known that Clark's bequest involved looted art" (id. ¶ 41) and "may have 19 known that Soviet law prohibited the alienation of Western art unless approved by the highest 20 authorities" (id. ¶ 43). "Yet the Museum did nothing to (1) inquire as to whether Clark had good title; 21 (2) locate the heirs of Ivan Morozov; and (3) ascertain whether the ...


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