In the Supreme Court of the United States

Transcription

1 No. XXXX In the Supreme Court of the United States MUSEO DE ARTE LATINOAMERICANO DE VALENTÍN ALSINA, PETITIONER v. AMY GOODMAN, RESPONDENT ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TWELFTH CIRCUIT BRIEF FOR RESPONDENT TEAM: O Counsel for Respondent

2 QUESTIONS PRESENTED 1. Does the Immunity from Seizure Act, 22 U.S.C. 2459, which grants immunity from seizure to foreign artwork while on loan in the United States, permit a theft victim to sue a foreign lender in possession of the victim s stolen painting for damages, where the statute is silent in title, purpose, and text regarding any other courses of legal action beyond seizure? 2. Is a theft victim barred by the equitable defense of laches; where a painting was stolen during World War II when its true owner was forced to flee Nazi-invaded Vienna; where the true owner was unable to locate the painting following the War, and where the institution currently in possession failed to take any action to track the painting s title and made no showing that it suffered from the loss of evidence or financial harm as result of the theft victim s delay in filing suit. i

3 TABLE OF CONTENTS Questions Presented...i Table of Authorities...iv Opinions Below...vi Jurisdiction...vi Statement of the Case...1 Summary of the Argument...3 Argument...5 THIS COURT SHOULD AFFIRM THE TWELFTH CIRCUIT S JUDGMENT AS A MATTER OF LAW BECAUSE A GRANT OF IMMUNITY UNDER THE IMMUNITY FROM SEIZURE ACT, 22 U.S.C. 2459, DOES NOT PRECLUDE A SUIT FOR DAMAGES, AND THE PRESENT ACTION IS NOT BARRED BY THE DEFENSE OF LACHES...5 A. Since the Immunity from Seizure Act grants immunity to foreign-owned artwork from seizure while in the United States, but it does not grant immunity to the foreign lender from a claim for damages arising out of said artwork, Goodman should be able to move forward with her lawsuit The plain language of the Immunity from Seizure Act supports the interpretation of the Act that allows Goodman to move forward with her claim for damages The case law interpreting the Immunity from Seizure Act supports the claim that the statute allows Goodman to move forward with her lawsuit for damages Public policy favors interpreting the Immunity from Seizure Act to allow Goodman to move forward with her lawsuit, as this interpretation will discourage the lending of stolen artwork and allow art theft victims to recover damages for their property...12 B. The equitable defense of laches does not bar Goodman s suit for damages since MALVA failed to show that Goodman and her predecessors in title unreasonably delayed filing suit against the museum and that MALVA suffered undue prejudice as a result of any delay Goodman did not unreasonably delay filing this lawsuit against MALVA ii

4 because when weighed against MALVA s inaction, Goodman and her predecessors in title were diligent in their search for Casas...15 a. Goodman and her predecessors in title acted diligently in searching for the stolen painting...16 b. MALVA s failure to search for title to Casas upon its inheritance of the Painting undermines the success of its laches defense MALVA has not met its burden of proof in demonstrating that it suffered prejudice as a result of Goodman s alleged delay in commencing this action...26 Appendix... 1-A iii

5 TABLE OF AUTHORITIES UNITED STATES SUPREME COURT CASES Connecticut Nat l Bank v. Germain 503 U.S. 249(1992)...10 Dean v. U.S. 129 S. Ct (2009)...9 I.N.S. v. Nat l Ctr. for Immigrants Rights, Inc. 502 U.S. 183 (1991)...9 Mead Corp. v. Tilley 490 U.S. 714 (1989)...9 Lamie v. U.S. Trustee 540 U.S. 526 (2004)...9 UNITED STATES COURTS OF APPEALS CASES Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg & Feldman Fine Arts, Inc., 917 F.2d 278 (7th Cir. 1990)...23, 24, 25 DeWeerth v. Baldinger 836 F.2d 103 (2d Cir. 1987)...27 Kunstsammlungen Zu Weimar v. Elicofon 678 F.2d 1150 (2d Cir. 1982)...18 Robins Island Pres. Fund, Inc. v. Southold Dev. Corp. 959 F.2d 409 (2d Cir. 1992)...19, 21, 27, 28 UNITED STATES DISTRICT COURTS CASES Delocque-Fourcaud v. The Los Angeles County Museum of Art No. 2:03-cv R-CT (C. D. Cal 2003)...11 Deutsch v. Metro. Museum of Art No. 04 Civ (S.D.N.Y. 2004)...11 DeWeerth v. Baldinger 804 F. Supp. 539 (S.D.N.Y. 1992)...passim Erisoty v. Rizik No. CIV. A , 1995 WL (E.D. Pa. Feb. 23, 1995)...passim Finnerty v. Wireless Retail, Inc. 624 F. Supp. 2d 642 (E.D. Mich. 2009)...14 Greek Orthodox Patriarchate of Jerusalem v. Christie s, Inc. No. 98 CIV (KMW), 1999 WL (S.D.N.Y. Aug. 30, 1999)...18, 21 Kamat v. Kurtha No. 05 CV KMH THK, 2009 WL (S.D.N.Y. Jan. 15, 2009)...16 Magness v. Russian Fed'n 84 F. Supp. 2d 1357 (S.D. Ala. 2000)...11 Malewicz v. City of Amsterdam 362 F. Supp. 2d 298 (D.D.C. 2005)...11, 12, 13 Romanov v. Florida Int ; Museum No CI-008 (Cir. Ct. Pinellas Cty. Fla 1995)...11 iv

6 STATE COURT CASES 269 Associates v. Yerkes 449 N.Y.S.2d 593 (N.Y. Civ. Ct. 1982)...15, 26 Glenesk v. Guidance Realty Corp. 321 N.Y.S2d 685 (N.Y. App. Div. 1971)...26 Knorr v. Smeal 836 A.2d 794 (N.J. 2003)...14 O Keefe v. Snyder 416 A.2d 862 (N.J. 1980)...16 Solomon R. Guggenheim Found. v. Lubell 569 N.E.2d 426 (N.Y. App. Div. 1991)...passim Solomon R. Guggenheim Found. v. Lubell 153 A.D.2d 143 (N.Y. App. Div. 1990)...23, 26, 27, 29 U.S. ex rel. U.S. Dept of Agric. v. Scurry 940 A.2d 1164 (N.J. 2008)...14 Wertheimer v. Cirker s Hayes Storage Warehouse Inc. 752 N.Y.S.2d 295 (App. Div. 2002)...19, 21, 25 STATUTES Federal Immunity from Seizures Act, 22 U.S.C.A (West 2011)...6, 8 SECONDARY SOURCES 111 Cong. Rec. 25, (1965) (statement of Rep. Rogers)...9 Alexandra Minkovich, The Successful Use of Laches in World War II-Era Art Theft Disputes: It's Only A Matter of Time, 27 Colum. J.L. & Arts 349 (2004)...22, 23, 28 H.R. Rep. No , at 3577 (1965)...6, 7, 10 Jessica L. Darraby, Art, Artifact, Architecture and Museum Law: Immunity from Seizure Act 6:134 (West 2010)...7, 8 Marilyn E. Phelan, Scope of Due Diligence Investigation in Obtaining Title to Valuable Artwork, 23 Seattle U. L. Rev. 631 (2000)...24, 25 Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction, 47:23 (7th ed. 2010)...9 Rodney M. Zerbe, Immunity from Seizure for Artworks on Loan to United States Museums, 6 Nw. J. Int'l L. & Bus. 1121, 1124, 1129 ( )...10, 12, 13 v

7 OPINION BELOW The United States Court of Appeals for the Twelfth Circuit's order and opinion affirming in part and reversing in part the decision of the district court, remanding to the district court for further proceedings is unreported. Goodman v. Museo de Arte Latinoamericano de Valentín Alsina, No (12th Cir. Nov. 12, 2010). The United States District Court for the Southern District of DePaulia's order and opinion granting Petitioner-Defendant's motion for summary judgment is also unreported. Goodman v. Museo de Arte Latinoamericano de Valentín Alsina, No. 12 X 123 (S.D. DeP. 2010). JURISDICTION The judgment of the United States Court of Appeals for the Twelfth Circuit was entered on November 12, On November 12, 2010, this Court granted Petitioner s writ of certiorari. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISION The Immunity from Seizure Act, 22 U.S.C. 2459, prohibiting seizure under judicial process of cultural objects imported for temporary exhibition or display, is reproduced in the Appendix of this brief. vi

8 STATEMENT OF THE CASE In the wake of World War II, art thefts have led to a thriving international market where museums and galleries illegal possession of coveted works comes at the expense of persecuted victims and their families. Lawsuits asserting rights to stolen artwork have given victims a chance to gain a small sense of justice and equity. A Victim s Search for her Stolen Artwork Fearing Nazi persecution, Respondent s grandmother and predecessor in title, Yulia Komarova ( Komarova ) was forced to flee Vienna in 1938 leaving her private collection of paintings, including a Xul Solar painting entitled Casas (the Painting ), in a warehouse for safekeeping. Goodman v. Museo de Arte Latinoamericano de Valentín Alsina, No , slip op. at 2 (12th Cir. Nov. 12, 2010). It was not until 1950 that Komarova was able to obtain any information regarding the contents of the warehouse. Id. At which time, merely five years before her death, Komarova learned that all of the contents in the warehouse, including Casas, had been stolen. Id. Though Komarova did not register Casas with any post-war databases or make claims against the Austrian government for the return of the Painting, her knowledge of such resources was limited upon moving to the United States. Id. The Resurfacing of Casas and the Chain of Wrongful Possession In 1946, Thomas Brown ( Brown ) purchased Casas in a flee market in Vienna. Id. Never having loaned or publicly displayed the Painting, Brown sold Casas to Argentinean, Francisco Moreno (Moreno), who neglected to do a title search upon purchase. Id. at 2-3. In 1990, an image of Casas appeared in a catalogue, published in Spanish, attributing ownership of the painting to Moreno. Goodman, slip op. at 3. Following Moreno s death, Petitioner, Museo de Arte Latinoamericano de Valentín Alsina ( MALVA ) gained possession of Casas. MALVA 1

9 is owned and administered by the private, non-profit, non-governmental Moreno Foundation. Id. In January 2007, MALVA reached an agreement with the DePaulia Museum of Modern Art ( MMA ) to loan the Xul Solar collection, which included Casas, to the American museum. Id. The exhibition was advertized throughout the national art industry, and Casas was granted immunity from seizure under the Immunity from Seizure Act ( ISA ), 22 U.S.C while on display in the MMA. Id. Casas went on display in the MMA in January Id. at 4. Judicial Resistance to the Rightful Reclamation Ten days after Casas went on display, Respondent Amy Goodman ( Goodman ), Komarova s sole surviving heir, presented a demand to MALVA to return the painting to Goodman, the rightful owner. Id. Three months later, MALVA denied Goodman s demand, prompting Goodman to file this suit in the U.S. District Court for the Southern District of DePaulia for MALVA s unlawful acquisition of Casas and damages for the conversion of the Painting. Goodman, slip op. at 4. In response, MALVA filed a motion for summary judgment on May 1, 2010, arguing that the government s grant of immunity to Casas under the ISA barred any U.S. court from ruling in any manner that would interfere with MALVA s possession of Casas while in the MMA or from awarding damages in the amount of Casas fair market value. Id. In the alternative, MALVA pleaded that Goodman s claim was barred by the statute of limitations and laches. Id. Though holding that the ISA did not bar Goodman s claim, the district court held that MALVA s laches defense was a complete bar to the action. Id. The United States Court of Appeals for the Twelfth Circuit, on appeal, affirmed the district court s holding that ISA did not bar Goodman s claim. Id. at 5. In addition, the Twelfth Circuit reversed the district court s holding that Goodman s claim was barred by the statute of 2

10 limitations and laches because MALVA failed to make the necessary showing that it suffered legal harm or prejudice as a result of Goodman s alleged delay filing this suit. Id. at 8. Petitioners appeal the Twelfth Circuit s decision and present two issues before this Supreme Court. SUMMARY OF THE ARGUMENT Both challenges to Respondent Amy Goodman s ( Goodman ) claim for damages and conversion of the painting, Casas (or the Painting ), require this Court to affirm the Twelfth Circuit s decision. Pursuant to the Immunity from Seizure Act ( ISA or Act ), Goodman should be allowed to proceed with her lawsuit for damages against Petitioner ( MALVA ). The statute grants immunity from seizure to the foreign-loaned artwork in that the United States judicial process cannot take possession of an object while it is on display in the United States. By giving this extra protection to artwork and its borrowing museum, Congress intended for the ISA to encourage foreign owners to lend their art to the United States. By its literal terms, the ISA makes it clear that the Act prohibits physical seizure of loaned objects while in the United States, but the ISA is silent regarding bans on lawsuits for damages relating to a piece or collection of art. The title, provisions, and purpose of the ISA solely focus on protecting artwork from seizure and therefore, the Act should not be read to assume that it provides a complete ban on all lawsuits. If this Court allows Goodman to go forth with her lawsuit and Congress, in reviewing the decision, believes that this Court did not interpret the ISA as the legislature had intended, then it is solely Congress role to change or add verbiage to the statute s text. In addition to a plain language reading of the ISA, leading case law interpreting the Act as well as sound policy suggest that the ISA should only ban seizure of loaned cultural artifacts and not lawsuits for damages. If the terms of the ISA are unnecessarily expanded, then such an 3

11 interpretation could have the effect of promoting the lending of stolen artwork. If foreign lenders know that no legal action can arise out of the loaned artwork, then there will be no incentive to do background checks and verify titles to these pieces or collections. Further, an interpretation as Petitioner suggests will have a chilling effect by leaving individuals like Goodman powerless to recover damages for stolen property that is rightfully hers. The ISA was enacted to encourage the lending of legitimate artwork and other cultural objects and not to allow for the United States to become a safe haven for theft. Accordingly, Goodman should be able to proceed with her suit because the plain language of the ISA, the case law interpreting the Act, and public policy concerns all suggest that the statute is limited solely to prohibiting the seizure of loaned artwork. Further, Goodman s claim is not barred by MALVA s affirmative defense of laches because the moving party, MALVA, has failed to satisfy both elements of the defense. To assert successfully a defense of laches, the MALVA must demonstrate that i) Goodman has unreasonably delayed filing suit, and ii) MALVA has suffered as a result of that delay. First, in weighing the equities of the respective parties, Goodman did not unreasonably delay in filing this lawsuit against MALVA because she and her predecessors in title were diligent in their search for the stolen Painting. In light of the specific facts and circumstances of this case, Goodman acted reasonably as a non-institutional claimant by keeping her eyes and ears open in her efforts to locate the Painting. Further, the amount of time between Goodman locating the Painting and commencing this action does not constitute a significant delay, as she demanded that MALVA return Casas merely ten days after it went on display at the DePaulia museum. Similarly, her grandmother, Komarova, acted reasonably as an individual collector in her efforts to locate the Painting after it was stolen from a warehouse where she stored her possessions when forced to flee Nazi-occupied Vienna. Moreover, governments have just recently begun to declassify Nazi 4

12 documentation including information about stolen artwork. Thus, until recently, Goodman s sources for locating and recovering Casas were limited. In contrast, MALVA, an art museum with expansive resources at its disposal, failed to take any steps to track Casas title or provenance. Since laches is a determination in equity, MALVA s vigilance upon inheriting the Painting is equally important as Goodman s diligence and its failure to act weighs in Goodman s favor as the rightful owner. Additionally, MALVA did not suffer legal harm or prejudice as a result of an alleged delay, and short of such causation, MALVA has failed to establish a successful laches defense. In spite of the sixty-five years that have passed since the Painting was stolen, MALVA has not been prejudiced by the loss of evidence, as Nazi documentation was at MALVA s disposal to establish title. Similarly, MALVA has failed to allege that it has suffered financial harm as a result of the delay. In fact, MALVA has benefited from the time that it has been in possession of Casas by being able to enjoy and exhibit the Painting. As such, the balance of equities requires this Court to hold that Goodman s claim is not barred by laches. Therefore, this Court should affirm the Twelfth Circuit s ruling because both of Petitioner s challenges fail. ARGUMENT THIS COURT SHOULD AFFIRM THE TWELFTH CIRCUIT S JUDGMENT AS A MATTER OF LAW BECAUSE A GRANT OF IMMUNITY UNDER THE IMMUNITY FROM SEIZURE ACT, 22 U.S.C. 2459, DOES NOT PRECLUDE A SUIT FOR DAMAGES, AND THE PRESENT ACTION IS NOT BARRED BY THE DEFENSE OF LACHES. After World War II, millions of individuals and their families, including Holocaust victims and those who were forced to flee from their homes to escape Nazi persecution, became victims of theft. Title to artwork that was stolen during the War continues to present courts with the challenge of balancing divergent parties competing interests in such property. Today, this Court has the opportunity to rectify the injustice suffered by one such victim and her family 5

13 members. Respondent, Amy Goodman ( Goodman ) and her predecessors in title, including her grandmother, Yulia Komarova ( Komarova ) have already suffered from conversion, theft, and years of deprivation from their rightfully owned painting, Casas (or the Painting ). This Court can provide Goodman the chance to have her case heard fairly, evening the scale of justice and moving away from an image of American culture that is based upon false pretexts and deception for which there is no legal recourse. In denying Petitioner s, Museo de Arte Latinoamericano de Valentín Alsina ( MALVA ) contention that this action is barred by Immunity from Seizure Act ( ISA or the Act ), 22 U.S.C 2459, and its affirmative defense of laches, this Court s holding will promote intolerance for irresponsible trading practices and illegal art trafficking. This Court should affirm the Twelfth Circuit s holding that the ISA does not bar a suit for damages and that the defense of laches is not applicable. First, a grant of immunity to the Painting under the ISA does not bar a claim for damages against MALVA as the lending institution. Second, MALVA s laches defense fails as the museum has failed to demonstrate that Goodman unreasonably delayed filing this lawsuit and that MALVA suffered legal harm or prejudice as a result of any alleged delay. A. Since the Immunity from Seizure Act grants immunity to foreign-owned artwork from seizure while in the United States, but it does not grant immunity to the foreign lender from a claim for damages arising out of said artwork, Goodman should be able to move forward with her lawsuit. The Immunity from Seizure Act (ISA), 22 U.S.C grants immunity from seizure of artwork by judicial process but not immunity from a lawsuit for damages relating to that piece or collection of art. The ISA was passed on October 19, 1965 with the purpose of encouraging the lending of foreign-owned artwork or other objects of cultural significance to the United States for temporary display. H.R. Rep. No , at 3577 (1965). Under the ISA, if the President or one of his designees determines that the artwork is of cultural significance, on loan 6

14 to the United States for temporary not-for-profit exhibition, and is of national interest, then public notice granting immunity must be published in the federal register. Jessica L. Darraby, Art, Artifact, Architecture and Museum Law: Immunity from Seizure Act 6:134 (West 2010). Once notice is published, then a U.S. attorney or the Attorney General in a given district may intervene and quash any judicial proceeding attempting to seize the foreign-owned work while in the United States. H.R. Rep. No at Owners are much more likely to lend out their art as a result of the ISA s guarantee of a safe harbor to the foreign lenders where their artwork will not be seized or attached while in the United States. See id. In turn, the ISA increases international cooperation and greatly benefits the citizens of the United States by providing the opportunity to view and learn about artwork and other important cultural objects that they might not have been able to see otherwise. See id. In the present case, Respondent should be able to proceed with her lawsuit for damages relating to Casas because MALVA s grant of immunity under the ISA only protects Casas from seizure while in the United States and not a lawsuit against MALVA for damages. First, the text of the ISA only bars seizure of artwork and not a suit for damages against the foreign lender. If Congress intended for the ISA to ban lawsuits for damages as well, then the legislature, not this Court, should be the governmental institution in charge of adding words to the statute. Next, the few court cases that exist concerning the ISA all suggest that a suit for damages is entirely permissible under the ISA. Finally, public policy favors an interpretation of the ISA in a way that permits suits for damages since a statutory bar would promote lending of stolen artwork to the United States without consequence and unfairly prejudice theft victims like Goodman. Moreover, United States museums will not be deprived of artwork collections under this 7

15 interpretation of the ISA because there are plenty of perfectly legitimate cultural objects and collections for museums to borrow. 1. The plain language of the Immunity from Seizure Act supports the interpretation of the Act that allows Goodman to move forward with her claim for damages. To begin, the plain language of the ISA only prohibits seizure of artwork but not damages relating to that artwork. The ISA states, in part: Whenever any work of art or other object of cultural significance is imported into the United States from any foreign country for the temporary exhibition or display thereof within the United States no court of the United States, any State, the District of Columbia, or any territory or possession of the United States may issue or enforce any judicial process, or enter any judgment, decree, or order, for the purpose or having the effect of depriving such institution, or any carrier engaged in transporting such work or object within the United States, of custody or control of such object. 22 U.S.C.A. 2459(a) (West 2011). The ISA is best understood to mean that the judicial process may not physically seize or have the effect of seizing a piece of foreign-owned art from a borrowing museum, but the specific wording of the ISA does not bar a suit for damages against the lender which relates to that artwork. See id. As such, foreign lenders can be certain that their artwork or other cultural objects will not be seized while in the United States, but it is possible that the lenders may be susceptible to other legal proceedings in the United States, such as a suit for monetary damages. See Darraby, supra, 6:134. Petitioner argues that the Act s wording should not be read so narrowly; however, Congress would not have drafted the Act as is if it had in fact intended for the ISA to bar lawsuits for damages. First, if the legislature wanted the ISA to preclude a suit for damages as well as seizure, the title of the bill would not be the Immunity from Seizure Act. The United States Supreme Court has consistently advocated that a statute s title can be used in resolving its 8

16 text s ambiguities. See e.g. I.N.S. v. Nat l Ctr. for Immigrants Rights, Inc., 502 U.S. 183, 189 (1991); Mead Corp. v. Tilley, 490 U.S. 714, 723 (1989). Second, by clearly laying out the prohibition against seizure of artwork, it logically follows that the legislature was excluding the ban of other types of lawsuits under the ISA. The statutory interpretation canon of expressio unius stands for this exact principle in that the inclusion of one thing means the exclusion of another. Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction, 47:23 (7th ed. 2010). Thus, if Congress had aimed to prohibit lawsuits for damages as well as physical seizure, then there would be clear language in the bill detailing this type of immunity. Lastly, if Congress intended or wanted to add wording that indicated a ban against lawsuits for damages, then the legislature, not this Court, is charged with that responsibility. The court s role is to interpret statutory language and resist reading words or elements into a statute that do not appear on its face. Dean v. U.S., 129 S. Ct. 1849, 1853 (2009). If Congress believes that this Court s interpretation of the ISA is incorrect, then it is Congress role to amend the statute. Petitioner also looks to the legislative history behind the statute in attempting to argue that the ISA s language bars suits for damages. Petitioner relies on a single Colorado Congressman Rogers statement, the bill would assure the country that if they did send the objects to us, they would not be subjected to a suit and an attachment in this country..., to indicate that the ISA was passed in order to prohibit seizure of artwork and a suit for damages. 111 Cong. Rec. 25, (1965) (statement of Rep. Rogers). However, this argument is meritless because it is based on one Congressman s solitary sentence, which is buried in the midst of varying opinions. This single opinion does not have the binding force of the law. In fact, reviewing each Congressman s opinions and intentions for a proposed bill, often leaves the court with more confusion than clarity. See Lamie v. U.S. Trustee, 540 U.S. 526, 539 (2004). 9

17 Rather, by simply interpreting the ISA based on the statute s plain language, this court can avoid a plethora of untrustworthy interpretations and viewpoints. In general, this Court should be weary of legislative history because it is not the law, and it is not helpful when the text s plain language is not absurd, but rather, yields a fair and just result. Here, a plain reading of the ISA yields fair and just results. Artworks such as Casas will be safe from seizure, but the foreign lenders will not be immune carte blanche to all types of legal recourse and thereby will be responsible for their dealings. Moreover, the ISA contains a clearly stated purpose, which suggests that this Court need not look any further than the text itself. See H.R. Rep. No at It is apparent that Congress goal was to encourage a cultural exchange of objects increasing international relations and not to irrationally provide a blanket ban to foreign lenders from lawsuits. Rodney M. Zerbe, Immunity from Seizure for Artworks on Loan to United States Museums, 6 Nw. J. Int'l L. & Bus. 1121, 1124, 1129 ( ). Overall, the most trustworthy form of statutory interpretation is to presume that [the] legislature says in a statute what it means and means in a statute what it says there. Connecticut Nat l Bank v. Germain, 503 U.S. 249, (1992). Accordingly, this Court needs only to look at the plain language of the text and hold that the ISA does not bar Goodman s suit for damages. 2. The case law interpreting the Immunity from Seizure Act supports the claim that the statute allows Goodman to move forward with her lawsuit for damages. The courts interpretations of the ISA have been consistent in holding that the ISA only grants immunity from seizure of foreign-owned artwork and other cultural objects and not immunity from a lawsuit for damages. In Magness v. Russian Federation, an Alaskan district court held that an art exhibit on loan to the United States could not be seized by judicial process 10

18 in order to allow the plaintiffs to recover damages awarded to them in a previous lawsuit concerning expropriation of the artifacts. 84 F. Supp. 2d 1375, (S.D. Ala. 2000). While the court offered that the plaintiffs could recover on their judgment against the Russian Federation in another fashion, it was clear that the ISA precluded them from seizing the artwork as a form of partial payment. Id. In the most recent case concerning the ISA, Malewicz v. City of Amsterdam, heirs of a Russian painter brought suit for damages against the City of Amsterdam whose museum had claimed to own pieces of a Russian painter s collection, which it had loaned to the United States. 362 F. Supp. 2d 311, (D.D.C. 2005). The D.C. District Court reasoned that because the heirs were not seeking judicial seizure of the collection, the City s reliance on the ISA was misplaced. Id. at 312. In furtherance of Magness, the court clarified that the ISA does not bar suits for declarations of rights or for damages arising under an alleged conversion, provided that jurisdictional issues are satisfied. Id. at 312. Further, three unpublished, straightforward cases litigating the terms of the ISA provide additional support for the statutory interpretation that Goodman advocates. See Romanov v. Florida Int l Museum, No CI-008 (Cir. Ct. Pinellas Cty. Fla 1995); Delocque- Fourcaud v. The Los Angeles County Museum of Art, No. 2:03-cv R-CT (C.D. Cal 2003); Deutsch v. Metro. Museum of Art, No. 04 Civ (S.D.N.Y. 2004). In each case, the defendant art exhibitions were granted immunity under the ISA and the plaintiffs were not able to seize the artwork to which they claimed title. Id. However, the holdings in each case are consistent with the textual interpretation of the ISA that definitively prohibits seizure but not lawsuits for damages. Id. Consistent with Magness, here, Goodman is not suing the borrowing institution. See 84 F. Supp. 2d at ; Goodman v. Museo de Arte Latinoamericano de 11

19 Valentín Alsina, No , slip op. at 4 (12th Cir. Nov. 12, 2010). Further, just as the heirs in Malewictz, Goodman is not attempting to seize the Painting, but rather is simply attempting to sue the lender. See 362 F. Supp. 2d at 311; Goodman, slip op. at 4. In keeping with precedent s consistent interpretation, this Court should allow Goodman to proceed with her lawsuit because she is suing the lender, MALVA, for damages and not attempting to seize the Painting. 3. Public policy favors interpreting the Immunity from Seizure Act to allow Goodman to move forward with her lawsuit, as this interpretation will discourage the lending of stolen artwork and allow art theft victims to recover damages for their property. It is sound public policy to restrict the ISA to its terms of immunity from seizure in order to promote the lending of artwork with good title. Congress anticipated that the ISA would greatly benefit society artistically, educationally, and diplomatically by enhancing America s knowledge of foreign artwork and building relationships with historically hostile countries. Zerbe, supra, at However, it is absurd to presume that the ISA would have been passed if Congress thought that the Act would ultimately promote the lending of stolen objects. If this Court interprets the ISA in a way that immunizes foreign lenders from lawsuits for damages, the United States will become a safe haven for stolen goods as foreign lenders will continue the black market art trade in America knowing that they cannot be sued in United States courts. The interpretation that Petitioner suggests not only provides no incentive for foreign lenders or borrowing institutions to verify the authenticity and title to a collection before lending out or exhibiting the artwork, but also encourages art theft. Congress intent to provide a genuine educational experience and cultural exchange would be greatly undermined if the ISA merely provided a loophole to escape this country s justice system. The ISA was enacted to protect borrowing institutions from losing possession of a loaned cultural artifact, providing an additional layer of comfort and security to foreign lenders to encourage an honest and 12

20 responsible cultural exchange. Id. at While, the ISA assures foreign lenders that their artwork will be safe while in the United States, nowhere does the Act provide such protection to the lender itself. Id. at Yet, Petitioner argues that allowing a lawsuit for damages to go forward will halt the lending of foreign artwork; however, there is no proof that this assumption is a reality. On the contrary, the ISA ensures that U.S. museums will have legitimate artwork to exhibit and works to increase the number of collections lent to the United States. Even supposing that the majority of artwork in the U.S. has not been rightfully gifted or purchased by foreign lenders, there is no justification for allowing United States museums to exhibit stolen artwork. Moreover, Petitioner has put forth no evidence that after the Malewicz decision, which allowed lawsuits for damages under the ISA, foreign lenders have become less receptive to loaning artwork to American museums. See 362 F. Supp. 2d at 312. If there were going to be a major decrease in the lending of foreign artwork due to a plain language reading of the ISA, as in Malewicz, this country would have surely noticed those effects in the six years since that decision. Furthermore, if this Court barred Goodman from moving forward with her lawsuit, it would have adverse effects for an entire art community as well as the art theft victims. These victims would be silenced and barred from pursuing justice, art thefts would be encouraged because of a lack of consequence, and museums would lose the motivation to do proper background checks on their artworks. In addition, Goodman, the wronged victim, would be entirely prohibited from seeking recourse for the theft if she could not move forward with this action. Goodman should not have to suffer further injustice after her family s history of Nazi persecution and the theft of her grandmother s possession all in the name of cultural expansion as United States increases its access to stolen property and promotes an already flourishing black 13

21 market for artwork. Taken as a whole, the ISA stands for the United States commitment to cultural cooperation, responsibility, and exchange but not for the principles of theft and prejudice. Therefore, this Court should hold that Goodman may proceed with her lawsuit for damages against MALVA because the ISA only protects borrowing institutions and the artwork they exhibit but does not protect the foreign lender from suits for damages. By the literal terms of the ISA, a plaintiff can sue for damages but not for seizure of foreign-owned artwork on display in the United States. The current case law interpreting the ISA is clear in that the lender is not protected from a lawsuit when he or she possesses stolen artwork. Finally, sound public policy supports an interpretation that the ISA prohibits seizure but not a lawsuit to recover damages because the United States should not become a safe haven for stolen goods. As a victim of theft, Goodman should be allowed to recover damages for property that is rightfully hers. B. The equitable defense of laches does not bar Goodman s suit for damages since MALVA failed to show that Goodman and her predecessors in title unreasonably delayed filing suit against the museum and that MALVA suffered undue prejudice as a result of any delay. In a demand and refusal jurisdiction, such as this, claims asserted by the original owners of stolen property demanding the return of such property may be barred by the affirmative defense of laches. The doctrine of laches is an equitable defense invoked to deny a party enforcement of a known right when the party engages in an inexcusable and unexplained delay in exercising that right which results in prejudice [to] the other party. U.S. ex rel. U.S. Dept of Agric. v. Scurry, 940 A.2d 1164, (N.J. 2008) (quoting Knorr v. Smeal, 836 A.2d 794, 800 (N.J. 2003)). As an affirmative defense, the defendant bears the burden of proof and must satisfy both elements of the doctrine. Finnerty v. Wireless Retail, Inc., 624 F. Supp. 2d 642,

22 (E.D. Mich. 2009). To assert successfully an affirmative defense of laches, the proponent must demonstrate that i) the [non-moving party] has unreasonably delayed filing suit, and ii) the [proponent] has suffered harm as a result of that delay. 269 Associates v. Yerkes, 449 N.Y.S.2d 593,597 (N.Y. Civ. Ct. 1982). As a doctrine that balances the parties competing interest in equity, courts consider both parties reasonableness. Solomon R. Guggenheim Found. v. Lubell, 569 N.E.2d 426, 431 (N.Y. App. Div. 1991). Generally, in a demand and refusal jurisdiction, courts are reluctant to dismiss cases on laches grounds because the degree of harm to which the defendant suffers must be great when ownership of personal property is disputed. See DeWeerth v. Baldinger, 804 F. Supp. 539, 544 (S.D.N.Y. 1992), rev d, 38 F.3d 1266 (2d Cir. 1994). Accordingly, since Petitioner has failed to carry its burden of proof for both elements of its defense, this Court should hold that laches does not bar Goodman s claim against MALVA. First, equity demands a finding that Goodman did not unreasonably delay in filing this lawsuit because of the horrific and unique circumstances under which the disputed painting, Casas (or the Painting ) was stolen and the difficulties Goodman and her predecessors faced in attempting to locate the Painting. Moreover, this Court must weigh MALVA s failure to take cautionary steps to search for title upon inheriting Casas. Second, even if this Court concludes that the delay was unreasonable, a laches defense still fails because MALVA has not shown that it suffered any form of prejudice, namely evidentiary or financial harm, as a result of an alleged delay in filing suit. 1. Goodman did not unreasonably delay filing this lawsuit against MALVA because when weighed against MALVA s inaction, Goodman and her predecessors in title were diligent in their search for Casas. Balancing the equities, Goodman did not unreasonably delay commencing this action, as she was diligent in her attempts to find and recover Casas. Under laches, to establish a lack of 15

23 diligence as a matter of law, the moving party must show that the owner s failure to demand the return of the property upon discovering the stolen property s location was unreasonable under the circumstances. Kamat v. Kurtha, No. 05 CV KMH THK, 2009 WL , at *4 (S.D.N.Y. Jan. 15, 2009). Reasonable diligence is not based on a common standard but rather varies based on the particular facts of a case. O Keefe v. Snyder, 416 A.2d 862, 873 (N.J. 1980); Guggenheim, 569 N.E.2d at 431. Further, when assessing delay, courts should focus on the reasonableness of a true owner s delay rather than on the length of the delay. DeWeerth II, 804 F. Supp. at 553. Here, Goodman and her predecessors in title acted diligently, as noninstitutional claimants, in claiming title to Casas when information regarding its whereabouts became available to them, whereas MALVA, an art institution with access to a plethora of art resources, failed to take any steps to locate the Painting s title. a. Goodman and her predecessors in title acted diligently in searching for the stolen painting. Goodman did not unreasonably delay filing this lawsuit since MALVA has failed to demonstrate that Goodman did not diligently search for Casas. In determining whether a party unreasonable delayed filing suit, courts must consider whether the original owner acted diligently in searching for and retaining a right to the stolen property. Kamat, 2009 WL , at *4. A failure to take significant steps to locate missing artwork is not per se unreasonable, but rather, the value of the property stolen, the manner in which it was stolen, and the type of institution from which it was stolen will all necessarily affect the manner in which a true owner will search for missing property. Guggenheim, 569 N.E.2d at 431. Generally, courts are reluctant to find as a matter of law that the original owner lacked diligence in searching for his stolen property. Kamat, 2009 WL , at *4. In Solomon R. Guggenheim Foundation v. Lubell, a museum claimed ownership over a Marc Chagall gouache 16

24 that had been stolen over twenty years prior to filing a lawsuit. 569 N.E.2d at 427. At the time of the theft, the museum failed to report the missing work to law enforcement authorities or to register it in any stolen art databases. Id. Although the museum failed to take any action other than to search its premises to locate the missing work, such behavior was not unreasonable per se. Id. at 431. Though an examination of such diligence was an unnecessary consideration under the statute of limitations grounds that the court was considering, it was determined that the inquiry was relevant to a laches claim. Id. at 320. However, the court cautioned that due to the diverse circumstances under which art theft cases arise it would be impracticable, if not impossible to create a standardized diligence requirement without unnecessarily burdening the true owners. Id. Similarly, though reviewing an art theft victim s claim under the discovery rule and not a laches analysis, the district court of Pennsylvania s ruling in Erisoty v. Rizik is instructive in determining whether victims were reasonably diligent in searching for their missing artwork, as the diligence analysis is the same. No. CIV. A , 1995 WL 91406, at *10 (E.D. Pa. Feb. 23, 1995). The Erisoty court held that the family from whom a painting was stolen was sufficiently diligent in its attempt to recover the art, even though they failed to notify the international art market that the painting was stolen over thirty years ago. Id. at *13. Recognizing that it is reasonable for one s search efforts to wane as time passes, the court concluded that because the painting had been located within a few years after it was purchased, though many years after it was stolen, such action was sufficient to constitute a continuing vigilance. Id. at *14. The court therefore held that the family s lack of contact with law enforcement officials was not unreasonable and that a more plausible approach was to keep eyes and ears open. Id. at *13. 17

25 Further, equity demands less of private or individual claimants who lack knowledge of and connections to the art world to demonstrate reasonableness in their search for missing property as opposed to sophisticated art collectors such as museums. See id. The Erisoty court drew a sharp distinction between the diligence expected of institutional claimants versus noninstitutional claimants, like Goodman, reasoning that a lower standard of diligence for noninstitutional claimants is justified because of private collectors lack of familiarity with the art world. Id. Notably, the court focused on the family s actions after learning of stolen art databases for locating its missing painting rather than its alleged lack of diligence for failing to discover that such databases existed WL 91406, at *13. Analogously, in DeWreeth v. Baldinger, the court gave due consideration to the claimant s identity in its laches analysis where the individual owner was disadvantaged by her lack of institutional resources to trace the stolen art. 804 F. Supp at 553. However, without consideration for the art theft victim s status, a court may mistakenly determine that a victim lacked diligence in searching for his missing work and thereby unreasonably delayed filing suit. See Greek Orthodox Patriarchate of Jerusalem v. Christie s Inc., No. 98 CIV (KMH), 1999 WL , at *10 (S.D.N.Y. Aug. 30, 1999). Applying French law, the district court in Greek Orthodox Patriarchate of Jerusalem v. Christie s, Inc. determined in non-controlling dicta that an order of monks asserting ownership over an ancient palimpsest lacked diligence through its failure to search publicly for the missing artifact. Id. at *3. Relying on authority where the claimant was a museum, rather than an individual, the Greek Orthodox court employed a rigid standard for the non-institutional claimant, and concluded that the order of monks was not diligent in its search for the missing manuscript. Id. at **9-10 (citing Kunstammlugen Zu Weimar v. Elicofon, 678 F.2d 1150 (2d Cir. 1982)). In a like fashion, in 18

26 Wertheimer v. Cirker s Hayes Storage Warehouse Inc., the court s failure to question whether a private art collector s actions to recover his misappropriated paintings were reasonable in light of the aftermath of World War II resulted in a finding for the defendant art gallery. 752 N.Y.S.2d 295, 297 (App. Div. 2002). Neglecting to do a general analysis of private art theft victims behavior post-world War II allowed for the court to hastily conclude that the private collector s initial report of the missing painting to authorities and the commencement of a lawsuit to recover the art followed by forty years of inaction automatically constituted a lack of diligence. Id. at Only in extreme cases of delay where federal policy is not implicated will the court appropriately find that an original owner failed to act diligently. In Robins Island Preservation Fund, Inc. v. Southold Development Corp., a nonprofit corporation sought ownership interest and possessory rights in the island based on an inheritance that dated back to 1791, even though the corporation failed to take any steps previously to assert ownership. 959 F.2d 409, 414 (2d Cir. 1992). Thus, the court stated that, it requires no strenuous debate to conclude that two centuries is too long, and the corporation s lack of diligence and constituted unreasonable delay in filing suit. Id. at 424. In the case at bar, Goodman and her predecessors in title acted diligently in searching for the stolen painting and did not unreasonably delay in commencing this action. Just as it was reasonable for the museum in Guggenheim not to conduct its search beyond the museum s premises or contact authorities, here, it was reasonable for Goodman not to have conducted an extensive search for Casas or report it to authorities. See 569 N.E.2d at 431; Goodman, slip op. at 2. As Guggenheim instructed, this Court should consider the manner in which [Casas] was stolen, and the type of institution from which it was stolen. Guggenheim, 569 N.E.2d at

27 As a private individual who lacks institutional resources to trace a painting that was stolen during World War II and is unfamiliar with the art world, Goodman should be excused for her failure to locate Casas prior to its appearance in exhibit in DePaulia. Although anticipation of the exhibition was reported in DePaulia prior to Goodman s discovery of Casas in 2010, it would have been inconceivable for someone with no connections in the art world to be aware of the Painting s location before Goodman made her initial demand to MALVA. Goodman, slip op. at 3. Goodman was not a regular participant in the world of fine art, and thus, her failure to discover the advertisements of Casas in the exhibition at the DePaulia Museum of Modern Art ( MMA ) does not constitute a lack of diligence. For the same reasons, it would be unreasonable to assume that Goodman would have run across one of the catalogues published in Spanish that were circulating to promote the Xul Solar exhibit, which included Casas that was touring Argentinean museums. Id. Just as it was not unreasonable per se for the family in Erisoty to wane in their search efforts as decades passed, it was not unreasonable per se for Goodman not to be in contact with the police or to actively search for the Painting within the art community. See 1995 WL 91406, at *10; Goodman, slip op. at 2. Rather, it was reasonable for Goodman to keep [her] eyes and ears open for any leads on the painting, just as she had done when the Painting arrived in the MMA. See 1995 WL 91406, at *10; Goodman, slip op. at 4. The fact that Casas was located only a few years after advertisements about its exhibition in DePaulia and a mere ten days after it went on display is sufficient to demonstrate Goodman s continuing vigilance, just as the family in Erisoty was deemed diligent in locating the painting within a few years of its purchase, though many years after it was stolen. See 1995 WL 1406, at *13, Goodman, slip op. at 4. 20

28 The dissent s reliance on Greek Orthodox and Wertheimer is misplaced. Not only was the Greek Orthodox court s laches analysis simply dicta, but more importantly, the court inappropriately applied a heightened standard of diligence for a non-institutional claimant who had no connection to the art world WL , at *9-10. Similarly, neglecting to consider the unique circumstances of the case and failing to properly balance the private owner s diligence with that of the institutional defendant, the decision in Wertheimer undermines the balance that laches requires. 752 N.Y.S.2d at Applying such an exacting standard of diligence is problematic because the equitable nature of laches demands an application that does not disadvantage individuals who do not have the same resources and contacts, as do institutions such as art museums. See DeWeerth, 804 F. Supp. at 553. Not only was Komorova forced to flee her home and leave her possessions behind, but neither she nor her descendants knew the proper resources to consult in order to recover the stolen Painting. Goodman, slip op. at 2. These particular circumstances for the non-institutional claimant are vital to consider when weighed against the resources to which a museum such as MALVA has at its disposal. This case is further distinguishable from Robins Island, where the assertion of title to an island was after two centuries of inaction. See 959 F.2d at 424. Goodman s assertion of title over the stolen Painting is sufficient evidence of her diligence because she did not knowingly wait an extended period of time to claim title to the work. Goodman, slip op. at 4. In fact, Goodman demanded that MALVA return the painting only ten days after it went on display in the MMA. Id. Assuming arguendo that Goodman had come across an advertisement that the painting would be on display in the MMA prior to 2010 it was not unreasonable for Goodman to have waited, at most three years, until Casas arrived in DePaulia to confirm its identity and make a demand. Id. at 3-4. Since delay is not determined according length but rather according to 21