Konowaloff v. The Metropolitan Museum of Art
OPINION AND ORDER: re: 26 MOTION to Dismiss Plaintiff's Amended Complaint filed by The Metropolitan Museum of Art. For the reasons discussed above, the Museum's motion to dismiss is granted and this case is dismissed. The Clerk of the Court is directed to close this motion [Docket No. 26] and this case. (Signed by Judge Shira A. Scheindlin on 9/22/2011) (pl)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OPINION AND ORDER
10 Civ. 9126 (SAS)
THE METROPOLITAN MUSEUM OF
SHIRA A. SCHEINDLIN, U.S.D.J.:
Pierre Konowaloffbrings suit against the Metropolitan Museum of
Art (the "Museum") to recover a painting by Paul Cezanne, entitled Madame
Cezanne in the Conservatory, or Portrait ofMadame Cezanne (the "Painting").1
Alleging that the Painting was "taken by force and without compensation in 1918
by Russia's former Bolshevik regime from its owner, Ivan Morozov," Konowaloff
asserts, as Morozov's great grandson and sole heir, that he is the rightful owner of
the Painting. 2 Konowaloff seeks injunctive and declaratory relief, granting him
See Amended Complaint of Pierre Konowaloff ("Am. Comp!.")
[Docket No. 21], at 1.
title and replevying the Painting from the Museum, as well as compensatory
damages for the Museum’s “wrongful acquisition, possession, display and
retention of the Painting.”3 The Museum now moves to dismiss under Federal
Rule of Civil Procedure 12(b)(6), on the grounds that Konowaloff’s claim is barred
by the act of state doctrine, the political question doctrine, the doctrine of
international comity, and the statute of limitations and laches, or, in the alternative,
for failure to state a claim.4 For the reasons stated below, the Museum’s motion is
Morozov Acquires the Painting and the Bolsheviks Seize It
Ivan Morozov was a “wealthy Moscow textile merchant” with an
extensive collection of modern art.5 He acquired the Painting on April 29, 1911.6
As a result of the March 1917 revolution in Russia, Nicholas the II was overthrown
and a Provisional Government was installed, which the United States quickly
See Memorandum of Law in Support of Defendant Metropolitan
Museum of Art’s Motion to Dismiss Plaintiff’s Amended Complaint (“Def.
Mem.”) at 2-3.
See Am. Compl. ¶ 8.
See id. ¶ 6.
recognized.7 In November 1917, Lenin and the Bolsheviks seized power from the
Provisional Government.8 The United States did not officially recognize the
Russian Socialist Federated Soviet Republic (“RSFSR”) that the Bolsheviks
established until 1933.9
The Bolsheviks issued a multitude of decrees nationalizing private
property and abolishing private property ownership.10 Konowaloff alleges that
“[t]ypically these decrees were directed to general categories of property or
classes.”11 However, a December 19, 1918 decree “singled out the art collections
of two families, the Morozovs and the Ostroukhovs.”12 Both families were “Old
Believers,” – “religious schismatics who split from the official Orthodox church in
the seventeenth century,” and who were persecuted by the Bolsheviks.13 Under the
December 19 decree, “the art collection  of I.A. Morozov, including the Painting,
was [deemed] state property, to be transferred to the jurisdiction of the People’s
See id. ¶ 9.
See id. ¶¶ 13-14.
Id. ¶ 13.
Id. ¶ 14.
Id. ¶ 10.
Commissariat of the Enlightenment [Narkompros].”14
Members of the Bolshevik secret police and Narkompros occupied
Morozov’s home, looting furniture, stealing various items, and seizing Morozov’s
art collection.15 Konowaloff alleges that “Morozov did not voluntarily relinquish
the Painting nor did he receive any compensation for being deprived of his rights
and interests in the Painting.”16 On April 11, 1919, Morozov’s home was declared
the “Second Museum of Western Art,” though it also “served as a storage facility
for confiscated art and salesroom for those buyers (mainly foreigners) interested in
purchasing its contents.”17 Morozov, along with his wife and daughter, eventually
fled in exile to England and then France, where he died in 1921.18
The Bolsheviks Sell the Painting to Clark, Who Bequests It to the
Konowaloff allege that the Bolsheviks “systematically destroyed
evidence of title and origin” of confiscated artworks to be sold abroad.19 Leonid
Id. ¶ 11 (quotation marks omitted).
Id. ¶ 12.
Id. ¶ 15.
Krasin, who had previously worked for the Morozov family, became the
Commissar of Foreign Trade and was “the main architect of the laundering system
for these sales.”20 Krasin established the Soviet Trade Delegation in Berlin to
serve as “the transit point for confiscated art being sold abroad.”21 Starting in
1928, the Matthiesen Gallery (“Matthiesen”) in Berlin “became the main transit
point for Soviet shipments of art for sale to the West.”22 Matthiesen was involved
in “laundering illegally acquired art” from the Nazis and the Bolsheviks.23
Konowaloff alleges that upon receiving stolen art from the Soviet
government, Matthiesen would transfer funds into Soviet bank accounts in Berlin
and Zurich.24 Matthiesen would then frequently transfer the artworks to the P. &
D. Colnaghi (“Colnaghi”) gallery in London and from there to the Knoedler &
Company (“Knoedler”) gallery in New York City.25 Each gallery would earn a
7.5-10% commission for handling the artwork.26 Konowaloff alleges that these
Id. ¶ 16.
Id. ¶ 17.
See id. ¶ 18.
parties – together with Stephen C. Clark in this particular transaction – were
engaged in a “partnership and conspiracy to sell Bolshevik looted art abroad.”27
Clark was a lifelong New York State resident and an heir to the Singer
Manufacturing Company fortune.28 He was also a “sophisticated art collector,”
acquiring his first Renoir in 1916.29 Clark helped to open the new Museum of
Modern Art (“MOMA”) in 1929, later becoming its president and chairman of the
board.30 He also became a trustee of the Metropolitan Museum of Art in 1932.31
Clark acquired numerous paintings from Colnaghi and from
Knoedler.32 Alfred Hamilton Barr, Jr., the first MOMA director, who frequently
advised Clark on art purchases, “is likely to have identified the Painting for
Clark.”33 Barr traveled to Moscow in 1928, where he visited the Museum of
Modern Art, which housed the Painting at that time. Barr knew that at least part of
Id. ¶ 19.
See id. ¶ 23.
Id. ¶ 24.
Id. ¶ 25.
that museum’s collection had belonged to Morozov.34
Clark directed Knoedler to purchase the Painting for him in secret,
along with three others – Edward Degas’ Singer in Green, Pierre-Auguste Renoir’s
A Waitress at Duval’s Restaurant, and Vincent Van Gogh’s The Night Café.35 The
Painting was shipped from Berlin through London to New York, where it was
delivered by Knoedler to Clark on May 9, 1933.36 The price for the three paintings
and one additional piece was approximately $260,000, “a bargain price even by
Konowaloff alleges that the sale to Clark “may have violated Soviet
law.”38 Sovnarkom – the Council of People’s Commissars – issued a decree on
September 19, 1918, entitled “Concerning the Ban on the Export and Sale Abroad
of Items of Particular Significance.”39 That decree “prohibited the export of
objects of particular and historical importance without permission of Narkompros
See id. ¶ 26.
See id. ¶ 27.
Id. ¶ 28.
Id. ¶ 29.
and ordered the preservation and registration of artworks and antiquities.”40
Another decree issued on October 5, 1918 “provided that the prohibition on the
export of artworks applied to private persons, societies and institutions.”41 On May
19, 1933, “the Politburo secretly approved the sale [of the Painting] over the
written protests of Andrei Bubnov, head of Narkompros and other Soviet museum
officials, who specifically requested that the Painting not be sold.”42 Konowaloff
alleges that “[t]he Politburo members who ordered the sale of the Painting were
acting independently of the Soviet state and were engaged in illegal private trade
with western capitalists.”43
Konowaloff asserts that “[t]he Soviet state, including its institutions
and laws, was distinct from the Communist Party of the Soviet Union (“CPSU”).”44
“The Politburo was the executive arm of the CPSU consisting of five members and
[the] ultimate decision-making body of the CPSU.”45 Although private trade was a
crime under Soviet law, “power was concentrated in the hands of Politburo
Id. ¶ 30.
Id. ¶ 31.
Id. ¶ 32.
members and their discussions and actions were secret,” so they were able to act
with impunity.46 The Politburo made the decisions about art sales to foreign
buyers, including the artworks sold to Stephen Clark in 1933.47
Konowaloff alleges that Clark “concealed the provenance of the
Painting,” by hanging it in his house until his death in 1960; “not acknowled[ging]
the Morozov provenance until 1954;” and failing “to provide notice to Morozov or
his heirs that he possessed the Painting, although . . . it was common knowledge
that the Morozov and other Russian émigrés were living in Paris.”48 Clark’s estate
likewise “failed to provide notice to the Morozov family or their descendants of its
possession of the Painting despite their likely knowledge of the Morozovs’
whereabouts.”49 Clark bequeathed the Painting to the Museum in 1960.50 The
Museum has possessed and displayed the Painting since that time.51
The Morozov Heirs and the Museum
At the time of the bequest, the U.S. State Department had put the
Id. ¶ 33.
See id. ¶ 34.
Id. ¶ 39.
See id. ¶ 40.
Museum on notice to “avoid acquisition of any Nazi era looted art.”52 Matthiesen
had been listed by the Allies as “the chief ‘fence’ or intermediary for the
laundering of major Nazi looted art.”53 The Museum apparently did not research
whether Clark had good title to the Painting or attempt to ascertain whether the
Morozov heirs had received compensation or voluntarily given up claims to the
When Morozov fled into exile, he did not bring an inventory of his
collection with him.55 His family and heirs were thus “unaware that the Painting
was part of Morozov’s collection and that the Painting was stolen and held by the
USSR.”56 Following its exile, “[t]he family lacked the financial resources to
undertake research,” and furthermore, “they could not travel to Russia, where they
believed the entire Morozov art collection was located, because of their refugee
status and because they feared retaliation by the Soviet government[.]”57
“The opening of Russia under Perestroika provided Morozov’s heirs
Id. ¶ 42.
See id. ¶ 41.
See id. ¶ 48.
Id. ¶ 49.
with the first opportunity to collect information there by searching the museum
archives and meeting Russian experts.”58 Konowaloff was the first Morozov heir
to return to Russia in 1992.59 In January 2002, upon the death of his father,
Konowaloff became the official heir of the Morozov collection, which he began to
document and inventory.60
André Delocque Fourcaurd, heir to another art collection nationalized
by the RSFSR in 1918, uncovered the history of the Painting’s sale to Clark in the
course of research into his own family’s collection. Fourcaurd conveyed the
information to Konowaloff in early 2008, which was “the first time a Morozov heir
learned that Ivan Morozov owned the Painting.”61 Until then, “Konowaloff had
conducted research in Russian museum archives that did not mention the
Painting.”62 Konowaloff subsequently learned that the Painting had been
bequeathed to the Museum and was in the Museum’s possession.63 In May 2010,
Konowaloff demanded that the Museum return the Painting, which it has refused to
Id. ¶ 50.
See id. ¶ 51.
Id. ¶ 53.
do.64 The instant action was filed on December 7, 2010.65
III. LEGAL STANDARD
Motion to Dismiss
In deciding a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), the court evaluates the sufficiency of the complaint under the
“two-pronged approach” suggested by the Supreme Court in Ashcroft v. Iqbal.66
First, a court “‘can choose to begin by identifying pleadings that, because they are
no more than conclusions, are not entitled to the assumption of truth.’”67
“Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice” to withstand a motion to dismiss.68 Second,
“[w]hen there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement for
See Complaint [Docket No. 1].
556 U.S. —, 129 S.Ct. 1937, 1950 (2009).
Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010) (quoting Iqbal,
129 S.Ct. at 1950). Accord Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d
55, 59 (2d Cir. 2010).
Iqbal, 129 S.Ct. at 1949 (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)).
relief.”69 To survive a Rule 12(b)(6) motion to dismiss, the allegations in the
complaint must meet a standard of “plausibility.”70 A claim is facially plausible
“when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”71
Plausibility “is not akin to a probability requirement;” rather, plausibility requires
“more than a sheer possibility that a defendant has acted unlawfully.”72
“In considering a motion to dismiss for failure to state a claim
pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the
complaint, documents attached to the complaint as exhibits, and documents
incorporated by reference in the complaint.”73 However, the court may also
consider a document that is not incorporated by reference, “where the complaint
‘relies heavily upon its terms and effect,’ thereby rendering the document ‘integral’
Id. at 1950. Accord Kiobel v. Royal Dutch Petroleum Co., 621 F.3d
111, 124 (2d Cir. 2010).
Twombly, 550 U.S. at 564.
Iqbal, 129 S. Ct. at 1949 (quotation marks omitted).
Id. (quotation marks omitted).
DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010)
(citing Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)).
to the complaint.”74
Act of State Doctrine
The Supreme Court long ago articulated the act of state doctrine in the
Every sovereign State is bound to respect the independence
of every other sovereign State, and the courts of one
country will not sit in judgment on the acts of the
government of another done within its own territory.
Redress of grievances by reason of such acts must be
obtained through the means open to be availed of by
sovereign powers as between themselves.75
Thus, “[t]he act of state doctrine in its traditional formulation precludes the courts
of this country from inquiring into the validity of the public acts of a recognized
foreign sovereign power committed within its own territory.”76 The Second Circuit
has developed a “substantial gloss on the doctrine . . . in light of the Supreme
Court’s teaching that: (i) its proper application requires a balancing of interests,
and (ii) the act of state doctrine should not be invoked if the policies underlying the
Id. (quoting Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir.
2006)). Accord Global Network Commc’ns, Inc. v. City of N.Y., 458 F.3d 150, 156
(2d Cir. 2006).
Underhill v. Hernandez, 168 U.S. 250, 252 (1897).
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 401 (1964).
doctrine do not justify its application.”77
In the seminal case of Banco Nacional de Cuba v. Sabbatino, the
Supreme Court suggested various interests that a court should balance in deciding
whether or not to invoke the act of state doctrine.78 For example, the Court noted
that “the greater the degree of codification or consensus concerning a particular
area of international law, the more appropriate it is for the judiciary to render
decisions regarding it.”79 The Court also suggested that “the less important the
implications of an issue are for our foreign relations, the weaker the justification
for exclusivity in the political branches.”80 Additionally, “[t]he balance of relevant
considerations may also be shifted if the government which perpetrated the
challenged act of state is no longer in existence[.]”81 After describing the variety
of factors that could be taken into account, the Court limited its holding by noting
rather than laying down or reaffirming an inflexible and allencompassing rule in this case, we decide only that the
Bigio v. Coca-Cola Company, 239 F.3d 440, 452 (2d Cir. 2001)
Sabbatino, 376 U.S. at 428.
(Judicial Branch) will not examine the validity of a taking
of property within its own territory by a foreign sovereign
government, extant and recognized by this country at the
time of suit, in the absence of a treaty or other unambiguous
agreement regarding controlling legal principles, even if the
complaint alleges that the taking violates customary
More recently, the Supreme Court has observed that “[i]n every case
in which we have held the act of state doctrine applicable, the relief sought or the
defense interposed would have required a court in the United States to declare
invalid the official act of a foreign sovereign performed within its own territory.”83
The Court clarified that “[t]he act of state doctrine is not some vague doctrine of
abstention but a ‘principle of decision binding on federal and state courts alike.’”84
Importantly, “application of the doctrine is not a denial of jurisdiction, but rather
requires an exercise of it.”85
“Once raised, the court will make a legal determination as to whether
or not adjudication of the plaintiff’s claims requires an inquiry into the validity of
W.S. Kirkpatrick & Co., Inc. v. Environmental Tectonics Corp., Int’l.,
493 U.S. 400, 405 (1990).
Id. at 406 (quoting Sabbatino, 376 U.S. at 427) (emphasis removed).
Daventree Ltd. v. Republic of Azerbaijan, 349 F. Supp. 2d 736, 754
(S.D.N.Y. 2004) (citing Bigio, 239 F.3d at 452).
sovereign acts. At the motion to dismiss stage, such a determination of the
availability of an affirmative defense must be made on the basis of the pleadings
alone.”86 “[T]he court must be satisfied that there is no set of facts favorable to the
plaintiffs and suggested by the complaint which could fail to establish the
occurrence of an act of state.”87 “[T]he burden of proof rests on defendants to
justify application of the act of state doctrine.”88
The Museum urges this Court to dismiss the Amended Complaint
based primarily on the act of state doctrine. The Museum argues that this
affirmative defense is apparent on the face of the pleadings, insofar as Konowaloff
alleges that the Painting was taken from Morozov pursuant to a Bolshevik
nationalization decree, and the Supreme Court, the Second Circuit, and this Court
have consistently held Bolshevik/Soviet nationalization decrees to be official acts
Daventree, 349 F. Supp. 2d at 754-55 (citing Official Comm. of
Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147
(2d Cir. 2003); Newman & Schwartz v. Asplundh Tree Expert Co., 102 F.3d 660,
662 (2d Cir. 1996)).
Jungquist v. Nahyan, 940 F. Supp. 312, 318-19 (D.D.C. 1996), rev’d
on other grounds, 115 F.3d 1020 (D.C. Cir. 1997).
Bigio, 239 F.3d at 453.
accepted as valid for the purpose of invoking the act of state doctrine.89
I find that the Museum has met its burden of justifying the application
of the act of state doctrine in this instance. Although Konowaloff alleges that the
seizure of the Painting was an “act of party” rather than an “act of state,”90 the
Museum correctly points out that this distinction runs counter to long-standing
precedent recognizing the Soviet government as the state and its activities as
legitimate, official acts.91 Furthermore, Konowaloff’s allegations regarding the
activities of the Politburo, which he distinguishes from the Soviet state, pertain to
See, e.g., United States v. Pink, 315 U.S. 203 (1942) (holding two
Soviet nationalization decrees issued in 1918 and 1919 to be valid acts of state);
United States v. Belmont, 301 U.S. 324 (1937) (applying the act of state doctrine to
uphold a 1918 Soviet nationalization decree); Stroganoff-Scherbatoff v. Weldon,
420 F. Supp. 18 (S.D.N.Y. 1976) (applying the act of state doctrine to uphold 1921
and 1923 Soviet nationalization decrees); Salimoff & Co. v. Standard Oil Co. of
N.Y., 262 N.Y. 220 (1933) (upholding Soviet nationalization of oil).
Am. Compl. ¶ 31.
See, e.g., Pink, 315 U.S. at 211 (acknowledging that the United States
recognized the Union of Soviet Socialist Republics as the “de jure Government of
Russia” on November 16, 1933); Salimoff, 262 N.Y. at 226 (“The United States
government recognizes that the Soviet government has functioned as a de facto or
quasi government since 1917, ruling within its borders . . . . We all know that
[Soviet Russia] is a government. The State Department knows it, the courts, the
nations, and the man on the street. If it is a government in fact, its decrees have
force within its borders and over its nationals.”) (emphasis added).
the sale of the Painting, not to its confiscation from Morozov.92 The act of state
that I decline to question here is the act of expropriating the Painting from
Morozov. I accept that the Soviet government took ownership of the Painting in
1918 through an official act of state, and accordingly, the Painting’s sale abroad in
1933 – whether legal or illegal, an act of party or an act of state – becomes
irrelevant, as Konowaloff lacks any ownership stake in the Painting.93
Konowaloff asserts that the confiscation of the Painting was also an
act of party, but does not provide any specific factual allegations to support that
assertion. See Am. Compl. ¶ 31. In fact, he explicitly alleges that “[t]he Painting
was confiscated by the RSFSR in 1918.” Id. ¶ 57 (emphasis added). In contrast, he
alleges with more specificity the Politburo’s involvement in the sale of the
Painting abroad. See, e.g., id. ¶ 30 (“[T]he Politburo secretly approved the sale
over the written protests of Andrei Bubnov, head of Narkompos and other Soviet
museum officials[.]”), ¶ 31 (“The Politburo members who ordered the sale of the
Painting were acting independently of the Soviet state and were engaged in illegal
private trade with western capitalists.”), ¶ 34 (“[t]he Politburo made the decisions
on art sales”).
I am not persuaded by Konowaloff’s allegation that “[p]ursuant to the
Roosevelt-Litvinov Accords, the USSR relinquished any claim with respect to the
judgment that this Court may render in so far as it relates to the Painting[.]” Id. ¶
38. As both the Museum and Konowaloff’s amici explain, the Accords addressed
the effect of Soviet nationalization decrees on the interests of U.S. nationals in
Soviet corporate assets held in U.S. banks. See Def. Mem. at 14-15; Brief Amicus
Curiae of Center for Human Rights and Genocide Studies, et al. (“Amicus Mem.”),
at 7-8. Under the Accords, the Soviet government assigned to the United States
government any interest it had in those assets. As amici state, “[i]n the RooseveltLitvinov [Accords], the United States and Soviet Union ‘horse-traded’ a narrow
range of claims to those assets only.” Amicus Mem. at 8. Furthermore, the Accords
were signed on November 16, 1933 – months after the Soviet government sold the
Painting to Clark. See Def. Mem. at 15. Hence, “the Soviet government had no
property interest in the Painting (and therefore nothing to assign to the United
Konowaloff makes several arguments as to why the Court should not
apply the act of state doctrine in this case. As a preliminary matter, Konowaloff
notes that “the Court need not decide the legality of official acts of a sovereign
because under New York replevin law, the focus is on whether the original
titleholder voluntarily relinquished the property, which the MET has the burden to
prove.”94 However, for that proposition, Konowaloff relies entirely upon the
concurring opinion in Bakalar v. Vavra, a Second Circuit case concerning a factual
dispute over whether a particular drawing had been looted by the Nazis or
otherwise stolen, as opposed to sold voluntarily by the owner.95 Under the facts of
Bakalar, the focus was on whether the titleholder had voluntarily relinquished the
property, thus there was no need for the court to decide the legality of a sovereign’s
acts in that case. Nor was the act of state doctrine discussed either in the opinion
or in the concurrence. However, Bakalar does not stand for the proposition that a
suit for replevin under New York law never requires an inquiry into the legality of
the official acts of a sovereign.
States) at the time of the Litvinov Assignment[.]” Id.
Memorandum of Law in Support of Plaintiff Pierre Konowaloff’s
Opposition to Defendant Metropolitan Museum of Art’s Motion to Dismiss
Plaintiff’s Amended Complaint (“Opp. Mem.”) at 8 (citing Bakalar v. Vavra, 619
F.3d 136, 149 (2d Cir. 2010)).
Bakalar, 619 F.3d at 137-40.
In the instant case, there is no dispute that the Painting was taken from
Morozov by virtue of the 1918 nationalization decree. It is only the legal validity
of that decree that is at issue. Thus, this Court is indeed being asked to “decide the
legality of [an] official act of a sovereign” – precisely the sort of inquiry
precluded by the act of state doctrine.
Konowaloff’s other arguments against the application of the act of
state doctrine are equally unavailing. First, he contends that the Painting was
“seized for no legitimate governmental purpose or operation” and that the
expropriation decree was “highly unusual in singling out Morozov’s art
collection.”96 Accordingly, the taking was not an “official act,” and so the act of
state doctrine should not apply.97 However, whether the expropriation was an
official act does not turn on the legitimacy or illegitimacy of governmental
purposes. The act of state doctrine prohibits just such an inquiry into the purpose
of an official act. Furthermore, whether such takings are usual or unusual is of no
Second, Konowaloff argues that the act of state doctrine should not
apply because the Soviet Union is “‘not presently an extant and recognized
Opp. Mem. at 9.
regime,’” in that “the Soviet Union collapsed in 1991 and was dissolved and
replaced by 15 post-Soviet states and a Commonwealth of Independent States; and
that the Russian Federation is one of these 15 post-Soviet States.”98 Notably, the
Supreme Court posited that whether a regime is extant is not dispositive, but rather
is one of several factors that may be taken into consideration.99
Courts have found the act of state doctrine inapplicable based on a
change of government where the previous government has been completely
rejected by the community of nations, as with the Nazis and its allies,100 or where
the subsequent government has actively repudiated the acts of the former regime.101
Neither situation applies to the RSFSR. This Court has previously made the
distinction between acts by the Nazis and by the Soviets, noting
[u]nlike the situation in Menzel v. List, , 267 N.Y.S.2d
Id. at 10.
See Sabbatino, 376 U.S. at 428.
See, e.g., Bodner v. Banque Paribas, 114 F. Supp. 2d 117, 130
(E.D.N.Y. 2000) (“The wholesale rejection of the Vichy government at the close of
World War II render the Act of State doctrine wholly inapplicable to this case.”);
De Csepel v. Republic of Hungary, — F. Supp. 2d —, No. 10 Civ. 1261, 2011 WL
3855862, at *23 (D.D.C. Sept. 1, 2011) (declining to invoke the act of state
doctrine where “the sovereigns involved are Nazi Germany and their allies in the
World War II-era Hungarian government”).
See, e.g., Bigio, 239 F.3d at 453; Republic of the Philippines v.
Marcos, 806 F.2d 344, 359 (2d Cir. 1986); Bodner, 114 F. Supp. 2d at 130.
804 (1966), where the taking was by an organ of the Nazi
Party, not a sovereign state, and the Act of State Doctrine
was held inapplicable, here, the Soviet Government, by
official decrees of its political organs, had acquired the
works of art in Russia prior to their public sale in Berlin in
Konowaloff attempts to characterize certain acts of the current
Russian Federation as repudiating the past acts of the RSFSR; however, he misses
the mark. He states “[s]ince December 2008, a Russian Federation commission
appointed by President Dmitry Medvedev has been investigating art sales abroad
of 1928-33 as incompatible with prevailing Soviet law,” and “[t]he Constitution of
the Russian Federation protects the right of private ownership of property and
prohibits the uncompensated taking of private property.”103 Neither fact leads to
the conclusion that the current Russian government has repudiated the ubiquitous
nationalization of property under the Communist regime – only that it has
repudiated the sale of art from Russian museums to foreign parties, and that it does
not currently pursue a policy of nationalization.
Finally, it is neither appropriate nor feasible for this Court to judge –
either at this stage or based on a “more complete record,” as Konowaloff urges104 –
Stroganoff-Scherbatoff, 420 F. Supp. at 22.
Am. Compl. ¶ 47.
Opp. Mem. at 5.
whether or not the Russian Federation is the successor in interest of the Soviet
Union and of the RSFSR before it, as the Museum argues.105 As the D.C. Circuit
[W]hile no one doubts that the collapse of the Soviet Union
has entailed radical political and economic changes in the
territory of what is now the Russian Federation, application
of Sabbatino’s invitation to flexibility would here embroil
the court in a seemingly rather political evaluation of the
character of regime change itself – in comparison, for
example, to de-Nazification and other aspects of Germany’s
postwar history. It is hard to imagine that we are qualified
to make such judgments. Moreover, our plunging into the
process would seem likely, at least in the absence of an
authoritative lead from the political branches, to entail just
the implications for foreign affairs that the doctrine is
designed to avert.106
Third, Konowaloff argues that the act of state doctrine does not apply
because adjudication of these claims “will not impact, let alone harm, U.S. foreign
relations,” insofar as “the United States, the Russian Federation, and the
Commonwealth of Independent States have not indicated any interest in these
proceedings.”107 However, the question is not merely whether either the U.S. or
See Reply Brief in Further Support of Defendant the Metropolitan
Museum of Art’s Motion to Dismiss (“Reply Mem.”) at 6.
Agudas Chasidei Chabad of United States v. Russian Fed.
(“Chabad”), 528 F.3d 934, 954 (D.C. Cir. 2008).
Opp. Mem. at 11.
the foreign government seeks to intervene in the specific action, but rather whether
any decision this Court renders could affect U.S. relations with the foreign
government. As the Museum suggests,
[j]ettisoning long-established precedent regarding Soviet
nationalization decrees would call into question longsettled decrees and titles to property resolved under these
decrees, and would plainly risk upsetting the Russian
Federation, which, plaintiff admits, itself owns much
“private property” taken pursuant to “many decrees.”108
I note further that this is but one of the several factors that the Sabbatino Court
advised taking into consideration.
Fourth, Konowaloff alleges that “the taking of the Painting violated
prevailing, as well as contemporary, customary, and conventional international
law,” while arguing that “[w]hether the Bolsheviks were an army of occupation in
Moscow at the time of the taking is a factual question not ripe for resolution at this
juncture of proceedings.”109 However, it is abundantly clear that the act of state
doctrine applies “even if international law has been violated.”110 Moreover, it is
not contrary to international law for a sovereign to take the property of its own
Reply Mem. at 7 (quoting Am. Compl. ¶¶ 13-14).
Opp. Mem. at 12.
Sabbatino, 376 U.S. at 431.
nationals.111 As the Supreme Court has noted, “[w]hat another country has done by
way of taking over property of its nationals . . . is not a matter for judicial
consideration here.”112 More recently, the Second Circuit has restated this rule,
noting that “the doctrine bars judicial review of ‘the validity of a taking of property
within its own territory by a foreign sovereign government.’”113
As for Konowaloff’s argument that the Bolsheviks were an “army of
occupation” at the time the Painting was seized, the Supreme Court stated long ago
that “when a revolutionary government is recognized as a de jure government,
‘such recognition is retroactive in effect and validates all the actions and conduct
of the government so recognized from the commencement of its existence.’”114 As
Konowaloff acknowledges, the United States recognized the Soviet government in
See, e.g., Presbyterian Church of Sudan v. Talisman Energy, Inc., 244
F. Supp. 2d 289 (S.D.N.Y. 2003) (“[G]enerally speaking, confiscation of property
without just compensation does not violate the law of nations.”); F. Palicio y
Compania, S.A. v. Brush, 256 F. Supp. 481, 487 (S.D.N.Y. 1966), aff’d mem., 375
F.2d 1011 (2d Cir. 1967) (“[C]onfiscations by a state of the property of its own
nationals, no matter how flagrant and regardless of whether compensation has been
provided, do not constitute violations of international law.”).
Belmont, 301 U.S. at 332.
Braka v. Bancomer, S.N.C., 762 F.2d 222, 224 (2d Cir. 1985) (quoting
Sabbatino, 376 U.S. at 428).
Pink, 315 U.S. at 233 (quoting Oetjen v. Central Leather Co., 246
U.S. 297, 302-03 (1918)).
1933, thereby validating its actions from the commencement of its existence.115
Finally, Konowaloff alleges that “the taking of the Painting may have
been religiously motivated,” because “Morozov was an ‘Old Believer,’ a religious
minority in Russia persecuted by the Bolsheviks and later the Soviets.”116
Konowaloff argues that “[t]he motivation for the taking of Morozov’s property is a
consideration relevant to act of state issues.”117 But he has not alleged with any
specificity a connection between Morozov’s religion and the 1918 nationalization
decree. Furthermore, the act of state doctrine is applied without inquiry into
motives, as the alternative “would require [the court] to embark on a path of
ranking violations of international law on a spectrum, dispensing with the act of
state doctrine for the vilest.”118
In sum, the Museum has met its burden of establishing that the act of
state doctrine applies to bar Konowaloff’s claims. Because I dismiss the
Complaint on that basis, I do not reach the Museum’s remaining arguments for
dismissal. This is Konowaloff’s second attempt to craft a viable complaint, and its
See Am. Compl. ¶¶ 9, 36.
Opp. Mem. at 12.
Chabad, 528 F.3d at 955.
shortcomings are of the sort that cannot be remedied by amendment. 119
Accordingly, I dismiss the Amended Complaint with prejudice. 120
For the reasons discussed above, the Museum's motion to dismiss is
granted and this case is dismissed. The Clerk of the Court is directed to close this
motion [Docket No. 26] and this case.
New York, New York
See Williams v. Citigroup Inc., - F.3d - , No. 10 Civ. 5348,2011
WL 3506099, at *5 (2d Cir. Aug. 11,2011) (quoting Advanced Magnetics, Inc. v.
Bayfront Partners, Inc., 106 F.3d 11, 18 (2d Cir. 1997)) ("It is well established that
"[l]eave to amend need not be granted ... where the proposed amendment would
be 'futil [e]."').
I have reviewed the Amicus Curiae brief, but, with all due respect to
amici, do not find the arguments contained therein any more persuasive than the
arguments of Konowaloff.
- Appearances For Plaintiff:
James Edward Tyrrell, Jr., Esq.
Joseph E. Hopkins, Esq.
Patton Boggs, LLP
One Riverfront Plaza, 6th Fl.
Newark, NJ 07102
Lucille Alice Roussin, Esq.
Law Office of Lucille A. Roussin
301 East 63rd Street
New York, NY 10065
Phillip Y. Brown, Esq.
Adam Murray Weisberger, Esq.
Adler Pollock & Sheehan, PC
175 Federal Street
Boston, MA 02110
Allan Gerson, Esq.
AG International Law, PLLC
2131 S St. NW
Washington, DC 20008
Charu Ambat Chandrasekhar, Esq.
David William Bowker, Esq.
Pamela Karten Bookman, Esq.
Wilmer Cutler Pickering Hale & Dorr, LLP
399 Park Avenue
New York, NY 10022
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