Republic of Turkey v. Christie's Inc. et al
Filing
483
ORDER: For the foregoing reasons, the Court DENIES Plaintiff's motion to stay the Judgment pending appeal. The Court GRANTS Plaintiff's request in the alternative that this Court grant a temporary stay to allow Plaintiff to move for simi lar relief in the Court of Appeals under Federal Rule of Appellate Procedure 8(a) and for resolution of that stay motion by the Court of Appeals. As stated above, Plaintiff must seek that relief promptly and move for a stay from the Second Circu it within the next seven days. Assuming Plaintiff does so, the stay will remain in effect pending a ruling on that motion. If Plaintiff does not seek relief from the Court of Appeals within the next seven days, the Court will lift the stay of its Judgment on October 13, 2021. SO ORDERED. (Signed by Judge Alison J. Nathan on 10/6/2021) (vfr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
10/6/21
Republic of Turkey,
Plaintiff,
17-cv-3086 (AJN)
–v–
ORDER
Christie’s Inc., et al.,
Defendants.
ALISON J. NATHAN, District Judge:
Before the Court is the Republic of Turkey’s eleventh-hour motion to stay enforcement
of the Court’s Judgment dated September 7, 2021, pending Plaintiff’s appeal to the U.S. Court of
Appeals for the Second Circuit. Dkt. Nos. 475, 476. Defendants oppose Plaintiff’s motion. Dkt.
No. 481. The automatic stay of the Court’s Judgment expires October 7, 2021. Because the
application was filed at 5:48pm on Friday, October 1, there has been limited time for full briefing
and consideration. Nevertheless, for the foregoing reasons, the Court DENIES Plaintiff’s motion
to stay enforcement pending appeal. However, in order to give the Second Circuit time to
resolve a stay request in an orderly fashion, the Court GRANTS a stay of enforcement pending
resolution of a motion for similar relief by the Court of Appeals.
I.
DISCUSSION
To decide whether to grant a stay pending appeal, the Court is guided by the familiar
four-factor test: “(1) whether the stay applicant has made a strong showing that [it] is likely to
succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3)
whether issuance of the stay will substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U.S. 418, 434 (2009)
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(cleaned up). “The Supreme Court has held that the first two factors—likelihood of success on
the merits and irreparable harm—‘are the most critical.’” Floyd v. City of New York, 959 F.
Supp. 2d 691, 694 (S.D.N.Y. 2013) (quoting Nken, 556 U.S. at 434). Moreover, a “stay is not a
matter of right, even if irreparable injury might otherwise result. It is instead an exercise of
judicial discretion, and the propriety of its issue is dependent upon the circumstances of the
particular case.” Nken, 556 U.S. at 433 (cleaned up). The party seeking a stay bears the “heavy
burden of demonstrating that a stay is warranted.” New York v. Trump, 490 F. Supp. 3d 736, 741
(S.D.N.Y. 2020) (three-judge court) (per curiam). The Court addresses each factor in turn,
finding Turkey fails to carry this “heavy burden.”
A. Likelihood of Success on Appeal
The Court concludes that Turkey fails to make the requisite “strong showing” that it is
likely to succeed on the merits. The parties agree that for Turkey to show a likelihood of success
on appeal, it must establish that there are “serious questions going to the merits of the present
dispute and . . . that the balance of hardships tips decidedly in its favor.” In re A2P SMS
Antitrust Litig., No. 12-cv-2656 (AJN), 2014 WL 4247744, at *2 (S.D.N.Y. Aug. 27, 2014); see
also Dkt. No 481 at 8. Each of Turkey’s arguments fail to establish that there are “serious
questions” on appeal.
First, Turkey argues that this Court failed to properly apply New York law in determining
whether Turkey had met its initial burden to prove that the Idol was excavated post-1906. In its
post-trial proposed findings of fact and conclusions of law, Turkey agreed that it bore the initial
“burden of showing, by a preponderance of the evidence, that it is lawfully entitled to possess the
Idol and that Defendants have unlawfully withheld it.” Dkt. No. 468 at 38 (citing Abbott Labs. v.
Feinberg, Nos. 18 Civ. 8468, 19 Civ. 600, 2020 WL 7239617, at *2 (S.D.N.Y. Dec. 9, 2020)).
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Perhaps in an attempt to diminish the weight of its burden, Turkey emphasizes that this is a
“threshold,” “prima facie” showing requiring an “arguable claim” to the Idol. Dkt. No. 479 at
12–13. But an initial burden is still a burden, and one that this Court found Turkey failed to meet
after carefully considering the substantial record. That Turkey takes issue with this Court’s
weighing of the evidence does not present a “serious question” on appeal. See In re Citibank
August 11, 2020 Wire Transfers, No. 20 Civ. 6539 (JMF), 2021 WL 1905002, at *3–4 (S.D.N.Y.
May 12, 2021).
Indeed, Turkey’s arguments on this score merely ask the Court to reweigh its findings
from the bench trial. For example, Turkey argues that its expert testimony establishing that the
Idol was found in Turkey is sufficient to make a “threshold showing” that the Idol was removed
some time after 1906. Dkt. No. 479 at 13. Based on the evidence at trial, the Court considered
and rejected this same argument in its Opinion—the Idol’s origination in Turkey sheds no light
on the key question of when it was removed from Turkey. See Republic of Turkey v. Christie’s,
Inc., No. 17-cv-3086 (AJN), 2021 WL 4060357, at *6 (S.D.N.Y. Sept. 7, 2021). Turkey also
faults the Court for crediting Defendants’ evidence that other Kiliya-type figurines were removed
from Turkey pre-1906 without generating significant attention among scholars or collectors of
antiquities. Such re-argument of credibility determinations and factual findings are insufficient
to demonstrate that there are serious questions going to the merits or a likelihood of success. See
In re Citibank August 11, 2020 Wire Transfers, 2021 WL 1905002, at *3–4. Because the Court’s
factual findings establish that Turkey failed to shoulder its initial burden, Turkey does not
present a “serious question” on appeal.
Second, Turkey’s argument that the Court’s failure to “expressly rule on Plaintiff’s
motion in limine or the admissibility” of Dr. Anderson’s testimony warrants de novo review by
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the Court of Appeals and presents a “serious question” on appeal is similarly unavailing. See
Dkt. No. 429 at 15–16. First, a trial court need not explicitly rule on a motion in limine in order
to perform its Daubert gatekeeping duty—explicit credibility determinations, as the Court
performed here, are sufficient to satisfy Federal Rule of Evidence 702. See Ferrostaal, Inc. v.
M/V Tupungato, 230 F. App’x 11, 13–14 (2d Cir. 2007). Second, it is well established that
district courts enjoy broad discretion in deciding to admit expert testimony—such a decision is
only overturned when “manifestly erroneous.” McCullock v. H.B. Fuller Co., 61 F.3d 1038,
1042 (2d Cir. 1995). Here, the Court expressly credited the testimony of Dr. Anderson as
credible and persuasive. See Republic of Turkey, 2021 WL 4060357, at *6–7. Accordingly, the
Court plainly determined that the testimony passed substantially over the Daubert gatekeeping
hurdle. Turkey fails to establish that the Court’s admission of Dr. Anderson’s testimony presents
a “serious question” on appeal.
Finally, Turkey argues that this Court’s treatment of Defendants’ laches defense is a
“serious question.” Based on factual findings, the Court determined that laches is an
independent and alternative basis for judgment in favor of Defendants. But on laches too,
Turkey only raises arguments that this Court previously rejected. See Dkt. No. 479 at 16–19. In
particular, Plaintiff argues the Court of Appeals is “likely” to accept its argument that Steinhardt
had a duty to investigate even as an ordinary purchaser. Dkt. No. 479 at 16–17. The Court
disagrees. Courts in this district have held that an ordinary non-merchant purchaser has no
obligation to investigate. See Bakalar v. Vavra, 819 F. Supp. 2d 293, 306 (S.D.N.Y. 2011),
aff’d, 500 F. App’x 6 (2d Cir. 2012) (summary order); Graffman v. Doe, No. 96 Civ. 8247
(SWK), 1998 WL 55371, at *6 & n.2 (S.D.N.Y. Feb. 11, 1998), aff’d, 201 F.3d 431 (2d Cir.
1999) (unpublished). In any event, the Court found that Steinhardt did sufficiently investigate.
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See Republic of Turkey, 2021 WL 4060357, at *11–12. Nor does the Court’s exclusion of “other
acts” evidence—which was carefully considered after extensive argument and briefing and will
be reviewed for abuse of discretion—raise a serious question on appeal. See Dkt. No. 417; see
also March 18, 2021 Tr. at 42–59.
Each of Turkey’s arguments fail to raise a “serious question going to the merits of the
dispute” and are insufficient to shoulder its heavy burden on a motion to stay. See In re Citibank
August 11, 2020 Wire Transfers, 2021 WL 1905002, at *3–4. Accordingly, Turkey fails to
establish a likelihood of success on the merits, and the Court denies its motion to stay the
Judgment pending appeal on that basis.
B. Irreparable Harm
The Court also concludes for the reasons stated in Defendants’ Opposition that Turkey
has not established imminent irreparable harm. First, in opposing the stay application,
Defendants state expressly that because the Idol is named as a defendant-in-rem, it is not subject
to dissipation nor sale outside the jurisdiction of this Court. Dkt. No. 481 at 6–7. Second, there
is no basis for concluding any harm is imminent as Turkey has not suggested that there is an
immediate or pending sale and Defendants state that none is planned. See Dkt. No. 481 at 10;
see also SEC v. Daspin, 557 F. App’x 46, 48 (2d Cir. 2003) (noting the harm must be “truly
imminent and not mere possible injury, or remote and speculative injury”). 1
C. Public Interest
Because orderly resolution of cultural property rights presents an important public
interest, the Court concludes that this final factor weighs in favor of a stay pending appeal.
However, the “Supreme Court has held that the first two factors—likelihood of success on the
1
Defendants do not argue that they would be substantially injured by the issuance of a stay.
5
merits and irreparable harm—‘are the most critical.’” Floyd, 959 F. Supp. 2d at 694 (quoting
Nken, 556 U.S. at 434). Moreover, a “stay in not a matter of right, even if irreparable injury
might otherwise result.” Nken, 556 U.S. at 433. Because Plaintiff fails to carry its burden to
establish that there are “serious questions” on appeal and that it would suffer irreparable harm
absent a stay, this final factor is insufficient to grant the eleventh-hour relief Plaintiff seeks.
In the alternative, Plaintiff requests that this court grant a temporary stay to allow
Plaintiff to move for similar relief in the Court of Appeals under Federal Rule of Appellate
Procedure 8(a). Here, Turkey filed its request for a stay within days of the expiration of the
automatic stay, leaving little time for briefing or opportunity for this Court to resolve the request.
The Court concludes that a temporary stay serves the public interest of judicial economy by
allowing the Court of Appeals adequate time to consider Plaintiff’s request for emergency relief
in an orderly fashion. See Landis v. N. Am. Co., 299 U.S. 248, 254–55 (1936). The Court
therefore GRANTS the request to stay pending resolution of Plaintiff’s motion for similar relief
to the Court of Appeals. However, Plaintiff must seek that relief promptly and move for a stay
from the Second Circuit within the next seven days. If Plaintiff does not seek relief from the
Court of Appeals within the next seven days, the Court will lift the stay of its Judgment. 2
II.
CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiff’s motion to stay the Judgment
pending appeal. The Court GRANTS Plaintiff’s request in the alternative that this Court grant a
temporary stay to allow Plaintiff to move for similar relief in the Court of Appeals under Federal
Rule of Appellate Procedure 8(a) and for resolution of that stay motion by the Court of Appeals.
As stated above, Plaintiff must seek that relief promptly and move for a stay from the Second
2
Because the stay pending appeal is denied, the Court does not consider Defendants’ request for a bond.
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Circuit within the next seven days. Assuming Plaintiff does so, the stay will remain in effect
pending a ruling on that motion. If Plaintiff does not seek relief from the Court of Appeals
within the next seven days, the Court will lift the stay of its Judgment on October 13, 2021.
SO ORDERED.
Dated: October 6, 2021
New York, New York
__________________________________
ALISON J. NATHAN
United States District Judge
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