Emden v. The Museum of Fine Arts

JUAN CARLOS EMDEN et al, Plaintiffs, v. THE MUSEUM OF FINE ARTS, HOUSTON Defendant.

Civil Action No. 4:21-CV-3348

United States District Court, S.D. Texas, Houston Division

May 2, 2022

MEMORANDUM & ORDER

KEITH P. ELLISON UNITED STATES DISTRICT JUDGE

The Court held a hearing on Defendant's Motion to Dismiss (doc. 13) on March 24, 2022. At that hearing, the Court took the Motion under advisement. The Court now GRANTS Defendant's Motion to Dismiss without prejudice and provides this Memorandum & Order to document its rulings and reasoning.

I. FACTUAL BACKGROUND^[1]

This controversy centers around two paintings. The first is “The Marketplace at Pirna” by Bernardo Bellotto currently owned by the Houston Museum of Fine Arts (MFA). The second is “After Bellotto” painted by an unknown Bellotto imitator. The second is relevant only because plaintiffs claim that it caused confusion that renders invalid the MFA's title to “The Marketplace at Pirna.” Two other Bellotto paintings once owned by plaintiffs' relative, Dr. Max Emden, are mentioned briefly to provide context, but those two Bellottos are not at issue here.

A. “The Marketplace at Pirna”

In 1753, Bernardo Bellotto painted “The Marketplace at Pirna” as a royal commission for Augustus III who was the king of Poland and the elector of Saxony. (Doc. 1 at ¶15). In the late 1700s, “The Marketplace at Pirna” was acquired by Leipzig art collector Gottfried Winckler, who marked it with inventory number 1025 on its bottom right-hand corner. (Doc. 1 at ¶18). By 1930, Dr. Max Emden, a German Jewish merchant and grandfather to the Emden plaintiff-heirs, owned the painting, along with two other Bellotto paintings. (Id.). But on June 30, 1938, Dr. Emden- under Nazi-orchestrated economic duress-sold “The Marketplace at Pirna”, as well as his two other Bellotto paintings, to Nazi art dealer Karl Haberstock. (Id. at ¶23). The very same day, Haberstock sold all three Bellottos to the Reich Chancellery as they were intended for Hitler's Fuhrermuseum in Linz, Austria. (Id.). Dr. Emden died two years later in June 1940. (Id.).

In May of 1945, “The Marketplace at Pirna” was found by the Monuments Men and Women in an Austrian salt mine. (Id. at ¶33). The Monuments Men and Women were a group of mostly American and British museum curators, art historians, librarians, architects, and artists tasked with preserving the artistic and cultural achievements of western civilization from the destruction of war and theft by the Nazis. (Id. at ¶31). In June of 1945, “The Marketplace at Pirna” was moved by the Monuments Men and Women to the Munich Central Collecting Point (MCCP) to be held there pending return to its rightful owner. (Id. at ¶34).

B. “After Bellotto”

In 1928, Hugo Moser, a German art dealer and collector, purchased “After Bellotto”, a work by an unknown imitator of Bernardo Bellotto's “The Marketplace at Pirna.” (Id. at ¶28). Artists of the late 1700s and 1800s regularly copied Bellotto's urban landscape scenes in his style because his original works of art became even more popular and valuable after his death. (Id.) In 1933, when the Nazis came to power, Moser fled Germany for the Netherlands; and when the Nazi invasion of the Netherlands became imminent, he fled to the United States, leaving his painting in the care of an art restorer in Amsterdam. (Id. at ¶29).

Without Moser's permission or knowledge, Moser's brother-in-law then took “After Bellotto” from the art restorer and sold it to a dealer called Douwes Fine Art. (Id. at ¶37). And Douwes Fine Art then sold the painting to the Amsterdam-based Goudstikker Gallery where it was purchased by Nazi art dealer Maria Almas-Dietrich. (Id. at ¶29-30). Moser was not compensated for any of these sales. (Id. at ¶37). At war's end, “After Bellotto” was found in a storage facility containing dozens of other works of art owned by Almas-Dietrich. (Id. at ¶30). And in November of 1945, the painting was moved to the MCCP to be held there pending return to its rightful owner, since works owned by Almas-Dietrich were presumed to be stolen. (Id. at ¶31).

C. The Alleged Mix-Up

In March 1946, Dutch officials filed Dutch Declaration Form 7056, alerting the Monuments Men and Women that they sought a Bernardo Bellotto painting called “The Marketplace at Pirna” which the Goudstikker Gallery claimed it had sold to Nazi dealer Maria Almas-Dietrich. (Id. at ¶35). The Dutch Declaration Form complied with the requirements of the Netherlands Art Property Foundation (Dutch: Stichting Nederlands Kunstbezit or “SNK”), the Dutch government agency that dealt with post-WWII restitution. (Id.) However, plaintiffs claim that the Dutch government's Declaration Form contained a clerical error, because the Goudstikker Gallery had never owned “The Marketplace at Pirna” by Bellotto; instead, the Goudstikker had allegedly owned the near-identical “After Bellotto”-rendered by an unknown artist in the style of Bellotto. (Id.) Nevertheless, in April 1946, pursuant to external restitution policies and Dutch Declaration Form 7056, the Monuments Men and Women sent Bellotto's “The Marketplace at Pirna” to the Netherlands. (Id. at ¶35).

In May of 1948, German art dealer Hugo Moser wrote to the Dutch officials stating that he was the true owner of “After Bellotto” (by an unknown artist in the style of Bellotto), which he had purchased in 1928 then left in Amsterdam when he fled Nazi occupation in 1940. (Id. at ¶37). The Dutch government then allegedly compounded its initial mistake by restituting “The Marketplace at Pirna”-instead of “After Bellotto”-to Hugo Moser. (Id. at ¶39).

In 1949, the Monuments Men discovered that they may have mistakenly given over “The Marketplace at Pirna” to the Dutch government. (Id.). Therefore, they wrote a letter (“The Munsing Letter”) to Dutch officials suggesting that their conveyance to the Dutch had been in error. (Id.) However, the Dutch government declined to return the painting as they had already restituted it to Hugo Moser. (Id.).

In 1952, Hugo Moser sold “The Marketplace at Pirna” to American collector Samuel H. Kress. (Id. at ¶40). In doing so, plaintiffs allege that Moser presented Kress with a completely fabricated provenance, omitting key information about where, when, and from whom he had purchased the painting. (Id. at ¶41). In 1953, Samuel H. Kress, through the Kress Foundation, placed “The Marketplace at Pirna” on long term loan with the MFA. (Id. at ¶42). And in 1961, the Kress Foundation converted the loan to an outright donation of the painting to the MFA. (Id.).

In 2019, the German Advisory Commission on the restitution of stolen war art (“the Commission”) determined that Dr. Emden was a victim of the “systematic destruction of people's economic livelihoods by the Third Reich as a tool of National Socialist racial policy.” (Id. at ¶45). Therefore, the Commission recommended that Mr. Emden's two Bellotto paintings that had been turned over to the new German government by the Monuments Men and Women be restituted to plaintiffs as the sole heirs of Dr. Emden. (Id.).^[2] The German government accepted the recommendation of the Commission and immediately returned both Bellotto paintings to the Emden heirs. (Id.). The Commission noted that the third Emden Bellotto, “The Marketplace at Pirna” at issue in this case, “was of the same origin [and] was erroneously restituted to the Netherlands after 1945 and is now considered lost.” (Id.).

Thus, according to plaintiffs, but for the erroneous restitution of “The Marketplace at Pirna” to the Netherlands in 1946, and its subsequent restitution to Hugo Moser, “all three Emden Bellottos would have been together in Germany. (Id. at ¶46). And all three would have been returned to the Emden Heirs in accordance with the German Advisory Commission's findings and recommendation.” (Id.)

In summer of 2021, researchers for the Monuments Men and Women Foundation discovered and analyzed a 1930 photo of “The Marketplace at Pirna, ” identifying a unique distinguishing fingerprint in the form of a “1025” marking. (Id. at ¶47). Said marking concretely distinguished the MFA-owned “The Marketplace at Pirna” from all imitations. (Id.) When presented with this finding in June of 2021, the MFA unequivocally refused restitution of “The Marketplace at Pirna.” (Id. at ¶48). Plaintiffs filed their Complaint on October 12, 2021, seeking declaratory relief and alleging conversion and a violation of the Texas Theft Liabilities Act for unlawful appropriation of property. (Id. at 58-80).

II. DISCUSSION

A. Legal Standard

A court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). When considering a Rule 12(b)(6) motion to dismiss, a court must “accept the complaint's well-pleaded facts as true and view them in the light most favorable to the plaintiff.” Johnson v. Johnson, 385 F.3d 503, 529 (5th Cir. 2004). “To survive a Rule 12(b)(6) motion to dismiss, a complaint ‘does not need detailed factual allegations,' but must provide the plaintiff's grounds for entitlement to relief-including factual allegations that when assumed to be true ‘raise a right to relief above the speculative level.'” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). That is, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).

In determining whether to grant a motion to dismiss, a court cannot look beyond the pleadings. Peacock v. AARP Inc., 181 F.Supp.3d 430, 434 (S.D. Tex. 2016) (citing Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999))...