Fletcher v. Doig

ROBERT FLETCHER and BARTLOW GALLERY LTD., Plaintiffs, v. PETER DOIG, GORDON VeneKLASEN, MATTHEW S. DONTZIN, and THE DONTZIN LAW FIRM LLP, Defendants, v. WILLIAM FREDERICK ZIESKE, Respondent.

No. 13 C 3270

United States District Court, N.D. Illinois, Eastern Division

December 30, 2022

MEMORANDUM OPINION AND ORDER

GARY FEINERMAN UNITED STATES DISTRICT JUDGE

Robert Fletcher and Bartlow Gallery Ltd. brought this diversity suit against Peter Doig and some of his associates, alleging interference with prospective economic advantage and requesting damages and declaratory relief. Doc. 1. Plaintiffs alleged that Defendants falsely denied that Doig, an internationally renowned artist, had created a painting owned by Fletcher and thereby frustrated Plaintiffs' ability to sell the work. After the court dismissed the claims against Doig's associates, Docs. 74-75 (reported at 125 F.Supp.3d 697 (N.D. Ill. 2014)), and denied Doig's summary judgment motion, Doc. 198, the case proceeded to a bench trial. The court rendered a verdict for Doig, finding that he had not authored the painting. Docs. 260-261. Before the court is Defendants' motion for sanctions under Civil Rule 11, 28 U.S.C. § 1927, and the court's inherent authority against Plaintiffs and their (now former) counsel, William Zieske. Doc. 273. With sincere apologies for the substantial delay in resolving this difficult and unfortunate coda to the litigation-placing at risk Zieske's professional reputation and involving large sums of money for both Zieske and Plaintiffs-Defendants' motion is granted in part and denied in part.

Background

To support their sanctions motion, Defendants submitted an appendix comprising over 4,000 pages of materials. Much of this material is located elsewhere in the record or was admitted at trial; to the extent it is not, neither Plaintiffs nor Zieske object to its consideration for the purposes of this motion.

A. The Painting

From 1975 to 1978, Fletcher attended Lakehead University in Thunder Bay, Ontario. Doc. 273-5 at p. 86, ¶ 9. At the same time, Fletcher worked as a correctional officer at the Thunder Bay Correctional Center (“TBCC”). Doc 273-8 at 139 (138:2-24). In 1976, a prisoner incarcerated at TBCC created the painting at issue in this case. Doc. 273-5 at p. 86, ¶¶ 4, 11. Over a period of months Fletcher observed the painting progress from its initial stages to completion. Id. at p. 86, ¶ 11. After the painter's release from TBCC, Fletcher assisted him in gaining employment through the Seafarers Union. Id at p. 86, ¶ 10. Fletcher later purchased the painting from its creator for $100. Doc. 273-8 at 292-295 (291:20-294:3).

Fast forward to 2011, when a friend visiting Fletcher's home noticed the painting and told him that it had been created by a renowned artist named Peter Doig, id. at 305 (304:7-23)- perhaps after noticing that the work was signed with a very similar name, “Pete Doige,” Doc 273-3 at p. 3, ¶ 8. Fletcher contacted Peter Bartlow, the owner of Bartlow Gallery Ltd. in Chicago, in hopes that the gallery could sell the painting on his behalf. Doc. 273-8 at 312 316 (311:10-315:17). In September 2011, Fletcher and Bartlow Gallery entered into an agreement to split the proceeds of any sale. Doc. 273-11 at 49-50.

Around the same time, Fletcher contacted Sotheby's for an auction estimate and received the following response:

Thank you very much for sending in your auction estimate form and accompanying image of your wonderful early painting by Peter Doig. It is rare to see such a complete and highly resolved early painting by Doig, with clear allusions to his mature style. Your work has the trademark eeriness of the empty landscape, and a stratified composition which recalls his later work.

It would be wonderful ... to get more information f[ro]m you regarding the piece. We would love to know its date of execution, if it is signed or dated or titled anywhere, and also the size of the work (height by width). We would also be very interested to know the history behind the work-how you came to own it, and if you bought it from a gallery or from the artist directly, or through some other route? Once we have this extra information we will be delighted to give you an auction estimate . .

Doc. 273-12 at 24-25. The email added this disclaimer: “The above estimates are preliminary only and subject to change based on first-hand inspection and further research. We have provided these estimates based on our assumption that the property can be offered freely and openly in the international market.” Id. at 25.

Given that Doig is a renowned artist, a work authenticated as his would sell for significantly more than one lacking such authentication. Quite sensibly, Bartlow wanted to authenticate the work before selling it. In September 2011, he attempted to contact Doig by email, stating: “We would like to contact [Doig] regarding the authentication of one of his early paintings done in Thunder Bay while in school. It was sold to a classmate who still has it, Bob Fletcher.” Doc. 273-18 at 29-30. One of Doig's associates responded: “Mr. Doig never lived/attended school in Thunder Bay, Ontario. Additionally he does not believe he knows or did know a Mr. Bob Fletcher.” Id. at 29.

In October 2011, Bartlow emailed Gordon VeneKlasen, an employee at the Michael Werner gallery, which represents Doig:

Robert Fletcher alleges to have purchased this painting from the same Peter Doig who he can see in interviews on You Tube. ...

He was not merely a classmate of Mr. Doig's, and he says he helped the artist gain membership to the seafarer's union. ......

I have searched, and I can't find anything that accounts for Peter Doig's life from 1976-1978. Mr. Fletcher is only interested in receiving a fair price for the painting, and does not wish to bring up anything which Mr. Doig would wish to remain private. ......

If we are wrong, we apologize, but we would need a little convincing before following every possible lead to find the truth. ......

Please ask the artist to agree to admit he painted it and the circumstances shall remain forgotten.

Doc. 273-15 at 7. VeneKlasen responded: “Whatever this person alleges is untrue” and “The painting is NOT by Peter Doig. Anyone can see that.” Id. at 6. VeneKlasen continued: “We are not interested in any further communication related to this. Good luck in finding the real artist for this.” Ibid. VeneKlasen concluded: “Any attempt to attribute this painting to Peter Doig in any way will be dealt with by our attorneys.” Ibid.

The same day, Bartlow responded to VeneKlasen, writing:

According to interviews, [Doig] dropped out of school for a time to ‘work.' ......

According to a biographer, he fabricated elaborate school records when applying to art school....

We are curious as to why we cannot find any reference to anywhere Peter Doig was in 1976 other than tales of oil rigs and roustabouts.

Then there is the curious lack of any reference to his life before 1979. No mention of siblings, no names of parents.

Unfortunately, my client has not said anything that can be debunked by anyone other than the artist, and he has admitted to lying about his past.

If we have the wrong man, we are sorry, but we are going to have to get more pro[o]f to just forget about this.

You should have Peter talk to his attorneys and tell them if there is anything he needs to tell them. If we can get proof of his name and life during those years we will stop.

Id. at 5-6. VeneKlasen wrote back to again dismiss the possibility that Doig had painted the work, Id. at 5, to which Bartlow responded with the suggestion that Doig had falsified records and was attempting to cover something up about his past, Id. at 2-3. Bartlow also suggested that Doig's ability to enter the United States might be compromised if it was determined that he had falsified his records. Id. at 3. The same day, Bartlow emailed Fletcher, stating: “The dealer denied it again, so I may have to turn up the heat a notch.” Doc. 273-16 at 36.

Bartlow's attempts to authenticate the painting continued through 2012, when he contacted Doig's father several times. Id. at 38-43. Bartlow's statements to Doig's father included: “[Doig] could have put an end to this a year ago [b]y providing some proof. We will not stop until he comes forward one way or the other”; “What I can't figure out is if you are protecting him, or if he is protecting you. We can still work this out like gentlemen.”; and “You cannot hide forever, and I am not the least intimidated by attorneys or auction houses. .. This is not anything close to extortion, by the way. ... If [Doig] is lying, I guess that is not illegal unless this ends up in court. It could end up in court. . I do not want to go that route. . Why don't we work something out that will put an end to this? We are not unreasonable.” Id. at 40-43. B. Procedural Background

Plaintiffs filed this suit in April 2013, naming as defendants Doig VeneKlasen, Matthew Dontzin (Doig's attorney), and Dontzin Law Firm LLP (Dontzin's law firm). Doc. 1. The complaint alleged (incorrectly as to Doig) as follows. Doig and Fletcher met in 1975 or 1976, while both were enrolled at Lakehead University. Id. at ¶ 21. Shortly after enrolling at Lakehead, Doig was convicted for LSD possession and incarcerated at TBCC, where Fletcher was a correctional officer. Id. at ¶¶ 22-23. During his time at TBCC, Doig participated in the prison's fine arts educational program. Id. at ¶ 23. Doig authored the painting at issue while at TBCC, and Fletcher viewed the painting at several stages of its creation. Id. at ¶ 24. After Doig was granted parole, Fletcher helped him find employment through the Seafarers Union in Thunder Bay. Id. at ¶¶ 25-27. Fletcher purchased the painting from Doig...