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Nazi Loot Picasso case can proceed in California

Marilynn Alsdorf had hoped the case would be thrown out of court

On 31 March, a federal trial court refused to throw out a US government lawsuit here, which is seeking to confiscate a painting by Picasso, “Femme en blanc” (about 1922), which was allegedly looted by the Nazis. The defending owner of the work, Chicago collector Marilynn Alsdorf, had asked the court to dismiss the California case, on the theory that she had previously started a lawsuit in Illinois seeking a declaration that she owns the painting.

The decision highlights complexities that can arise in art lawsuits in cases where courts take jurisdiction over property rather than persons, a procedure which the government invokes when seeking to seize goods involved in crimes, for example drugs or stolen goods. The US seizure suit, filed in October 2004, names the art itself as the defendant. In such cases, the court takes jurisdiction over the “res” (Latin for “thing”) in an “in rem” proceeding (“with respect to the thing”) to decide who owns it.

Denying Ms Alsdorf’s claim that her Illinois suit trumps the California one, Judge Florence-Marie Cooper, of the US District Court for Los Angeles, said that under federal procedural doctrine, a court cannot take jurisdiction of a “res” that is already under another court’s “in rem” jurisdiction. Otherwise, two courts would be vying for control of the same property. To get exclusive jurisdiction over the Picasso painting, the Illinois court would have had to assert control over it, and it never did, Judge Cooper said. Ms Alsdorf’s Illinois complaint instead sued a person, Thomas C. Bennigson, grandson of the painting’s Jewish former owner, and this did not give the Illinois court jurisdiction over the painting, Judge Cooper said. The California court asserted its control when the painting was seized by US marshals pursuant to court order in October 2004.

Though the painting has been “seized” by the California court, and is subject to its disposition, the painting physically remains in Ms Alsdorf’s private custody in Illinois by agreement with the US government. The court said that the painting’s location did not change its conclusion that the case would proceed in California.

The dispute arises from an alleged violation by Ms Alsdorf of the National Stolen Property Act (NSPA). The US says that, contrary to the NSPA, Ms Alsdorf in 2002 transported the work from Los Angeles to Chicago, knowing it was stolen. The NSPA lets the government confiscate stolen goods which are transported across State lines in knowledge that they are stolen. Before Ms Alsdorf made the interstate shipment, the US says, representatives of the Art Loss Register in London advised her lawyer and dealer that the work had been stolen by Nazis, presenting documentation which was sent to her. Ms Alsdorf says she has good title, derived from a dealer who had a “superior right of ownership against all others” under French law.

Over Ms Alsdorf’s objection, Judge Cooper allowed Mr Bennigson to bring a cross-complaint against Ms Alsdorf attached to the government’s suit, seeking recovery of the painting.

Ms Alsdorf had alternatively argued that the “similar” California lawsuit should be moved to Illinois. But the judge said the lawsuits were different, because in Illinois Ms Alsdorf was seeking a ruling that she owned the painting, while the government in California was seeking to confiscate it.