An interesting development happened last week in the case seeking restitution of a Camille Pissarro painting held by the University of Oklahoma. The plaintiff Leone Meyer appealed the May 14, 2014 judgment that found that the courts of New York lacked jurisdiction over the Oklahoma-based defendants affiliated with the University of Oklahoma (the painting is in the Fred Jones, Jr. Museum of Art). Without ruling on the jurisdictional basis for dismissal, the 2nd Circuit Court of Appeals remanded the matter back to the trial court for consideration of whether the case should be transferred to Oklahoma. It seems likely that it will be, or even if not, that she will file a new case there and the matter will continue. It’s splitting hairs, but many of the headlines suggesting that the Court of Appeals had revived Meyer’s claims are not quite right; Meyer’s claims have still never been addressed on the merits (so they were never dead) and, as discussed below, another forum remains available to her. The larger point is that a second round is likely coming in Oklahoma.
The claim concerns an oil painting by Pissarro, La bergère rentrent des moutons. Meyer alleged that the painting was stolen from her father Raoul in France by the Vichy regime in cooperation with the occupying Nazi forces. After the war, she alleges that Raoul located the painting in the possession of a Christoph Bernoulli in Switzerland. Meyer sued the Oklahoma defendants, claiming that she is the rightful owner of the painting. Meyer also sued my client (the David Findlay, Jr. Gallery) and others, in New York, alleging that the painting had been sold at the David Findlay Galleries in 1956 to Aaron and Clara Weitzenhofer, the couple who eventually bequeathed it to the Fred Jones, Jr. Museum. My client and the other New York defendants were dismissed from the case by agreement or as defunct entities.
The Oklahoma defendants then successfully convinced the trial judge that they are not sufficiently present in New York to justify being sued there, and Meyer appealed. But after the judgment entered, Meyer submitted a request to the trial court that the case be transferred to the Western District of Oklahoma, where the defendants are. The trial court declined, stating that the case had already been closed and there was nothing more to be done. The parties briefed the jurisdictional questions on appeal and the docket seems to indicate that oral argument was held on March 6, 2015.
Last week, however, the remand order came. It does not address the jurisdictional appeal, but states:
We defer to the district court’s judgment concerning whether transfer serves the interest of justice, and review only for abuse of discretion. In this case, however, the district court has not had an opportunity to consider Meyer’s transfer request, since the case was dismissed before the question of transfer could be argued. A district court may transfer a case even where it lacks personal jurisdiction over the defendants.
Even if Southern District judge Colleen McMahon does not transfer the case, Meyer may file a new civil action in Oklahoma (as she could have done in the first instance, and likely faced a challenge from the New York defendants to jurisdiction over them). Interestingly, the 2nd Circuit noted that she had requested transfer because of concerns over the statute of limitations. That is to say, while as a jurisdictional matter a plaintiff can always file in a new district if there is no jurisdiction in the first one, she may not file the second case if the claims are tim- barred. In our view, if the claims were timely when she filed them in New York, she should be safe, because unless there is a wrinkle of Oklahoma law with which I’m not familiar, the statute of limitations can usually be tolled for the pendency of the first action.
To illustrate the issue, imagine I file a lawsuit in State A on January 1, six months before the statute of limitations expires. On December 1, my case is dismissed for lack of personal jurisdiction. While in an absolute sense I am now beyond the statute of limitations by six months, if there were tolling, I would still have until May 31 the following year to file in State B. If the statute of limitations were not tolled because of the first case, I would be out of luck.
Her lawyers are wise to be prudent (since a transferred action will be considered to have been filed when the initial case was brought), but unless the first case was filed the day before the statute expired and even one more day between the closing of the New York case and the opening of a new case would be dispositive, I would be surprised if the matter ultimately turned on that question.
A bigger problem for Meyer remains the Swiss chapter. In their motion to dismiss, the Oklahoma defendants produced a copy of a Swiss judgment over title to the painting, a judgment which acknowledged the likelihood that the painting had been stolen, but finding that Bernoulli was a good faith purchaser and therefore the true owner. That is a critical difference between U.S. and Continental law (the good faith purchaser prevails there, while the true owner prevails here), and the subject of much discussion and controversy. Meyer may have to contend with that judgment at some point.
For now the case heads back to the District Court to see if it will be transferred or re-filed.
