Burden on Art Theft Victims in 1st and 9th Circuits

In at least two recent federal court decisions, the burden for discovery of lost art works has been found to be on the victim of the art theft.

The First Circuit¹ stated that summary judgment is appropriate to dismiss a case where a plaintiff does not bring a claim within the requisite statutory time. Museum of Fine Arts, Boston v. Seger-Thomchitz, 623 F.3d 1, 9 (1st Cir. 2010). Under Massachusetts law of discover, the plaintiff Seger-Thomschitz had to bring her cause of action within three years of findint out she possibly had a claim for the stolen art. Id. at 6. At best, Seger-Thomschitz was apprised of a possible right to recover the painting in question no later than the fall of 2003, when she was apprised of Vienna’s decision to return to her “as the sole heir of Oskar Reichel” four artworks in their collection by the artist Anton Romako. Id. at 9. The plaintiff did not demand the return of the Painting from the museum until March 12, 2007 and therefore was barred at summary judgment from presenting her case to a jury.

The Painting had been on public display at the Museum of Fine Art (MFA), Boston, a major international museum, for over 25 years, and was listed in several publicly available provenance databases (websites) that listed the MFA as its current holder. Id. at 7.

On the question of federal law (and policy), the court found that Massachusetts law was not in clear conflict with federal policies encouraging rightful return of Nazi-era goods to their rightful owners. Id. at 13. (there was no express federal policy disfavoring overly rigid timeliness requirements). Accordingly, it was not appropriate for the court to allow the federal policies to not override the Massachusetts statute of limitations. Id. at 13.

A similar pronouncement was put forth by the Ninth Circuit² in Orkin v. Taylor, 487 F.3d 734 (9th Cir. 2007), cert. den., 552 U.S. 990 (2007). The Orkin court stated that the “torts asserted here are undoubtedly causes of action that are traditionally relegated to state law,” and that a federal remedy in this case “would be inappropriate under” Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). In Cort, the Supreme Court established a four-factor test for discerning whether a federal statute creates a private right of action. None of these factors were in favor of the plaintiff, Orkin.

In Jolly v. Eli Lilly & Co., the California Supreme Court held that, under California’s discovery rule, “[a] plaintiff is held to her actual knowledge as well as knowledge that could reasonably be discovered through investigation of sources open to her.” 44 Cal.3d 1103, 1109, 245 Cal.Rptr. 658, 751 P.2d 923 (1988). Under the discovery rule, a cause of action accrues when the plaintiff discovered or reasonably could have discovered her claim to and the whereabouts of her property.

In assessing California law, the court conclude that it is “highly unlikely that the California Supreme Court would abandon the Jolly rule, much less adopt a new rule that eschewed the concept of constructive notice.” Under Jolly, the latest possible accrual date of the Orkins’ cause of action was the date on which they first reasonably could have discovered, through investigation of sources open to them, their claim to and the whereabouts of the van Gogh painting – 1990 when Elizabeth Taylor auctioned the painting in a highly publicized auction.

¹The First Circuit interprets federal law for Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island.

²The Ninth Circuit covers Arizona, Nevada, California, Oregon, Washington, Alaska, Idaho, Montana and Hawaii.