Orkin v. Swiss Confederation
770 F. Supp. 2d 612
S.D.N.Y.2011Background
- Orkin sues to recover a Van Gogh drawing his great-grandmother allegedly sold under Nazi-era duress.
- Great-grandmother Margarethe Mauthner bought the drawing in 1906 and fled Germany for South Africa in 1933, with the drawing sold to Reinhart in 1933 for 8,000 Reichsmarks.
- Reinhart established a foundation and later donated or bequeathed parts of his collection to it; the Van Gogh drawing ultimately passed to the Swiss Confederation in 1965.
- The Swiss Confederation and related entities are alleged to be the drawing’s current owners or custodians, but the Foundation allegedly never possessed the drawing.
- Plaintiff bases jurisdiction on the FSIA (and inconsistently the ATS), arguing the takings by a sovereign or its instrumentality violated international law.
- Defendants move to dismiss for lack of subject matter jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FSIA takings jurisdiction exists | Rights in property at issue; property taken; taking violated international law; property present in US via agency activity. | No takings jurisdiction because initial acquisition was by a private individual, not the sovereign or its instrumentality. | Lacks FSIA takings jurisdiction. |
| Whether ATS jurisdiction exists against the Foundation or other defendants | Foundation liable under ATS for international-law violations. | ATS does not apply to a private bequest/receipt; defendants are not non-governmental actors for ATS purposes. | ATS provides no jurisdiction; dismissal granted. |
| Whether the Foundation is a proper defendant and subject to jurisdiction | Foundation involvement relevant; it may hold or control the drawing. | Foundation never possessed the drawing; misidentification of proper defendant; FSIA controls. | Foundation not a proper defendant; no jurisdiction even if in possession. |
Key Cases Cited
- Garb v. Republic of Poland, 440 F.3d 579 (2d Cir. 2006) (takings jurisdiction under FSIA; four elements)
- Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010) (limits of ATS; universal norms required)
- Sosa v. Alvarez-Machain, 542 U.S. 692 (U.S. 2004) (universal customary international law; defined standard for ATS)
- Cassirer v. Kingdom of Spain, 616 F.3d 1019 (9th Cir. 2010) (initial expropriation context with ATS considerations)
- Altmann v. Republic of Austria, 317 F.3d 954 (9th Cir. 2002) (foreign-sovereign immunity and post-expropriation claims)
- Zappia Middle East Construction Co. Ltd. v. Emirate of Abu Dhabi, 215 F.3d 247 (2d Cir. 2000) (FSIA framework and jurisdictional standards)
- Makarova v. United States, 201 F.3d 110 (2d Cir. 2000) ( Rule 12(b)(1) subject-matter-jurisdiction standard)