MEMORANDUM AND ORDER
Defendants and Counterclaim-Plaintiffs Milos Vavra (‘Vavra”) and Leon Fischer (“Fischer”) (together, the “Heirs”) move pursuant to Rule 23 of the Federal Rules of Civil Procedure to certify a defendant class comprised of six subclasses. The subclasses consist of private individuals, museums, art dealers and others involved with artworks that were part of the estate of Fritz Grunbaum (“Grunbaum”). The Heirs seek to name the following Counterclaim-Defendants as class representatives: David Bakalar (“Bakalar”), The Museum of Modern Art (“MoMA”), Neue Galerie, Oberlin College (“Oberlin”), Sotheby’s, Inc. (“Sotheby’s”) and Schenker, Inc. (“Schenker”) (collectively, the “Counterclaim-Defendants”). For the following reasons, the Heirs’ motion for class certification is denied.
BACKGROUND
On March 21, 2005, David Bakalar commenced this action seeking a declaratory judgment that he is the rightful owner of a drawing by Austrian expressionist artist Egon Schiele (“Schiele”) known as Seated Woman with, Bent Left Leg (Torso) (the “Drawing”). (Complaint, dated Mar. 21, 2005 (“Complaint” or “Compl.”) II4.) It is estimated that prior to his death in 1918, Schiele created over 2,700 drawings. (Declaration of Jane Kallir, dated Jan. 27, 2006 (“Kallir Deck”) at IT 2; Transcript of Oral Argument on Apr. 27, 2006 (“Tr.”) at 7.)
Bakalar is a prominent Massachusetts businessman and philanthropist. (Compl.H 4.) In 1964, he purchased the Drawing from a New York art dealer for a nominal sum. (Declaration of William L. Charron in Support of Bakalar’s Opposition to Motion for Class Certification, dated Mar. 10, 2006 (“Charron Deck”) H14.) He kept the Drawing until 2004, when he consigned it to Sotheby’s for sale. (Charron Deck If15.) In February 2005, Sotheby’s auctioned the Drawing in London for approximately $726,000. (Charron Deck f 15.) The sale was never consummated because the Heirs asserted a claim to the Drawing. (Compl.H10.) Through their attorney, the Heirs informed Sotheby’s that the Nazis expropriated the Drawing from Grunbaum in 1938, and that as his legal heirs they are the proper titleholders. (Comphfl 10.)
In 2002, an Austrian court declared Vavra and Fischer to be the legal heirs of Grunbaum’s estate. (First Amended Counterclaims and Answer, dated Feb. 6, 2006 (“Answer”) HH 243, 247.) Grunbaum was a well-known cabaret performer who resided with his wife Elisabeth in Vienna prior to World War II. (Compl.H 22.) Grunbaum and his wife were Jewish. (Answer H 252.) They owned an extensive art collection, including many works by Schiele. (Compl.H 22.) On April 1, 1938, the Nazis arrested Fritz Grunbaum and placed him in the Dachau concen
Following Elisabeth Grunbaum’s eviction, Dr. Franz Kieslinger, an alleged agent of the Nazis, inventoried the Grunbaum art collection in the Vienna apartment. (Answer 1ÍH 103, 249 & Ex. B: Inventory of Grunbaum Art Collection by Dr. Kieslinger (“Kieslinger Inventory”); Gruber Decl. 1129.) The Kieslinger Inventory reflects over 450 individual works, including 81 by Schiele, which are described as follows:
1. E. Schiele The Self Seers, oil on canvas
2. “ Portrait of a Woman, oil on canvas
3. “ Town by a River (Dead City)
4. “ Small Landscape with Trees
5. “ Ships in the Harbor
* * *
37. Large drawings by Schiele, 55 works colored a. 20 drawings and 1 print from Schiele
(Answer Ex. B.) Only five of the 81 Schieles included in the Inventory are identified by title. (Answer Ex. B.)
Following Kieslinger’s inventory, approximately 420 Grunbaum works were deposited with a storage company, Schenker & Co. A.G. (“Schenker & Co.”). (Answer 11257 & Ex. C: Schenker & Co. Request for Export Permit, dated Sept. 8, 1938). An invoice prepared by Schenker & Co. (the “Schenker Invoice”) describes this artwork in broad categories such as “10 Drawings” and “278 Drawings, some in color.” (Answer Ex. C.) The Heirs contend that in 1931, the German Railways, a Nazi enterprise, acquired Schenker & Co. and, thus, Schenker & Co. “was acting as an instrumentality of the Nazis and ... expropriating [Grunbaum] property.” (Answer HH112-13, 260.)
What happened to the Grunbaum art collection between 1938 and 1952 is a mystery. (Compl.H 25.) Beginning in 1952, many works resurfaced in Switzerland. (Compl.H 29.) Eberhard Kornfeld (“Kornfeld”), a gallery owner in Bern, Switzerland, maintains that between 1952 and 1955, Mathilde Lukács (“Lukács”), the sister of Elisabeth Grunbaum, delivered many works to him for auction or private sale. (Charron Decl. H16 & Ex. 8: Collection of Kornfeld Correspondence.) At least 45 of these pieces were Schiele works. (Charron Decl. Ex. 8(g): Lists of Schiele Work Purchased from Lukács.) Kornfeld contends that in 1998 he learned that the Lukács artwork came from the Grunbaum collection when the Reif family approached him as purported Grunbaum heirs.
Vavra and Fischer dispute Kornfeld’s account. (Answer 1111272-75.) Herbert Gruber (“Gruber”), the Heirs’ genealogical consultant, attests that “[o]ver time, Kornfeld has told many inconsistent stories to the press and in correspondence about what Ma-tilde [sic] Lukács told him about the provenance of the works that she allegedly sold to him.” (Gruber Decl. 1135.) On February 7, 2006, Kornfeld responded to these assertions by challenging Gruber’s declaration as untruthful and noting that Gruber never contacted him. (Charron Decl. Ex. 8(f).)
When the Heirs answered the Complaint, they interposed two counterclaims against Bakalar and a putative class of defendants concerning the ownership of the Grunbaum art collection. (Verified Answer and Counterclaims, dated June 1, 2005 HIT 230 — 46.) Following discovery on the proposed defendant class, the Heirs advanced seven counterclaims against Bakalar, MoMA, Neue Galerie, Oberlin, Sotheby’s and Schenker individually and on behalf of a putative class
[A]ll persons having taken possession of, asserting ownership in, actually possessing, or who have derived revenues or commissions from the sale of artworks originating from the estate of Fritz Grunbaum from September 8, 1928 to the present.
(Answer 11193.) Vavra and Fischer seek to divide this class into six subclasses, each represented by one of the named Counterclaim-Defendants:
A. By Bakalar: all private individuals currently in possession of and claiming ownership to artworks originating from the estate of Fritz Grunbaum;
B. By MoMA: all museums in New York County currently in possession of and claiming ownership to artworks originating from the estate of Fritz Grunbaum;
C. By Oberlin College: all museums outside of New York County currently in possession of and claiming ownership to artworks originating from the estate of Fritz Grunbaum;
D. By Neue Galerie: all museums currently in possession of artworks originating from the estate of Fritz Grunbaum on loan from other collectors or institutions and to which such museums do not claim ownership of these artworks;
E. By Sotheby’s: all art dealers having transacted in artworks originating from the estate of Fritz Grunbaum from September 8,1938 until the present; and
F. By Schenker: all persons or entities acting as instrumentalities of the Nazi regime having participated directly or indirectly in the murder and expropriation of Fritz Grunbaum from September 8, 1938 to the present, along with their successors and assigns.
(Answer HU 194, 281-328.) The Heirs submit that their proposed class satisfies the prerequisites of Rule 23(a) and is maintainable under any of Rule 23(b)(1), (b)(2) or (b)(3). The Counterclaim-Defendants oppose class certification on the grounds that the Heirs cannot satisfy the requirements of Rule 23 and that any such certification would be inconsistent with due process.
DISCUSSION
I. Class Certification Standard
Rule 23 governs the certification of plaintiff and defendant classes. Consol. Rail Corp. v. Town of Hyde Park,
In the class action context, due process insures procedural fairness and protects the interests of absent class members. See Hansberry v. Lee,
Accordingly, “[tjhere is little doubt that a defendant class requires closer scrutiny of Rule 23 tests to assure fairness to absent members based on long-standing due process protections.” Newberg § 4:48; see also The Flying Tiger Line, Inc. v. Cent. States, SW & SE Areas Pension Fund, No. 86-304(CMW),
II. Rule 23(a) Prerequisites
Under Rule 23(a), the Heirs must establish: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the defenses of the representative parties are typical of the defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a). In considering whether to certify a defendant class, commonality, typicality and adequacy of representation merge together. Monaco,
In addition to the enumerated factors above, “Rule 23 contains an implicit requirement that the proposed class be precise, objective and presently ascertainable. Thus, a proposed class must be clearly defined so that it is administratively feasible for a court to determine whether a particular individual is a member.” Burley v. City of New York, No. 03 Civ. 735,
A. Ascertainability
Whether a proposed class is ascertainable is fundamental to certification. See McBean,
The Heirs’ class action pleading seeks certification of a defendant class that participated in transactions in any artworks originating with the Grunbaum collection as enumerated in the Kieslinger Inventory. (Answer HH193, 202.) However, the class certification motion papers define the universe of Grunbaum artworks more narrowly, concentrating on 124 Schiele pieces, which the Heirs contend were part of the Grunbaum collection. (Compare Answer II202,
The Heirs cannot demonstrate that their proposed class and subclasses are ascertainable. With respect to the more than 350 unidentified works reflected in the Kieslinger Inventory by artists other than Schiele, the Heirs fail to establish that the putative defendant class members who own, possess or participated in transfers of these works are readily identifiable. Most of this artwork is not described by title, making it extremely difficult to identify. The Heirs attempt to overcome the elusive nature of this challenge by describing their genealogist’s efforts to research the Grunbaum collection since April 1998. (Gruber Decl. 119.) But that effort misses the mark. While Gruber claims that he reviewed thousands of documents and searched Austrian libraries, he has not identified a single untitled non-Schiele work in the Kieslinger Inventory. (Gruber Decl. ITU 16, 18-19.)
Gruber purports to trace 19 non-Schiele works through Komfeld to the Grunbaum collection, but none of these works have been cross-referenced to the Kieslinger Inventory. (Gruber Decl. H 36 at 20-21.) Thus, this Court cannot conclude that any of those 19 works were included in the Kieslinger Inventory for purposes of class certification. Even if they were, the Heirs have not attempted to identify the remaining approximately 330 untitled works. At argument, the Heirs acknowledged the futility of the challenge: “[wje’re not claiming that your Honor will ever be able to give individualized determinations against 450 artworks. We don’t think your Honor has the power and we don’t think we will ever have the evidence.” (Tr. at 17.) Because the Heirs cannot identify the artwork, they cannot ascertain the owners, possessors or individuals who participated in transfers of such works. See Rios,
Similarly, despite Gruber’s substantial discussion of his Schiele research, the Heirs cannot adequately explain how they intend to identify the 76 Schiele works broadly described as “drawings” and a “print” in item 37 of the Kieslinger Inventory. (Answer Ex. B.) Because Schiele created more than 2,700 drawings, there is at most a 2.8 percent chance that any one of those works was one of the 76 Schieles that Kieslinger inventoried in the Grunbaum apartment in July 1938. (Kallir Decl. H 2.) Thus, the likelihood of identifying any of these Schieles is remote. The Heirs’ optimism that they will unearth evidence concerning Grunbaum’s ownership of Schiele works does not countervail that stark reality. (Tr. at 25-26.) The Heirs rely on correspondence between Grunbaum and Otto Kallir concerning artwork loaned to Kallir in the 1920s. (Gruber Decl. 1125.) They also point to 1923 exhibition catalogs, but have been unable to obtain them. (Gruber Decl. 111119, 23); Tr. at 25 (“We believe there’s [sic] additional documents out there. We just have to find them.”)
This Court declines the Heirs’ invitation to embark on an odyssey that would require innumerable fact intensive inquiries to ascertain class membership. Even if the Heirs could identify all the Schiele works owned by Grunbaum at any time, that alone would not establish that those same Schiele pieces were in the apartment in July 1938 and inventoried by Kieslinger. Moreover, the Heirs contend that they have identified 124 Schiele works which may have originated from the Grunbaum collection. (Gruber Decl. 111135-45 at 21-33.) To support that contention, the Heirs rely in part on Kornfeld’s records while simultaneously asserting that those records are a fabrication. (Gruber Decl. 111135-36 at 15-16, 35 at 21.) Putting aside the inherent contradiction, evidence suggests that Kornfeld bought at least 45 Schiele
Since certification of the Heirs’ proposed class would require individual inquiries concerning the hundreds of unidentified Schieles and other untitled works in the Kieslinger Inventory, it is not feasible for this Court to determine class membership. Accordingly, this Court concludes that the proposed class and subclasses are not “precise, objective and presently ascertainable.”
B. Numerosity
Certain Counterclaim-Defendants argue that the Heirs cannot establish numerosity based on their failure to estimate the size of the class and each subclass. Although the Heirs are not required to articulate the exact class size, they must provide a reasonable estimate of the number. Robidoux v. Celani,
C. Commonality, Typicality and Adequacy
As this Court has noted, the commonality, typicality and adequacy requirements of Rule 23(a) with respect to defendant class certification embrace similar considerations to guarantee procedural fairness. Monaco,
The Heirs argue that whether a theft of the artwork listed on the Kieslinger Inventory occurred is the salient common question of law and fact that unites the class.
Counterclaim-Defendants argue that because they maintain unique defenses they cannot fairly and adequately protect the interests of the class. “[T]he Due Process Clause ... requires that the named [representative] at all times adequately represent the interests of the absent class members.” Phillips Petroleum Co. v. Shutts,
The Heirs seek a declaration that they are the owners of the artwork listed on the Kieslinger Inventory and either immediate possession or an accounting and damages with respect to those works. (Answer IT 397.) The Heirs’ counterclaims involve more than 450 individual pieces of art, of which approximately 420 works were deposited with Schenker & Co. Each work has its own unique provenance or history and for the past sixty-eight years were transferred at different times, under different circumstances and in various jurisdictions. (See, e.g., Gruber Deck Ex. E: Detail on 124 Schiele Artworks.) Accordingly, the Counterclaim-Defendants raise unique, atypical defenses and cannot serve as adequate representatives of the proposed subclasses.
First, an individual investigation is required to identify each untitled work. Second, good faith defenses would vary for each class member based on applicable law and the facts specific to each transfer. See Greek Orthodox Patriarchate of Jerusalem v. Christie’s, Inc., No. 98 Civ. 7664(KMW),
Third, the Counterclaim-Defendants raise a laches defense requiring an individual demonstration of unfair prejudice as a result of the Heirs’ unreasonable delay. See Robins Island Pres. Fund v. Southold Dev. Corp.,
Finally, each defendant class member “has a different stake in the outcome of this type of litigation, each has different resources to commit, each has a different reason to commit or not commit those resources, and each has a different defense to assert.” Joseph L. v. Office of Judicial Support of Ct. Com. Pl. of De. County,
Based on the individualized nature of the subject matter in this action — artwork— unique defenses abound. In view of the careful consideration required to provide procedural fairness and safeguard the absent defendant class members, this Court concludes that the Heirs cannot meet their burden to establish typicality and adequacy. See Moffat,
Because this Court finds that the Heirs have not demonstrated the prerequisites of Rule 23(a), it need not consider whether the proposed class and subclasses are maintainable under 23(b). In addition, the Heirs’ application to conduct additional class discovery is denied. The Heirs have made “no color-able showing” of how additional class discovery beyond the five months already authorized and the eight years of Gruber’s research concerning the Grunbaum art collection would enable them to satisfy the requirements of Rule 23(a). Heerwagen,
CONCLUSION
For the foregoing reasons, the Defendants and Counterclaim-Plaintiffs Milos Vavra and Leon Fischer’s motion for certification of a defendant class pursuant to Rule 23 is denied.
SO ORDERED.
Notes
. Because the Kieslinger Inventory is in German, this Court relies on the English translation. (Answer Ex. B.)
. In 1963, a German court provided the Reif family with a certificate of inheritance, which was later revoked on March 19, 1998. (Charron Decl. Ex. 8(e): Opinion of Galerie Kornfeld; Answer V 221.)
. Bakalar contends that 57 of the 124 works identified by the Heirs as Grunbaum pieces were sold to Kornfeld by Lukács. (Charron Decl. 1124.) Of these 57 works, 54 were included in the Gutekunst & Klipstein Catalog No. 57 ("Catalog 57”). (Charron Decl. H 24.) Kornfeld, however, recently noted that not all works included in Catalog 57 were purchased from Lukács. (Charron Decl. Ex. 8(f).) Nevertheless, according to Kornfeld’s records, he purchased at least 45 Schiele pieces from Lukács. (Charron Decl. Ex. 8(g).)