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MAC'AVOY v. SMITHSONIAN INST.

February 4, 1991

EDUOARD MAC'AVOY, Plaintiff,
v.
THE SMITHSONIAN INSTITUTION, et al., Defendants



The opinion of the court was delivered by: HOGAN

 THOMAS F. HOGAN, UNITED STATES DISTRICT JUDGE

 Now before the Court is defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment. Upon consideration of this motion, the response in opposition to this motion, and the Smithsonian's reply, the Court shall grant the Smithsonian's motion to dismiss as to Counts III and V and grant summary judgment on behalf of the defendants as to Counts I, II, IV and VI for the reasons set forth below. *fn1"

 STATEMENT OF THE CASE

 This case concerns the rightful possession of certain paintings by the late artist Romaine Brooks which are currently in the possession of the Smithsonian. *fn2" The plaintiff alleges, under various theories, that all of the paintings in the Smithsonian's possession belong to him. He asks the Court to issue declaratory relief and demands the immediate return of these paintings along with nominal damages for the injury allegedly suffered due to their unlawful possession.

 The essential issue of the plaintiff's case is whether Ms. Brooks' artwork, now in the possession of the Smithsonian, was a gift to the Smithsonian or a temporary loan. A review of the circumstances concerning each transfer of her artwork is, therefore, necessary.

 On March 17, 1966, Romaine Brooks wrote to the Smithsonian confirming her intention to give five of her paintings to the Smithsonian: Self Portrait; Girl with Green Ribbons; Dame en Deuil (La Veuve); Le Veste en Soie Verte ; and Azalees Blanches. By another letter dated May 3, 1966, Brooks agreed to send one additional painting, Lady Troubridge, to the Smithsonian.

 On April 27, 1966, the plaintiff and Ms. Brooks executed an Act of Sale that allegedly conveyed to the plaintiff title to Ms. Brooks' two Nice apartments and the "meubles meublants" contained in the apartments. Attached to the Act of Sale was a list of eleven paintings and their prices. These paintings, allegedly, were included in the Act of Sale. The Act of Sale also stated that Ms. Brooks would enjoy the right to use and enjoy her apartments and their contents for so long as she lived. Ten of eleven paintings on the list attached to the Act of Sale are now in the possession of the Smithsonian.

 On January 17, 1967, Dr. David Scott, director of the Smithsonian's National Collection of Fine Arts ("Museum"), wrote to Ms. Brooks, advising her of the Smithsonian's acceptance of the six paintings sent in March, 1966, and thanking her for the gift.

 In March 1967, Dr. Scott visited Ms. Brooks at her home in France, where her paintings and drawings were kept on display or in storage in her studio. During this visit, Ms. Brooks allowed Dr. Scott to select additional works for the Museum. Dr. Scott understood from his communications with Ms. Brooks that it was her intent to give the Museum any of the paintings and drawings in her studio that he chose.

 In September, 1967, Richard Wunder, Chief Curator of the Museum, visited Ms. Brooks in Italy and in France. During these visits, Dr. Wunder and Ms. Brooks discussed the paintings that Dr. Scott had selected for the Museum. Dr. Wunder understood from his communications with Ms. Brooks that it was her intention to give the Museum any of her paintings and drawings in her studio that it chose.

 On January 27, 1968, Ms. Brooks wrote to the Smithsonian to advise that she had sent the paintings Dr. Scott chose, along with other paintings and drawings.

 On or about March 13, 1968, the Museum received from Ms. Brooks fourteen paintings and six drawings. On September 5, 1968, Dr. Scott wrote to Ms. Brooks, advising her of the Smithsonian's acceptance of the fourteen paintings and six drawings and thanking her for the gift.

 In September, 1968, Adelyn Breeskin, a Museum curator, visited Ms. Brooks at her home in France. During this meeting, Ms. Breeskin asked Ms. Brooks for additional paintings and drawings for the Museum's collection. In response to Ms. Breeskin's request, on September 21, 1968, Ms. Brooks wrote to the Smithsonian to advise that she was sending thirty-five drawings.

 On or about October 28, 1968, the Museum received the thirty-five drawings sent by Ms. Brooks.

 On December 18, 1968, Dr. Scott wrote to Ms. Brooks, advising her of the Smithsonian's acceptance of the thirty-five drawings and thanking her for the gift.

 On October 28, 1969, Ms. Brooks wrote to the Smithsonian to advise that she was sending two paintings that Ms. Breeskin had requested, along with one additional painting. On or about December 24, 1969, the Museum received the three paintings sent by Ms. Brooks. On June 2, 1970, the Museum director wrote to Ms. Brooks, advising her of the Smithsonian's acceptance of the three paintings and thanking her for the gift.

 Beginning at least in May, 1968, and continuing until the present, the artworks have been exhibited to the public at the Smithsonian and other museums. The artworks have also been reproduced in several catalogs and other publications. Each publication is accompanied by a credit line noting that they were gifts to the Museum from the artist.

 Romaine Brooks died in Nice, France, on December 17, 1970.

 On June 1, 1983, Mr. Mac'Avoy wrote to the Museum claiming to be the owner of eleven of the artworks and demanding that they be returned to him. The plaintiff attached a copy of portions of the notarized Act of Sale between Mr. Mac'Avoy and Ms. Brooks, dated April 27, 1966. An appendix to the Act of Sale listed eleven paintings by Ms. Brooks, ten of which are in the possession of the Smithsonian.

 On July 20, 1983, the Museum director responded to the plaintiff's letter, stating that the Smithsonian had in its possession and owned ten of the paintings he claimed, and that Ms. Brooks had given them to the Museum. The plaintiff's letter was then referred to the Smithsonian's Office of General Counsel.

 On September 14, 1983, a Smithsonian lawyer wrote to the plaintiff confirming the Smithsonian's claim of ownership and forwarding documents establishing that claim.

 The plaintiff never filed with the Smithsonian an administrative claim pursuant to the Federal Tort Claims Act.

 On January 12, 1989, Mr. Olivier Schnerb, a French lawyer, wrote to the Museum on behalf of the plaintiff claiming that the plaintiff was the owner of eleven paintings by Romaine Brooks and demanding that the Museum return them to the plaintiff. The Smithsonian sent Mr. Schnerb a series of letters affirming its claim of ownership to the artwork.

 This action, claiming title to all of the artwork now in the possession of the Smithsonian, including the eleven paintings listed in the attachment to the Act of Sale as well as all other artwork in the Smithsonian's possession, was filed on July 18, 1989. In this action, the plaintiff has sued two individual defendants in their official capacities as well as the Smithsonian Institution.

 The plaintiff has also filed a civil action against the Smithsonian in the Tribunal de Grande Instance in Paris, France. In that action, plaintiff claims to have purchased eleven paintings by Ms. Brooks under the 1966 Act of Sale. The complaint in that action only claims ownership of those paintings listed in the appendix to the Act of Sale. This action is still pending in Paris.

 The Plaintiff's First Amended Complaint

 Count I of the plaintiff's first amended complaint alleges that a contract or contracts of bailment were entered into between Ms. Brooks and the Smithsonian pertaining to the twenty-four paintings and thirty-seven drawings. Plaintiff alleges that upon Ms. Brooks' death, he was entitled to possession of this property and, as such, became successor-in-interest to the bailment contract between Ms. Brooks and the Smithsonian. According to the plaintiff, the bailment ...


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