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Khochinsky v. Republic of Poland

United States District Court, District of Columbia

November 6, 2019




         Plaintiff Alexander Khochinsky brought this suit in 2018 against the Republic of Poland. Compl. ¶ 1, Dkt. 1. According to Khochinsky, Poland has retaliated against him by seeking his extradition in response to his attempt to procure restitution for the seizure of his mother's land during World War II. Id. ¶ 4-18. Khochinsky's complaint alleges claims against Poland for: (1) First Amendment retaliation, id. ¶ 117-25, (2) quiet title over the painting Girl with Dove, id. ¶ 126-30, (3) tortious interference with advantageous relations, id. ¶ 131-35, (4) aiding and abetting trespass, id. ¶ 136-43, and (5) abuse of process, id. ¶ 144-52. On April 23, 2019, Poland moved to dismiss the complaint for lack of subject matter jurisdiction. Poland's Mot. to Dismiss, Dkt. 21. Because the Foreign Sovereign Immunities Act (“FSIA”) precludes this Court from exercising jurisdiction over any of Khochinsky's claims, the Court will grant Poland's motion and dismiss the case. See Fed. R. Civ. P. 12(b)(1), (h)(3).

         I. BACKGROUND

         In considering Poland's motion to dismiss for lack of subject matter jurisdiction, the Court accepts as true all of the material allegations in Khochinsky's complaint. See, e.g., Muir v. Navy Fed. Credit Union, 529 F.3d 1100, 1105 (D.C. Cir. 2008). The relevant facts are as follows.

         A. Factual Background

         Alexander Khochinsky recently acquired his American citizenship after living in New York City as a foreign national for many years. See Compl. ¶ 118. Khochinsky's mother, Maria Khochinskaya, was a Polish Jew born in the town of Przemysl, where her family owned land and a house. Id. ¶ 5. In 1939, Germany invaded Poland, and Maria became a Soviet citizen after the Soviet Union annexed a portion of Przemysl containing her family's land. Id. ¶ 30-33. On June 20, 1941, Maria and her grandmother traveled east to Lviv to visit her mother for the Sabbath observance. Id. ¶ 34. The very next day, Germany invaded the Soviet Union. Id. ¶ 35. All of Maria's family members who remained in Przemysl were murdered by the Nazis, and so Maria became the heir to her family's property there. Id. ¶ 67. Maria ultimately died in 1989, when her rights in the property passed to Khochinsky. Id. ¶ 68.

         Khochinsky returned to Przemysl in the 1990s with his wife and his own son. Id. ¶ 69. Yet upon his return, he discovered that his mother's home had been destroyed, and a Catholic church stood on the land instead. Id. Neither Maria nor her family were ever compensated for the seized property. Id. ¶ 70.

         Believing that Poland would exercise a hostile attitude towards a Jewish restitution claim, Khochinsky initially decided not to seek compensation for the seized land. Id. ¶ 71. But this attitude changed around 2010, when Khochinsky learned that a painting similar to one he had previously inherited had been reported missing from Poland. Id. ¶ 74. The missing painting had belonged to Poland's Wielkopolskie Museum, which had acquired the painting in 1931. Id. ¶ 75. The painting was allegedly removed from the museum for protection and looted by the Nazis sometime during World War II. Id. ¶ 75. The missing painting was similar to Khochinsky's Girl with Dove, which he had inherited pursuant to his father's will in 1991. Id. ¶ 73. Khochinsky's father told him that he had acquired Girl with Dove after World War II, and that the painting had previously been in Germany. Id. ¶ 76. Khochinsky claims not to know whether Girl with Dove is in fact the missing painting and believes that it is not the missing work. Id. ¶ 78-79.

         Nevertheless, Khochinsky believed that he could offer the painting to Poland as a “worthy substitute.” Id. ¶ 79. By doing so, he hoped that his discussions with Poland for Maria's land could be more fruitful. Id. ¶ 80. And so he offered Girl with Dove to Poland in exchange for restitution. Id. ¶ 81. In 2010, a Polish representative indicated a willingness to negotiate, but sent an expert to Khochinsky's gallery to evaluate the painting first. Id. ¶ 82-83. The expert concluded that Girl with Dove was indeed the missing artwork, but he did not inform Khochinsky of his conclusion at that time. Id. ¶ 84.

         B. The Extradition Proceeding

         Khochinsky alleges that Poland has pursued a retaliatory extradition proceeding against him because of his ownership of the painting and his attempts to negotiate for restitution. See Id. ¶ 85-116. A Polish Court initially accused Khochinsky of knowingly and unlawfully purchasing the painting in January 2013. Id. ¶ 86. A “Wanted Person Notice” went out for Khochinsky's arrest, id. ¶ 93, and then Poland submitted a request to the United States for Khochinsky's extradition in July 2013, id. ¶ 94-96. Poland informed the U.S. Department of State that Khochinsky had acquired Girl with Dove “despite being aware of the fact that the painting originated from a prohibited act-looting of property in 1943 by the then authorities of the German Third Reich.” Id. ¶ 96. Khochinsky claims that this “accusation was baseless and purely in bad faith.” Id. ¶ 97.

         In 2015, an Assistant United States Attorney filed a petition for a certificate of extraditability on behalf of Poland in the United States District Court for the Southern District of New York. Id. ¶ 98. Khochinsky was taken from his New York City home in handcuffs and was imprisoned from February 26 to March 9, 2015; he was then subject to house arrest and electronic monitoring for several months thereafter. Id. ¶ 100-04. In April 2015, Poland sent a document to the Department of Justice stating that it could not “clearly rule out or confirm” Khochinsky's version of the events related to his acquisition of Girl with Dove. Id. ¶ 107. Thus, during a June 17, 2015 hearing in the extradition proceeding, “the Assistant United States Attorney representing Poland's interests acknowledged: ‘I do not believe there is evidence in the record that goes directly to Khochinsky's knowledge prior to his sending an email to the Polish embassy in Moscow in 2010.'” Id. ¶ 110.

         The District Court ultimately concluded that the United States lacked probable cause to extradite Khochinsky. Id. ¶ 112. See generally In re Extradition of Khochinsky, 116 F.Supp.3d 412 (S.D.N.Y. 2015).

         C. The ...

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