Judge Declines to Toss Suit Over Painting Allegedly Stolen by Nazis

Metropolitan News 4 April 2005

U.S. District Judge Florence-Marie Cooper has denied a motion to dismiss a suit by the federal government seeking forfeiture of a painting that was allegedly stolen from its rightful owner during the Nazi occupation of Paris.

In an order made public Friday, Cooper rejected Marilyn Alsdorf's claim that ownership of the painting should be decided in a suit that she filed in the federal district court in her hometown of Chicago. A Northern California resident, Thomas C. Bennigson, claims that the painting belongs to his family, and the Justice Department says Alsdorf should be required to give up the painting as stolen goods.

The controversy is also the subject of a Los Angeles Superior Court suit brought by Bennigson against Alsdorf and art dealer David Tunkl in 2002.

The California Supreme Court has agreed to decide whether California state courts have jurisdiction in the matter. Div. Eight of this district's Court of Appeal said the do not, concluding that Alsdorf did not subject herself to California's jurisdiction by sending the painting to Tunkl's gallery, where it was on display for eight months.

The dueling lawsuits concern Picasso's 1922 work "Femme En Blanc," or Women in White.

Flight From Berlin

Bennigson alleges that he is the lawful owner of the painting, which belonged to his grandmother, Carlota Landsberg, and which Bennigson says is now worth $10 million. The complaint alleges that Landsberg sent the painting to a Paris art dealer when she fled Berlin in 1933, but that the Nazis stole it around 1940.

Alsdorf and her late husband purchased the painting in New York in the late 1970s for more than $350,000. She sent it to Tunkl in Los Angeles in December 2001.

The art dealer who sold the painting signed an affidavit saying he had no knowledge it was linked to a Nazi looting. Alsdorf argues she has rights to the painting because before she bought it, the New York gallery purchased it legally from a French dealer.

Bennigson said he did not know the painting existed, or that it had belonged to his grandmother, until the summer of 2002. The source of the information, he said, was The Art Loss Register, an international organization which helps to locate and recover Nazi-looted art for Holocaust victims.  The Art Loss Register allegedly told Tunkl around the same time that Bennigson was the rightful owner, but Tunkl allegedly didn't tell Alsdorf until Dec. 13, 2002. Alsdorf ordered Tunkl to send the painting back to
Chicago that same day, Bennigson claims

Bennigson's attorney, E. Randol Schoenberg, said that Alsdorf deliberately moved the painting to sidestep a new California law extending the statute of limitations on cases concerning Nazi-looted art.

Seizure Warrant

The controversy took a new turn last fall when the government filed the forfeiture action here and served Alsdorf with a warrant for the seizure of the painting. It was subsequently stipulated that Alsdorf can maintain possession until the case is resolved, and the painting is now "hanging in Mrs. Alsdorf's [Chicago] apartment," Schoenberg said.

Alsdorf moved to dismiss the forfeiture action or transfer it to the U.S. District Court for the Northern District of Illinois, arguing that court had primary jurisdiction as a result of her having previously sued there. But Cooper rejected the argument as being inconsistent with traditional principles of in rem jurisdiction.

"The difficulty with Alsdorf's argument is that the Illinois court has yet to assert jurisdiction over the res," Cooper wrote. "No process has been served on the painting in the Illinois action; the painting is not in the custody, control, or possession of the Illinois court," the judge continued, whereas the seizure by the U.S. marshal under process issued by the U.S. District Court for the Central District of California established the jurisdiction of that court.

The fact that the seizure was made under a statute dealing with forfeiture of stolen property that has moved in interstate commerce does not distinguish the case from more traditional types of in rem actions, the judge concluded.

While the ruling is merely procedural, Schoenberg said Friday it was a good sign for his client.

"I hope that Mrs. Alsdorf will now consider the likelihood that we will prevail on the merits," the attorney told the METNEWS. "We feel pretty confident...the painting has to be returned to the [family of the] original owner."

An attorney for Alsdorf could not be reached for comment late Friday.
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