The U.S. District Court for the Southern District of Florida has dismissed—for a second time—a lawsuit filed there by former attorney Edward Fagan seeking the restitution of various works of art in the National Gallery in Prague and the Museum of Decorative Arts in Prague.  A novel strategy of bringing the case not by the alleged heirs, but rather by a former lawyer in cooperation with those alleged heirs, was rejected by the court on its own initiative. 

In April, an entity entitled “Victims of Holocaust Art Theft” filed a complaint against the two Czech museums, and the Czech Republic itself, alleging that the collection of Richard and Regina Popper had been looted by the Nazis, and that some of that collection was now held by the two defendant museums.  The Poppers were Czech collectors and Jews who were deported and murdered during the Nazi occupation of Czechoslovakia. 

Invoking the Foreign Sovereign Immunities Act’s provision conferring jurisdiction over claims concerning property taken in violation of international law, and alleging various acts of predicate commercial activity by the defendants, “Victims” alleged that it had acquired an unspecified interest in the Popper Collection from a man named Michal Klepetář, an heir of the Poppers.  Fagan described himself as a “co-owner” of the entity, along (implicitly) with Klepetář.  The complaint was filed without a lawyer (pro se) by a man named Edward Fagan. 

Before the defendants had to do anything, the court itself directed “Victims” to obtain a lawyer.  In Florida, as in most states, while an individual person always has the right to represent him- or herself, the same is not true of corporations and other legal entities.  “Victims” did not obtain a lawyer by the deadline imposed by the Court, and the case was dismissed.  Fagan filed a motion asking for permission to proceed with himself as the plaintiff, and Klepetář submitted a letter explaining the relationship, but the motion was denied.

At the same time, however, Fagan filed another complaint, opening another case.  The allegations were the same, but this time Fagan himself was the plaintiff.  It was he, the complaint explained, that had acquired the interest from Klepetář, so he now brought suit as the party in interest.

This was, needless to say, an interesting tactic.  There is nothing procedurally odd or improper in and of itself about acquiring rights from another party and then bringing a lawsuit based on those rights.  It is known as assigning a cause of action, and it happens all the time in the insurance context, for example.  Two things made Fagan’s attempt stand out, however.  First, even in its amended form, the complaint made repeated efforts to vindicating the rights of others (i.e., the Popper heirs) beyond Fagan himself.  Even absent any other complications, those allegations would tend to suggest that those other heirs also needed to be plaintiffs (otherwise, the defendants would be left to defend the first suit, and then possibly a second by heirs unhappy with the result of the first).

The second notable difference was Fagan’s own history.  Once a prominent lawyer in New York on behalf of a variety of Holocaust-related plaintiffs, he was later disbarred.  That means that unlike another lawyer from New York or elsewhere, Fagan not appear before the court representing anyone other than himself.

Taking these two factors together, the Florida court dismissed the case on its own initiative, meaning that the Czech defendants never even had to appear and defend themselves.  Citing the representative nature of the allegations, and Fagan’s past, the court determined that the case could not proceed.  Unlike the first case in July, the court did not give Fagan a chance to correct the complaint or obtain an attorney, it dismissed the complaint and closed the case. 

Fagan may yet appeal that ruling, or file a similar claim again.  For now, however, what looked to be a prominent case has ended not with a bang, but a whimper.