The opinion of the court was delivered by: DAVID COAR, District Judge
MEMORANDUM OPINION AND ORDER
Before this Court is Defendant Thomas Bennigson's ("Defendant"
or "Bennigson") motion to stay the proceedings in this Court,
pending final resolution of an appeal currently pending before
the California Supreme Court. For the reasons set forth below,
Defendant's motion to stay is GRANTED.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Painting: Picasso's Femme en Blanc
The current action between the parties arises from a dispute
concerning the ownership of "Femme en Blanc," a painting by Pablo
Picasso. In 1975, Plaintiff Marilynn Alsdorf, (hereinafter
"Plaintiff" or "Mrs. Alsdorf"), along with her late husband,
purchased "Femme en Blanc" (the "Painting") from the Stephen Hahn
Gallery (the "Hahn Gallery") in New York, New York. (Alsdorf Decl., ¶ 9). Mrs. Alsdorf and her husband
purchased the Painting with the understanding that it had been
purchased in Paris, France. Id. Since 1975, with several
exceptions, the Painting remained in Mrs. Alsdorf's possession in
Chicago, Illinois. (Alsdorf, Decl., ¶ 10).*fn1
In January 2002, the Art Loss Register (hereinafter the
"ALR")*fn2 was asked to conduct a search on "Femme en Blanc"
by a French art dealer, Didier Imbert ("Imbert"), who was
thinking on acquiring the Painting on behalf of a client (Sarah
Jackson Decl., ¶ 8).*fn3 At the time, the Painting was held
in the Freeport in Switzerland, having been sent there from the
United States. Id. In February 2002, the ALR advised the art
dealer that the Painting was illustrated in the Répertoire des
Biens Spoilés en France durant la Guerre 1939-1945 (List of
Property Removed From France during the War 1939-1945), as a war loss, recorded
under the name of Justin Thannhauser ("Thannhauser"). Id. at ¶
9. This prompted research in the archives to determine the
sequence of events on the theft, and to confirm the identity of
the original owner, who the ALR believed to be Thannhauser. Id.
Through its research, the ALR discovered that the records of
the art dealer, Thannhauser, are retained by the Silva Casa
Foundation ("Silva Casa") in Geneva, the charity organized to
administer the proceeds from Thannhauser's estate and that of his
second wife, Hilde. (Jackson Decl., ¶ 10). The Foundation retains
the handwritten diaries of Thannhauser, and photographs from his
Paris apartment. Id. A note in his diary mentions that the
Painting was "stolen from his Paris house." Id. Also included
in the album retained in Geneva is an interior photograph of the
Paris apartment showing the Painting in suit, plus a photograph
of the painting annotated by Thannhauser on the reverse with
"Stolen by the Germans" and "Carlota Landsberg" marked in the
upper right corner. (Id.; see also Jackson Decl., Exhibit
B). The Silva Casa Foundation also provided a page from a book
published in 1927 by Klinhardt & Biermann, showing the Painting,
and naming the then owner as Robert Landsberg.*fn4 After the
ALR advised Imbert that the painting was published as a war loss,
the ALR insisted that it needed to know the identity of the
current owner, in order to facilitate future discussions.
(Jackson Decl., ¶ 11). Subsequently, Mrs. Alsdorf identified
herself as the owner of the Painting, and confirmed that it had
been purchased by her and her late husband, James Alsdorf, from the
Stephen Hahn Gallery in New York, New York in 1975, for $375,000.
Around the same time that Mrs. Alsdorf's identity was revealed,
the Ministére des Affaires Étrangères (the French Foreign
Ministry) confirmed to the ALR that according to their files the
Painting, while on deposit with Thannhauser, was the property of
"Mme de Landzberg [sic]." (Jackson Decl., ¶ 14). The
Wiedergutmachungsamt von Berlin agreed to give the ALR the name
of the original owner, Carlota Landsberg, and an address in New
York. (Jackson Decl., ¶ 15). From this information, the ALR was
able to locate Carlota Landsberg's grandson, Tom Bennigson,
through the receptionist at the New York apartment building where
his grandmother lived, and who remembered his visits. Id. On
provision of a power of attorney, the ALR was able to access
Carlota Landsberg's compensation file at the Wiedergutmachungsamt
von Berlin. Id. The file indicated that in 1969, Carlota
Landsberg was paid DM 100,000 for the loss of the picture by
actions of the Third Reich, without prejudice to her right to
recover the Painting if it was located. Id. Carlota Landsberg's
file also revealed correspondence from Thannhauser confirming
that the picture had been held in her name and that Thannhauser's
apartment had been looted. (Id. at ¶ 16). The letter states (in
Dear Mrs. Landsberg,
As I remember very clearly, and as I therefore can
confirm to you in writing, in 1938 or 1939 you sent
your painting by Picasso, of a woman, from the
so-called classical period of the artist, to me in my
house in Paris, 35 Mirosmenil. At this time, as we
were forced to leave our home in Paris in 1939, your
Picasso hung in the middle of a narrow wall. Upon the
occupation of Paris in 1940, when we were no longer
in Paris and the house was closed, the entire
contents of the four-story building-and with it your
painting-were stolen. This was confirmed to us by the
property manager after the end of the war. Further we
heard from porter of the house on the occasion of a
later visit certain facts, revealing that during the
four day long violent German national socialist plundering
everything was taken out of the four-story house
during the night and placed in trucks.
Your painting is pictured in Christian Zervos' large
Picasso work, Volume 4, No. 389, Page 160 with the
title "Femme en blanc" 1922, oil painting, 65:54 cm.
As you know, I have often tried to find a trace of
this oil painting, as well as all of the other
property that disappeared at the same time, but until
now without success.
In conclusion may I especially state that I have set
forth the foregoing to the best of my knowledge and
(Jackson Decl., ¶ 16). On or about June 7, 2002, Sarah Jackson
sent a letter to Bernard, Mrs. Alsdorf's attorney, informing him
that the ALR had discovered that Thannhauser had been holding the
Painting for another person when it was confiscated by the Nazis.
Id. at ¶ 18. Bernard responded with a letter on June 11, 2002,
which requested that the ALR remove the Painting from its
database, and further stating that if the matter was not
resolved, the ALR's actions would be considered "tortious and an
interference with my client's lawful right, title and interest in
said painting thus creating identified monetary damages to its
rightful owner, my client Marilyn [sic] Alsdorf." (Id. at ¶ 19;
see also Jackson Decl., Ex.G.).
B. Bennigson Files Suit Against Alsdorf and Tunkl in the
Superior Court of the State of California for the County of Los
After Bennigson was identified as the heir to Carlota
Landsberg, he retained counsel, E. Randol Schoenberg
("Schoenberg"), with respect to his claims related to the
Painting. (Schoenberg Decl., ¶ 3). Bennigson initially attempted
to settle his claims with Mrs. Alsdorf; however, those settlement
negotiations were unsuccessful. (Id. at ¶¶ 3-5). Consequently,
on December 19, 2002, Bennigson filed suit in the Superior Court
of the State of California for the County of Los Angeles ("California Superior Court") against
Alsdorf and Tunkl, seeking replevin and injunctive relief. (Id.
at ¶ 8). On that same day, Schoenberg also applied for an ex
parte temporary restraining order to keep the Painting in Los
Angeles. Id. However, the presiding judge, Judge David Yaffe
("Judge Yaffe"), directed Schoenberg to provide notice to Mrs.
Alsdorf and Tunkl, which Schoeberg subsequently did. Id.
The following day, December 20, 2002, Bernard and Schoenberg
appeared before Judge Yaffe on behalf of their respective
clients. (Schoenberg Decl., ¶ 9; see also Schoenberg Decl.,
Ex. 9). Judge Yaffe granted a temporary restraining order, which
directed Mrs. Alsdorf and Tunkl to keep the Painting in Los
Angeles. (Id). At the December 20, 2002 hearing however,
Bernard informed Judge Yaffe that the Painting had left Los
Angeles just a few hours earlier. (Id. at ¶ 10). In order to
effect service of process on Mrs. Alsdorf, who was vacationing at
the time of the hearing, the parties agreed to modify the
temporary restraining order, and allow the Painting to remain in
Chicago pending a hearing on the preliminary injunction. (Id.
at ¶ 1; see also Schoenberg Decl., Ex. 13). Although Mrs.
Alsdorf acknowledged receipt of the summons and complaint, she
moved to quash service, as she claimed that the trial court
lacked personal jurisdiction over her. (Schoenberg Decl., ¶ 14).
Consequently, the preliminary injunction hearing was stayed
pending a determination of the motion to quash. (Id). The
motion to quash hearing was held before Judge Victor H. Person
("Judge Person") in the Superior Court of the State of California
for the County of Los Angeles. (Id. at ¶ 15). While the matter
was under advisement, Bennigson filed an additional brief on the
motion to quash, a motion to disqualify Judge Person for cause, a
motion for leave to amend the complaint, and a motion to conduct
jurisdictional discovery. Id. All matters were stayed by Judge
Person, pending a determination of the motion to disqualify, which was denied by Judge David T.
McEachen of the Orange County Superior Court on May 9, 2003.
Id. In addition, all other pending matters were stayed pending
Judge Person's ruling on the motion to quash on June 16, 2003.
On June 16, 2003, Judge Person granted Alsdorf's motion to
quash for lack of personal jurisdiction. (Schoenberg Decl., ¶¶
15-16; see also Schoenberg Decl., Ex. G). In addition, Judge
Person denied Bennigson's motion for leave to amend his
complaint, and to allow jurisdictional discovery. (Id. at ¶
16). Further, the preliminary injunction hearing before Judge
Yaffe was removed from the court's calendar as moot. Id.
On June 18, 2003, Bennigson appealed Judge Person's grant of
Alsdorf's motion to quash, to the California Court of Appeal,
Second District ("California Court of Appeal"). (Schoenberg
Decl., ¶ 16). On April 15, 2004, the California Court of Appeal
issued its decision, which affirmed Judge Person's decision.
(Id. at ¶ 17; see also Schoenberg Decl., Ex. H.). Bennigson
filed a Petition for Rehearing on April 19, 2004, which was
subsequently denied on May 11, 2004. (Schoenberg Decl., ¶ 17).
Bennigson filed a Petition for Review on May 17, 2004, and that
Petition was granted unanimously by the California Supreme Court
on July 28, 2004. The parties have submitted opening briefs and
are awaiting the scheduling of oral arguments in the California
Supreme Court. (Id. at ¶¶ 18-20).
On September 10, 2004, Mrs. Alsdorf filed a complaint in this
Court, in an action for declaratory judgment and to quiet title
of the Painting. On October 22, 2004, Bennigson, who is the
Defendant in the action before this Court, filed, by special
limited appearance, a motion to dismiss or stay Mrs. Alsdorf's
complaint filed in this Court. On October 28, 2004, the Court
directed the Parties to address only the stay issue.
Consequently, Bennigson's motion to stay Mrs. ...