United States District Court, N.D. Illinois, Eastern Division
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Robert Fletcher, Bartlow Gallery Ltd, Plaintiffs: William
Frederick Zieske, Zieske Law, Crystal Lake, IL.
Peter Doig, Gordon VeneKlasen, Matthew S Dontzin, The Dontzin
Law Firm LLP, Defendants: Suyash Agrawal, LEAD ATTORNEY,
Agrawal Evans LLP, Chicago, IL.
Opinion and Order
Gary Feinerman, United States District Judge.
Fletcher and Bartlow Gallery Ltd. brought this diversity suit
against Matthew S. Dontzin and The Dontzin Law Firm LLP
(together, " Dontzin Defendants" ), Gordon
VeneKlasen, and Peter Doig, seeking damages for their alleged
tortious interference with Plaintiffs' prospective
economic advantage by taking action that scuttled the auction
of a painting owned by Fletcher, and also seeking a
declaration that Doig painted the painting. Doc. 1.
VeneKlasen and the Dontzin Defendants have separately moved
to dismiss the complaint under Federal Rules of Civil
Procedure 12(b)(2) and 12(b)(6). Docs. 22, 26. Doig has moved
to dismiss under Rule 12(b)(2) or, in the alternative, on the
basis of forum non conveniens in favor of a court in
Ontario, Canada. Doc. 34. The court grants the Dontzin
Defendants' and VeneKlasen's motions, dismissing the
claims against them for lack of personal jurisdiction, and
denies Doig's motion.
Doig has moved to dismiss only under Rule 12(b)(2) and
forum non conveniens, and because the court is
dismissing the Dontzin Defendants and VeneKlasen under Rule
12(b)(2) without reaching their Rule 12(b)(6) arguments, the
relevant background includes not only the complaint, but also
the evidentiary materials submitted by both sides. No party
has requested an evidentiary hearing, so the court must
accept Plaintiffs' undisputed factual averments and must
resolve all genuine factual disputes in Plaintiffs'
favor. See UBID, Inc. v. GoDaddy Grp., Inc., 623
F.3d 421, 423-24 (7th Cir. 2010); Purdue Research Found.
v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782-83 (7th
Cir. 2003); Diamond Mortg. Corp. of Ill. v. Sugar,
913 F.2d 1233, 1245 (7th Cir. 1990); Saylor v.
Dyniewski, 836 F.2d 341, 342 (7th Cir. 1988).
lives in Sault Ste. Marie, Ontario, Canada, and is a citizen
of Canada, though he spends almost half his time in the
United States. Doc. 1 at ¶ 2; Doc. 48-2
at ¶ ¶ 1, 3-4. Fletcher's girlfriend, eldest
son, and parents live in Michigan, his sister lives in
Indiana, and his brother lives in a Chicago suburb. Doc. 48-2
at ¶ ¶ 3, 5-7. Fletcher owns an untitled acrylic
painting on linen signed " 1976 Pete Doige," which
depicts a desert scene with a pond (" the Work" ).
Doc. 1 at ¶ ¶ 1, 8. Here is a reproduction of the
Doc. 22-3 at 6.
described in detail below, Fletcher believes that Doig
authored the Work in the mid-1970s. Doig is a renowned artist
whose painting, White Canoe, sold at Sotheby's
for a record-breaking $11.3 million in 2007, and who recently
sold another painting, The Architect's House in the
Ravine, for $12 million. Doc. 1 at ¶ 50. Doig has
submitted an affidavit averring that he was born in 1959,
that he lived in Canada from approximately 1966 to 1979, that
he has resided in Trinidad since 2002, and that he is a
citizen of Trinidad and Tobago. Doc. 34-2 at ¶ ¶
2-3. Doig is represented professionally by VeneKlasen, an art
dealer with the Michael Werner Gallery in New York City. Doc.
1 at ¶ 5; Doc. 34-2 at ¶ 7.
maintains that he met Doig in 1975 or 1976 while taking
college classes at Lakehead University in Thunder Bay,
Ontario. Doc. 1 at ¶ ¶ 20-21. Fletcher was employed
at the time as a correctional officer at Thunder Bay
Correctional Center. Id. at ¶ 19. Fletcher
claims that he met a fellow student at Lakeland who used the
name " Pete Doige," who was seventeen years old,
and who said that he was born in Scotland. Id. at
¶ 21. Fletcher believes that this individual was Doig;
for the sake of clarity, the seventeen year-old fellow will
be referred to as " Doige," with the court of
course taking no position on the
correctness of Fletcher's belief that Doige and Doig are
the same person.
to Fletcher, Doige dropped out of Lakeland after being
sentenced to five months in the Thunder Bay Correctional
Center for LSD possession. Id. at ¶ ¶
22-23. While incarcerated, Doige became involved in the
prison's art program, where he painted the Work.
Id. at ¶ 24. Fletcher, who recognized Doige in
the prison's admitting room, observed the Work in its
various stages of completion. Id. at ¶ ¶
22, 23. With Fletcher's assistance, Doige applied for and
was granted parole, and Fletcher was assigned as his parole
officer. Id. at ¶ 25. Fletcher helped Doige
obtain employment with the Seafarers Union in Thunder Bay.
Id. at ¶ 27. And Fletcher encouraged Doige to
keep pursuing art, and accepted Doige's offer to sell the
completed Work to him for $100. Id. at ¶ 28.
later, Fletcher came to believe that the Work was by Doig.
Id. at ¶ 31. Fletcher consigned the Work to
Bartlow Gallery, an art dealer in Chicago, and granted the
gallery the exclusive right to market and sell the Work in
exchange for a percentage of the proceeds. Id. at
¶ 9. The gallery is storing the Work in Chicago on
Fletcher's behalf. Id. at ¶ 8. Peter
Bartlow, the owner of Bartlow Gallery, conducted further
research into the Work, and noted the following aspects of
Doig's history that parallel Fletcher's recollection
of Doige: Doig has publicly stated that he was born in the
late 1950s in Scotland, that he emigrated to Canada as a
young child, that he used LSD until he was nineteen years
old, and that he was a " roustabout" in his late
teens in western Canada before enrolling in art school in
England in 1979. Id. at ¶ 32. Bartlow also
believes the Work shares " uncanny commonalities in
composition and execution with known works by Doig."
September 23, 2011, Bartlow sent an email inquiry to an
address he believed to be Doig's, stating: " If you
are Peter Doig please get in touch with Bob Fletcher from
Thunder Bay. He has a painting of yours and might want to
sell it but needs guidance on how to proceed. ... Your
privacy is of utmost concern, and we could use a little
help." Id. at ¶ ¶ 17, 33. Bartlow
also contacted VeneKlasen, Doig's art dealer, by phone.
Id. at ¶ 34. Bartlow followed up with an email
to VeneKlasen with further details about Fletcher's
(alleged) acquaintance with Doig in Thunder Bay and the
(alleged) resemblance of the Work to Doig's known
paintings. Id. at ¶ 35.
October 3, 2011, VeneKlasen, acting on Doig's behalf,
emailed Bartlow denying that Doig knew Fletcher or had ever
been to Thunder Bay, and stating that the Work " is
absolutely not by Peter Doig." Ibid. VeneKlasen
added: " Whatever [Fletcher] alleges is untrue. The
painting is NOT by Peter Doig. Anyone can see that. We are
not interested in any further communication related to this.
Good luck in finding the real artist for this. Any attempt to
attribute this painting to Peter Doig in any way will be
dealt with by our attorneys." Id. at ¶ 36.
The same day, VeneKlasen wrote this in a separate email to
Bartlow: " Further, Doig was 16 at the time and enrolled
first in Jarvis collegiate institute then SEED school. Both
in [T]oronto. [H]opefully this will end surreal
enquiry." Doc. 22-4 at 6. Bartlow wrote back to
VeneKlasen stating that he would end his inquiries if Doig
could provide information disproving his authorship of the
Work. Doc. 1 at ¶ 37.
and VeneKlasen are represented legally by The Dontzin Law
Firm LLP, a New York-based law firm, and Dontzin, an attorney
and owner of the firm. Id. at ¶ ¶ 1, 6,
15-16. On October 12, 2011, the
Dontzin Defendants sent this letter to Bartlow, cc'ing
VeneKlasen and Doig:
We write on behalf of Gordon VeneKlasen, who forwarded us
your recent e-mails demanding 'either fair value' or
'an endorsement of authenticity' concerning a
painting that your client, Robert Fletcher, claims to have
purchased form Peter Doig in 1976. ... [A]s Mr. VeneKlasen
informed you by e-mail on October 3, 2011, after having
consulted with Mr. Doig, " this work is absolutely not
by Peter Doig."
[Quoting VeneKlasen's October 3 email:] Not only does
Mr. Doig not know the owner of this work, he has never been
to the place it is supposedly painted. Additionally, he did
not even begin to paint on canvas until late 1979, well
after this work was made. The signature seems to be of
someone named Noige, or Norge, but is definitely not the
signature of Peter Doig.
In response to Mr. VeneKlasen's email, you threatened to
extort Mr. VeneKlasen and Mr. Doig unless they provide you
with " concrete evidence" concerning the
painting's authenticity. In your October 1, 2011 e-mail,
for example, you stated that " Mr. Fletcher is only
interested in receiving a fair price for the painting, and
does not wish to bring up anything which Mr. Doig would wish
to remain private." Similarly, on October 7, you accused
Mr. Doig of having " used illegal drugs until 1978"
and threatened that " [a] drug record makes things
difficult" because " [a] person who enters the U.S.
after denying a drug conviction faces serious
repercussions." You also accused Mr. Doig of having
" fabricated elaborate records to gain admission to art
Your unfounded accusations and attempts to extort money or
promises from Mr. VeneKlasen unless he authenticates Mr.
Fletcher's painting are potentially criminal.
Accordingly, we demand that you cease and desist from all
communications with Mr. VeneKlasen, Mr. Doig, or anyone else
at the Michael Werner Gallery. If you fail to do so, we will
take whatever action we deem necessary to preserve their
rights, including, without limitation, seeking the protection
of the prosecutor's office and filing suit against you.
Id. at ¶ 15; Doc. 1-3 at 1-2.
about May 17, 2012, Leslie Hindman Auctioneers, Inc., a
leading auction house based in Chicago, expressed to
Plaintiffs an interest in auctioning the Work. Doc. 1 at
¶ ¶ 11, 39. Plaintiffs believe the Work could sell
for more than $1 million and possibly more than $10 million
if auctioned as a Doig painting. Id. at ¶ 60.
avers that Leslie Hindman stated in a mid-May 2012 call to
the Michael Werner Gallery that a Chicago dealer (presumably
Bartlow Gallery) had offered the Work to her. Doc. 22-2 at
¶ 13. The Michael Werner Gallery referred the matter to
the Dontzin Defendants, who responded on behalf of Doig and
the Michael Werner Gallery in a letter to Hindman on May 16,
2012 (the " Dontzin-Hindman letter" ). Id.
at ¶ 14. The letter, which cc'ed VeneKlasen and
We represent the Michael Werner Gallery (the "
Gallery" ). We understand that you have contacted
Justine Birbil of the Gallery to inquire about a purported
painting on canvas by Peter Doig (the " Painting"
), which was offered to you by a dealer in Chicago. As Ms.
Birbil explained to you, the Painting is absolutely not by
Mr. Doig, as Mr. Doig himself has confirmed.
We understand that you have been advised by the dealer that
is owned by Robert William Fletcher, who was allegedly given
the Painting by Mr. Doig in 1976. As the Gallery explained to
Peter Bartlow, a dealer in Chicago who approached the Gallery
about the Painting last year, Mr. Doig does not know Mr.
Fletcher and certainly never gave him any paintings. In
addition, as the Gallery advised Mr. Bartlow, Mr. Doig did
not begin to paint on canvas until late 1979, well after the
Painting was allegedly created. Finally, the signature on the
Painting appears to be of someone named Noige, or Norge, but
is definitely not the signature of Peter Doig.
Under the circumstances, the Gallery will have no choice but
to take legal action if the Painting is auctioned or
otherwise sold as a work by Mr. Doig.
Doc. 22-5 at 2-3. Doig avers that the Dontzin Defendants and
VeneKlasen " acted with [his] authority to protect [his]
right and interest in not having a piece of art that [he] did
not create attributed to [him]," and that, " though
[he] was not personally involved in every detail, [he]
agree[s] with what [Defendants] ... communicated to Mr.
Bartlow and Ms. Hindman." Doc. 34-2 at ¶ ¶ 18,
20. As a result of receiving this letter, Hindman Auctioneers
decided not to auction the Work. Doc. 1 at ¶ 41.
then filed this suit against Doig, VeneKlasen, and the
Dontzin Defendants. Doc. 1. Count I alleges that "
Defendants, by the action of Dontzin, acting as agent for
Dontzin Firm, Doig and VeneKlasen, interfered with
Plaintiffs['] prospective economic advantage by writing
to Leslie Hindman Auctioneers, Inc. in or about May,
2012," " with the knowledge of the falsity of the
assertions in the letter ..., and with the intention to stop
Leslie Hindman Auctioneers ... from auctioning the Work on
behalf of plaintiffs." Id. at ¶ ¶
55-56. Count II seeks a declaratory judgment "
[d]eclaring the right of plaintiffs, and any agents of either
of the plaintiffs, to attribute the Work to Peter Doig,
including such attribution in relation to a private or
auction sale of the Work, without interference by defendants
and/or any of their agents." Id. at 15.
plot since has thickened. Suyash Agrawal, counsel for
Defendants, has submitted an affidavit averring that on
August 26, 2013, he met with Marilyn Doige Bovard, the sister
of a man named Peter Edward Doige (who will be referred to by
his full name), who was born in April 1955 and who died in
February 2012 in Alberta, Canada. Doc. 34-4 at ¶ 5.
Bovard resides in Hinton, Alberta. Ibid. She signed
an affidavit averring that her brother, a carpenter by trade,
attended Lakehead University and served a jail sentence at
Thunder Bay Correctional Center in the 1970s. Doc. 34-5 at
4-5. Bovard showed Agrawal her brother's original
Lakehead University student identification card from 1976.
Doc. 34-4 at ¶ 6; Doc. 34-6 at 1. Bovard avers that she
" recall[ed] Peter telling [her] that, while he was an
inmate at Thunder Bay, he took painting and music