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Fletcher v. Doig

United States District Court, N.D. Illinois, Eastern Division

September 30, 2014

ROBERT FLETCHER and BARTLOW GALLERY LTD., Plaintiffs,
v.
PETER DOIG, GORDON VENEKLASEN, MATTHEW S. DONTZIN, and THE DONTZIN LAW FIRM LLP, Defendants

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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          For Robert Fletcher, Bartlow Gallery Ltd, Plaintiffs: William Frederick Zieske, Zieske Law, Crystal Lake, IL.

         For Peter Doig, Gordon VeneKlasen, Matthew S Dontzin, The Dontzin Law Firm LLP, Defendants: Suyash Agrawal, LEAD ATTORNEY, Agrawal Evans LLP, Chicago, IL.

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         Memorandum Opinion and Order

         Honorable Gary Feinerman, United States District Judge.

         Robert 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.

         Background

         Because 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).

         Fletcher 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

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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 Work:

          (Image Omitted)

Doc. 22-3 at 6.

         As 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.

         Fletcher 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

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correctness of Fletcher's belief that Doige and Doig are the same person.

         According 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.

         Decades 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." Ibid.

         On 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.

         On 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.

         Doig 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

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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 school."
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.

         On or 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.

         Dontzin 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 Doig, stated:

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 the Painting

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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.

         Plaintiffs 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.

         The 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 ΒΆ 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 classes," ...


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