Fourth Circuit affirms district court order granting motion to dismiss, recognizing that action against sovereign Dutch entities cannot go forward

February 03, 2022

Media Relations Manager
Courtney DeMesme-Anders

Richmond, VA. A unanimous panel of judges for the U.S. Court of Appeals for the Fourth Circuit affirmed the district court’s order dismissing a lawsuit challenging the ownership and display of more than 140 artworks by Dutch “Old Masters” owned by the Kingdom of the Netherlands, some of which were displayed by museums located in the Netherlands.

In a case-resolving published opinion, the appellate court rejected the plaintiff’s appeal of the district court’s order granting the defendants’ joint motion to dismiss claims against (i) the Dutch Ministry of Education, Culture & Science and its cultural heritage agency (represented by Baker & Miller PLLC of Washington, DC) and (ii) four Dutch museums (represented by Nixon Peabody LLP). Womble Bond Dickinson was local counsel and participated in both the underlying action and the appeal.

The dispute arose out of events that occurred early in World War II. The artworks came into ownership by the Netherlands as part of the country’s national collection in 1951, after having been previously returned to it by occupying authorities in post-war Germany. In late 2018, the plaintiff filed a lawsuit in the U.S. District Court of South Carolina asserting ownership as a descendant of an alleged wartime owner of the paintings. Most of the plaintiff’s claims were previously considered and denied by the Dutch Minister of Education, Culture & Science, based on the detailed published recommendation of the Dutch Restitution Committee, an independent advisory body.

On March 6, 2020, following oral argument, U.S. District Judge Bruce Howe Hendricks issued an order granting the joint motion to dismiss filed in Berg v. The Kingdom of the Netherlands, et al. (D.S.C. No. 18-cv-3123-BHH). The court determined that it lacked subject matter jurisdiction over the Kingdom, the Ministry, and its agency, as no exception to the Foreign Sovereign Immunities Act (the FSIA) applied to permit a court to take jurisdiction over these sovereign defendants. The court also recognized that venue was improper in South Carolina and additionally held that dismissal was appropriate on the grounds of the plaintiff’s lack of standing and a lack of personal jurisdiction over the museums. The plaintiff appealed, challenging three grounds for dismissal against the Ministry, the agency, and four public museums; he did not appeal dismissal of the Kingdom or the private museums, nor the district court’s venue determination.

On February 3, 2022, following an October 2021 oral argument before the panel, the Fourth Circuit affirmed the district court’s decision. Specifically, the court affirmed the district court’s finding that the Ministry and the agency, like the Kingdom of the Netherlands, was entitled to sovereign immunity. The court also agreed that venue was improper in South Carolina, noting that the plaintiff failed to challenge this finding on appeal. Finding dismissal was warranted on these two grounds, the Fourth Circuit did not address the plaintiff’s standing and personal jurisdiction challenges.

“We are pleased that the Fourth Circuit endorsed the district court’s well-reasoned and thorough analysis of why the claims cannot move forward,” said Sarah Erickson André, Nixon Peabody appellate partner and a member of the firm’s Arts & Cultural Institutions team. In addition to Ms. André, the Nixon Peabody team consisted of Thaddeus J. Stauber, head of the firm’s Arts & Cultural Institutions team, and Nixon Peabody alumna Kristin M. Jamberdino.

Co-counsels were Donald I. Baker and Lucy S. Clippinger of the international law group at Baker & Miller PLLC and Samuel Hartzell, Brent Powell, and James Myrick of Womble Bond Dickinson (US) LLP.

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