Filed: Oct. 20, 2015
Latest Update: Mar. 02, 2020
Summary: 14-3899 Yale University v. Konowaloff UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY
Summary: 14-3899 Yale University v. Konowaloff UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ..
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14‐3899
Yale University v. Konowaloff
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER
JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER
THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 20th day of October, two thousand fifteen.
PRESENT: CHESTER J. STRAUB,
RICHARD C. WESLEY,
DEBRA ANN LIVINGSTON,
Circuit Judges.
______________________
YALE UNIVERSITY, NIGHT CAFÉ, Property, a Painting, in rem,
Plaintiffs‐Counter‐Defendants‐Appellees,
‐v.‐ 14‐3899
PIERRE KONOWALOFF,
Defendant‐Counter‐Claimant‐Appellant. *
______________________
The Clerk of the Court is respectfully directed to amend the official caption as noted
*
above.
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FOR APPELLANT: ALLAN GERSON, AG International Law, Washington,
DC.
FOR APPELLEES: JONATHAN M. FREIMAN (Benjamin M. Daniels, on
brief), Wiggin and Dana LLP, New Haven, CT.
Appeal from the United States District Court for District of Connecticut
(Alvin W. Thompson, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the judgment of the District Court is
AFFIRMED.
In 1918, the Russian Bolshevik revolutionary government issued decrees
expropriating the collections of three major Russian art collectors, including Ivan
Abramovich Morozov, Plaintiff‐Appellant Pierre Konowaloff’s great‐
grandfather. Among these paintings were Madame Cézanne in the Conservatory by
Paul Cézanne and The Night Café by Vincent van Gogh. The former resides at the
Metropolitan Museum of Art in New York City and was the subject of this
Court’s decision in Konowaloff v. Metropolitan Museum of Art, 702 F.3d 140 (2d Cir.
2012) [hereinafter “Konowaloff I”]. This case concerns the dispute over ownership
of the latter painting between the plaintiff in that case and Yale University, in
whose possession The Night Café (“the Painting”) has been since 1961. We
assume the parties’ familiarity with the historical facts, as explained in Konowaloff
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I, and with the record below, which we reference only as necessary to explain our
decision.
Konowaloff first appeals from the District Court’s published opinion,
dated March 20, 2014, granting Yale University’s motion for summary judgment
on his counterclaims. See Yale Univ. v. Konowaloff, 5 F. Supp. 3d 237 (D. Conn.
2014). He argues principally that the District Court erred in concluding that the
act of state doctrine, as applied in Konowaloff I, bars this action, because he has
now “abandoned any claim to the Painting on the grounds that the confiscation
of cultural property in 1918 was illegal.” Appellant Br. 6. This argument fails for
two reasons.
First, despite his characterization of his claims to this Court, Konowaloff’s
amended answer and counterclaims in the District Court are rife with references
to the expropriation being an illegal act of theft. Second, even if we were to take
his statement of abandonment to this Court as binding as we are entitled to do,
see Purgess v. Sharrock, 33 F.3d 134, 144 (2d Cir. 1994), the result is that
Konowaloff has accepted the validity of the 1918 expropriation and thus
admitted any legal claim or interest he has in the Painting was extinguished at
that time. Absent a claim to an existing interest in the Painting, Konowaloff has
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no standing to assert any of the counterclaims brought in the District Court. See
Konowaloff I, 702 F.3d at 147 (holding Konowaloff had no standing to challenge
“any sale or other treatment of the [Cézanne] Painting after 1918”); see also, e.g.,
Loewenberg v. Wallace, 147 Conn. 689, 692 (1960) (observing that plaintiff needs to
allege legal title or some legal interest in property to have standing in quiet title
action). Thus, the District Court appropriately granted Yale’s motion for
summary judgment on Konowaloff’s counterclaims.
Konowaloff next argues that the District Court should have considered the
question of title regardless of the act of state doctrine. In part, Konowaloff
contends that the District Court erred in granting Yale’s motion for voluntary
dismissal of its affirmative claims without prejudice—a motion to which he
consented, see Joint App’x 329. Though neither party has challenged our
jurisdiction to hear this appeal, “we have an independent obligation to consider
the presence or absence of subject matter jurisdiction sua sponte.” Joseph v. Leavitt,
465 F.3d 87, 89 (2d Cir. 2006).
Our Circuit is clear that we generally do not have jurisdiction over appeals
from plaintiffs following a voluntary dismissal without prejudice. See, e.g., Rabbi
Jacob Joseph Sch. v. Province of Mendoza, 425 F.3d 207, 210 (2d Cir. 2005); Empire
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Volkswagen Inc. v. World‐Wide Volkswagen Corp., 814 F.2d 90, 94 (2d Cir. 1987). We
have not addressed whether jurisdiction lies when a defendant consents to such
a dismissal. Cf. Ali v. Fed. Ins. Co., 719 F.3d 83, 89 (2d Cir. 2013) (“Because the
invitation to dismiss must be designed only to secure immediate appellate
review of an adverse decision, parties cannot appeal a joint stipulation to
voluntary dismissal, entered unconditionally by the court pursuant to a
settlement agreement.” (internal quotation marks omitted)). However, in
comparable circumstances, a prior panel of this Court concluded that where a
party’s counterclaims became moot following summary judgment, voluntary
dismissal without prejudice did not deprive our Court of appellate jurisdiction.
See Analect LLC v. Fifth Third Bancorp, 380 F. App’x 54, 55–56 (2d Cir. 2010)
(summary order). There, as here, the dismissed claim presented no “actual
controversy” because the prior summary judgment order resolved the dispute.
See id. at 56. Though Analect is of course not binding precedent, we agree with its
reasoning and therefore similarly conclude we possess jurisdiction in this case.
Although Konowaloff’s consent does not deprive us of jurisdiction, it does
prevent him from challenging the entry of voluntary dismissal. Parties who
consent to an order of the District Court cannot be heard to argue error on
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appeal. Cf. Zahorik v. Cornell Univ., 729 F.2d 85, 91 (2d Cir. 1984). In any event,
we review for abuse of discretion orders granting voluntary dismissal, see Kwan
v. Schlein, 634 F.3d 224, 230 (2d Cir. 2011), and in light of our conclusion above in
favor of Yale on Konowaloff’s mirror‐image counterclaims, we cannot conclude
that voluntary dismissal of Yale’s quiet title action constituted such an abuse in
this case.
We have considered Konowaloff’s remaining arguments and find them to
be without merit. For the reasons stated above, the judgment of the District
Court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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