## Facts

- Marianne Hicks, an abstract painter residing in Pennsylvania, alleged she created the disputed abstract painting.
- Hicks and renowned abstract painter Friedel Dzubas were in a romantic relationship and lived together in a shared home in Cambridge, Massachusetts, where the painting hung.
- As Dzubas’s health declined, Hicks alleged Dzubas’s family pushed her out of the home, and she did not take the painting with her.
- After Dzubas died, the painting was treated as a Dzubas work and was consigned to and sold by Leslie Feeley Fine Arts, LLC, a New York gallery, to an unidentified buyer (“John Doe”) for $40,000.
- Hicks claimed the painting was her work, not Dzubas’s, and that the gallery wrongfully sold property in which she had a superior right of possession.
- Hicks sued the gallery for conversion and sued John Doe for replevin in the U.S. District Court for the Southern District of New York, invoking diversity jurisdiction under 28 U.S.C. § 1332.
- The gallery moved to dismiss, arguing (among other grounds) that the amount in controversy could not exceed $75,000 because the painting had sold for $40,000, and pointing to a 2005 bankruptcy filing in which Hicks listed owning 28 paintings with “unknown” values.
- The gallery also sought dismissal based on insufficient service of process, failure to state a claim, and laches.

## Issues

1. Whether the court lacked diversity jurisdiction because it was legally certain the amount in controversy did not exceed $75,000.
2. Whether Hicks plausibly stated a conversion claim against the gallery based on the alleged unauthorized sale of her painting.
3. Whether Hicks plausibly stated a replevin claim against John Doe to recover the painting.
4. Whether the complaint should be dismissed for insufficient service of process on the gallery.
5. Whether laches barred the action at the pleading stage given the time between Hicks’s departure from the home and the later sale.

## Decision

- The court denied the gallery’s Rule 12(b)(1) motion, holding the gallery did not show to a legal certainty that the painting’s value (and thus the amount in controversy) was below $75,000 at the time the complaint was filed.
- The court denied the Rule 12(b)(6) motion, holding Hicks plausibly alleged conversion against the gallery by pleading ownership or a superior possessory right and the gallery’s unauthorized dominion through sale.
- The court denied the Rule 12(b)(6) motion as to replevin, holding Hicks plausibly alleged a superior right to immediate possession and that John Doe wrongfully retained the painting.
- The court denied the Rule 12(b)(5) motion, declining to dismiss based on asserted service defects at this stage.
- The court denied dismissal on laches, ruling the defense was not suitable for resolution on the pleadings because it turns on factual questions such as knowledge, delay, and prejudice.

## Legal Principles

- For diversity jurisdiction, the amount in controversy is measured at the time the complaint is filed.
- A plaintiff’s good-faith allegation of the amount in controversy controls unless the defendant shows to a legal certainty that the claim is really for less than the jurisdictional minimum.
- A prior sale price may be relevant evidence of value but does not, by itself, make it legally certain that the property’s value at filing was below $75,000.
- Under New York law, conversion requires (1) the plaintiff’s possessory right or interest in property and (2) the defendant’s unauthorized dominion over the property to the exclusion of the plaintiff’s rights.
- Under New York law, replevin requires a superior right to immediate possession and wrongful detention by the party in possession.
- Laches generally cannot be resolved on a motion to dismiss when the complaint does not conclusively establish unreasonable delay and resulting prejudice.

## Conclusion

The court denied the gallery’s motion to dismiss, concluding the $40,000 sale price did not establish to a legal certainty that the amount in controversy fell below $75,000 and that Hicks plausibly pleaded conversion against the gallery and replevin against the unidentified buyer, while service and laches challenges could not justify dismissal at the pleading stage.


Hicks v. Leslie Feeley Fine Arts, LLC and John Doe, 1:20-cv-1991(ER) (2021)