## Facts

- Kazimir Malewicz entrusted paintings to acquaintances in Germany for safekeeping due to political conditions in the Soviet Union.
- In 1956, the Stedelijk Museum (operated by the City of Amsterdam) obtained the works through a loan from Hugo Häring, one of the custodians.
- In 1958, the City exercised a purchase option under the loan agreement and bought the artwork for DM 120,000.
- In 2003, the Stedelijk loaned 14 Malewicz paintings to U.S. museums for a temporary exhibition.
- The heirs sued the City in the District of Columbia, alleging the City’s acquisition was unlawful and seeking recovery of the paintings (or damages).
- The City moved to dismiss under the Foreign Sovereign Immunities Act (FSIA); after discovery, it renewed its jurisdictional motion.

## Issues

1. Whether the FSIA expropriation exception, 28 U.S.C. § 1605(a)(3), supplied subject-matter jurisdiction over claims that the City obtained the paintings in violation of international law.
2. Whether the temporary U.S. exhibition satisfied the statutory nexus requiring property to be “present in the United States in connection with a commercial activity” carried on in the United States by the foreign state.
3. Whether plaintiffs’ allegations sufficiently pleaded a “taking in violation of international law” at the jurisdictional stage.

## Decision

- The court denied the City’s renewed motion to dismiss for lack of subject-matter jurisdiction.
- It held plaintiffs made a sufficient showing that § 1605(a)(3) could apply and the City did not establish FSIA immunity on the record presented.
- The loan to U.S. museums, including a fee and associated services by museum staff in the United States, qualified as commercial activity, and the works were present in the United States in connection with that activity.
- The court treated jurisdiction as determined at the time of filing; subsequent return of the paintings to Amsterdam did not defeat jurisdiction.
- The ruling was jurisdictional only and did not resolve ownership or the merits.

## Legal Principles

- Under the FSIA, foreign states are presumptively immune; a plaintiff must show an exception applies, after which the foreign state bears the burden to show the exception does not apply.
- The FSIA expropriation exception, § 1605(a)(3), can confer jurisdiction where (i) rights in property are at issue, (ii) the property was taken in violation of international law, and (iii) the property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state (or other statutory nexus).
- “Commercial activity” is evaluated by the nature of the conduct (market-type transactions), not its public or cultural purpose.
- For FSIA jurisdiction, the relevant time for assessing the U.S.-presence and commercial-activity nexus is the time the action is commenced.
- At the jurisdictional stage, well-pleaded allegations may be credited to determine whether a statutory exception is plausibly implicated, without finally deciding the underlying property-rights dispute.

## Conclusion

The court held that the heirs plausibly invoked the FSIA expropriation exception because the paintings were in the United States for a compensated museum loan constituting commercial activity, and the pleadings and record sufficed to proceed without foreign-sovereign immunity barring suit at the jurisdictional stage.


Malewicz v. City of Amsterdam, 517 F. Supp. 2d 322 (D.D.C. 2007)