Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

George Vila, P.A. v. Secretaria De Cultura

United States District Court, S.D. Florida

June 20, 2018

GEORGE VILA, P.A., Plaintiff,

          AMENDED ORDER [1]


THIS CAUSE comes before the Court on Defendants' Motion to Dismiss Third Amended Complaint [ECF No. 28] (“Motion”). The Court has reviewed the briefing, the record in this case, and the applicable law, and is otherwise fully advised. For the reasons that follow, the Motion is granted.

         I. BACKGROUND

         Plaintiff George Vila, P.A. (“Plaintiff”) is the part-owner and bailee of eleven works of art allegedly produced by renowned Mexican artist, Frida Kahlo. Plaintiff brings this suit against four undisputed agencies of the Mexican government-Secretaria de Cultura (formerly known as Consejo Nacional Para la Cultura y las Artes), Direccion General del Instituto Nacional de Bellas Artes, Coordinacion de Artes Visuales del Instituto Nacional de Bellas Artes, and Dirrecion de Asuntos Juridicos del Instituto Nacional de Bellas Artes-and against Fideicomiso Diego Rivera (the Banco De México Diego Rivera Frida Kahlo Museums Trust), of which the Central Bank of Mexico is the designated trustee. Plaintiff primarily seeks to compel these entities to authenticate the works in Plaintiff's possession.

         Plaintiff alleges that pursuant to Mexican law, the Instituto Nacional de Bellas Artes (“INBA”) is “the only authority in Mexico authorized to determine if a work of art is authentic.” [ECF No. 27, ¶ 51]. In 2013 and 2014, Plaintiff engaged in a series of correspondence with IN-BA, seeking to have the agency certify the authenticity of the works in its possession. [Id. ¶¶ 52- 59]. Plaintiff alleges that INBA continually required more information and never completed the authentication process. [Id. ¶¶ 52-59].

         Plaintiff's Third Amended Complaint lodges nineteen (19) claims against these various entities, seeking declaratory and injunctive relief, as well as damages for business torts. In Counts I and II, Plaintiff seeks a declaration that “Defendants have a legal obligation to proceed in their authentication process with regard to the subject (11) eleven Frida Kahlo works of art.” [Id. ¶¶ 65, 71]. In Count III, Plaintiff seeks an injunction “compelling the Defendants to expedi-tiously engage in and complete the authentication process” with respect to these works. [Id. ¶ 74]. And each of the remaining counts seeks damages for various theories of liability stemming from the Defendants' “failing to certify the authenticity of Plaintiff's Frida Kahlo paintings.” [See, e.g., id. ¶¶ 76, 80, 83].


         “Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). “It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Id. (citations omitted). A motion to dismiss for lack of subject matter jurisdiction brought pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure may present either a facial or a factual challenge to jurisdiction. See McElmurray v. Consol. Gov't of Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir. 2007). In a facial challenge, a court is required only to determine if the plaintiff has “sufficiently alleged a basis of subject matter jurisdiction.” Id. at 1251 (quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)). Furthermore, “the court must consider the allegations in the plaintiff's complaint as true.” Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981).[2] By contrast, a factual attack “challenge[s] ‘the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings . . . are considered.'” McElmurray, 501 F.3d at 1251 (quoting Lawrence, 919 F.2d at 1529). In a factual attack, “no presumptive truthfulness attaches to [a] plaintiff's allegations, ” Lawrence, 919 F.2d at 1529 (quoting Williamson, 645 F.2d at 413), and the plaintiff bears the burden to prove the facts sufficient to establish subject matter jurisdiction. See OSI, Inc. v. United States, 285 F.3d 947, 951 (11th Cir. 2002).

         Here, Defendants have advanced a factual challenge because they contend that this Court lacks subject matter jurisdiction under the Foreign Sovereign Immunities Act. See, e.g., Araya-Solorzano v. Gov't of Republic of Nicar., 562 Fed.Appx. 901 (11th Cir. 2014) (per curiam) (affirming a district court's dismissal for lack of subject matter jurisdiction pursuant to the FSIA where the district court had considered matters outside the pleadings and noting that such considerations are appropriate where there is a factual challenge to jurisdiction).


         The Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1602, et seq., “provides the sole basis for obtaining subject matter jurisdiction over a foreign sovereign in the United States.” Guevara v. Republic of Peru (Guevara II), 608 F.3d 1297, 1305 (11th Cir. 2010) (quot- ing Guevara v. Republic of Peru (Guevara I), 468 F.3d 1289, 1294 (11th Cir. 2006)). Pursuant to the FSIA, “a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607” of Title 28. See 28 U.S.C. § 1604.

         As a preliminary matter, Plaintiff disputes that the Banco De México Diego Rivera Frida Kahlo Museums Trust-a private trust over which the Bank of Mexico serves as trustee- constitutes a “foreign state” for the purposes of the FSIA. Plaintiff's argument is without merit. Under the Act, a “foreign state” includes “a political subdivision of a foreign state or an agency or instrumentality of a foreign state.” Id. § 1603(a). And “agency or instrumentality” includes any entity that is “an organ of a foreign state” or controlled by that state-that is, state-owned or controlled corporations. Id. § 1603(b)(2). It is undisputed that the Mexican public writ large is the beneficiary of the trust and the trustee, the Central Bank of Mexico, is an agency or instrumentality of Mexico. The real party in interest to this dispute is the trustee, the Central Bank of Mexico. See Fed. R. Civ. P. 17(a)(1)(E). And the injunction sought here would compel action only on the part of agencies or instrumentalities of Mexico. Thus, the FSIA applies to the state-controlled and state-administered trust.

         The question then is whether this suit is nevertheless authorized under the FSIA. The FSIA's broad grant of immunity is limited by a number of narrow exceptions, two of which are relevant here: the commercial activity exception and the tortious acts or omissions exception.

         1. Commercial ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.