United States v. One Antique Roman Statue

• Court: District Court, C.D. California
• Decided: February 23, 2022
• Docket: 2:21-cv-03709
• Status: Unknown

Opinion

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7 United States District Court 8 Central District of California 9 10 11 UNITED STATES OF AMERICA, Case No. 2:21-cv-03709-ODW (GJSx)

12 Plaintiff, ORDER GRANTING PLAINTIFF’S 13 MOTION FOR ENTRY OF 14 v. DEFAULT JUDGMENT [17]

15 ONE ANTIQUE ROMAN STATUE, 16 Defendant. 17

18 19 I. INTRODUCTION 20 On June 15, 2016, U.S. Customs and Border Patrol (“CBP”) seized an antique 21 Roman Statue (“Statue”) at the Los Angeles/Long Beach Seaport, suspecting it to have 22 been looted and smuggled from Italy. The United States of America brought a civil 23 forfeiture action naming the Statue as the Defendant and now moves for default 24 judgment against the Statue. (Mot., ECF No. 17.) The potential claimants are Axel 25 Vervoordt; Axel Vervoordt NV/SA; Meys & Zonen, NV; Noel Roberts Trust; Freeman 26 27 28 Case 2:21-cv-03709-ODW-GJS Document 23 Filed 02/23/22 Page 2 of 7 Page ID #:224

1 Group, Inc;. and Kim Kardashian. No claimant has appeared to contest forfeiture. For 2 the following reasons, the Court GRANTS the Motion. 1 3 II. BACKGROUND 4 The Statue arrived at some point before May 3, 2016 at the Los Angeles/Long 5 Beach Seaport. (Compl. ¶ 5, ECF No. 1.) CBP worked with a Homeland Security 6 Investigations Special Agent to detain and further investigate the Statue. (Id. ¶ 12.) 7 After conducting a visual examination and speaking with the Statue’s broker, 8 Masterpiece International, CBP determined that the Statue was at some point in the past 9 likely looted, smuggled, and illegally exported from Italy. (Id. ¶¶ 13–22.) It seized the 10 Statue on June 15, 2016. (Id. ¶¶ 5–6.) 11 On April 30, 2021, the United States filed a Complaint for civil forfeiture 12 pursuant to 19 U.S.C. § 2609(a). On August 2, 2021, the Clerk entered default against 13 all potential claimants. (Entry Default, ECF No. 16.) Then, on August 9, 2021, the 14 United States moved for default judgment. (See Mot.) 15 III. LEGAL STANDARD 16 Federal Rule of Civil Procedure (“FRCP”) 55(b) authorizes a district court to 17 grant a default judgment after the Clerk enters default under FRCP 55(a). Before a 18 court can enter a default judgment against a defendant or claimant, the plaintiff must 19 satisfy the procedural requirements set forth in FRCP 54(c) and 55, as well as Local 20 Rule 55-1 and, when applicable, 55-2. Local Rule 55-1 requires that the movant submit 21 a declaration indicating: (1) when and against which party default was entered; (2) the 22 pleading to which default was entered; (3) whether the defaulting party is a minor or 23 incompetent person; (4) that the Servicemembers Civil Relief Act, 50 U.S.C. App. 24 § 521, does not apply; and (5) that the defaulting party was properly served with notice, 25 if required by FRCP 55(b)(2). 26 27

28 1 After carefully considering the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15.

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1 If these procedural requirements are satisfied, a district court has discretion to 2 enter default judgment. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). 3 However, a default “does not automatically entitle the plaintiff to a court-ordered 4 judgment.” PepsiCo, Inc., v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal 5 2002). In exercising discretion, a court must consider several factors (the “Eitel 6 Factors”): 7 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s 8 substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action, (5) the possibility of a dispute concerning 9 material facts, (6) whether the default was due to excusable neglect, and 10 (7) the strong policy underlying the [FRCP] favoring decisions on the merits. 11 12 Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986). Generally, after the Clerk 13 enters default, the defendant’s liability is conclusively established, and the well-pleaded 14 factual allegations in the complaint are accepted as true, except those pertaining to 15 damages. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 1987) (per 16 curiam) (quoting Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977)). 17 IV. DISCUSSION 18 The forfeiture of cultural property is governed by the Cultural Property 19 Implementation Act (“CPIA”), 19 U.S.C. §§ 2601–2613. The United States enacted 20 the CPIA as a member of the UNESCO Convention on Means of Prohibiting and 21 Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property 22 (“Convention”). See 51 Fed. Reg. 6905 (Feb. 27, 1986); 19 C.F.R. §§ 12.104-12.104k. 23 Italy is also a member of the Convention, and the United States and Italy have a 24 bilateral agreement regarding cultural property. The relevant portion of the designated 25 list of Italy’s cultural property includes the following types of archaeological material: 26 Large Statuary–Primarily in marble, including fragments of statues. Subject matter includes human and animal figures and groups of figures in 27 the round. Common types are large-scale, free-standing statuary from 28 approximately 1 m to 2.5 m in height and life-size busts (head and

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shoulders of an individual). Approximate date: 6th century B.C. to 4th 1 century A.D. 2 3 Extension of Import Restrictions Imposed on Archaeological Material Originating in 4 Italy and Representing the Pre-Classical, Classical, and Imperial Roman Periods, 5 76 Fed. Reg. 3012 (Jan. 19, 2011). 6 The CPIA prohibits importation of designated archeological or ethnological 7 material unless the importer provides a certification from the state party authorizing its 8 importation or other documentation permitted by regulation. 19 U.S.C. § 2606; 9 19 C.F.R. §§ 12.104a(b), 12.104c. Without such documentation (or application of any 10 exemptions outlined in 19 U.S.C. § 2611), the designated artifact is subject to seizure 11 by, and forfeiture to, the United States. 19 U.S.C. § 2609(a); 19 C.F.R. § 12.104e(a). 12 Here, the United States alleges that the Statue’s broker, Masterpiece 13 International, failed to provide the required documentation or evidence that an 14 exemption applies. (Compl. ¶¶ 13–18.) Accordingly, the United States seized the 15 Statue and now seeks its forfeiture so that it may dispose of the Statue according to law. 16 (Compl. ¶ 23.) 17 A. Procedural Requirements 18 A Proof of Service filed in these proceedings indicates that all potential claimants 19 were served with the Summons and Complaint by mail. (Notice Proof Service 20 Summons & Compl., ECF No. 10.) Moreover, a Declaration of Publication indicates 21 that the United States published notice of the action on www.forfeiture.gov for 30 22 consecutive days. (Decl. Publication, ECF No. 11.) 23 FRCP Supplemental Rule G governs forfeiture actions in rem such as this. 24 Supplemental Rule G(4)(1)(i) provides that “[a] judgment of forfeiture may be entered 25 only if the government has published notice of the action within a reasonable time after 26 filing the complaint or at a time the court orders.” Here, the United States published 27 notice of the action within a week of filing the Complaint, which the Court finds is a 28 reasonable amount of time. United States v. All Monies, Funds, & Credits on Deposit

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1 at Loyal Bank Ltd. in St. Vincent & The Grenadines, Held In the Names of Ace Guide 2 Holdings Ltd., No. 2:19-CV-00283-MCE-KJN, 2020 WL 3530615, at *2–*3 (E.D. Cal. 3 June 30, 2020) (finding notice given three months after filing of complaint to be 4 reasonable). The Court further finds that the published notice complies with the formal 5 requirements of Supplemental Rule G(4)(a)(ii). 6 Moreover, the United States must also provide direct notice to all potential 7 claimants. Suppl. Rule G(4)(b)(i). This notice “must be sent by means reasonably 8 calculated to reach the potential claimant.” Suppl. Rule G(4)(b)(iii)(A). Moreover, 9 “[n]otice to a person from whom the property was seized who is not incarcerated when 10 notice is sent may be sent to the last address that person gave to the agency that seized 11 the property.” Suppl. Rule G(4)(b)(iii)(E). 12 Here, the United States provides evidence showing when and how notice of this 13 action was provided to each potential claimant. (Decl. of Katharine Schonbachler 14 (“Schonbachler Decl.”) ¶¶ 5–15, Exs. C–P, ECF No. 17-2.) This evidence indicates 15 that the United States attempted to serve each potential claimant at the claimant’s last 16 known address. 17 After an initial examination of the Motion, the Court directed the United States 18 to file an additional declaration regarding its attempts to locate and serve Freeman 19 Group. (Mins., ECF No. 18.) The United States filed its additional declaration on 20 October 14, 2021, verifying that the United States attempted to serve Freeman Group 21 at both its last known address and its second last known address. (Suppl. Decl. Kathy 22 Schonbachler (“Schonbachler Decl.”) ¶ 2, ECF No. 21.) 23 Having examined the initial Schonbachler Declaration, the supplemental 24 Schonbachler Declaration, and the supporting documentation, the Court finds that the 25 notice provided to each potential claimant complies with the formal requirements of 26 Supplemental Rule G(4)(b). The Court further finds that each potential claimant was 27 given notice in a way that was reasonably calculated to reach that claimant. Suppl. 28 Rule G(4)(b)(iii)(A); Ace Guide Holdings, 2020 WL 3530615, at *3.

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1 Finally, the Court finds that the Motion substantially complies with the 2 requirements for default judgment set forth at Local Rule 55-1. (See Schonbachler Decl. 3 ¶¶ 2, 19–23.) 4 B. Merits of Motion 5 The Court turns to the merits of the Motion, guided by the Eitel factors. Pursuant 6 to the second and third Eitel factors, courts evaluate the substantive merits of the 7 movant’s claims and the sufficiency of its pleadings, which “require that a plaintiff state 8 a claim on which the plaintiff may recover.” PepsiCo, 238 F. Supp. 2d at 1177 (cleaned 9 up). For the purpose of default judgment, all well-pleaded allegations in the complaint, 10 except those relating to damages, are admitted by the potential claimants’ failure to 11 respond and are assumed to be true. Geddes v. United Fin. Grp., 559 F.2d 557, 560 12 (9th Cir. 1977). 13 The United States’ allegations establish that it is entitled to default judgment of 14 forfeiture. Masterpiece International, the Statue’s broker, did not provide the CBP with 15 the documentation required by the CPIA or otherwise show that an exception to the 16 CPIA applies. (Compl. ¶ 17.) The CBP and Homeland Security were in contact with 17 Masterpiece International regarding the Statue and the relevant CPIA requirements, and 18 meaning that Masterpiece International was aware of these requirements. (Compl. 19 ¶¶ 15–17.) Confirming that Masterpiece International does not have, and likely cannot 20 provide, the required documentation, in February 2018, an archaeologist from Italy’s 21 Ministry of Cultural Heritage analyzed the statue and concluded that the Statue likely 22 originates from the early to mid-Roman Empire and was likely looted, smuggled, and 23 illegally exported from Italy. (Compl. ¶ 22.) This finding was based in part upon a 24 discrepancy between a photograph of the Statue taken in the Netherlands in March 25 2011, on one hand, and the representation of Axel Vervoordt NV/SA that Vervoordt 26 found and purchased the Statue in France in 2012, on the other hand. (Compl. ¶ 19.) 27 Italy’s Ministry now requests “that all efforts be made for the return of the defendant 28

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1 || statue to Italy in accordance with the bilateral agreement between Italy and the United 2 || States.” Ud.) 3 The remaining Fitel factors are of lesser relevance in the context of a civil 4|| forfeiture default judgment motion such as this. No claimant has appeared, and if the 5 || Court does not issue a judgment, the Statue will remain in the United States’ custody 6 || indefinitely, consuming taxpayer resources and depriving Italy of a cultural artifact that 7 || belongs to Italy under an international agreement. 8 In summary, the United States successfully establishes that the Statue is 9 | designated archaeological or ethnological material that was illegally imported into the 10 || United States in violation of 19 U.S.C. § 2606 and is therefore subject to forfeiture 11 || pursuant to 19 U.S.C. § 2609(a). The United States is accordingly entitled to default 12 || judgment ordering that the rights of all potential claimants in the statue are condemned 13 | and forfeited and directing the United States to dispose of the statue according to law. 14] 19 U.S.C. § 2609(a). 15 Vv. CONCLUSION 16 For the foregoing reasons, the United States’ Motion for Default Judgment is 17 | GRANTED. (ECF No. 17.) The Court will issue Judgment consistent with this Order. 18 19 IT IS SO ORDERED. 20 21 February 23, 2022 NN . 22 es 23 leit |

4 OTIS D. WRIGHT, II 05 UNITED STATES DISTRICT JUDGE

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