Opinion
99 Civ. 9940 (MBM).
December 28, 2000.
MARY JO WHITE, ESQ., United States Attorney for the Southern District of New York, BARBARA A. WARD, ESQ., SHARON COHEN LEVIN, ESQ., Assistant U.S. Attorneys, New York, NY.
WILLIAM M. BARRON, ESQ., KARL GEERCKEN, ESQ., BIRGIT KURTZ, ESQ., JULIAN C. SWEARENGIN, ESQ., (Attorney for Claimant Leopold Museum-Privatsiftung) Walter, Conston, Alexander Green, P.C., New York, NY.
STEPHEN M. HARNIK, ESQ., JOHN McGOWAN, ESQ., (Attorneys for Claimant Leopold Musseum-Privatsiftung) Law Offices of Stephen M. Harnik, New York, NY.
EVAN A. DAVIS, ESQ., RICHARD F. ZIEGLER, ESQ., J.J. GASS, ESQ., (Attorneys for Claimant The Museum of Modern Art) Cleary, Gottlieb, Steen Hamilton, New York, NY.
OPINION AND ORDER
In United States v. Portrait of Wally, 105 F. Supp. 2 d 288 (S.D.N.Y. 2000), familiarity with which is assumed for current purposes, I granted the Rule 12(b)(6) motion of claimant Leopold Museum-Privatsiftung and dismissed the complaint. Pursuant to Local Civil Rule 6.3, the United States has moved to reargue that decision. Also, the United States has moved in the alternative pursuant to Fed.R.Civ.P. 59(e) for an order altering or amending the judgment so that it may file another amended complaint. For the reasons set forth below, the motion for reargument is denied; however, the motion to alter or amend the judgment so as to file an additional amended complaint is granted.
With respect to the motion to reargue, I have already considered and rejected certain of the legal arguments that the United States now makes. Compare, e.g., Portrait of Wally, 105 F. Supp.2d 292-94 (rejecting the United States's argument that the doctrine that "one cannot be convicted of receiving stolen goods if, before the stolen goods reach the receiver, the goods had been recovered by their owner or his agent, including the police" applies only to sting operations) (quoting United States v. Muzii, 676 F.2d 919, 923 (2d Cir. 1982))with Gov't. Mem. at 19-24 (pressing this argument again, at higher pitch). Further, to the extent that the United States now argues that paintings seized during and after World War II were not held by U.S. forces with an eye to returning them to their true owners, see id. at 11 (citing "Decree No. 3," which concerns U.S. forces' holding of property, but does not mention true owners or restitution), this argument is hard to square with the allegations that were made in the complaint that was the subject of the prior decision. (Compl. ¶ 5(g)) It was the allegations in that complaint that were the basis of this Court's decision, and facts advanced now in a memorandum of law do not present a basis for reargument, particularly when they conflict with assertions in the complaint that was the subject of the motion, even recognizing that the United States was barred by local rule from submitting an affidavit in connection with its motion for reconsideration. See Local Civil Rule 6.3;see, e.g., Re-Alco Inds., Inc. v. National Ctr. for Health Educ., Inc., 812 F. Supp. 387, 394 (S.D.N Y 1993) (assertions in briefs are not evidence)
However, pursuant to Fed.R.Civ.P. 59(e), the United States has moved also for an order to amend or alter the judgment. Such a motion, and the leave to amend that it implies, generally should be granted absent "good reason to deny the motion." Acito v. IMCERA Group, Inc., 47 F.3d 47, 55 (2d Cir. 1995). Claimant Leopold accuses the government of a "tactical `recycling' of pleadings" and a "lack of candor," Leopold Mem. at 10, and argues that the government was aware of the basis for its proposed amendment at the time it filed the pleading upon which my earlier ruling was based. It is true that the government was so aware, and that in the ordinary case the need to protect the finality of judgments will prevail, absent other factors. See, e.g., In re Philip Servs. Corp. Sec. Litig., 49 F. Supp.2d 629, 643-44 (S.D.N.Y. 1999), reversed on other grounds sub nom. DiRienzo v. Philip Servs. Corp., 232 F.3d 49 (2d Cir. 2000). This is not the ordinary case, and there are other factors present here. This case involves substantial issues of public policy relating to property stolen during World War II as part of a program implemented by the German government, and others. There are more interests potentially at stake here than those of the immediate parties to this lawsuit. Moreover, there is no evidence that the government was pursuing some tactical goal when it withheld arguments it now advances, or that the parties or others would suffer any prejudice other than disappointment if I were to permit the complaint to be amended in whatever fashion the government may now choose. For those reasons, I am loath to decide this case without having all facts and theories considered, simply because of the inadvertent conduct of counsel.
The United States may now file another amended complaint. Moreover, although I have declined to consider as part of a reargument motion factual arguments advanced in the government's memorandum, the government will not be limited to filing the draft amended complaint attached to its motion papers, but may amend the complaint in any fashion it deems advisable. The stay imposed by Magistrate Judge Francis will remain in effect pending further order of the court.