Federal Evidence Review

In an action for the return of two paintings allegedly looted by the Nazis during World War II, Ninth Circuit takes judicial notice of newspapers, magazines, and books about the paintings “solely as an indication of what information was in the public realm at the time,” which was necessary to determine the applicable statute of limitations under state law, in Von Saher v. Norton Simon Museum of Art at Pasadena, 578 F.3d 1016 (9th Cir. August 19, 2009) (No. 07-56691), Opinion Amended and Superseded on Denial of Rehearing en banc by Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954 (9th Cir. Jan 14, 2010)

It is no mystery that the fact that something is reported in the newspapers, by itself, is normally insufficient for judicial notice of a fact which is “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” FRE 201(b)(2); see, e.g., Cofield v. Alabama Public Service Commission, 936 F.2d 512, 517 (11th Cir. 1991) (“That a statement of fact appears in a daily newspaper does not of itself establish that the stated fact is ‘capable of accurate and ready determination’”; judicial notice of a newspaper article as proof that the defendant “had access to thousands of dollars hidden somewhere” was error).

In contrast, judicial notice of a newspaper article may be appropriate for the fact that the article was in fact published. While the facts in the article may be disputed, the fact that the article was published is “not subject to reasonable dispute in that it is ... capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned.” FRE 201(b)(2). The Ninth Circuit recently provided another example of taking judicial notice of a newspaper article not for the facts it contained, but rather for the fact it was published.

In the case, plaintiff Saher sought the return of two paintings that she alleged were looted from her family by the Nazis during World War II. After being purchased in 1971 by the Norton Simon Museum of Art in Pasadena, California, the paintings were displayed in the museum. The plaintiff based her claim under state law “which ‘extends the statute of limitations until 2010 for actions for the recovery of Holocaust-era art.’” Von Saher, 578 F.3d at 1020 (quoting Cal. Code of Civil Procedure § 354.3). Under this extension of the statute of limitations, the plaintiff sought to recover “a diptych entitled ‘Adam and Eve.’ The diptych was a pair of oil paintings by sixteenth-century artist Lucas Cranach the Elder (hereinafter the “Cranachs”).”

The plaintiff was the only surviving heir of art dealer Goudstikker who had “bought the Cranachs at an art auction in Berlin in or about May 1931” but with the start of World War II, Goudstikker and his family fled the Netherlands where his gallery and the paintings were kept. The Nazis looted Goudstikker's gallery and the paintings were seized by Herman Göring, Reischsmarschall of the Third Reich. With the 1945 conclusion of the war, Allied military authorities repatriated the Chanchs to the Netherlands where Goudstikker had his gallery before the war. In post-war restitution proceedings, however, the Dutch government determined that the paintings would go to a George Stroganoff, who sold the art to the Norton Simon Museum around 1971. Von Saher, 578 F.3d at 1019.

The primary issue presented was whether the California Code of Civil Procedure “§ 354.3 infringed on the national government's exclusive foreign affairs powers.” The Ninth Circuit affirmed the trial court’s finding that it did and accodingly that § 354.3 was preempted. As a result, the generally applicable state three-year statute of limitations from when the plaintiff “discovered or reasonably could have discovered her claim” to the paintings applied. Von Saher, 578 F.3d at 1030. So the question remained whether the three year period had run.

Upon motion by the defendant, the circuit granted “judicial notice of the fact that various newspapers, magazines, and books have published information about the Cranachs.” As explained by the circuit:

“Courts may take judicial notice of publications introduced to ‘indicate what was in the public realm at the time, not whether the contents of those articles were in fact true.’” Premier Growth Fund v. Alliance Capital Mgmt., 435 F.3d 396, 401 n.15 (3d Cir. 2001); accord Heliotrope Gen. Inc. v. Ford Motor Co., 189 F.3d 971, 981 n.118 (9th Cir. 1999) (taking judicial notice “that the market was aware of the information contained in news articles submitted by the defendants.”). These publications meet the standards for admissibility set forth in Federal Rule of Evidence 201(b). Accordingly, we take judicial notice of them solely as an indication of what information was in the public realm at the time.”

Von Saher, 578 F.3d at 1022.

Despite the fact that the publications could be used to judicially notice that the articles had been published and therefore injected notice of the painting’s disposition into the “public realm,” the circuit concluded that dismissal of the case with prejudice was not appropriate at this stage of the case:

“The Museum contends that the articles submitted for judicial notice conclusively establish that Saher is foreclosed from demonstrating reasonable diligence [necessary to show lack of constructive notice]. Yet the Museum fails to point to any authority which holds that a motion to dismiss based on a statute of limitations may be granted on the basis of facts judicially noticed, rather than facts apparent on the face of the complaint.”

Von Saher, 578 F.3d at 1031. Because it was not “clear that the statute of limitations has expired” on the face of the plaintiff’s complaint, “[u]nless it is clear that the complaint could not be saved by amendment, dismissal with prejudice and without leave to amend is not appropriate. Accordingly, Saher's complaint should not have been dismissed without leave to amend.” Von Saher, 578 F.3d at 1031.

The Von Saher case demonstrates the limits of judicial notice of newspapers and related literature. Notice may be warranted for the limited purpose to show “what information was in the public realm at the time” and not to establish the truth of the statements made in the publications.