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Hall v. Gascard

United States District Court, D. New Hampshire

June 12, 2017

Andrew Hall, Plaintiff
v.
Lorettann Gascard and Nikolas Gascard, Defendants Opinion No. 2017 DNH 110

          Ted Poretz, Esq., Samantha D. Elliott, Esq. Lorettann Gascard, pro se Nikolas Gascard, pro se

          ORDER

          Steven J. McAuliffe United States District Judge

         Plaintiff, Andrew Hall is an art collector. He collects both post-war and contemporary art. Over a two-year period beginning in 2009, he purchased twenty-four works of art from the defendants, Lorettann Gascard and her son, Nikolas Gascard. Hall says he purchased some of those pieces directly from the Gascards, while others were purchased indirectly through auction houses to which the Gascards had consigned the works. And, says Hall, the Gascards affirmatively represented that each of the twenty-four works he purchased were original pieces produced by the American artist Leon Golub. In early 2015, however, Hall discovered that those twenty-four works are forgeries.

         In this action, Hall advances six common law and statutory claims against the Gascards. The Gascards move the court to dismiss each of those claims, asserting that none states a viable cause of action. See generally Fed.R.Civ.P. 12(b)(6). For the reasons discussed, that motion is granted in part and denied in part.

         Standard of Review

         When ruling on a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the court must “accept as true all well-pleaded facts set out in the complaint and indulge all reasonable inferences in favor of the pleader.” SEC v. Tambone, 597 F.3d 436, 441 (1st Cir. 2010). Although the complaint need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), it must allege each of the essential elements of a viable cause of action and “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face, ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal punctuation omitted).

         In other words, “a plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Instead, the facts alleged in the complaint must, if credited as true, be sufficient to “nudge[] [plaintiff's] claims across the line from conceivable to plausible.” Id. at 570. If, however, the “factual allegations in the complaint are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is open to dismissal.” Tambone, 597 F.3d at 442.

         As to his fraud claim, Hall must meet the heightened pleading standard imposed by Federal Rule 9(b), which provides that when alleging fraud, “a party must state with particularity the circumstances constituting fraud.” Fed.R.Civ.P. 9(b). That means the complaint must, at a minimum, allege “the identity of the person who made the fraudulent statement, the time, place, and content of the misrepresentation, the resulting injury, and the method by which the misrepresentation was communicated.” Clearview Software Int'l Inc. v. Ware, 2009 WL 2151017, at *1, n. 3 (D.N.H. July 15, 2009) (quotation omitted). See also Rodi v. S. New England Sch. of Law, 389 F.3d 5, 15 (1st Cir. 2004) (“This heightened pleading standard is satisfied by an averment of the who, what, where, and when of the allegedly false or fraudulent representation.”) (citation and internal punctuation omitted).

         Background

         Accepting the allegations of Hall's complaint as true - as the court must at this juncture - the relevant factual background is as follows. Beginning in approximately 1998 and until quite recently, Lorettann Gascard was a professor of art history and fine arts at Franklin Pierce University, where she also served as the university's art historian and the director of its art gallery (the Thoreau Art Gallery at Franklin Pierce University). She is “also an artist in her own right.” Complaint (document no. 1-4) at para. 3. See also Gascard v. Franklin Pierce Univ., 2015 WL 1097485 at *1, 2015 DNH 49, at 3 (D.N.H. March 11, 2015). Nikolas Gascard is her adult son.

         Leon Golub was an American artist who died in 2004. According to the complaint, “Golub's work has been featured in numerous solo exhibitions throughout the United States and abroad, ” Complaint at para. 7, and his work “has long been represented in many of the world's most important art museums and public art collections, among them, the Metropolitan Museum of Art, the Art Institute of Chicago, the Israel Museum, the Boston Museum of Fine Arts, the Carnegie Museum of Art, the Corcoran Gallery of Art, the Fogg Museum at Harvard University, the Tate Modern, and the Whitney Museum of American Art.” Id. at para. 8. Hall says that in 2003, shortly before Golub died, he began acquiring Golub's works from a variety of sources. By 2009, he had acquired approximately forty paintings and drawings by the artist. And, from September of 2009 through approximately November of 2011, Hall says he acquired an additional twenty-four works of art either directly or indirectly through the Gascards, all of which were represented to have been original works produced by Golub. Specifically, Hall alleges the following:

On September 23, 2009, he purchased a painting called “Untitled” from Christie's New York Auction House for $47, 000, which he says was consigned by one or both of the Gascards, who represented it was an original work by Golub which they had acquired directly from the artist.
In March of 2010, Hall acquired three more works from Christie's New York for $75, 000, each of which he says was consigned by one or both of the Gascards, who represented to Christie's that they were original pieces by Golub.
In September of 2010, Hall acquired another work purportedly painted by Golub, this time from Sotheby's and at a cost of $31, 250. Again, he says the work was consigned by one or both of the Gascards, who represented that it was an original work by Golub.
In March of 2011, Hall acquired two more works from Christie's, at a cost of $53, 750. He claims those works were consigned by one or both of the Gascards, who represented that they were original works by Golub.
Around the same time, Hall says he was in direct contact with the Gascards after learning that they had listed another ostensible Golub work on an online auction house. In that transaction, Hall acquired another work he says the Gascards represented was an original Golub, at a cost of $28, 750.
Following that transaction, Hall says Nikolas Gascard informed him that his mother, Lorettann Gascard, had a collection of Golub works that the Gascards wished to sell. Nikolas also offered to sell a number of ostensible Golub works from his own collection as well.
In March of 2011, Hall acquired ten works from Nikolas Gascard's collection, each of which was represented to be an original piece by Golub, for a total purchase price of $275, 000.
In October of 2011, Hall says Nikolas Gascard brokered a sale of six more alleged original Golub works from Lorettann Gascard, for a ...

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