United States District Court, D. New Hampshire
Poretz, Esq., Samantha D. Elliott, Esq. Lorettann Gascard,
pro se Nikolas Gascard, pro se
J. McAuliffe United States District Judge
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
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.
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).
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.
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
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.
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
In October of 2011, Hall says Nikolas Gascard brokered a sale
of six more alleged original Golub works from Lorettann
Gascard, for a ...