Tuesday, June 25, 2013

Justice Department Files Brief in SLAM Mummy Mask Appeal, Claiming "Clear Abuse of Discretion"

One year after the U.S. Attorney filed a notice of appeal in the St. Louis Art Museum (SLAM) mummy mask case, the Justice Department yesterday submitted an appellate brief critical of the the U.S. District Court, Eastern District of Missouri. The government faults the lower court for refusing to allow prosecutors to file an amended forfeiture complaint after the court ruled that the original complaint was legally insufficient.

"The court’s orders constitute a clear abuse of discretion," the government's brief contends. "The district court cited no basis for departing from the principle that a party should be given at least one opportunity to amend a complaint whose allegations have been found deficient."

Litigation to reclaim the Ka Nefer Nefer mummy mask began in February 2011 when SLAM sued the U.S. government in order to assert ownership over the artifact. The government responded immediately by filing an in rem action against the mask to forfeit it, later arguing in July 2011 that the mask constituted illegal contraband that could not be possessed. But Judge Henry Autrey brought the government’s case to a seeming end in April 2012 when he concluded that the government's forfeiture complaint failed to specifically articulate how the mask was stolen and smuggled, or how it was brought into the U.S. contrary to law.

The U.S. Attorney's Office filed a motion to reconsider the judge's order, arguing that its forfeiture complaint did not need to be more specific. But in May 2012, the government revealed a wealth of new information, which it said it would enter in a new amended complaint.  Judge Autrey denied the motion. 

Federal prosecutors then proposed an amended complaint in June 2012. The government's lawyers more forcefully alleged that the parties either knew the mummy mask was stolen, unlawfully exported, or illegally imported, or that they were willfully blind to the fact that the mask's "purported provenance was fictional." Just weeks later the court repeated that the case was dismissed, and federal lawyers filed their notice of appeal.

The case remained on hold from June 2012 through April 2013 as all sides reportedly engaged in talks to settle the matter out of court.  Those negotiations failed, and yesterday's court filing renews the litigation.

The U.S. government's attorneys argue, "A dismissal for want of adequate allegations is generally without prejudice, and a party is customarily permitted to amend its complaint at least once to cure deficiencies." "The court denied the motion to file the amended complaint out of hand without addressing any of its new allegations" raised by the proposed amended complaint.

Federal lawyers add,
Even following dismissal, leave to amend should be freely given, and “an outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.” Foman v. Davis, 371 U.S. 178, 182 (1962). The First Amended Complaint specifically addressed the deficiencies cited by the district court in the original complaint, and the court abused its discretion in summarily rejecting the filing without considering its allegations.
The attorneys complain that the "district court denied the United States’ repeated requests for leave to file an amended complaint, without evaluating the legal sufficiency of the substantial new allegations in the proffered amended complaint that sought to cure the deficiencies the district court identified in the initial complaint."

The government's lawyers cite Federal Rule of Civil Procedure 15(a)(2)'s recommendation that "[t]he court should freely give leave [to amend a pleading] when justice so requires." They want the district court to assess their allegations that an archaeologist excavated the mask in 1952 in Saqqara, Egypt; it remained under the custody, control, and ownership of Egypt; the mask was discovered missing in 1973; and there was no authorization that it could be sold or transferred, so SLAM could not have acquired valid title to the Ka Nefer Nefer mask when it purchased it in 1998 from Phoenix Ancient Art, S.A.

SLAM is expected to file a reply brief in the near future.

Photo credit: creationc

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com