Swan v. Sotheby's Inc.

MEMORANDUM OPINION AND ORDER GRANTING MOTION T O DISMISS Plaintiff Phyllis Swan brings this action against Sotheby’s Inc. (“Sotheby’s”) and Robert Everett Page IV (collectively, “Defendants”) asserting five claims: (1) conversion, (2) replevin, (3) declaratory judgment, (4) abuse of process, and (5) aiding and abetting conversion. Defendants move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the motion to dismiss is GRANTED. BACKGROUND¹ This case involves a dispute about the ownership of a drawing by artist Jean-Michel Basquiat (the “Drawing”). See Drawing [ECF No. 10-1]. Swan contends that the Drawing was a business asset owned by a business called “Fertility” that she co-owned with her partner, Isaia Rankin, in the 1980s. First Amended Complaint

15-24 [ECF No. 10] (“FAC” or “Complaint”). After Rankin passed away in 1989, employees “looted the belongings” at two of Fertility’s business locations and took items “without [Swan] or [Rankin's] estate’s permission.” FAC 25. One of Fertility’s employees at the time was Defendant Page. FAC 22. Within “a few years” of Rankin’s death, Swan began looking for the missing Drawing. FAC 26. Her search continued for “almost 30 years.” FAC 29. In 2019, Swan learned from a friend that Sotheby’s was offering the Drawing at auction. FAC 30. Sotheby’s had consigned the Drawing from Page, who claimed that Rankin gifted him the Drawing shortly before Rankin’s death. FAC 41. The Drawing was ultimately sold for $40,000 in October 2019. FAC 99. In early October, Swan contacted Sotheby’s, contending that she was the true owner of the Drawing. FAC