Amicus Curiae Brief — Laurel Zuckerman, as Ancillary Administratrix of the Estate of Alice Leffmann, Petitioner v. The Metropolitan Museum of Art

No. 19-942

In the

Supreme Court of the United States

LAUREL ZUCKERMAN,

AS ANCILLARY ADMINISTRATRIX

OF THE ESTATE OF ALICE LEFFMANN,

Petitioner,

v.

THE METROPOLITAN MUSEUM OF ART,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Second Circuit

BRIEF OF LAW PROFESSORS AS AMICI

CURIAE IN SUPPORT OF PETITIONER

Leigh A nn Schell

Counsel of Record

Sara C. Valentine

A dams and Reese Llp

701 Poydras Street, Suite 4500

New Orleans, Louisiana 70139

(504) 581-3234

leighann.schell@arlaw.com

Counsel for Amici Curiae

294636

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I.

The Second Circuit exceeded its judicial

power by reading the defense of laches

into the HEAR Act’s definitive limitations

provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. History of laches and the general rule . . . . 3

B. In the HEAR Act, Congress did not

legislate against the general rule . . . . . . . . . 6

II. The Second Circuit’s dismissal of a

complaint at the pleadings stage based

on an fact-intensive affirmative defense

is not a proper under Rule 12(b)(6)

and conf licts with decisions from this

Court, and the Seventh and Tenth Circuits . . . . 8

A. General pleading requirements and Rule

12(b)(6) require a plaintiff only to state

a claim that is plausible on its face . . . . . . . . 9

ii

Table of Contents

Page

B. A pl a i nt i f f i s not r e q u i r e d t o

anticipate affirmative defenses in its

complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

C. The Second Circuit’s decision required

Petitioner to anticipate laches and

persuasively argue facts to defeat it . . . . . 13

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

iii

TABLE OF CITED AUTHORITIES

Page

CASES:

Abraham v. Ordway,

158 U.S. 416 (1895). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

American Insurance Association v. Garamendi,

539 U.S. 396 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Ashcroft v. Iqbal,

556 U.S. 662 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Byrd v. Blue Ridge Rural Elec. Co-op, Inc.,

356 U.S. 525 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Cassirer v.

Thyssen-Bornemisza Collection Found.,

682 F.3d 951 (9th Cir. 2017) . . . . . . . . . . . . . . . . . . . . . 7

Cross v. Allen,

141 U.S. 528 (1891). . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5

Cty. of Oneida v. Oneida Indian Nation of N.Y.,

470 U.S. 226 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . 3-4

Daingerfield Island Protective Soc’y v. Babbitt,

40 F.3d 442 (D.C. Cir. 1994) . . . . . . . . . . . . . . . . . . . . 13

iv

Cited Authorities

Page

Fernandez v. Clean House, LLC,

883 F.3d 1296 (10th Cir. 2018) . . . . . . . . . . . . 11, 12, 13

Gates v. D.C.,

66 F. Supp. 3d 1 (D.D.C. 2014) . . . . . . . . . . . . . . . . . . . 5

Gomez v. Toledo,

446 U.S. 635 (1980) . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

Holmberg v. Armbrecht,

327 U.S. 392 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Jones v. Bock,

549 U.S. 199 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Menominee Indian Tribe of Wisconsin v.

United States,

614 F.3d 519 (D.C. Cir. 2010) . . . . . . . . . . . . . . . . 13, 13

Petrella v. Metro-Goldwyn-Mayer, Inc.,

572 U.S. 663 (2014) . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 7

Rb Jai Alai, LLC v.

Sec’y of the Fla. Dep’t of Transportation,

No. 613CV1167ORL40GJK, 2016 WL 3369259

(M.D. Fla. Feb. 2, 2016) . . . . . . . . . . . . . . . . . . . . . . . . 6

SCA Hygiene Prod. Aktiebolag v.

First Quality Baby Prod., LLC,

137 S. Ct. 954 (2017) . . . . . . . . . . . . . . . . . . . . . 2, 3, 5, 7

v

Cited Authorities

Page

Taylor v. Anderson,

234 U.S. 74 (1914) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

United States v. Mack,

295 U.S. 480 (1935) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Wehrman v. Conklin,

155 U.S. 314 (1894) . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

Wilcox v. Swapp,

No. 2:17-CV-275-RMP, 2018 WL 2095722

(E.D. Wash. Apr. 26,2018) . . . . . . . . . . . . . . . . . . . . . . 6

Zuckerman v. Metro. Museum of Art,

928 F.3d 186 (2d Cir. 2019). . . . . . . . . . . . . . . . . . . 3, 14

Statutes

U.S. Const. Amend. VII . . . . . . . . . . . . . . . . . . . . . . . . . . 13

18 U.S.C. §§ 2721-2725 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

29 U.S.C. § 255(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 10

Fed. R. Civ. P. 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Fed. R. Civ. P. 8(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

vi

Cited Authorities

Page

Fed. R. Civ. P. 8(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Fed. R. Civ. P. 8(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Fed. R. Civ. P. 8(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

Fed. R. Civ. P. 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . . passim

Holocaust Expropriated Art Recovery Act of 2016,

Pub. L. 114–308, 130 Stat. 1524 . . . . . . . . . . . . 3, 6, 7, 8

Sup. Ct. R. 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Other Authorities

1 James Wm. Moore et al., Moore’s Federal Practice

¶ 2.02 [1] (3d ed. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . 4

5 Wright & Miller, Federal Prac. & Proc. Civil 3d

§ 1277 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

5B Wright & Miller, Federal Prac. & Proc. Civil 3d

§ 1357 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

1

INTEREST OF AMICI CURIAE

Amici are scholars who teach and write about civil

procedure and federal preemption of state law.1 We file

this brief to address the relationship between the role of

the legislative branch in enacting statutes of limitation

and the judiciary in interpreting them. Amici write to

clarify that under this Court’s long-standing precedent,

federal statutes of limitation displace the state law defense

of laches, unless the statute states the contrary. We also

write to discuss the impropriety of addressing a laches

defense at the rule 12(b)(6) stage of litigation. Absent

unique circumstances, addressing the fact-intensive

defense of laches pre-discovery upends well-defined

pleading requirements, presumptions, and burdens on

litigants.

Our scholarly interest in civil procedure arises

from teaching and writing in a variety of related fields,

including constitutional law, dispute resolution, and civil

procedure. Dr. Deborah Hensler is the Judge John W.

Ford Professor of Dispute Resolution at Stanford Law

School where she teaches complex litigation, global

litigation, arbitration law and policy, and empirical legal

research. She writes on compensation for mass harms,

aggregated litigation procedures and class actions. Carrie

Menkel-Meadow is the Distinguished and Chancellor’s

Professor of Law at U.C. Irvine where she teaches civil

1. Counsel for all parties have consented in writing to the filing

of this brief. Pursuant to Rule 37.6, amici affirm that no counsel for a

party authored this brief in whole or in part, that no such counsel or

party made a monetary contribution to the preparation or submission

of this brief, and that no person other than amici and their counsel

made such a monetary contribution.

2

procedure, dispute resolution, and international law. A.

Benjamin Spencer, a scholar in the field of civil procedure

and federal jurisdiction is the Bennett Boskey Visiting

Professor of Law at Harvard Law School, and the Justice

Thurgood Marshall Distinguished Professor of Law at the

University of Virginia School of Law, where he teaches

civil procedure and federal courts. Professor Spencer

writes in the area of civil procedure and is an author of

Wright & Miller’s Federal Practice & Procedure.

SUMMARY OF ARGUMENT

Where the legislature has determined through

a statute of limitations that the door for bringing suit should

remain open for a predetermined period of time, it should

not be left to a judge’s discretion to close that door early

by the application of laches. Yet, the Second Circuit did

just that in dismissing Laurel Zuckerman’s claim for the

return of her family’s Picasso painting lost during the

Holocaust.

The Second Circuit’s decision is contrary to two recent

decisions of this Court and a general rule of law established

as early as 1891. See SCA Hygiene Prod. Aktiebolag

v. First Quality Baby Prod., LLC, 137 S. Ct. 954, 959

(2017); Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S.

663, 677 (2014); Cross v. Allen, 141 U.S. 528, 537 (1891).

According to this Court, “[t]he enactment of a statute of

limitations necessarily reflects a congressional decision

that the timeliness of covered claims is better judged on

the basis of a generally hard and fast rule rather than the

sort of case-specific judicial determination that occurs

when a laches defense is asserted.” SCA Hygiene, 137 S.

Ct. at 960.” [A]pplying laches within a limitations period

3

specified by Congress would give judges a ‘legislationoverriding’ role that is beyond the Judiciary’s power.” Id.

(quoting Patrella, 572 U.S. at 678).

Rather than adhere to the congressionally set

limitations period contained in the Holocaust Expropriated

Art Recovery Act of 2016, Pub. L. 114–308, 130 Stat.

1524 (HEAR Act), the Second Circuit opted instead to

apply laches “in search of a just and fair solution.” See

Zuckerman v. Metro. Museum of Art, 928 F.3d 186, 196

(2d Cir. 2019). By doing so, the Second Circuit overrode

the balance struck by Congress in the HEAR Act and

exceeded its judicial power. Because the HEAR Act only

provides claimants with a limited window of time to file

claims “free from defenses relating to the passage of

time,” this Court should act now to clarify the scope of

the HEAR Act.

Even if laches did apply, the Second Circuit’s dismissal

of the claim on Rule 12(b)(6) grounds is against this

Court’s precedent and the traditional role of the rule.

ARGUMENT

I.

The Second Circuit exceeded its judicial power by

reading the defense of laches into the HEAR Act’s

definitive limitations provision.

A. History of laches and the general rule.

The general rule in American law is that laches is

an equitable defense that does not bar claims for legal

damages brought within an applicable statutory limitations

period. See, e.g., Cty. of Oneida v. Oneida Indian Nation

4

of N.Y., 470 U.S. 226, 244 n.16 (1985) (“[A]pplication of the

equitable defense of laches in an action at law would be

novel indeed.”). This Court developed the general rule,

recognizing the history of the doctrine of laches and the

separation of powers between the legislative and judicial

branches.

The American civil law system originally provided

two means to resolve civil disputes: courts of law and

courts of equity. See 1 James Wm. Moore et al., Moore’s

Federal Practice ¶ 2.02 [1] (3d ed. 2012). Equity courts

were intended to provide relief to individuals who had

no remedies at law. Id. Both court systems contained

mechanisms for dealing with stale claims. In actions at

law, a statute of limitations established a period of time for

plaintiffs to raise claims which was predetermined by the

legislature. Any delay by plaintiffs within the statutory

period was immaterial. See Wehrman v. Conklin, 155 U.S.

314 (1894) (“If the plaintiff at law has brought his action

within the period fixed by the statute of limitations, no

court can deprive him of his right to proceed.”). In actions

at equity, the defense of laches was available, but required

a fact-intensive, case-by-case prejudice analysis that

focused on the circumstances and actions of the particular

parties. See Abraham v. Ordway, 158 U.S. 416, 420 (1895).

Supported by history, this Court developed the

general rule that laches cannot be invoked to bar a claim

for damages incurred within a limitations period specified

by Congress. See Holmberg v. Armbrecht, 327 U.S. 392,

395 (1946) (“If Congress explicitly puts a limit upon the

time for enforcing a right which it created, there is an end

of the matter”); United States v. Mack, 295 U.S. 480, 489

(1935) (“Laches within the term of the statute of limitations

5

is no defense at law”); Wehrman v. Conklin, 155 U.S. 314,

326 (1894) (“Though a good defense in equity, laches is

no defense at law. If the plaintiff at law has brought his

action within the period fixed by the statute of limitations,

no court can deprive him of his right to proceed”); Cross,

141 U.S. at 537 (“So long as the demands secured were

not barred by the statute of limitations, there could be no

laches in prosecuting a suit”).

This Court recognized the importance of the general

rule to the separation of powers between the legislature

and judiciary. Most recently, the Court examined the

relationship between the equitable defense of laches and

claims for damages that are brought within the time

allowed by a statute of limitations contained in the Patent

Act. Relying heavily on an earlier decision addressing the

Copyright Act, the Court refused to read the equitable

defense of laches into the statute, the Court instructed that

“it would be exceedingly unusual, if not unprecedented, if

Congress chose to include in the Patent Act both a statute

of limitations for damages and a laches provision applicable

to a damages claim.” See SCA Hygiene, 137 S. Ct. at 963;

Petrella, 572 U.S. at 667, 669 (“dissent has come up with

no case in which this Court has approved the application

of laches to bar a claim for damages brought within the

time allowed by a federal statute of limitations”). Indeed,

the SCA Hygiene Court advised that neither the litigants

in the case, amici, nor the Federal Circuit could identify

a single federal statute that provides such dual protection

against untimely claims. SCA Hygiene, 137 S. Ct. at 963.

Other than the Second Circuit’s decision, amici

here have found none. See, e.g., Gates v. D.C., 66 F. Supp.

3d 1, 27 (D.D.C. 2014) (laches cannot bar claim where

6

Congress set limitations period for claims under 42 U.S.C.

§1983); Wilcox v. Swapp, No. 2:17-CV-275-RMP, 2018

WL 2095722, at *3 (E.D. Wash. Apr. 26, 2018) (laches no

defense under Driver’s Privacy Protection Act,18 U.S.C.

§§ 2721-2725); Rb Jai Alai, LLC v. Sec’y of the Fla. Dep’t

of Transportation, No. 613CV1167ORL40GJK, 2016 WL

3369259, at *1 (M.D. Fla. Feb. 2, 2016) (laches no defense

under Administrative Procedures Act).

B. In the HEAR Act, Congress did not legislate

against the general rule.

Congress enacted the HEAR Act 71 years after

World War II to establish a six-year statute of limitations

setting a window of time within which Holocaust victims

can assert claims for art lost between 1933 and 1945 “free

from defenses related to the passage of time.” HEAR Act

§ 5(a). Congress recognized the difficulty proving these

claims, advising that “those seeking recovery of Naziconfiscated art must painstakingly piece together their

cases from a fragmentary historical record ravaged by

persecution, war, and genocide. This costly process often

cannot be done within the time constraints imposed by

existing law.” HEAR Act § 2(6).

While the legislative history of the HEAR Act

mentions the equitable defense of laches, the statute itself

is silent on laches. Yet, the Second Circuit read into the Act

the state law defense of laches, which is “a time constraint

imposed by existing law” that Congress sought to avoid.

The Act’s silence on laches cannot be read to override the

general rule that laches does not apply when Congress

enacts a statute of limitations. Because the general rule

is so well-ingrained, Congress “could not have missed

7

the cases endorsing the general rule.” See SCA Hygiene,

137 S. Ct. at 963-64. Thus, an intent to override the rule

should be express. Id. (refusing to read in defense of laches

where Patent Act silent on defense).

And for this reason, the Second Circuit erred in finding

that New York’s defense of laches was not preempted

by the HEAR Act’s clear expression of a limitations

period. “[S]tate law must give way” when it is in “clear

conflict” with an “express federal policy.” See American

Insurance Association v. Garamendi, 539 U.S. 396, 421

(2003) (California’s aggressive disclosure requirements

for insurers selling policies in Europe during Nazi era

preempted by President’s policy encouraging voluntary

settlement of Nazi-era insurance claims). Similarly, as the

Ninth Circuit advised, the HEAR Act preempts existing

state and federal statutes of limitations. Cassirer v.

Thyssen-Bornemisza Collection Found., 682 F.3d 951, 965

(9th Cir. 2017) (Section 5 of the Act “prevent[s] courts from

applying defenses that would have the effect of shortening

the six-year period in which a suit may be commenced.”).

Separation of powers principles dictate that an

equitable timeliness rule adopted by state courts

cannot bar claims that are brought within a legislatively

prescribed statute of limitations. Using the words of this

court, but substituting HEAR Act for the Copyright Act,

“[i]nviting individual judges to set a time limit other than

the one Congress prescribed, … would tug against the

uniformity Congress sought to achieve when it enacted

[the HEAR Act].” Petrella, 572 U.S. at 680–81.

This Court should exercise review now to clarify the

scope of the HEAR Act because the Act’s limitations

8

provision free from defenses of the passing of time will

sunset in 2027. HEAR Act § 5(g). Refusing to do so,

will allow rejection of many other HEAR Act claims as

untimely, the very thing the HEAR Act was enacted to

prevent.

II. The Second Circuit’s dismissal of a complaint at

the pleadings stage based on an fact-intensive

affirmative defense is not a proper under Rule

12(b)(6) and conflicts with decisions from this

Court, and the Seventh and Tenth Circuits.

T he s e c ond q ue st ion pr e s ent e d r a i s e s t he

appropriateness of dismissing a complaint based on a

fact-intensive affirmative defense. In this case, the Second

Circuit, relying on statements made in oral argument,

defendant’s contentions not contained in the complaint, and

its own weighing of good faith, dismissed the complaint

on the equitable affirmative defense of laches. The

Second Circuit’s decision runs afoul of well-established

pleading principles, and has implications beyond just this

case. If followed, it would require plaintiffs to anticipate

affirmative defenses and plead facts in the complaint to

overcome affirmative defenses not yet raised. This is

clearly not required under the pleading standards of Rule

8, nor is it a proper consideration under Rule 12, especially

in the context of laches, an equitable defense that requires

a fact-intensive review of the circumstances involved. The

Second Circuit’s decision should not stand.

9

A.

General pleading requirements and Rule 12(b)

(6) require a plaintiff only to state a claim that

is plausible on its face.

The Federal Rules of Civil Procedure, as interpreted

by this Court, have required parties simply to provide

each other with fair notice of their claims. Under Rule

8(a) of the Federal Rules of Civil Procedure, the plaintiff

is required only to set forth its claims with a “short and

plain statement.” In 2007, this Court further interpreted

Rule 8 to require a plaintiff to set forth “enough facts to

state a claim to relief that is plausible on its face.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Our decision

in Twombly expounded the pleading standard for ‘all civil

actions. . . .”’).

A defendant may seek to test the sufficiency of this

statement under Rule 12(b)(6) of the Federal Rules of Civil

Procedure. Under Rule 12(b)(6), a court may not dismiss a

complaint when a plaintiff has plead “enough facts to state

a claim to relief that is plausible on its face.” Twombly,

550 U.S. at 570. Importantly, a Rule 12(b)(6) motion does

not test the merits of the claim. Rather, it simply tests

whether a plaintiff has adequately stated a claim. 5B

Wright & Miller, Federal Prac. & Proc. Civil 3d § 1357.

On the other hand, Rule 8(c) requires a party

responding to a pleading to “affirmatively state any

avoidance or affirmative defense, including: . . . laches. . . .”

And, Rule 8(b) much like Rule 8(a), requires that party to

“state in short and plain terms its defenses to each claim.”

These defenses must be set forth in the defendant’s answer.

Id. Over a hundred years ago, this Court recognized that

a plaintiff did not have to anticipate defenses to their

claim in their complaint. Rather, in the “orderly course,

10

the plaintiffs were required to state their own case in the

first instance, and then to deal with the defendants’ after

it should be disclosed in the answer.” Taylor v. Anderson,

234 U.S. 74, 75 (1914).

B. A plaintiff is not required to anticipate

affirmative defenses in its complaint.

Since the ruling in Taylor, this Court and several

circuits have recognized that a plaintiff is not required

to anticipate any affirmative defense that may be raised

by the defendant. Rather, it’s the defendant’s burden to

plead and prove that affirmative defense. For instance,

in Gomez v. Toledo, 446 U.S. 635, 640 (1980), this Court

reviewed whether a plaintiff needs to anticipate a qualified

immunity defense in the context of his claim under 42

U.S.C. § 1983. In Gomez, the Court examined whether a

plaintiff must allege bad faith in its complaint against a

person that may be entitled to qualified immunity. If the

defendant is entitled to qualified immunity, then a claim

under § 1983 may only proceed if the defendant was acting

in bad faith. As such, the defendant sought dismissal

because the plaintiff had not alleged bad faith.

But this Court disagreed. The Court found that under

§ 1983, a plaintiff must allege only two elements: (1) that

some person has deprived him of a federal right; and

(2) that the person who has deprived him of that right

acted under color of state or territorial law. Id. at 640.

The plaintiff is not required to assert that the defendant

was acting in bad faith. Rather, in asserting qualified

immunity, because it is a defense, the defendant bears

the burden of proving the defense. The Court concluded:

“[w]e see no basis for imposing on the plaintiff an obligation

to anticipate such a defense by stating in his complaint that

the defendant acted in bad faith.” Id.

11

The Court again found that a plaintiff is not required

to anticipate an affirmative defense in Jones v. Bock, 549

U.S. 199, 216 (2007). Jones involved whether an inmate

is required to allege exhaustion before a complaint

can proceed. But, like the Gomez Court, the Jones

Court similarly concluded that failure to exhaust is an

affirmative defense. The Court concluded: “inmates are

not required to specially plead or demonstrate exhaustion

in their complaints.”

Other circuit courts follow a similar rule. The Seventh

Circuit has found: “[w]e have held many times that,

because complaints need not anticipate defenses, Rule

12(b)(6) is not designed for motions under Rule 8(c)(1).”

Richards v. Mitcheff, 696 F.3d 635, 638 (7th Cir. 2012).

In Richards, the Seventh Circuit reversed the district

court’s dismissal based on statute-of-limitations because

it found a question as to whether the period was tolled by

the plaintiff’s incapacity. Because the plaintiff had not had

the opportunity to present evidence regarding this tolling,

dismissal on the pleadings was not appropriate. Id. at 638.

The Seventh Circuit concluded that the district court had

erred when it determined the plaintiff’s reasons for the

delay in bringing the claim as “unpersuasive,” which is

not appropriate at the pleadings stage. Id.

The Tenth Circuit has likewise found that dismissal

based on a fact-intensive aff i r mative defense is

inappropriate at the pleadings stage. In Fernandez v.

Clean House, LLC, 883 F.3d 1296, 1299 (10th Cir. 2018),

the Court refused to dismiss the plaintiff’s claim on

statute-of-limitations grounds. Fernandez involved a

claim under the Federal Labor Standards Act (FLSA). In

order for a claim to be timely under the FLSA, it must be

12

brought within two years. But the timeframe is expanded

to three years when claims involve “willful violations.”

29 U.S.C. § 255(a). The plaintiffs in the case brought the

case within three years, and alleged that the defendants’

actions had been willful. But the defendants moved to

dismiss on the grounds that the allegations did not support

the assertion of willfulness. Id. at 1297.

The Tenth Circuit reversed the district court’s

dismissal, finding that “[a] plaintiff need not anticipate in

the complaint an affirmative defense that may be raised

by the defendant; it is the defendant’s burden to plead

an affirmative defense.” Id. at 1298–99. It found that

“there can be no question that a limitations issue is an

affirmative defense; Rule 8(c)(1) explicitly lists ‘statute of

limitations’ as such.” Id. at 1299. The Court also rejected

the defendant’s argument that the complaint contained an

admission that the violations were not willful, which would

extend the statute of limitations. Instead, the Court found

the plaintiff’s complaint adequately alleged willfulness.

The Court concluded that its “decision does not represent

a departure from the usual practice when defendants raise

affirmative defenses,” noting that the defendant’s “first

line of defense” is summary judgment, not dismissal on

the pleadings. “Plaintiffs rarely confess such defenses in

their complaints.” Id. at 1300.

The District of Columbia Circuit reached a similar

conclusion in a case involving a laches defense. In

Menominee Indian Tribe of Wisconsin v. United States,

614 F.3d 519 (D.C. Cir. 2010), the district court dismissed

a breach of contract claim, finding that it was barred by

the statute of limitations and based on laches. The D.C.

Circuit found the dismissal on these grounds to be in error,

13

and remanded the case for the district court to consider

tolling and whether the delay in bringing the action was

reasonable. But, the D.C. Circuit cautioned, that “a motion

to dismiss generally is not a useful vehicle for raising the

issue [of laches].” Id. at 532 (quoting 5 Wright & Miller,

Federal Prac. & Proc. Civil 3d § 1277, at 644). The Court

further cautioned: “Laches may be the ‘legal cousin’ of

the statute of limitations, Daingerfield Island Protective

Soc’y v. Babbitt, 40 F.3d 442, 448 (D.C. Cir. 1994) (Wald,

J., dissenting), but it ‘involves more than the mere lapse

of time and depends largely upon questions of fact.’” Id.

(quoting 5 Wright & Miller, Federal Prac. & Proc. Civil

3d § 1277, at 644).

In short, a plaintiff is not required to plead facts

tending to rebut an affirmative defense to defeat a motion

to dismiss at the pleading stage. While a claim may be

dismissed at the pleadings stage where the complaint

“admits all the elements of an affirmative defense” or

where it “admits all the ingredients of an impenetrable

defense,” such dismissal will rarely be appropriate. See

Fernandez, 883 F.3d at 1299; Richards, 696 F.3d at

637–8. Nor may a court rely on a factual determination

to resolve a motion to dismiss based on an affirmative

defense without running afoul of the Seventh Amendment.

See Byrd v. Blue Ridge Rural Elec. Co-op, Inc., 356 U.S.

525, 531–2 (1958).

C.

The Second Circuit’s decision required

Petitioner to anticipate laches and persuasively

argue facts to defeat it.

The Second Circuit dismissed the underlying

complaint solely on the issue of laches. While it noted that

14

the defendant raised the affirmative defense of laches, it

failed to consider the equitable nature of such a defense,

finding it could decide the validity of the defense on the

face of the complaint. In concluding that laches applied,

the Second Circuit incorrectly found that (1) the complaint

alleged facts to support that their delay was unreasonable;

and (2) that the facts alleged in the complaint failed to

persuasively support a finding that the defendant’s unclean

hands barred recovery. Neither of these are correct. First,

the Second Circuit concluded that it was clear from the

face of the complaint that the delay in bringing a claim

was unreasonable. But the Second Circuit itself admits

that it relied on facts not found in the complaint. See

928 F.3d 186, 191–92 (citing oral argument recording).

The Second Circuit found that “Zuckerman nowhere

contends that the Leffmanns, despite making some postwar restitution claims, made any effort to recover the

Painting.” Zuckerman, 928 F.3d at 193. First, the history

in searching out other belongings after the war is nowhere

in the complaint. Second, in concluding that the Petitioner

failed to allege facts to support the reasonableness in

the delay, the Second Circuit necessarily required the

petitioner to anticipate the defense of laches, plead facts

to support that the delay was not unreasonable, and used

the lack of pleaded facts to conclude that laches applied.

This conclusion by the Second Circuit conflicts with this

Court’s decisions, and the decisions in the Seventh and

Tenth Circuits.

Additionally, the Second Circuit refused to consider

the defendant’s unclean hands, another element of laches

that a party asserting such a defense must prove. The

Second Circuit did not address the allegations in the

complaint that the defendant was not diligent about the

15

Painting’s origins, despite its expertise, resources, and

post-War advisories warning of Nazi-looted art. Because

the complaint alleges the defendant comes with unclean

hands, the defendant could not have shown that laches was

“an impenetrable defense.” Richards, 696 F.3d at 637–38.

In essence, the Second Circuit required the plaintiff

here to allege in its complaint justification for delay,

something that is not required to support any of the causes

of action alleged. Even worse, the Second Circuit rejected

the facts alleged as unpersuasive when considering

whether the defendant had come to court with clean hands.

The Second Circuit’s dismissal of the complaint, at the

pleadings stage, based on such a fact-intensive affirmative

defense conflicts with this Court’s precedent and that of

other Circuit Courts. The decision cannot stand.

CONCLUSION

Amici respectfully urge the Court to grant the

petition.

Respectfully Submitted,

Leigh A nn Schell

Counsel of Record

Sara C. Valentine

A dams and Reese Llp

701 Poydras Street, Suite 4500

New Orleans, Louisiana 70139

(504) 581-3234

leighann.schell@arlaw.com

Counsel for Amici Curiae