A divided federal appeals court today ruled in favor of a Brooklyn artist who claims the Saudi Royal Family owes him more than $12 million for commissioned sculpture.
The U.S. Court of Appeals for the D.C. Circuit ruled 2-1 to revive the breach of contract suit the artist, Elli Bern Angellino, brought against the royal family and sixteen of its members, including King Abdullah.
Angellino, the appeals court said, designed and created 29 sculptures in 2006 and 2007, shipping them to the Saudi Royal Court in Riyadh. The invoice for the gold, silver, bronze and zinc pieces: nearly $12.6 million.
Judge Karen LeCraft Henderson began the court's opinion with a quote from the artist James Whistler: “An artist is not paid for his labor but for his vision.” The judge added a twist: “Or, in this case, not at all.”
The suit in Washington’s federal trial court was dismissed, without prejudice, in April 2011 over issues about whether the defendants were properly served with the complaint and summons. Thirteen months passed between the filing of the complaint and its dismissal.
None of the defendants participated in the trial court proceedings. And none of the family members entered an appearance in the appellate court. Angellino, the creative director of an art gallery in New York, was pro se in the trial court.
Henderson, writing for the majority, said “we believe there exists a ‘reasonable probability’ that Angellino can effect service on the defendant Royal Family given the success of other parties in serving process on the Kingdom of Saudi Arabia.”
Writing in dissent, Judge Brett Kavanaugh said Angellino was given ample time to pursue the suit.
“After Angellino’s initial attempt to effect service failed, the district judges twice warned Angellino that his suit would be dismissed if he did not effect service,” Kavanaugh wrote. “Yet Angellino never again even tried to serve the defendants.”
Jenner & Block partner David DeBruin in Washington, co-chair of the firm’s complex commercial litigation practice, served as a court-appointed amicus in support of Angellino.
DeBruin’s brief in the D.C. Circuit said service on foreign defendants is “notoriously tricky.”
DeBruin and Jenner associate Christopher Deal said in court papers that Angellino was “unable to navigate these murky waters on his own in the limited time afforded him by the district court.”
“But rather than lighting the way, the district court sent the plaintiff home using a procedural tool that is ordinarily reserved for cases in which the plaintiff’s behavior reveals that he either cannot or will not prosecute his case according to the court’s rules and procedures,” the brief said.