Full opinion text
ORDER DENYING DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING LEAVE TO AMEND COMPLAINT COOPER, District Judge. Plaintiff is the niece and heir of Adele Bloeh-Bauer who was a model for, and whose husband was the owner of, works of art painted by Gustav Klimt. Plaintiff brings this action to recover six Klimt paintings which were stolen by the Nazis and are presently in the possession of Defendants. By this Order, the Court concludes that it has jurisdiction over defendants by virtue of an immunity exception contained in the Foreign Sovereign Immunities Act. This matter is before the Court on the Defendants’ Motion to Dismiss under Fed. R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, under Rule 12(b)(6) for failure to state a claim upon which relief may be granted, under 12(b)(3) for lack of venue, under Rule 12(b)(7) for failure to join indispensable parties, and under the doctrine of forum non conveniens. For the reasons stated herein, the Defendants’ Motion is DENIED. I. Background A. Factual Allegations of Complaint 1. The Nature of the Dispute The present dispute centers on ownership rights to six paintings by the world-renowned artist, Gustav Klimt. Specifically, at issue in the current action are six paintings with the following titles: Adele Bloch-Bauer I, Adele Bloch-Bauer II, Beechwood, Apple Tree I, Houses in Un-terach am Attersee, and Amalie Zucker-kandl (collectively, “the paintings”). The paintings are currently in the possession of the Republic of Austria (“the Republic”) and/or the Austrian Gallery (“the Gallery”). Plaintiff seeks recovery of these paintings that were owned by her family before they were stolen by the Nazis in the early 1940s in Austria. 2. Events in Pre-World War II Austria The paintings at issue were owned by Ferdinand Bloch-Bauer, Plaintiffs uncle. Plaintiffs aunt, Ferdinand’s wife, Adele Bloch-Bauer, died in 1925. When Adele died, she left a will asking that her husband consider donating six paintings to the Austrian Gallery on his death. When the will was probated, the paintings were found to be part of Ferdinand’s property, not Adele’s. Ferdinand stated in 1926 that he intended to donate the paintings in accordance with his wife’s wishes, but did not ever do so. Ferdinand donated one painting to the Gallery in 1936, a painting by Gustav Klimt entitled Schloss Kammer am Attersee III. 3. Plaintiffs Escape to the United States Plaintiff was married shortly before the Nazi’s annexation of Austria in 1938. Plaintiff and her husband escaped Austria to the Netherlands, to Britain, and finally to the United States. In 1942, Plaintiff arrived in Los Angeles, where she has lived since that time. Plaintiff became a naturalized citizen in 1945. 4. Ferdinand and His Artwork — The Nazi Occupation of Austria Ferdinand left Austria in 1938; the Nazis took his home, his business, and his artwork. Four hundred pieces of porcelain were sold at public auction. Several Nineteenth century Austrian paintings went to Adolph Hitler’s and Herman Gdr-ing’s private collections. Dr. Erich Führer, a Nazi lawyer in charge of liquidating Ferdinand’s collection, also benefitted. The paintings £ft issue in the present suit were transferred in various ways: Adele Blochr-Bauer I and Apple Tree I were traded in 1941 to the Austrian Gallery for Schloss Kammer am Attersee III. Adele Blochr-Bauer I appears on the cover of the Gallery’s official guidebook of the museum. Beechwood was sold in November 1942 to the Museum of the City of Vienna. In 1947, the Museum offered to return the painting to Plaintiff and Ferdinand’s other heirs (collectively, “the heirs”) in exchange for refund of the purchase price. The painting was, in the late 1940s, transferred to the Gallery with the assistance of the heirs’ lawyer. Adele Blochr-Bauer II was sold in March 1943 to the Austrian Gallery. Houses in Unterach am Attersee was kept by Dr. Führer for his personal collection. This painting was later retrieved from that collection by Plaintiffs brother. It was in possession of the heirs’ Austrian lawyer in late 1940s and was returned to the Gallery in exchange for export licenses for other works of art. The original disposition of Amalie Zuck-erkandl is not known; the painting eventually turned up in the hands of art dealer Vita Künstler, who donated it to the Gallery in 1988. 5.After the War Ferdinand died just a few months after the war in Europe ended, but he took preliminary steps to retrieve his stolen property. Ferdinand made no bequest in his will to the Austrian Gallery. In 1946, the Republic enacted a law declaring that all transactions that were motivated by discriminatory Nazi ideology were to be deemed null and void; however, the Republic often required the original owners of such property, including works of art, to repay to the purchaser the purchase price before an item would be returned. Austrian law also prohibited the export of artworks that were deemed to be important to Austria’s cultural heritage. It was the policy after the war to use the export license law to force Jews who sought export of artworks to trade artworks for export permits on other works. 6. Ferdinand’s Heirs’ Attempts to Secure the Paintings After the War In 1947, a Swiss court recognized Plaintiff as the heir to 25% of Ferdinand’s estate. The heirs retained an Austrian lawyer to attempt to secure return of Ferdinand’s property. Plaintiffs older brother was a captain in the Allied Forces, and he personally recovered Houses in Unter-ach am Attersee from Dr. Führer’s private collection. The painting was kept in his or his lawyer’s apartment in Vienna pending permission to export the painting. In February 1948, the Austrian lawyer sought return of Adele Bloch-Bauer I, Adele Bloch-Bauer II, and Apple Tree I from the Gallery. The Gallery asserted that five of the six paintings at issue were bequeathed to it by the will of Adele Bloch-Bauer in 1926, and that Ferdinand was merely granted permission to keep the paintings during his lifetime. The Gallery demanded the heirs return the remaining paintings to it. 7. The Museum’s Actions In Protecting Its Collection In March 1948, Dr. Garzarolli of the Austrian Gallery learned of the contents and probate proceedings of Adele’s will. Specifically, Garzarolli learned that Adele had expressed the wish that Ferdinand donate the paintings to the Gallery, but that Adele had not herself bequeathed the paintings to the Gallery. Garzarolli acknowledged as much in a March 8, 1948, letter to his predecessor wherein Garzarol-li expressed his concern at his predecessor’s failure to obtain a declaration of gift in favor of the state from Ferdinand. Dr. Garzarolli did not reveal to the heirs or their lawyers the files from Adele’s probate proceedings that he had in his possession; rather, he prepared to sue the heirs for the remaining paintings. 8.The Exchange — Donations for Export Licenses In late March 1948, Gallery officials reviewed the artwork in the apartment belonging to Plaintiffs brother or his lawyer to determine whether an export license could be granted. The officials recognized the pieces as part of Ferdinand’s collection. Dr. Garzarolli sought the assistance of the Austrian Attorney General in obtaining possession of the remaining three paintings. In early April, Dr. Garzarolli wrote to Dr. Otto Demus, president of the Federal Monument Agency (the agency in charge of the export licenses), and suggested that the processing of export permits for Ferdinand’s collection be delayed “for tactical reasons.” Dr. Demus met with the heirs’ lawyer regarding the artwork already in Austria and other items of artwork belonging to Ferdinand to be returned to Austria by the Allied forces. The lawyer understood from Dr. Demus that “donations” to the Gallery would have to occur in order to procure export licenses for any of Ferdinand’s collection. The lawyer, on behalf of the heirs, agreed to “donate” the Klimt paintings in exchange for permits on the remaining items. The lawyer learned the contents of Adele’s will, but thought Ferdinand’s expressed intention to donate the Klimt paintings would be binding. The lawyer executed a document purporting to acknowledge the intention to donate the paintings expressed in Adele’s will. The lawyer gave the Gallery Houses in Unter-ach am Attersee on April 12, 1948. 9. 1998 Discovery by Austrian Journalist In 1998, after the seizure of two paintings by Egon Schiele in New York, the Austrian federal minister opened up the Gallery’s archives to permit researchers to prove that no looted artworks remained in Austria. Thereafter, an Austrian journalist, Hubertus Czernin, published a series of articles exposing the fact that Austria’s federal museums had profited greatly from exiled Jewish families after the war. Adele Blochr-Bauer I, reported by the Gallery as being donated to the Gallery in 1936, was revealed to have been transferred to the museum in 1941 with a letter from Dr. Führer signed “Heil Hitler.” The archives were closed, but government research essentially confirmed Czernin’s stories. 10. New Law Favoring Return of Artwork Stolen by Nazis In response, in September 1998, a new restitution law was proposed in Austria, designed to return artworks that had been donated to federal museums under duress in exchange for export permits. The law was enacted in December. A committee of government officials and art historians was formed by the new law, and in February 1999, the committee recommended that hundreds of artworks be returned to their rightful owners. In response to inquiries from the Austrian parliament, Minister Gehrer, Austria’s federal minister of education and culture, concluded that there was an evident connection between the donation of the Klimt paintings and the export permit law. There was political opposition to the return of the Klimt paintings. The committee received an incomplete report regarding the Klimts, and some members did not receive an expert’s opinion regarding the invalidity of the purported bequest to the Gallery. On June 28, 1999, the committee met and affirmed a recommendation that the Klimts not be returned. The vote on the return of the paintings was predetermined, and one member of the committee eventually resigned in protest. The committee did vote to return 16 Klimt drawings and 19 porcelain settings previously donated by the family in exchange for export permits. Plaintiff protested the committee’s decision and requested arbitration. The Republic rejected this approach, suggesting that the heirs’ only remedy was to go to court. 11. Attempt at Austrian Judicial Intervention In September 1999, Plaintiff announced she would file a lawsuit regarding the paintings. However, the court costs associated with bringing such a suit in Austria are determined by the amount in controversy. Plaintiff would have to pay a filing fee of approximately two million Austrian Schillings for the privilege of suing the Republic and the Gallery even after obtaining a partial waiver of court costs. The Austrian Court noted the amount of Plaintiffs assets and suggested that Plaintiff should spend all of her liquid assets in furtherance of her claim because the alternative would be to charge the court costs to the Austrian public. B. Factual Allegations Regarding Jurisdiction The Gallery publishes a museum guidebook in English available for purchase by United States citizens. The Gallery has lent Adele Blochr-Bauer I to the United States in the past. The Gallery is visited by thousands of United States citizens each year. The Gallery’s collection, including the paintings at issue in this action, is advertised in the United States. The Republic has a consular office in Los Angeles. The Republic promotes Austrian filmmakers in the United States. The Republic owns real property in Los Angeles. C. Plaintiffs Claims Plaintiff seeks recovery under a variety of causes of action. Her first cause of action is for declaratory relief pursuant to 28 U.S.C. § 2201; Plaintiff seeks a declaration that the Klimt paintings should be returned pursuant to the 1998 Austrian law. Plaintiffs second cause of action is for replevin, presumably under California law; Plaintiff seeks return of the paintings. Plaintiffs third cause of action seeks rescission of any agreements by the Austrian lawyer with the Gallery or the Federal Monument Agency due to mistake, duress, and/or lack of authorization. Plaintiffs fourth cause of action seeks damages for expropriation and conversion, and her fifth cause of action seeks damages for violation of international law. Plaintiffs sixth cause of action seeks imposition of a constructive trust, and her seventh cause of action seeks restitution based on unjust enrichment. Finally, Plaintiffs eighth cause of action seeks disgorgement of profits under the California Unfair Business Practices law. D. The Present Motion Defendants argue that they are immune from suit under the doctrine of sovereign immunity, and that the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1601, et seq., does not strip them of this immunity. Defendants also argue that the Court should decline to exercise jurisdiction over the present dispute under the doctrine of forum non conveniens, that the action should be dismissed for Plaintiffs failure to join indispensable parties under Fed.R.Civ.P. 19, and that venue in the Central District of California is improper. Plaintiff argues that Defendants are subject to the Foreign Sovereign Immunities Act, but that the expropriation exception to sovereign immunity is applicable to Defendants. Plaintiff also argues that even if Defendants are not subject to the FSIA, they are required to return the paintings under international and Austrian law. Plaintiff argues that the Court should not apply the doctrine of forum non conveniens because no reasonable alternative forum is available. Plaintiff also argues that dismissal is not required under Fed.R.Civ.P. 19 because Plaintiff has received assignments of rights from other parties with interest in the paintings and because, in the absence of an alternative forum, it would be unjust to dismiss the present action. Finally, Plaintiff argues that venue is appropriate in the Central District because Defendants have failed to deliver the paintings to her within the district and because Defendants do business within the district. II. Subject Matter Jurisdiction— The Applicability of the Foreign Sovereign Immunities Act A. Rule 12(b)(1) Standard A motion to dismiss an action for lack of subject matter jurisdiction is properly brought under Fed.R.Civ.P. 12(b)(1). The objection presented by this motion is that the Court has no authority to hear and decide the case. When considering a Rule 12(b)(1) motion challenging the substance of jurisdictional allegations, the Court is not restricted to the face of the pleadings, but may review any evidence, such as declarations and testimony, to resolve any factual disputes concerning the existence of jurisdiction. See McCarthy v. United States, 850 F.2d 558, 560 (9th Cir.1988). B. Foreign Sovereign Immunities Act — General Rule The FSIA is the sole basis for jurisdiction over a foreign state and its agencies and instrumentalities. Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989). Under the FSIA, foreign states are presumed to be immune from the jurisdiction of the United States courts unless one of the FSIA’s exceptions applies. 28 U.S.C. § 1604. C. Burden of Proof Under FSIA If a plaintiffs allegations and un-controverted evidence establish that an FSIA exception to immunity applies, the party claiming immunity bears the burden of proving by a preponderance of the evidence that the exception does not apply. Siderman de Blake v. Republic of Argentina, 965 F.2d 699 (9th Cir.1992), cert. denied, 507 U.S. 1017, 113 S.Ct. 1812, 128 L.Ed.2d 444 (1993). D. Applicability of FSIA to pre-1952 Events 1. The Tate Letter Until 1952, foreign states and their agencies and instrumentalities were absolutely immune from suit in United States courts. Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 486, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983); Siderman de Blake, 965 F.2d at 705. In 1952, the Acting Legal Adviser of the State Department, Jack Tate, sent a letter (“the Tate Letter”) to the Acting Attorney General announcing that the State Department was adopting the restrictive principle of foreign sovereign immunity. Verlinden, 461 U.S. at 487, n. 9, 103 S.Ct. 1962. Under the restrictive principle of sovereign immunity, the immunity of a foreign sovereign is recognized with regard to a sovereign’s public acts (jure imperii), but is not recognized with respect to a sovereign’s private acts (jure gestionis). Siderman de Blake, 965 F.2d at 705 (citations omitted). The Tate Letter, while announcing this new policy, did not provide courts with concrete standards for determining whether to assert jurisdiction over suits against foreign states. Id. In 1976, with the passage of the FSIA, Congress provided such standards. Id. The FSIA codified the restrictive theory of sovereign immunity and conferred subject matter jurisdiction over claims against foreign sovereigns on the United States courts. Id.; H.R.Rep. No. 1487, 94th Cong., 2d Sess., reprinted in 1976 U.S.Code & Admin. News at 6613. 2. Defendant’s Position — FSIA Does Not Apply to Pre-1952 Events Defendants argue that because the FSIA was meant to codify the restrictive principle of sovereign immunity, and because this policy was not was adopted until 1952, the FSIA is not applicable to actions that occurred prior to 1952. Defendants contend, therefore, that they are entitled to absolute sovereign immunity in accordance with the State Department’s policy prior to the issuance of the Tate Letter. Defendants’ position is not without support. The Eleventh Circuit first considered this issue in 1986. See Jackson v. People’s Republic of China, 794 F.2d 1490 (11th Cir.1986), cert. denied, 480 U.S. 917, 107 S.Ct. 1371, 94 L.Ed.2d 687 (1987). At issue in Jackson were claims regarding bearer bonds issued by the Imperial Government of China in 1911 that were to mature in 1951. Id. at 1497. The Eleventh Circuit affirmed the district court’s holding that the FSIA did not confer jurisdiction for actions prior to the issuance of the Tate Letter. Id. The Eleventh Circuit reasoned that courts normally presume that legislative enactments are to apply prospectively, and that there was no reason to deviate from this presumption because the FSIA was not intended to affect the substantive law of liability. Id. The Eleventh Circuit agreed with the district court’s reasoning that to apply the FSIA to pre-1952 events would interfere with China’s established expectations of absolute immunity. Id. Therefore, the Eleventh Circuit concluded, the FSIA did not apply to pre-1952 events. Id. at 1499. In 1985, the District Court for the District of Columbia relied on Jackson and held that the FSIA did not apply to a claim based on a 1922 agreement between the plaintiff and the United States of Mexico. Slade v. United States of Mexico, 617 F.Supp. 351, 356 (D.D.C.1985). The district court in Slade, like the Eleventh Circuit in Jackson, reasoned that the presumption of prospective application of legislative enactments supported Mexico’s position that the FSIA did not apply to pre-1952 events. Id. at 356. The Slade court also had the same concerns as the Jackson court regarding interfering with the foreign sovereign’s established expectations of absolute immunity. Id. at 357. Later, in 1993, the District Court for the District of Columbia again held, relying on Jackson and Slade, that the FSIA was inapplicable to pre-1952 events. Djordje-vich v. Bundesminister Der Finanzen, Federal Republic of Germany, 827 F.Supp. 814 (D.D.C.1993). This case was affirmed by the District of Columbia Circuit on other grounds. In 1988, the Second Circuit relied on Jackson and Slade and held that the Union of Soviet Socialist Republics (“USSR”) was absolutely immune from claims based on debt instruments issued by the Russian Imperial Government in 1916 because the claims arose prior to the issuance of the Tate Letter. Carl Marks & Co. v. Union of Soviet Socialist Republics, 841 F.2d 26, 27 (2d Cir.1988), cert. denied, 487 U.S. 1219, 108 S.Ct. 2874, 101 L.Ed.2d 909 (1988). The Court noted that a retroactive application of the FSIA would adversely affect the USSR’s settled expectation of immunity from suit in the United States courts. Id. Although the Defendants’ position on the FSIA’s applicability to pre-1952 events is supported by case law, the continued viability of these cases is in doubt in light of the United States Supreme Court’s subsequent decision in Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). Landgraf, as well as cases decided after Landgraf regarding the FSIA’s application to pre-1952 events, lead the Court to conclude that the FSIA applies to pre-1952 events. E. Landgraf v. USI Film Products, Inc. In Landgraf, the United States Supreme Court held that in determining whether to apply a legislative enactment to events that occurred prior to the enactment, a court must first consider whether Congress expressly stated the statute’s reach. Landgraf, 511 U.S. at 280, 114 S.Ct. 1483. If Congress has made no expression of its intent, the court must then determine whether, if applied to events that preceded the enactment’s effective date, the statute would have a “retroactive effect”; i.e., whether it would impair rights a party possessed when he acted, impose new duties on a party, or increase a party’s liability for past conduct. Id. Statutes conferring jurisdiction generally do not have a retroactive effect. Id. at 274 (“We have regularly applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed”). “Application of a new jurisdictional rule usually ‘takes away no substantive right but simply changes the tribunal that is to hear the case.’” Id. (citation omitted). The Landgraf case noted the tension between two principles of statutory interpretation. The first principle is that normally a court is to apply the law in effect at the time it renders a decision. Id. at 264, 114 S.Ct. 1483. The second principle is that cited by the Jackson, Carl Marks, and Slade cases: Retroactivity of legislative enactments is not favored in the law. Landgraf, 511 U.S. at 264, 114 S.Ct. 1483. In its discussion of retroactive application of jurisdictional statutes, the Supreme Court noted that the first principle — application of present law — is the most relevant. “Present law normally governs in such situations because jurisdictional statutes ‘speak to the power of the court rather than the rights or obligations of the parties.’ ” Id. (citation omitted). Thus, the Supreme Court rejected the rationale that was employed by the Jackson, Carl Marks, and Slade courts in situations involving the question of retroactivity of jurisdictional statutes. In these situations, the Supreme Court favors applying the law in effect at the time of the decision. The FSIA does not affect any substantive law determining the liability of a foreign state or instrumentality. First Nat’l City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 620, 103 S.Ct. 2591, 77 L.Ed.2d 46 (1983). See also H.R.Rep. No. 94-1487 (1976), reprinted in 1976 U.S.Code Cong. & Admin. News at 6610 (“The bill is not intended to affect the substantive law of liability.”). This favors applying the FSIA to pre-1952 events. See Jeffries v. Wood, 114 F.3d 1484 (9th Cir.) (en banc) (noting that Landgraf identified statutes that confer or oust jurisdiction as an example of statutes that generally do not have a retroactive effect), cert. denied, 522 U.S. 1008, 118 S.Ct. 586, 189 L.Ed.2d 423 (1997). Other courts that have, after Landgraf, considered the applicability of the FSIA to pre-1952 events have suggested or concluded that the FSIA should apply to pre-1952 events. In 1994, the District of Columbia Circuit addressed the issue in Princz v. Federal Republic of Germany, 26 F.3d 1166 (D.C.Cir.1994), cert. denied, 513 U.S. 1121, 115 S.Ct. 923, 130 L.Ed.2d 803 (1995). There, the court noted that there is a strong argument in favor of applying the FSIA to pre-1952 events. Id. at 1170. The FSIA provides that “[cjlaims of foreign states to immunity should henceforth be decided by courts of the United States ... in conformity with the principles set forth in this chapter.” 28 U.S.C. § 1602 (emphasis added). This language, the Princz court stated, suggests that the FSIA is to be applied to all cases decided after its enactment regardless of when the plaintiffs cause of action may have accrued. Princz, 26 F.3d at 1170. The Princz court also noted that this result is supported by Landgraf because the FSIA is a jurisdictional statute that does not alter substantive legal rights. Id. at 1171. Later, in 1999, the District of Columbia Circuit held that a 1988 amendment to the FSIA could be applied to events preceding the amendment’s enactment. Creighton Limited v. Government of the State of Qatar, 181 F.3d 118 (D.C.Cir.1999). The court reasoned that the amendment was jurisdictional in nature and that therefore, under Landgraf could be applied under the principle of statutory interpretation requiring the court apply the law in effect at the time it renders a decision. Id. at 124. A district court in the Northern District of Illinois relied on Princz and Creighton and held that the FSIA could be applied to pre-1952 events. Haven v. Rzeczpospolita Polska (Republic of Poland), 68 F.Supp.2d 943, 945 (N.D.Ill.1999) (denying Poland’s motion to dismiss claims based on allegations of expropriation of real property during and shortly after World War II). Although the Haven court noted that the determination of whether to apply the FSIA to pre-1952 events was a difficult question to resolve, the court noted that the post -Landgraf cases of Princz and Creighton were more persuasive than the pre-Landgraf cases of Jackson and Carl Marks. This Court agrees. For these reasons, the Court holds that the FSIA applies to pre-1952 events. F. Expropriation Exception to Sovereign Immunity 1. An Exception of the FSIA Must Apply Even though the FSIA applies to pre-1952 events, one of the exceptions to the FSIA’s general rule of immunity must apply, or Austria is entitled to sovereign immunity. Plaintiff claims that the “expropriation exception” to the FSIA applies. See 28 U.S.C. § 1605(a)(3). That exception provides: (a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case ... (3) in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state; or that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States Id. This exception has two distinct clauses, separated by a semi-colon. See H.R.Rep. No. 1487, 94th Cong., 2d Sess., reprinted in 1976 U.S.Code & Admin. News at 6613. The first clause “involves cases where the property in question or any property exchanged for such property is present in the United States.” Id. Because the Klimt paintings are not present in the United States, the first clause does not apply. The second clause involves cases in which “the property, or any property exchanged for such property, is (i) owned or operated by an agency or instrumentality of a foreign state and (ii) that agency or instrumentality is engaged in commercial activity in the United States. Under the second [clause], the property need not be present [in the United States] in connection with a commercial activity of the agency or instrumentality.” Id. This exception has three distinct requirements. First, there must be property taken in violation of international law- — • i.e., the property must have been expropriated. Second, the property must be “owned or operated by an agency of or instrumentality of a foreign state .... ” Finally, the agency or instrumentality must be engaged in commercial activity in the United States. 2. Property Must Be Taken In Violation of International Law At the jurisdictional stage, a court need not determine if property was taken in violation of international law; so long as the plaintiffs claims are substantial and non-frivolous, there is a sufficient basis for the exercise of the court’s jurisdiction. Siderman de Blake, 965 F.2d at 711. The foreign state against whom a claim is made need not be the sovereign that expropriated the property at issue. See 28 U.S.C. § 1605(a)(3) (excepting claims regarding property “taken in violation of international law” rather than excepting claims against foreign states that have taken property in violation of international law). There are three requisites to a valid taking under international law. Id. First, the taking must serve a public purpose; second, aliens must not be discriminated against or singled out for regulation by the state; and third, payment of just compensation must be made. Id. at 711-12. Here, Plaintiffs allegations establish a substantial and non-frivolous claim that a taking in violation of international law occurred on at least two occasions. First, the Nazi “aryanization” of Ferdinand’s art collection by the Nazis is undeniably a taking in violation of international law. The taking was not for public purpose; instead, some of the art was distributed to the collections of Hitler, Goring, and Dr. Fürher. Other art was sold for the benefit of the Nazi party. Moreover, the Nazi’s aryanization of art collections was part of a larger scheme of the genocide of Europe’s Jewish population, and it requires no semantic stretch to characterize this program as singling out “aliens” for regulation by the state. Finally, no payment of just compensation was made as a result of this taking. Next, Plaintiff has established a substantial and non-frivolous claim that a taking in violation of international law occurred when the paintings were “donated” to the Gallery in 1948 in order to secure export licenses for other works of art. These paintings were not taken for a public purpose; Austria’s own laws required their return to their rightful owners. Moreover, Austria’s acknowledged practice of requiring export licenses for works of art stolen by the Nazis singled out aliens for regulation by the state because aliens would be much more likely to seek export of these artworks than would Austrian citizens. Additionally, because Austria’s laws required the return of these artworks to their rightful owners, the exchange of certain works of art for export permits on other works of art cannot be viewed as just compensation. Therefore, Plaintiff has made out a substantial and non-frivolous claim that these works of art were taken in violation of international law. Defendants argue that Plaintiff must first exhaust her domestic remedies regarding her claims for the artworks before seeking the intervention of the United States courts. A plaintiff cannot complain that a taking has not been fairly compensated unless the plaintiff has first pursued and exhausted the domestic remedies in the foreign state that is alleged to have caused the injury. Greenpeace, Inc. v. State of France, 946 F.Supp. 773, 783 (C.D.Cal.1996). However, this exhaustion requirement is excused when the domestic remedies are a sham, are inadequate, or would be unreasonably prolonged. Restatement (Third) of Foreign Relations Law, § 713, cmt. f (1986). For the reasons stated below in section IV, regarding the doctrine of forum non conveniens, the Court finds that the Austrian courts provide an inadequate forum for resolution of Plaintiffs claims. For these reasons, Plaintiffs claim meets the “taking” requirement of the expropriation exception of the FSIA. 3. Property Must Be Owned or Operated by Agency or Instrumentality of a Foreign State The FSIA defines an “agency or instrumentality of a foreign state” as any entity that is a separate legal person, that is an organ of a foreign state, and that is not a citizen of the United States or created under the laws of any third country. Until January 1, 2000, the Gallery was an agency or instrumentality of a foreign state. On January 1, 2000, the Gallery was privatized and is no longer an organ of the Republic. Nevertheless, this change in the structure of the Gallery’s operations does not divest this Court of subject matter jurisdiction because the events in question occurred prior to the Gallery’s privatization. See Delgado v. Shell Oil Co., 890 F.Supp. 1824 (S.D.Tex.1995) (holding that jurisdiction under the FSIA over an Israeli company was appropriate where Israel owned a majority of shares of the company when plaintiffs were injured by the company’s products even though subsequent changes in ownership resulted in the company no longer being considered “an agency or instrumentality” of Israel). The paintings are owned by the Republic, but are exhibited by the Gallery. The exhibition of these paintings fulfills the “owned or operated by an agency or instrumentality” requirement. See, e.g., Siderman de Blake, 965 F.2d at 712. Therefore, Plaintiffs claim meets the “owned or operated” requirement of the expropriation exception of the FSIA. 4. The Agency or Instrumentality Must Re Engaged in Commercial Activity Finally, the agency or instrumentality must be engaged in commercial activity in the United States. “Commercial activity” is defined by the FSIA as “either a regular course of commercial conduct or a particular commercial transaction or act.” 28 U.S.C. § 1603(d). “The commercial character of an activity [is] determined by reference to the nature of the course of conduct of a particular transaction or act, rather than by reference to its purpose.” Id. “[W]hen a foreign government acts ... in a manner of a private player -within [the market], the foreign sovereign’s acts are “commercial” within the meaning of the FSIA.” Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 614, 112 S.Ct. 2160, 119 L.Ed.2d 394 (1992) (holding that the issuance of bonds by the Republic of Argentina was a “commercial activity” within the meaning of the FSIA). In determining whether a sovereign’s acts are commercial, the focus of the inquiry is not whether the sovereign acts with a profit motive; “Mather, the issue is whether the particular actions that the foreign state performs (whatever the motive behind them) are the type of actions by which a private party engages in trade and traffic or commerce.” Id. (citations and internal quotation marks omitted; emphasis in the original). Therefore, while a sovereign’s issuance of regulations limiting foreign currency exchange is a sovereign activity (because a private party could not ever exercise this authority), a contract by a sovereign to buy army boots or weapons is a commercial activity (because private companies can contract to acquire goods). Id. Therefore, the issue before the court is whether the type of actions engaged in by the Gallery in the United States constitutes “commercial activity.” According to the allegations in the Complaint, the Gallery publishes a museum guidebook in English available for purchase by United States citizens, including those in the Central District, and the Gallery’s collection, including the paintings at issue in this action, is advertised in the United States, including in the Central District. Moreover, the Gallery is visited by thousands of United States citizens each year, including United States citizens that reside in the Central District. Additionally,' the Gallery has lent Adele Bloch-Bauer I to the United States in the past. Plaintiff argues that operating a museum is an activity in which private parties engage. Indeed, the privatization of the Gallery in January 2000 bears out this argument. Cf. Aschenbrenner v. Conseil Regional de Haute-Normandie, 851 F.Supp. 580, 584 (S.D.N.Y.1994) (holding that an art exposition was not a “commercial activity” within the meaning of the FSIA). Plaintiffs argument is well-founded, even though the Gallery itself operates on foreign soil. In Siderman de Blake, the Ninth Circuit held that a government-expropriated hotel’s solicitation of American guests, the hotel’s entertainment of those guests, and the acceptance of payment from credit cards and traveler’s checks of those guests was sufficient commercial activity to confer jurisdiction under the FSIA. Siderman de Blake, 965 F.2d at 712. The Court concludes that under Siderman de Blake, the Gallery engages in commercial activity under the FSIA. The Gallery also engages in commercial activity by publishing its guidebook that is available for purchase in the United States. See Aschenbrenner, 851 F.Supp. at 584 (suggesting that publication of a book containing photographs of an artist’s works was a commercial activity). . The Gallery also engages in commercial activity by advertising in the United States. See Holden v. Canadian Consulate, 92 F.3d 918 (9th Cir.1996) (holding that promotion of products in the United States by an employee hired by a foreign sovereign constituted commercial activity because private parties engage in product promotion), cert. denied, 519 U.S. 1091, 117 S.Ct. 767, 136 L.Ed.2d 713 (1997). Defendants argue that even if the Gallery engages in commercial activity, the Court still does not have jurisdiction over the Republic. Defendant’s argument is based on the assumption that the Court may exercise jurisdiction over a foreign sovereign under only the first clause of the expropriation exception, which requires that the property be present in the United States and which is inapplicable to the present claims. This argument, however, ignores the language of § 1605(a). All the enumerated exceptions to the FSIA in § 1605(a) clearly relate to when a court may exercise jurisdiction over a foreign state. Section 1605(a) begins with the clause “(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case ...,” and then goes on to list a number of circumstances in which sovereign immunity is inapplicable. The second clause of § 1605(a)(3) should be read in the disjunctive, so that a foreign state shall not be immune when expropriated property is owned or operated by the foreign state’s agency or instrumentality when that agency or instrumentality engages in commercial activity in the United States. Defendants’ reading of the •second clause of § 1605(a)(3), limiting immunity to the agency or instrumentality, is not consistent with the language of the statute or its legislative history. For these reasons, the Court concludes that the expropriation exception to the FSIA applies to Plaintiffs claims, and Austria is not entitled to immunity. III. Personal Jurisdiction Defendants also argue that eyen if an exception to sovereign immunity applies, Plaintiffs suit still cannot be. maintained unless the Court has personal jurisdiction over the Republic and the Gallery. The legislative history of the FSIA reveals that the intent of Congress was that if one of the FSIA exceptions to immunity existed, the constitutional due process requirements of personal jurisdiction were satisfied. H.R.Rep. No. 1487, 94th Cong., 2d Sess., reprinted in 1976 U.S.Code & Admin. News at 6613 (“Significantly, each of the immunity provisions in the bill, sections 1605-1607, requires some connection between the lawsuit and the United States. These immunity provisions, prescribe the necessary contacts which must exist before our courts can exercise personal jurisdiction.”) Until 1992, Ninth Circuit authority had suggested that the Court would be required in a case involving FSIA to engage in a “minimum contacts” analysis. See Siderman de Blake, 965 F.2d at 704 n. 4 (“[T]he exercise of personal jurisdiction also must comport with the constitutional requirement of due process”); Gregorian v. Izvestia, 871 F.2d 1515 (9th Cir.1989) (“[I]f defendants are not entitled to immunity under the FSIA, a court must consider whether the constitutional constraints of the Due Process Clause preclude the assertion of personal jurisdiction over them.”), cert. denied, 493 U.S. 891, 110 S.Ct. 237, 107 L.Ed.2d 188 (1989). Later ease law, decided after the United State Supreme Court’s decision in Weltover, suggests a different approach. In Weltover, the Court explicitly declined to decide whether a foreign state is a “person” under the Due Process Clause because it found that due process had been satisfied. The Court cited to Carolina v. Katzenbach, 383 U.S. 301, 323-24, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966), which held that States of the Union are not “persons” for purposes of the Due Process Clause. This citation suggests that the Court, in a case that properly presents the issue, would hold that foreign sovereigns are not entitled to due process protection. Other courts, including the Ninth Circuit, have since explicitly declined to decide whether foreign sovereigns are “persons” under the Due Process Clause. Theo. H. Davies & Co., Ltd. v. Republic of the Marshall Islands, 174 F.3d 969 (9th Cir.1998); S & Davis Int’l, Inc. v. The Republic of Yemen, 218 F.3d 1292 (11th Cir.2000); Hanil v. PT. Bank Negara Indonesia, 148 F.3d 127, 130 (1998). In Theo. H. Davies, in light of the suggestion in Weltover that foreign sovereigns are not “persons” for purposes of the Due Process Clause, the Ninth Circuit significantly altered its previous approach and assumed, but did not decide, that foreign states are entitled to due process protection. Theo. H. Davies, 174 F.3d at 975 n. 3 (citing Weltover). Many courts considering whether they had personal jurisdiction over a foreign sovereign since Weltover have not been required to determine if the Due Process Clause applies to foreign sovereigns because those courts have been able to conclude without much analysis that due process has been satisfied. See Theo. H. Davies, 174 F.3d at 974-76; Republic of Yemen, 218 F.3d at 1303; Hanil, 148 F.3d at 130. This is because the more commonly employed exception to foreign sovereign immunity under the FSIA, the commercial activity exception, requires that the action be based on commercial activity carried on in the United States, connected with the United States, or that has a direct effect on the United States. See 28 U.S.C. § 1605(a)(2). When these requirements have been met, courts have been able to conclude that they have personal jurisdiction over the foreign sovereign by virtue of these contacts with the United States and that therefore the due process requirements for personal jurisdiction have been satisfied. See Theo. H. Davies, 174 F.3d at 974-76; Republic of Yemen, 218 F.3d at 1303; Hanil, 148 F.3d at 130. It is less clear whether sufficient activity to satisfy the expropriation exception to foreign immunity would also satisfy due process. However, such an analysis is not required because foreign sovereigns are not “persons” for purposes of the Due Process Clause. As previously noted, Ninth Circuit case law prior to Weltover, by requiring a “minimum contacts” analysis, had implicitly held that foreign sovereigns are “persons” entitled to due process. See Siderman de Blake, 965 F.2d at 704 n. 4; Gregorian v. Izvestia, 871 F.2d 1515. The Ninth Circuit has since retreated from this implicit holding by following the Weltover court’s lead in assuming without deciding that due process was satisfied. Theo. H. Davies, 174 F.3d at 975 n. 3 (citing Weltover). The District Court for the District of Columbia has considered this issue in depth and has concluded that foreign sovereigns are not “persons” within the meaning of the Due Process Clause. See Flatow v. Islamic Republic of Iran, 999 F.Supp. 1 (D.D.C.1998); World Wide Minerals, Ltd. v. Republic of Kazakhstahn, 116 F.Supp.2d 98 (D.D.C.2000) (following Flatow); Daliberti v. Republic of Iraq, 97 F.Supp.2d 38, 49 (D.D.C.2000) (following Flatow and noting that it would seem that a foreign sovereign should enjoy no greater due process rights than the sovereign states of the union). This Court finds the Flatow court’s rationale persuasive. The Flatow court first noted that most courts have simply assumed without deciding that a foreign sovereign is a “person” for purposes of constitutional due process analysis and that this assumption has rarely been examined in depth. Flatow, 999 F.Supp. at 19. The Flatow court cited Afram Export Corp. v. Metallurgiki Halyps, S.A., 772 F.2d 1358, 1362 (7th Cir.1985), which noted that an unexamined assumption regarding the ability of foreign corporations to object to extraterritorial assertions of personal jurisdiction was probably now “too solidly entrenched” to be questioned. The Flatow court rejected the notion that the unexamined assumption with which it was faced could not be questioned. So, too, does this Court. The United States Supreme Court has held that a State of the United States is not entitled to substantive due process. Katzenbach, 383 U.S. at 323-24, 86 S.Ct. 803. Similarly, the United States Supreme Court has noted that “in common usage, the term ‘person’ does not include the sovereign, and statutes employing the word are ordinarily construed to exclude it.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 64, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (internal alterations and citations omitted); see also Rios v. Marshall, 530 F.Supp. 351, 372 (S.D.N.Y.1981) (holding that foreign states are not “persons” subject to antitrust liability under the Sherman Act). Several courts have held that the federal government, state governments, political subdivisions and municipalities within the United States are not “persons” within the meaning of the Due Process Clause. See In re Herndon, 188 B.R. 562, 565 n. 8 (Bkrtcy.E.D.Ky.1995) (“The Fifth Amendment accords due process of law to persons. A governmental entity is not a ‘person.’ The Fifth Amendment protects persons from the government; its does not necessarily protect one branch of the government from the actions of another branch.”); El Paso County Water Imp. Dist. No. 1 v. International Boundary and Water Comm’n, 701 F.Supp. 121 (W.D.Tex.1988); City of Sault Ste. Marie, Mich. v. Andrus, 532 F.Supp. 157 (D.D.C. 1980); State of Oklahoma v. Federal Energy Regulatory Comm’n, 494 F.Supp. 636 (D.C.Okla.1980), aff'd on other grounds, 661 F.2d 832 (10th Cir.1981), cert. denied sub nom., Texas v. Federal Energy Regulatory Comm’n, 457 U.S. 1105, 102 S.Ct. 2902, 73 L.Ed.2d 1313 (1982). The personal jurisdiction requirement recognizes an individual liberty interest that is conferred by the Due Process Clause. Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982). The personal jurisdiction requirement represents a restriction on judicial power not as a matter of sovereignty, but as a matter of individual liberty. Id. “It would be illogical to grant this personal liberty interest to foreign states when it. has not been granted to federal, state or local governments of the United States.” Flatow, 999 F.Supp. at 21. Accordingly, this Court holds that a foreign state is not a “person” under the Due Process Clause of the United States Constitution. The previously-cited House Report’s language is unambiguous — it states that in personam jurisdiction has been addressed within the requirements of the statute; the FSIA does not grant a liberty interest for the purposes of substantive due process analysis. H.R.Rep. No. 1487, 94th Cong., 2d Sess., reprinted in 1976 U.S.Code & Admin. News at 6611-12. This Court joins with the Flatow court’s observation that “[fjoreign sovereign immunity, both under the common law and now under the FSIA, has always been a matter of grace and comity rather than a matter of right under United States law.” Verlinden, 461 U.S. at 486, 103 S.Ct. 1962, citing Schooner Exchange v. M’Faddon, 11 U.S. (7 Cranch) 116, 3 L.Ed. 287 (1812). Where neither the Constitution nor Congress grants a right, it is inappropriate to invent and perpetuate it by judicial fíat. V. Effect of International Agreements on the FSIA Defendants correctly argue that the FSIA must be interpreted subject to international agreements that were in existence at the time of the FSIA’s enactment. Defendants argue that Plaintiffs claims are barred by Articles 21 and 26 of the Austrian State Treaty of 1955, 6 UST 2369, and The 1959 Austrian Exchange of Notes Constituting an Agreement Concerning the Settlement of Certain Claims under Article 26 of the Austrian State Treaty (“1959 Agreement”). Plaintiff correctly points out, however, that Article 21 of the 1955 Treaty, providing that Austria would not be required to make reparations for damages arising out of the existence of war after September 1, 1939, was an agreement that Austria need not make reparations to the Allied Forces. Other provisions of this Treaty concern themselves 'with Austria’s responsibility regarding the return of property improperly seized from its citizens during the Nazi invasion. The second paragraph of Article 26 concerns only heirless or unclaimed property. The paintings at issue are neither. The 1959 Agreement established a fund for settlement of certain enumerated claims, e.g., pensions, insurance policies, and bank accounts, but works of art were not among these enumerated claims. Moreover, the United States government explicitly reserved the right to pursue unknown claims. Therefore, the existing ■ international agreements at the time the FSIA was enacted do not require granting immunity to Austria as to Plaintiffs claims; in fact, these international agreements placed responsibility on Austria to return property that was improperly seized by the Nazis. IY. Forum, Non Conveniens Defendants argue that Plaintiffs claims should be dismissed under the doctrine of forum non conveniens. Plaintiff argues that this doctrine should not be applied because no reasonable alternative forum exists. Under the doctrine of forum non conveniens, a district court “may decline to exercise its jurisdiction, even though the court has jurisdiction and venue, when it appears that the convenience of the parties and the court and the interests of justice indicate that the action should be tried in another forum.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 250, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). The party moving for dismissal under the doctrine of forum non conveniens must demonstrate the existence of an adequate alternative forum and that the balance of relevant private and public interest factors favor dismissal. Creative Technology, Ltd. v. Aztech Sys. Pte, Ltd., 61 F.3d 696, 699 (9th Cir.1995). The existence of the availability of an adequate alternative forum is a threshold issue, and dismissal is not appropriate if such a forum is unavailable. See id. Even though a court may dismiss on forum non conveniens grounds when the foreign forum does not provide the same range of remedies as are available in the home forum, the alternative forum must provide some potential avenue for redress. Ceramic Corp. of America v. Inka Maritime Corp., 1 F.3d 947, 949 (9th Cir.1993). A foreign forum is. inadequate when it offers no remedy at all. See, e.g., El-Fadl v. Central Bank of Jordan, 75 F.3d 668, 677-78 (D.C.Cir.1996). Austria does not provide an adequate alternative forum to Plaintiff. Plaintiffs claims, if asserted in Austria, will most likely be barred by the statute of limitations of thirty years. Because of California’s “discovery rule” with regard to stolen works of art, and assuming as true the allegations in the Complaint, Plaintiff would not be barred on statute of limitations grounds in this forum. If Plaintiffs claims are barred by the statute of limitations, she would be left without a remedy; clearly, therefore, Austria is not an adequate alternative forum for Plaintiffs claims. Further, in this action for return of artwork valued at approximately $150 million, Austria’s filing fees, even when reduced pursuant to Plaintiffs fee petition, also makes Austria an inadequate alternative forum. Austria’s fee structure would require Plaintiff to pay the Austrian courts a filing fee that approximates the sum total of her liquid assets. This amount varies between approximately $130,000 to $200,000, depending on the exchange rate. Additionally, in the event Plaintiff loses, Plaintiff would be required to pay costs, including attorney’s fees, to the Republic and the Gallery. A foreign forum’s requirement that the plaintiff post a bond to proceed with litigation will generally not make the forum inadequate, unless the plaintiff is indigent or the excessively high amount of the bond makes it unduly burdensome. See 17 Moore’s Federal Practice, § 111.74[2][d] (Matthew Bender 3d ed.); see also Nai-Chao v. Boeing Co., 555 F.Supp. 9 (N.D.Cal.1982), aff'd sub nom., Cheng v. Boeing Co., 708 F.2d 1406 (9th Cir.1983) (noting that filing fee did not automatically render foreign forum inadequate); cert. denied, 464 U.S. 1017, 104 S.Ct. 549, 78 L.Ed.2d 723 (1983). Here, it is clear that Plaintiff is not indigent. Nevertheless, the Court finds that the filing fee required by the Austrian courts is oppressively burdensome. Paying even the reduced amount would force an 85-year-old woman to expend a great majority, if not all, of her liquid assets. Moreover, Austria has appealed the reduction in filing fees, and contends that Plaintiff should be required to pay an even greater amount. For these reasons, Defendants have failed to demonstrate that Austria provides an adequate alternative forum and therefore the Court will not dismiss Plaintiffs claims under the doctrine of forum, non conveniens. VII. Joinder of Necessary and Indispensable Parties Defendants argue that the present action must be dismissed pursuant to Fed. R. Civ. P 19(a) because Plaintiff has failed to join necessary parties. A. Text of Rule 19(a) Rule 19(a) provides: (a) Persons to be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. Fed.R.Civ.P. 19(a). Rule 19(a) provides three separate circumstances in which a person is to be considered a person to be joined if feasible (commonly referred to as “a necessary party”). First, a person is a necessary party if in the person’s absence complete relief cannot be accorded among those already parties. Fed.R.Civ.P. 19(a)(1). The second and third circumstances share a common preliminary requirement: The person must claim an interest relating to the subject of the action. Fed.R.Civ.P. 19(a)(2). The second circumstance in which a person is a necessary party is when the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may as a practical matter impair or impede the person’s ability to protect that interest. Fed.R.Civ.P. 19(a)(2)(i). Third, a. person is a necessary party if the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence leaves any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. Fed. R.Civ.P. 19(a)(2)(ii). If any one of these three circumstances apply, the person is a necessary party. Shimkus v. Cersten Cos., 816 F.2d 1318, 1322 (9th Cir.1987). B. Rule 19(a)(1) The “complete relief’ clause of Rule 19(a) addresses the interest in comprehensive resolution of a controversy and the desire to avoid multiple lawsuits regarding the same cause of action. Northrop Corp. v. McDonnell Douglas Corp., 705 F.2d 1030, 1043 (9th Cir.1983), cert. denied, 464 U.S. 849, 104 S.Ct. 156, 78 L.Ed.2d 144 (1983). Nevertheless, this provision is concerned only with “relief as between the persons already parties, not as between a party and the absent person whose joinder is sought.” Eldredge v. Carpenters 16 N. Cal. Counties Jt. Apprenticeship and Training Comm., 662 F.2d 534, 537 (9th Cir.1981), cert. denied, 459 U.S. 917, 103 S.Ct. 231, 74 L.Ed.2d 183 (1982). The present action would resolve all claims between those already party to the present action; the presence of the other heirs is not required to fully adjudicate Plaintiffs claim to the paintings. This is so notwithstanding that others may assert an interest in the paintings as well. The Third Circuit has held that a party is not a necessary party based on the fact that the party might have a claim as to the property at issue in an in rem action. Sindia Expedition, Inc. v. The Wrecked and Abandoned Vessel Known as the Sindia, 895 F.2d 116 (1990) (holding that the state was not a necessary party in a controversy regarding a salvaged shipwrecked vessel based on state’s assertion of ownership rights in the vessel and noting that “[t]he possibility that a successful party may have to defend its rights to the [vessel] in a subsequent suit brought by the State does not make [the state] a necessary party”). By the same token, that the absent parties here may later claim an interest in the subject of the action — the paintings — does not make them necessary parties. The heirs are not necessary parties within the meaning Fed.R.Civ.P. 19(a)(1). C. Rule 19(a)(2) Under both clauses of Rule 19(a)(2), the absent party must claim an interest relating to the subject matter of the action. This interest may be a legally protected interest or an interest that “is to be determined from a practical perspective.” Aguilar v. Los Angeles County, 751 F.2d 1089 (1985), cert. denied, 471 U.S. 1125, 105 S.Ct. 2656, 86 L.Ed.2d 273 (1985). The heirs undeniably have an interest relating to the subject matter of the action. This action seeks return of six paintings. Among them, the heirs have a 100% interest in the paintings. Plaintiff claims only a subset of this interest — 25%. Nevertheless, the heirs do not “claim an interest” within the meaning of 19(a)(2). When persons are aware of an action but choose not to claim an interest by failing to join in the action, they are not considered necessary, parties. United States v. Bowen, 172 F.3d 682, 689 (9th Cir.1999) (holding that the district court did not err by finding that a party who was aware of an action but chose not to claim an interest was not a necessary party under Rule 19). For this reason, the heirs are not persons who claim an interest in the action and are therefore not necessary parties under Fed. R. Civ. P 19(a)(2)(i) or (ii). Even if this were not the case, however, the heirs would not be necessary parties under Rule 19(a)(2)(i) or (ii) for other rea sons. D. Rule 19(a)(2)(i) The “impair or impede” clause of Rule 19(a)(2)(i) focuses on pr