UNITED STATES DISTRICT COURT EASTERN DISTRICT OF … · 2 remand,2 particularly if the federal...

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

LLOYD FRANCIS and JENNIFER DECUIR, on * behalf of themselves and on behalf of all others similarly situated * CIVIL ACTION Plaintiffs, * NO. 18-9906 VERSUS * SECTION L MAKE IT RIGHT-NEW ORLEANS, LLC; MAKE * JUDGE FALLON IT RIGHT FOUNDATION; MAKE IT RIGHT- NEW ORLEANS HOUSING LLC; THOMAS F. * MAGISTRATE JUDGE ROBY DARDEN, III, JAMES MAZZUTO; SAMUEL W. WHITT; S.H. “JIM” FOGLEMAN; LATOYA * KING; VERONICA TAYLOR; BRAD PITT; MAURICE COLEMAN; JOHN SADER; CRAIG * TURNER; TANYA HARRIS; JANE AND JOHN DOES 1-50 * *******************************************

PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO

DEFENDANT, PITT’S RULE 12(b)(6) MOTION TO DISMISS

Plaintiffs Lloyd Francis and Jennifer Decuir, individually and on behalf of all others similarly

situated, make a special appearance herein for the limited purpose of opposing Defendant Brad

Pitt’s Rule 12(b)(6) Motion to Dismiss. Plaintiffs reserve all rights to contest jurisdiction all as

more fully set forth in the Motion to Remand and supporting Memorandum filed at Dkt. No. 15.

Plaintiffs further reserve their right to file a Supplemental Complaint. Plaintiffs cannot file a

Supplemental Complaint prior to the Court deciding Plaintiffs’ Motion to Remand. Federal courts

consider a number of factors in determining whether a party has waived his right to seek remand.1

A party that engages in affirmative activity in federal court typically waives the right to seek a

1 See Midwestern Distrib., Inc. v. Paris Motor Freight Lines, Inc., 563 F.Supp. 489, 493–95 (E.D.Ark.1983).

Case 2:18-cv-09906-EEF-KWR Document 40 Filed 12/11/18 Page 1 of 26

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remand,2 particularly if the federal court has ruled unfavorably.3 The Fifth Circuit in Johnson v.

Odeco Oil & Gas Co., held that a plaintiff waived the right to remand when a plaintiff has: engaged

in discovery; amended a complaint; and filed motions for summary judgment.4

Although Plaintiffs believe their original Petition is both technically and substantively

sufficient, should this Honorable Court disagree, Plaintiffs request that they be permitted time and

leave to amend their Petition to cure any defects prior to dismissal of this matter. Should the Court

grant the Defendant’s Motion to Dismiss, Plaintiffs request that such dismissal be without

prejudice and that Plaintiffs be permitted leave to amend their petition with a preservation of

Plaintiffs’ argument that their Petition is both technically and substantively sufficient.

This proposed class action was brought on behalf of purchasers of “Make It Right” homes

in Louisiana. This is the second of three Rule 12(b)(6) Motions to Dismiss filed by various

defendants. Defendant Pitt seeks dismissal based on three arguments. First, Mr. Pitt argues as a

Director of the non-profit Foundation, he does not owe a duty to third parties and specifically no

facts were alleged that support a conclusion that Mr. Pitt owed some personal duty to the Plaintiffs.

Second, the Petition lacks any factual allegations that Mr. Pitt engaged in wrongful conduct vis-a-

vis the Plaintiffs. Third, Plaintiffs have not stated the requisite elements of their claims under the

Louisiana Unfair Trade Practices Act (“LUPTA”). As will be demonstrated below, Defendant’s

Motion to Dismiss should be denied.

I. STATEMENT OF FACTS

The Make It Right Foundation was incorporated on August 15, 2007 as a Delaware not-

for-profit corporation to assist in the sustainable redevelopment of New Orleans’ Lower Ninth

2 See Financial Timing Pubs., Inc. v. Compugraphic Corp., 893 F.2d 936, 940 (8th Cir.1990), 3 See Nolan, 871 F.2d 78, 79. See for example, Koehnen v. Herald Fire Ins. Co., 89 F.3d 525, 527 (8th Cir. 1996) (holding that where plaintiff sought to amend his complaint, he waived his right to remand). 4 See Johnson v. Odeco Oil & Gas Co., 864 F.2d 40 (5th Cir. 1989).


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Ward following the devastation of that area after Hurricane Katrina. Make It Right Foundation,

through its subsidiaries Make It Right-New Orleans, LLC and/or Make It Right-New Orleans

Housing, LLC, constructed and sold 106 homes in the Lower Ninth Ward of New Orleans. The

seller(s) represented and promised inter alia that the homes were quality built, sustainable, green,

safe and healthy buildings designed to withstand hurricane force winds.

Affiliated with the non-profit Foundation are two additional for-profit limited liability

companies, Make It Right-Solar, Inc., incorporated November 4, 2009, which was assigned the

federal and state tax credits from the Make It Right home purchasers, and Make It Right NMTC,

LLC, incorporated March 17, 2009. The NMTC Program is a federal program which incentivizes

community development and economic growth through the use of tax credits that attract private

investment to distressed communities by permitting individual and corporate investors to receive

a tax credit against their federal income tax in exchange for making equity investments in

specialized financial intermediaries called Community Development Entities. The credit totals 39

percent of the original investment amount and is claimed over a period of seven years.5

Defendant Brad Pitt is the founder and a Director of Make It Right Foundation. As such,

he has held and continues to hold positions of authority, control, and management over the

affiliated Make It Right subsidiaries. As early as 2008 or 2009, Brad Pitt knew of frequent

complaints made by homeowners. These complaints informed Defendant Pitt of the defective

conditions in the Make It Right homes. Homeowners reported problems directly to Make It Right

at the New Orleans principal office, as they were instructed to do. Homeowner complaints included

water intrusion, mold growth, and significant structural problems. Make It Right judicially

admitted in its recent lawsuit against John Williams filed in the Civil District Court for the Parish

5 https://www.cdfifund.gov/programs-training/Programs/new-markets-tax-credit/Pages/default.aspx.


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of Orleans on September 18, 2018, that it became aware of these problems6 “[w]ithin a year of

completion, problems began to appear in the first homes. Most of these problems were related to

moisture and water intrusion into the newly built homes, with the first such problems being

reported in 2009.”

The Make It Right Foundation, directors, and employees on the ground in New Orleans

regularly spoke to residents about these issues and knew of these defects. The Make It Right

directors and employees on the ground, made promises to repair the homes and in some instances

made repairs. However, these repairs were often inadequate and did not provide the homeowners

with the true warranty repairs to which they were entitled. The Make It Right Directors, and

employees in New Orleans contemporaneously reported the problems to the Foundation’s Board

of Officers and Directors.

In the 2014 Federal Form 990 tax filing, the Make It Right Foundation for the first time

identified significant issues related to building materials used in the construction of completed

homes and also identified issues related to the design of homes that required significant repair

costs. The Officers and Directors of the Foundation were aware of these problems yet never

provided homeowners with notice of the design and material defects and therefore fraudulently

deprived homeowners of their right to pursue legal actions under Louisiana’s New Home Warranty

Act, codified at R.S. 9:3141 et seq.7

Beginning in 2016, at the request of the Board of Directors, a national engineering firm

was retained to conduct structural inspections of many Make It Right homes in New Orleans. The

inspections were made with the consent of the homeowners based on promises that the results of

the engineering inspections would be shared with the homeowners. However, despite receiving

6 Civil District Court for the Parish of Orleans, Proceedings No. 18-9399. 7 See Dkt. 1, Exhibit A, ¶ 26.


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repeated promises that the results of the engineering inspections would be forthcoming, none of

the homeowners have ever received the engineering reports on their homes or even received a

verbal report of the findings. (See Petition, Paragraphs 28 – 34).

The Foundation solicited over $43M in donations, federal, and local grants – all on the

false promises that quality built, sustainable, green, safe and healthy buildings designed to

withstand hurricane force winds would be affordably sold to Louisiana citizens in the Lower Ninth

Ward. While Make It Right’s lawsuit against John Williams recognized significant defective

conditions as early as 2009, the Foundation did not recognize any warranty repairs in its tax filings

until 2014 which, for the first time, recognized $4 million in warranty repairs that were reportedly

necessary as early as 2013. Still, MIR entities still did not complete the repairs or notify the

homeowners of their warranty obligations. This information was withheld from the homeowners

until after the homeowners lost causes of action under Louisiana’s New Home Warranty Act. The

Foundation also withheld this information from its donors, and the federal and local governments

who provided donations and grants.

The problems made known to Make It Right in the first year persist to the present time.”

II. LAW AND ANALYSIS

A dismissal motion under Rule 12(b)(6) challenges a complaint's compliance with federal

pleading requirements. Pursuant to FRCP Rule 8(a)(2), a pleading must contain a “short and plain

statement of the claim showing that the pleader is entitled to relief.” The complaint must “‘give

the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ”8 To meet

this requirement, the complaint must be supported by factual allegations.9 Moreover, this court

8 Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L. Ed.2d 80 (1957). 9 Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L. Ed.2d 868 (2009).


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“must accept as true all of the factual allegations contained in the complaint.”10 Dismissal

under Rule 12(b)(6) is inappropriate unless it appears beyond doubt that the plaintiff cannot prove

any set of facts to support his or her allegations.11

A. Plaintiffs’ Petition sets forth factual allegations giving rise to all causes of action against all defendants.

Defendant mistakenly argues that only five factual allegations and only four causes of

action pertain to him. Plaintiffs’ Petition initially identifies the Plaintiffs and Defendants, (Petition

¶ 1 and 2)12; next, the petition identifies the venue of the acts and omissions (Petition ¶ 3)13;

Plaintiffs’ Petition then defines the class (Petition ¶ 4-6).14 Paragraphs 7 through 53 set forth

factual allegations which are adopted in each successively stated cause of action.15 Moreover,

under each successive cause of action, all of the preceding paragraphs are adopted as if fully stated

therein. In other words, the Petition is structured such that every allegation stated is applicable to

Defendant Brad Pitt and every other Defendant.

B. Plaintiffs’ have stated direct claims against Defendant Pitt under both Louisiana and Delaware law.

Defendant argues that Delaware law governs disputes regarding the relationship between

the officers, directors, and shareholders and the officers’ and directors’ fiduciary duties. However,

Plaintiffs have stated a direct claim against Defendant Pitt not a derivative claim. Plaintiffs are

victims of fraud and warranty creditors of the Foundation and/or its subsidiaries. As such, they

10 Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L. Ed.2d 1081 (2007). 11 Redleski v. Plumley, No. 1:15CV89, 2016 WL 859060, at *5 (N.D.W. Va. Feb. 9, 2016), report and recommendation adopted, No. 1:15CV89, 2016 WL 868277 (N.D.W. Va. Mar. 4, 2016). 12 See Dkt. 1, Exhibit A, ¶ 1-2. 13 See Dkt. 1, Exhibit A, ¶ 3. 14 See Dkt. 1, Exhibit A, ¶ 4-6. 15 See Dkt. 1, Exhibit A, ¶ 7-53 and ¶ 54, 71, Paragraph immediately following Third Cause of Action Continuing Tort (inadvertently not numbered); 79, 87, and 89.


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can pierce the corporate veil and bring direct claims against the Officers and Directors of the

Foundation and its subsidiaries.16 Moreover, Brad Pitt has personally participated in the tortious

and fraudulent acts and omissions alleged in Plaintiffs’ Petition. He promised he would build

quality, sustainable, green, safe and healthy homes designed to withstand hurricane force winds,

promises upon which the homeowners detrimentally relied.

A simple Google search of “Make It Right” and “Brad Pitt” will turn up hundreds of

articles about Brad Pitt’s Make It Right Foundation. Mr. Pitt has publicly acknowledged that he

made promises to the residents of the Lower Ninth Ward to help them rebuild. 17 Mr. Pitt

personally vowed to redevelop the community with safe and healthy homes that are inspired by

“Cradle to Cradle” thinking.18 Mr. Pitt claimed personal credit for the rebuilding effort and Mr.

Pitt benefitted from the significant free publicity he received.

For instance, the following excerpt is from an article which appeared shortly after the ten-

year anniversary of Hurricane Katrina:

“The Lower 9th Ward neighborhood near the Claiborne Avenue bridge was more or less wiped out by floodwater surging through a gap in the levee wall in 2005. Then, as if by Hollywood magic, Brad Pitt appeared to attempt to rebuild it.” "I'll tell you, every time I drive over the Claiborne bridge, no matter what frustration I might be dealing with at the moment, I get this well of pride when I see this little oasis of color and the solar panels," Pitt said in a telephone conversation Friday (Aug. 15, 2015) from Los Angeles.19

Mr. Pitt gladly accepted responsibility for his personal participation when the publicity was

favorable. For instance, in one interview he stated:

16 The Foundation and its subsidiaries are managed by the same management team; they share a principal place of business; and it appears that their finances are, at least to some extent, co-mingled. 17 See e.g., https://www.nbcnews.com/news/us-news/brad-pitt-built-dozens-homes-new-orleans-after-katrina-now-n908651 18 http://makeitright.org/about/ 19 https://www.archdaily.com/772155/brad-pitt-i-get-this-well-of-pride-over-make-it-rights-new-orleans-work


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“I drive into the neighborhood and I see people on their porch, and I ask them how is their house treating them? And they say, ‘Good’. And I say what’s your utility bill? And they’ll throw something out like, ‘24 bucks’ or something, and I feel fantastic.”20

Mr. Pitt acknowledged his personal participation before this law suit was filed. For instance, in

another interview he stated:

“Make It Right is ambitious and tries new things all the time in order to make our homes better. Where we find innovative products that didn’t perform, we move quickly to correct these things for our homeowners.”21

And, Mr. Pitt acknowledged his personal participation in mistakes, before this law suit was filed:

"We went into it incredibly naïve," [Pitt] said, "just thinking we can build homes—how hard is that?—and not understanding forgivable loan structures and family financial counseling and getting the right lots and HUD grants and so on and so forth. So it’s been a big learning curve."22

But, now that suit has been filed, Defendant would have the Court believe he is little more than a

neutral observer, who had no personal participation in the development of the project, in the

choices of the designs and sub-contractors, and in the decisions to withhold information about the

defective conditions from the homeowners.

1. Louisiana Law Applies to These Proceedings Over Delaware Law.

Defendant argues Delaware law applies based on the Fifth Circuit’s opinion in Torch

Liquidating Tr. ex rel. Bridge Assocs. L.L.C. v. Stockstill.23 However, in Torch Liquidating, the

Court applied Delaware law because under a Louisiana choice of law analysis, “the law of the

place where the corporation was incorporated governs disputes regarding the relationship between

the officers, directors, and shareholders and the officers’ and directors’ fiduciary duties.” 24

20 https://www.news.com.au/lifestyle/home/outdoors/brad-pitt-slammed-over-rotting-homes-in-new-orleans/news-story/32a9a48316951567479c10cf25737f8e 21 https://inhabitat.com/brad-pitts-make-it-right-homes-in-new-orleans-are-already-rotting/ 22 https://www.news.com.au/lifestyle/home/outdoors/brad-pitt-slammed-over-rotting-homes-in-new-orleans/news-story/32a9a48316951567479c10cf25737f8e 23 561 F.3d 377, 392 (5th Cir. 2009). 24 Id. at footnote 7.


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Plaintiffs’ petition against Defendant Pitt is not an internal corporate dispute between the officers,

directors, and shareholders over fiduciary duties. This is a suit by Louisiana citizens who were

defrauded by promoters and sellers of new homes in Louisiana. At the time of the fraudulent acts

and omissions, the Foundation and its for-profit and not-for-profit subsidiaries all shared a

principal office in Louisiana. This is a direction action by Louisiana citizens against Louisiana

citizens, albeit also Delaware citizens.

In diversity cases, the law of the forum state governs the choice of law inquiry.25 This is

to say that the state is free to determine whether a matter is governed by its law or another state’s

law.26 Therefore, we must look to Louisiana law which provides the following guidance:

Except as otherwise provided in this Book, an issue in a case having contacts with other states is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue. That state is determined by evaluating the strength and pertinence of the relevant policies of all involved states in the light of: (1) the relationship of each state to the parties and the dispute; and (2) the policies and needs of the interstate and international systems, including the policies of upholding the justified expectations of parties and of minimizing the adverse consequences that might follow from subjecting a party to the law of more than one state.27

Delaware is the state of incorporation of the Make It Right Foundation and its subsidiaries,

but nothing more. Louisiana is the only state in which all of the significant conduct occurred. The

homes were defectively built in Louisiana. The homes were conveyed by notarial acts in Louisiana

to Louisiana residents. The fraudulent promises for quality built, sustainable, green, safe and

healthy homes designed to withstand hurricane force winds housing were made in Louisiana. The

continuing promises for repairs were made in Louisiana. Defendants’ fraud in perpetuating the

false belief that investigations would be performed and repairs would be made, while withholding

25 Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496–97 (1941); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). 26 Id. 27 La. Civ. Code Ann. § art.3515.


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pertinent information of the defective nature of the designs and the construction from the

homeowners occurred in Louisiana. The fraudulent act of intentionally withholding pertinent

warranty information from the homeowners for long enough to (1) allow seven years to pass so

that NMTC tax credits could be realized and (2) to run the clock on the New Home Warranty Act

provisions occurred in Louisiana. The two lead Plaintiffs are Louisiana citizens and the class they

purport to represent has been proven to be comprised of more than then 75% of Louisiana citizens

at the time of filing suit; however at the time of the purchase, all of the putative plaintiffs were

Louisiana citizens. The Make It Right Foundation and its two non-profit subsidiaries involved in

the sale of real estate judicially admitted their principal office is in Louisiana when they chose to

file suit in Louisiana against their architect, claiming Orleans Parish as the proper venue for such

legal action. For purposes of the conflict of law analysis, “a juridical person may be treated as a

domiciliary of either the state of its formation or the state of its principal place of business,

whichever is most pertinent to the particular issue.”28 Here, all of the alleged conduct took place

in Louisiana against a majority of Louisiana citizens.

Defendant James Mazzuto, a director of the Make It Right entities and their chief

representative on the ground is a Louisiana resident and citizen. Craig Turner, the Director of

Construction from 2011 to 2017 is a Louisiana resident and citizen. Jon Sader, another Board

Member during the relevant times set forth in the petition is a Louisiana resident and citizen. Tanya

Harris, a Make It Right employee, alleged to have fraudulently induced putative plaintiffs into

signing release documents for the false promise of proper repairs, is a Louisiana citizen. The

defendant board officers and directors who filed the removal claim citizenship in South Carolina,

not Delaware. And Defendant Brad Pitt claims citizenship in California, not Delaware. All the

28 La. Civ. Code Ann. § art.3518.


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transactions addressed by the Petition and all allegations set forth in the Petition took place

in Louisiana and are alleged to have violated only Louisiana law.

As Plaintiffs argued in their Motion to Remand, this is a purely local controversy. Under

Louisiana law, “real rights in immovable situated in this state are governed by the law of this

state.”29 Additionally, pursuant to La. C.C. art. 3542, an issue of delictual or quasi-delictual

obligations:

. . . is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue. That state is determined by evaluating the strength and pertinence of the relevant policies of the involved states in the light of (1) the pertinent contacts of each state to the parties and the events giving rise to the dispute, including the place of conduct and injury, the domicile, habitual residence or place of business of the parties, and the state in which the relationship, if any, between the parties was centered; and (2) the policies referred to in Article 3515, as well as the policies of deterring wrongful conduct and of repairing the consequences of injurious acts.30

Louisiana is the state where the conduct and the injury occurred and where the relationship

between the parties was centered. Louisiana is the state where the homes are mortgaged and where

the homeowners will default on their mortgages when their homes become unlivable. And because

of this, Louisiana is the state where the policies of deterring wrongful conduct and repairing the

consequences of injurious acts is strongest. Louisiana is the state whose policies would be most

seriously impaired if its law were not applied to this class action.

2. Plaintiffs stated a cause of action against the Officers and Directors under Delaware law.

As argued above, Louisiana law should apply to this dispute. Should the court decide

otherwise, however, even under Delaware law Plaintiffs can make a direct claim against the

corporate entity, as they have done here, and seek to pierce the corporate veil to hold the Directors

30 La. Civ. Code Ann. § art.3542.


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liable. Under Delaware law, corporate form will be disregarded and individuals will be held

personally liable “in the interest of justice, when such matters as fraud, contravention of law or

contract, public wrong, or where equitable consideration among members of the corporation

require it, are involved.” 31 This analysis is often described as the “alter ego” analysis, because, in

substance, the Court is examining whether there are legally distinct entities.32 The United States

District Court for the District of Delaware, applying federal common law, described this analysis:

[A]n alter ego analysis must start with an examination of factors which reveal how the corporation operates and the particular defendant's relationship to that operation. These factors include whether the corporation was adequately capitalized for the corporate undertaking; whether the corporation was solvent; whether dividends were paid, corporate records kept, officers and directors functioned properly, and other corporate formalities were observed; whether the dominant shareholder siphoned corporate funds; and whether, in general, the corporation simply functioned as a facade for the dominant shareholder. 33

In this analysis, no single factor is dominant.34 Delaware Courts have built on this analysis

and when there is an element of fraud will pierce the corporate veil.35 As articulated in Wallace v.

Wood, “piercing the corporate veil under the alter ego theory requires that the corporate structure

cause fraud or similar injustice.”36 Fraud and injustice were alleged in Plaintiffs’ Petition.37 Fraud

was perpetrated when the entities and the Directors and Officers learned in 2008 and 2009 that

there was widespread water intrusion, rot, and other problems, but willfully did nothing, despite

their warranty obligations. Fraud was perpetrated when the entities and the Directors and Officers

failed to report the known warranty obligations in 2009, 2010, 2011, 2012, and 2013 tax filings,

willfully withholding that information until the 2014 tax filing. Fraud was perpetrated when the

31 See Pauley Petroleum Inc. v. Continental Oil Co., 239 A.2d 629, 633 (Del. 1968). 32 See, e.g., Trustees of the Village of Arden v. Unity Constr. Co., 2000 WL 130627 (Del. Ch. Jan. 26, 2000). 33 United States v. Golden Acres, Inc., 702 F.Supp. 1097, 1104 (D. Del. 1988). 34 Id. 35 See, e.g., Wallace ex rel. Cencom Cable Income Partners II, Inc., L.P. v. Wood, 752 A.2d 1175, 1184 (Del. Ch.1999). 36 Id. quoting Nebenzahl v. Miller, C.A. No. 13206 (Ch. Aug. 26, 1996). 37 See Section III(A) supra.


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entities and the Directors and Officers willfully withheld the knowledge of the significant and

widespread water intrusion, rot, and other problems resulting in large warranty obligations all the

while continuing to solicit donations and obtain grants from federal and local governments,

without revealing these problems. And fraud was perpetrated when the homeowners were

continually given intentionally false promises that repairs would be performed while the Officers

and Directors and the entities instead allowed the clock to run on the New Home Warranty Act

protections. The facts alleged and the causes of action adopted for each successive paragraph in

the Petition certainly set forth sufficient facts to state a cause of action under an alter ego and/or

piercing the corporate veil theory of responsibility under Delaware law.

3. Plaintiffs also stated a cause of action against the Officers and Directors under Louisiana law.

Contrary to Defendants’ argument, Plaintiffs do not have to allege personal duty by Mr.

Pitt to establish a cause of action. While Mr. Pitt’s own press releases do in fact reveal personal

participation in the negligent and fraudulent promises to the homeowners, Plaintiffs’ Petition

alleged sufficient facts to state a viable claim against the Directors and Officers based on piercing

the corporate veil for fraud and/or based on the alleged insolvency of the company and the

existence of warranty creditors. Defendants did not recognize the warranty credits until its 2014

tax filings for the first time – well after the Foundation was insolvent, both facts of which the

Board of Directors was surely aware.

Both Louisiana and federal law hold that facts alleged in a complaint should be

accepted as true.38 Here, Plaintiffs alleged a series of actions and/or inactions of some of

the directors and employees of the corporation which constitute fraud. Plaintiffs also

38 Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009); Weber v. State, 635 So. 2d 188, 191–92 (La. 1994) (“Allegations of the petition are accepted as true, and any doubts are resolved in favor of the sufficiency of the petition”).


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alleged the insolvency of the corporation. Plaintiffs further alleged that the Foundation

admitted it owed warranty obligations to the homeowners in its tax filing and thus, the

homeowners were warranty “creditors” and the Make It Right entities were obligors.

In Louisiana, when a party seeks to pierce the corporate veil, the totality of circumstances

is determinative. There are limited exceptions to the rule of non-liability of shareholders for the

debts of a corporation, where the court may ignore the corporate fiction and hold the Directors and

Officers liable.39 One such exception is based on the well settled law that the properties of a

corporation constitute a trust fund for the payment of its debts.40 The Officers and Directors of a

corporation owe a fiduciary duty not only to the corporate entity, but to the corporation's creditors

and, thus, are under a certain obligation to see that creditors are paid.41

Paragraph 15 sets forth the factual allegation that “[t]he Foundation represented in

tax filings that it has a strong management team with experience in operations, accounting,

and finance and that it formed an Advisory Board that included six members who had

significant experience in real estate development and finance, operations, architecture and

entrepreneurism.”42

Paragraph 17 of Plaintiff’s Petition sets forth the following factual allegations: that the

Treasurer/Secretary is a Certified Public Accountant who oversees financial reporting and

compliance matters; that the Chief Operating Officer is experienced in operations, finance, and

real estate; and that the Foundation, “together with the Board of Directors” and Advisory Board is

able to manage Make It Right effectively.43 Based on these allegations, it is reasonable to conclude

39 See Lopez v. TDI Servs., Inc., 631 So. 2d 679, 685 (La. App. 3d Cir. February 2, 1994). 40 Roddy v. Norco Local 4-750, 359 So.2d 957, 960 (La. 1978). 41 Hooper v. Maruka Mach. Corp., 525 So.2d 1113, 1117 (La. App. 5th Cir. 1988); Abraham v. Lake Forest, Inc., 377 So.2d 465 (La. App. 4th Cir. 1979). 42 See Dkt. 1, Exhibit A. 43 See Dkt. 1, Exhibit A.


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that the Officers and Directors of this non-profit were intimately involved in the day-to-day

management decisions of the companies and that they were familiar with and thus conspired to

commit the fraud to deceive the homeowners, donors, and governments about both Make It Right’s

warranty obligations and its insolvency.

Paragraphs 64, 65, 66, and 68 of the Petition alleged:

64. Defendants, THOMAS F. DARDEN, III, JAMES MAZZUTO,

SAMUEL W. WHITT, S.H. “JIM” FOGLEMAN, LATOYA KING, VERONICA TAYLOR, MAURICE COLEMAN, BRAD PITT, JOHN SADER, CRAIG TURNER, as Directors and Officers of the Board of Directors of the defendant entities, had a duty of reasonable inquiry to insure that the homes were properly constructed and, once it became known to the Board, at least by 2013, based on their federal 990 tax form, of the defective condition of the homes; and of the significant expense required to make it right; therefore, these defendants had a duty of reasonable inquiry to insure that the plaintiffs were properly notified of the defects and that the homes were properly repaired. (Emphasis added.)

65. The Board engaged in unfair trade practices when it chose to support management’s decision not to notify the homeowners of the significant problems with their property, resulting in a loss of legal rights to the homeowners, and/or when the Board members failed to implement a plan to rectify the problem.

66.

Instead of conducting repairs openly, defendants, MAKE IT RIGHT-NEW ORLEANS, LLC, MAKE IT RIGHT FOUNDATION, MAKE IT RIGHT - NEW ORLEANS HOUSING, LLC., THOMAS F. DARDEN, III, JAMES MAZZUTO, SAMUEL W. WHITT, S.H. “JIM” FOGLEMAN, LATOYA KING, VERONICA TAYLOR, MAURICE COLEMAN, BRAD PITT, JOHN SADER, CRAIG TURNER, TANYA HARRIS, JANE AND JOHN DOES 1-50 deceptively obtained non-disclosure agreements from plaintiffs, without providing plaintiffs with full disclosure, resulting in a loss of important legal rights, even though these defendants stated awareness of their obligations to repair the properties in their 2013 federal tax form 990 filing, resulting in unfair trade practices.

…

68. Defendants, THOMAS F. DARDEN, III, JAMES MAZZUTO,

SAMUEL W. WHITT, S.H. “JIM” FOGLEMAN, LATOYA KING, VERONICA TAYLOR, MAURICE COLEMAN, BRAD PITT, JOHN


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SADER, CRAIG TURNER, as Directors and Officers of the Board of Directors of the defendant entities had a good faith duty and a fiduciary duty to ensure that the funds slotted for the New Orleans properties were not redirected. These Directors and Officers of the Board instead engaged in unfair trade practices which unfairly placed the New Orleans homeowners at a disadvantage.

Paragraphs 7 through 53, adopted as to all Defendants, set forth numerous facts

which give rise to claims that the Foundation and/or the LLCs are insolvent; that the

Officers and Directors had knowledge that the LLCs were insolvent; and that some of the

directors and employees were committing fraud in an attempt to obtain the release of legal

rights in exchange for false promises of repairs.

Defendants’ Memorandum ignores the exception to the general rule that protects officers

and directors of a corporation from personal liability that arises when the corporation defrauds or

deceives a third party.44 In Dutton & Vaughan, Inc. v. Spurney, the plaintiff, a private contractor,

sued various officers and members of the management committee of Louisiana World Exposition,

Inc. for fraudulent misappropriation of funds owed to the contractor.45 In overturning the district

court’s dismissal of the suit for failing to state a cause of action, the Louisiana Fourth Circuit held

that the Plaintiff had sufficiently pled that certain officers of the Louisiana World Exposition

represented that specified public funds would be paid to the Plaintiff for the construction of parking

facilities but that those funds were in fact used by the Louisiana World Exposition for other

purposes.46 The Court also stated, “The purpose of the requirement of pleading the circumstances

constituting fraud with particularity is to inform the opposing litigant of the material facts

44 Young v. Adolph, 2002-67 (La. App. 5 Cir. 05/15/02), 821 So. 2d 101. 45 Dutton & Vaughan, Inc. v. Spurney, 496 So. 2d 1126, 1129 (La. Ct. App. 1986), writ denied, 501 So. 2d 208 (La. 1987). 46 Id. at 1129.


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supporting the legal charges against which he must defend.”47 Plaintiffs’ Petition here properly

places the Officer and Director Defendants on such notice.

Paragraphs 19, 20, 21, 22, 23, 24, 25, and 27 set forth facts that establish a diversion

of funds from 2010 through 2013, at a time when the New Orleans project was not yet even

completely built and when warranty repairs clearly known, but intentionally hidden from

public accounting. 48 The Officers and Directors were aware of this diversion of funds

which was fraudulent under the circumstances.

Paragraphs 26, 33, and 36 set forth supporting facts and an allegation of fraud, as follows:49

26. In the 2013 federal Form 990 tax filing, the Foundation identified issues related to building materials used in the construction of completed homes and also identified issues related to the design of certain homes that required significant repair costs; however, despite this knowledge, the Foundation never provided homeowners with notice of these design and material defects and therefore fraudulently deprived homeowners of their right to pursue legal actions under Louisiana’s New Home Warranty Act, codified at R.S. 9:3141 et seq. The Foundation recognized in tax filings, excerpted below, that its warranty liability was in excess of 4 Million, but the Foundation never provided homeowners with notice of the extent of problems that the Foundation discovered.

… 33.

Upon information and belief, this past week, defendants, Mazzuto and Harris have again made promises that they will produce the engineering report, when it is received, but that the homeowner needs to sign a “packet” to begin the repairs. The packet contains a non-disclosure document and a binding arbitration document. The defendants do not explain to the homeowners what those documents are. Instead, the defendants attempt to fraudulently obtain signatures on agreements that would deprive homeowners of important legal rights, while the homeowners are under duress.

… 36.

Upon information and belief, the attempt to fraudulently mislead homeowners into signing non-disclosure agreements and binding

47 Id. 48 See Dkt. 1, Exhibit A. 49 Id.


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arbitration agreements was developed after publicity of Make It Right’s failures and the deteriorating condition of the homes was recently published on the Internet.

Paragraphs 40, 41, 42, 43, and 44 50 set forth supporting facts and an allegation that the

Foundation and its related entities are not financially solvent.

Altogether, the Petition sets forth viable causes of action against the corporate

Board of Directors and Officers sufficient to survive a motion to dismiss. While there are

a number of additional theories of recovery that Plaintiffs believe discovery will reveal

against the Directors and Officers, Plaintiffs have stated facts which give rise to direct

causes against the Directors and Officers under theories of fraud, including but not limited

to fraud arising out of the Directors and Officers fiduciary duty to the Plaintiffs, as creditors

of the corporation, all as more fully set forth in Paragraphs 80-82, shown below:

80. Defendants, MAKE IT RIGHT-NEW ORLEANS, LLC, MAKE IT RIGHT FOUNDATION and MAKE IT RIGHT - NEW ORLEANS HOUSING, LLC., THOMAS F. DARDEN, III, JAMES MAZZUTO, JOHN SADER, CRAIG TURNER, TANYA HARRIS, JANE AND JOHN DOES 1-50 materially misrepresented material facts and/or intentionally suppressed truth in meetings with plaintiffs, all as more fully set forth herein, including but not limited to the following misrepresentations: 1. That their homes contained defective materials; 2. That their homes were defectively designed; 3. That their homes were defectively and improperly constructed; 4. That they would provide engineering reports to the homeowners on

their own properties; 5. That they would give up important legal rights by signing documents

to obtain repairs on their properties; 6. That the Foundation was not obligated to perform the repairs, under the

New Home Warranty Act, without the need for the homeowners to give up important legal rights;

81.

From 2013 to the present, defendants, MAKE IT RIGHT-NEW ORLEANS, LLC, MAKE IT RIGHT FOUNDATION and MAKE IT

50 Id.


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RIGHT - NEW ORLEANS HOUSING, LLC., THOMAS F. DARDEN, III, JAMES MAZZUTO, JOHN SADER, CRAIG TURNER, TANYA HARRIS, JANE AND JOHN DOES 1-50 promised repairs and further promised to produce the engineering reports, with the intent to deceive plaintiffs to forestall legal proceedings and/or for other reasons unknown to plaintiffs. Defendants were aware that they were financially unable to perform the massive repairs necessary to bring all of plaintiffs’ homes up to the promised standard of a safe, green, healthy, and well-constructed, affordable home. The failure of these defendants to properly inform the homeowners of the engineering defects and material defects proves that these Defendants never intended to make it right. Defendants misrepresented and suppressed truth to obtain an unfair advantage from plaintiffs, i.e., the signing of non-disclosure documents and binding arbitration documents.

82.

Since 2013, defendants, through their representatives, have fraudulently induced plaintiffs into signing non-disclosure documents and binding arbitration agreements by withholding important information from them and by indicating that the repairs to their property could only be performed if the homeowners signed the documents in the packet.

Defendants’ Motion to Dismiss was filed before any discovery has taken place. Not all of

the Defendants have been served with process and citation. In particular, service on the Make It

Right entities has not been effected. The Make It Right Foundation is intimately integrated with

Make It Right – New Orleans, LLC and Make It Right-New Orleans Housing, LLC and also with

Make It Right-New Orleans Solar and Make It Right NMTC, the two for-profit subsidiaries which

received profits from tax credits related to the Make It Right Development.

Every outward appearance indicates that all Make It Right entities are managed by a hands-

on Board of Directors. Financial records for the limited liability companies have not been obtained.

Plaintiffs have only been able to obtain public tax filings for the Foundation through 2015.

Significant discovery is necessary to ascertain who knew what; who ordered what actions; who

ordered what silence; whether monies were diverted from one entity to another; when the entities

became insolvent; and what instructions were made, by whom, to seek the release agreements


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which the state court subsequently prohibited in a restraining order. Only meaningful discovery

will allow Plaintiffs to discern these vital facts. The 2013 tax return filed by the Foundation,

presumably with the knowledge of the entire Board, reveals facts which set forth the theory of

fraud, i.e., a warranty obligation which was unfulfilled and unexplained to the homeowners,

despite prolonged promises to conduct repairs. A Plaintiff is not required to provide either proof

of the claim or proffer all available evidence, simply because much of the evidence can be

developed only through discovery. The Court should use reasonable inferences regarding the

Defendant’s knowledge or intention and the Plaintiff should be allowed to allege those matters in

general terms, especially at this early stage of the litigation.51

Under Louisiana law, “[w]here a transaction, on its face, operates to the prejudice of the

creditors of the parties thereto, and all the information concerning which is in the possession of

the parties to the transaction, those parties bear the burden of satisfactorily explaining the

transaction which places the corporation's assets beyond the reach of its legitimate creditors,

regardless of whether there is any discernible evidence of fraud.”52 “Where no satisfactory

explanation is forthcoming from the defendants, the explanation suggested by the allegations of

the plaintiff's petition and the facts disclosed by the evidence should be adopted and the defendants,

whether a successor corporation or corporate shareholders or officers, should be held liable for the

corporation's debts to the plaintiff-creditor.” 53 “The officers and directors of a corporation owe a

51 See, E.G., Am. Tech. Mach. Corp. v. Masterpiece Enters., Inc., 235 F.Supp. 917, 918-919 (M.D. Pa. 1964) (wherein the court was satisfied that the complaint charging a defendant with knowingly inducing and conspiring with another defendant to infringe the patent was a sufficient foundation upon which further proof may be offered to shop that he was organizer, president, and dominant spirit of an infringing company or that he otherwise acted as the moving, active, conscious force behind an infringement). 52 Lopez v. TDI Servs., 93-619 (La. App. 3 Cir 02/2/94), 631 So. 2d 679, 686; See also, Roddy v. Norco Local 4–750, etc., 359 So.2d 957, 960 (La.1978); Wolff v. Shreveport Gas, Elec. Light & Power Co., 138 La. 743, 70 So. 789, 795 (1916). 53 Lopez, 631 So. 2d at 686; Roddy, 359 So.2d at 960; Wolff, 70 So. at 795.


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fiduciary duty not only to the corporate entity, but to the corporation's creditors and, thus, are under

a certain obligation to see that creditors are paid.”54 Here, the homeowners are warranty creditors.

C. Plaintiffs have stated valid claims against Defendant Pitt if Plaintiffs discover sufficient details to pierce the corporate veil under all causes of action, including negligence, negligent and intentional infliction of emotional distress.

Just because Brad Pitt’s foundation is a non-profit organization does not mean that

fraudulent acts and/or omissions will not result in a piercing of the corporate veil as more fully set

forth above. Corporate protections go only so deep. Once the corporate veil is pierced, plaintiffs

can proceed against the Officers and Directors under all causes of action.

Here, Plaintiffs have alleged a fraud that harmed warranty creditors, donors, and the

government. Plaintiffs’ Petition supports a reasonable analysis that fraud at the Board level exists.

The Foundation’s tax returns demonstrate that the Foundation was involved in financial

arrangements dealing with the New Market Tax Credit Program (NMTC), a program enacted by

Congress as part of the Community Renewal Tax Relief Act of 2000. The details of the

Foundations and/or the Board’s involvement in the NMTC are not yet known, but the fact of

participation is set forth in the Foundation’s tax returns. To what extent the Officers and Directors

participated in the NMTC and therefore, to what extent conflicts of interest or self-dealing may be

involved is unknown and remains to be discovered. However, Plaintiffs have stated viable causes

of action of fraud, which would allow the piercing of the corporate veil, sufficient to survive a

Rule 12(b)(6) Motion to Dismiss and Plaintiffs should be allowed an opportunity to explore further

facts during discovery.

54 Lopez, 631 So. 2d at 688; Hooper v. Maruka Mach. Corp., 525 So.2d 1113, 1117 (La. App. 5 Cir.1988); Abraham v. Lake Forest, Inc., 377 So.2d 465 (La. App. 4 Cir. 1979), writs denied, 380 So.2d 99, 100 (La.1980).


22

Plaintiffs’ Petition also sets forth sufficient facts to demonstrate a continuing tort which

interrupts prescription. In FIE, LLC v. New Jax Condo Ass'n, Inc., within the first year of acquiring

a condominium, a condo owner noticed water intrusion and reported same to the President of the

Board, requesting repairs. Thereafter, not receiving repairs, the condo owner withheld

condominium dues. A year later, the Association made attempts to discover the source of the

water leaks, to no avail. Mold began to grow. Over the next two years, the Association reported

ongoing attempts to discover the source of the problem. By the fourth year, without successful

repairs, the condo owner instituted suit for damages. On an Exception of Prescription, the Trial

Court found plaintiff’s claim constituted a continuing tort and denied defendants’ Exception of

Prescription. The Fourth Circuit Court of Appeals analyzed a number of continuing tort cases

finding that the application of continuing tort doctrine depends on the facts of each case, ultimately

concluding that the trial court did not err in denying defendants’ exception of prescription.55

Here, Defendants’ ongoing promises to conduct investigations and repairs, including the

promises by Brad Pitt that he will honor his promises, as noted hereinabove, continued the tort.

Plaintiffs’ claim that Defendants’ continuing tort interrupts prescription creates a facially sufficient

pleading that Plaintiffs’ claims have not prescribed.

Mr. Pitt received incalculable marketing and publicity benefits from his involvement with

the Foundation and the Lower Ninth Ward. As demonstrated above, the Make It Right Foundation

was known in the news as Brad Pitts’ Foundation. Mr. Pitt received all of the accolades when it

appeared the people of the Lower Ninth Ward were being helped by him. But, when it surfaced

that these homeowners, who are burdened with 30 year mortgages on homes that may not last

55 FIE, LLC v. New Jax Condo Ass'n, Inc., 241 So. 3d 372, 392-395 (La.App. 4 Cir. 2/21/18).


23

another five years, Defendant seeks to be dismissed from legal scrutiny by conveniently ignoring

his personal participation and Plaintiffs’ allegations of fraud.

Plaintiffs have alleged sufficient facts to support a claim to pierce the corporate veil and

proceed with their direct action against all Officers and Directors, including Defendant Pitt, as to

all causes of action. Plaintiffs additionally have alleged sufficient facts to support a direct claim of

negligence against Defendant Pitt for his personal participation. From there, Plaintiffs are entitled

to move forward through the discovery process to ascertain who provided what instructions and

when to the employees on the ground to carry out the fraudulent misrepresentations made directly

to the homeowners by James Mazzuto and Tanya Harris and others.

It has been alleged that defendants intentionally withheld information of the severity of the

defects from the homeowners for a period of time that would cause the homeowner’s claims under

Louisiana’s New Home Warranty Act to prescribe. To these homeowners, their home is their

single largest financial investment. If their homes are worthless because of defective conditions

which cannot be repaired, the intentional withholding of information to cause the homeowners to

collectively lose this significant legal right would indeed be “outrageous” and “extreme” conduct,

“so atrocious as to pass the boundaries of decency” such that Plaintiffs’ claims of emotional

distress would lie under Moresi v. State, through the Department of Wildlife & Fisheries.56

In further response, Plaintiffs’ adopt their opposition to the Motion to Dismiss filed by the

past Officers and Directors as if copied here in full.

D. The intersection of Rule 15(a)(1) with Rule 12(b)(6) requires plaintiffs be permitted leave to amend should the Court deny remand.

56 567 So.2d 1081 (La. 1990).


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Unless it is certain from the face of the complaint that any amendment would be futile or

otherwise unwarranted, a district court should grant leave to amend after granting a motion to

dismiss.57 In Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago & Nw. Indiana, the 7th

Circuit recognized that a plaintiff should ordinarily have an opportunity to avoid any harm caused

by a problematic dismissal by amending her complaint to try to add what the district court found

was lacking. There, the district court took an unusual step of dismissing the proceedings after

finding that the original complaint failed to state a claim, without affording plaintiff any

opportunity to try to correct the deficiencies the court had identified.58 The Court considered the

amendment to Rule 15, noting:

In 2009, Rule 15(a)(1) was amended to limit this right to amend as a matter of course: A party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b)(6), (e), or (f), whichever is earlier. The advisory committee notes explain that the 2009 amendment will force the pleader to consider carefully and promptly the wisdom of amending to meet the arguments in the motion. A responsive amendment may avoid the need to decide the motion or reduce the number of issues to be decided, and will expedite determination of issues that otherwise might be raised seriatim.59

However, the amendment notwithstanding, the Runnion court, found that a “district court cannot

nullify the liberal right to amend under Rule 15(a)(2) by entering judgment prematurely at the

same time it dismisses the complaint that would be amended, without finding a reason such as

futility or undue delay. The court held: 60

The 2009 amendment did not impose on plaintiff's choice a pleading regime of “one-and-done.” Adopting that regime would attribute to the 2009 amendment of Rule 15(a)(1) a far greater coercive power than is evident in the text of the amended rule or the advisory

57 Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago & Nw. Indiana, 786 F.3d 510, 520 (7th Cir. 2015). 58 Id. 59 Id. at 522 60 Id. at 522.


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committee's explanation. The only coercive effect evident in the text is that 21 days after service of a Rule 12 motion, a plaintiff's right to amend changes from one guaranteed under Rule 15(a)(1) to one governed by the liberal standard under Rule 15(a)(2). The loss of a guaranteed right to amend as a matter of course can be important, and the prospect of that loss may help persuade some plaintiffs confronted with a Rule 12 motion to respond by amending rather than spending time and money arguing about easily corrected deficiencies, whether real or imagined. The advisory committee hoped that such a response might resolve a motion to dismiss without court action.

But a plaintiff who receives a Rule 12(b)(6) motion and who has good reason to think the complaint is sufficient may also choose to stand on the complaint and insist on a decision without losing the benefit of the well-established liberal standard for amendment with leave of court under Rule 15(a)(2). That subsection was not amended and still applies after the right to amend as a matter of course has lapsed. The need for a liberal amendment standard remains in the face of uncertain pleading standards after Twombly and Iqbal.61

Here, for reasons set forth above and repeatedly throughout these proceedings, Plaintiffs

believe amendment of the petition would subject Plaintiffs to the jurisdiction of this Honorable

Court and waive their right to Remand which has already been sought. Therefore, should this

Honorable Court determine the Petition is insufficient to state a cause against Defendant Brad Pitt,

Plaintiffs seek leave to amend the petition in light of the well-established liberal standard for

amendment with leave of court under Rule 15(a)(2). Plaintiffs also seek leave to amend the petition

should the Court’s Judgments on Plaintiffs’ Remand and/or Defendant Pitt’s Motion to Dismiss

be against Plaintiffs and after the 21-day period for amendment statutorily provided to Plaintiff

under Rule 15(a)(1)(A).

III. CONCLUSION

Plaintiffs respectfully request that this Court deny Defendant’s Motion to Dismiss.

Alternatively, although Plaintiffs respectfully represent that their original Petition is both

technically and substantively sufficient. Should this Honorable Court disagree, Plaintiffs request

that they be permitted time and leave to Amend their Petition to cure any pleading defects.

61 Id. at 522-523 (footnote omitted).


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Respectfully submitted, S/Catherine Hilton ____________________________________ RON AUSTIN (La. Bar Roll No. 23630) CATHERINE HILTON (La. Bar Roll No. 27238) 920 4th Street Gretna, Louisiana 70053 Telephone: (504) 227-8100 Facsimile: (504) 227-8122 Email: [email protected] [email protected] Attorneys for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that on December 11, 2018, a copy of the above Opposition to Motion to Dismiss was on defendant, Jon Sader, via U. S. Postal mail. A request was made to counsel for the Make It Right entities for the addresses of Thomas F. Darden, III and Veronica Taylor but that request was denied. Service upon the Make It Right Foundation, Make It Right-New Orleans LLC, and Make It Right-New Orleans Housing LLC was made upon counsel for Brad Pitt, via the e-file system.

S/Catherine Hilton _________________________________

Catherine Hilton


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