Michael R. SeidI, OSB No. 833190

mick@seidl-law.com

SEIDL LAW OFFICE, PC

121 SW Morrison Street, Suite 475

Portland, OR 97204

Telephone: 503-224-7840

Attorneyfor Defendants

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

GRETCHEN BROOKS, an individual,

Plaintiff,

v.

HARLON RIP CASWELL, an

individual, RIP CASWELL

SCULPTURES, INC., an Oregon

corporation d7b/aCASWELL

GALLERY, an Oregon assumed business

name, and CASWELL PROPERTIES,

LLC, a Washington limited liability

company, and DOES 1-5,

Defendants.

CVNo.3:14-cv-1232-AC

DEFENDANTS' MOTION FOR LEAVE

TO FILE REPLY MEMORANDUM

ORAL ARGUMENT REQUESTED

LR 7-l(A) CERTIFICATION

Counsel for Defendants hereby certifies, pursuant to LR 7-1(a), that he conferred with

counsel for Plaintiff via email and telephone regarding the issues raised in this Motion, but was

unable to reach agreement.

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Page 1 - DEFENDANTS' MOTION FOR LEAVE TO FILE REPLY MEMORANDUM

Case 3:14-cv-01232-AC Document 114 Filed 12/30/15 Page 1 of 5
MOTION

Defendants move the Court for leave to file a Reply to the response filed by Plaintiff in

oppositionto Defendants' Motion for Summary JudgmentRe: Missing Molds. The draft Reply is

attached to the Declaration ofMichael Seidl as Exhibit A and it is ready for filing.

DISCUSSION

On August 21, 2015, Defendants filed a Motion for Summary Judgment Re: Missing

Molds. After two extensions, Plaintifffiled her response to the motion for summary judgment on

October 28, 2015. The Court, sua sponte, entered an order on October 27, 2015, striking this

motion for summary judgment from the "under advisement" calendar.

As Defendants' counsel began to work on a Reply in early November, he decided that the

October 27, 2015 court order was intended to put the motion for summary judgment on hold,

until the Court ruled on pending motions to dismiss. Therefore, Defendants' counsel did not file

a Reply, believing that the summary judgment motion had been effectively stayed by the Court.

On December 2, 2015, Defendants' counsel sent the following email to the Court's

courtroom deputy:

Dear Paul,

I'm wondering if the court would be willing to conduct a Rule 16

status conference to discuss the status ofthis case?

Mr. Gale responded:

The motion to dismiss is under advisement (and overdue for ruling

as of 10/31/15) and the motion for summary judgment is held in in

abeyance pending the court's ruling on the motion to dismiss. I'm

wondering what else you want to discuss?...

Mr. Seidl responded to Mr. Gale:

I had three primary questions I was hoping to get clarified:

* * *

2. I have interpreted the court's order putting the motion for

summary judgment re: missing molds in abeyance as not requiring

the plaintiffs reply memorandum (which would have been due

Page 2 - DEFENDANTS' MOTION FOR LEAVE TO FILE REPLY MEMORANDUM

Case 3:14-cv-01232-AC Document 114 Filed 12/30/15 Page 2 of 5
after the court's order). I'm assuming that if the court lifts that

order I would then be allowed to file a reply. Am I correct?

Mr. Gale responded to Mr. Seidl:

I think I used the word "abeyance," but I see that the judge simply

struck the under advisement date. I would go ahead and file your

reply and mention why it is late, as you weren't sure of the

wording ofthat order.

Following that exchange between Defendants' counsel and the courtroom deputy,

Defendants' counsel wroteto Plaintiffs counsel on December 12,20151:

Molly, I'm working on the reply to your response on the MSJ. I

interpreted the court's prior order as putting the motion on hold.

But as Paul Gale recently stated, I should go ahead and file a reply

anyway? Do you have any objection?

On December 16, 2015, Ms. Honore responded that "At this point we object to filing a

reply."

The emails are attached as Exhibit B to the Seidl Declaration.

Defendants' counsel may or may not have misinterpreted the Court's order striking the

under advisement date for this Motion. It is unclear to Defendants' counsel what was intended by

the Court. However, Defendants' counsel's interpretation was in good faith, whether erroneous

or not.

Nothing has occurred that would possibly prejudice Plaintiffs position by allowing

Defendants to file a Reply. Discovery has closed, and the case has essentially been on hold until

the Court rules on the pending Motions to Dismiss.

Conversely, for one particular reason, Defendants would be substantially prejudiced ifthe

Court denies leave to file the Reply that has been completed and is now ready to file. Plaintiffs

response to the Motion rests on a declaration of a previously undisclosed expert. Therefore,

Defendants' Reply addresses evidence that had previously not been disclosed in discovery, and

1After the first email onDecember 2 from Mr. Seidl to Mr. Gale, the subsequent emails

from Mr. Gale and Mr. Seidl did not get copied to Plaintiffs counsel. Defendant's counsel did

not notice this inadvertent error. Defendants' counsel sent the emails to Plaintiffs counsel when

the error was noted.

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Case 3:14-cv-01232-AC Document 114 Filed 12/30/15 Page 3 of 5
was not available when Defendants' Motion was filed. The proferred Reply deals directly with

this new evidence.

In order for the Court to have a full and complete understanding of Defendants' Motion

and Plaintiffs Response, the Reply is essential.

CONCLUSION

Defendants respectfully request leave to file the attached Reply Memorandum.

DATED this 30th day ofDecember, 2015.

SEIDL LAW OFFICE, PC

R. Seidl, OSB No. 833190

121 SW Morrison Street, Suite 475

Portland, OR 97204

Email: mick@seidl-law.com

Telephone: 503-224-7840

Attorneyfor Defendants

Page 4 - DEFENDANTS' MOTION FOR LEAVE TO FILE REPLY MEMORANDUM

Case 3:14-cv-01232-AC Document 114 Filed 12/30/15 Page 4 of 5
DECLARATION OF SERVICE

I hereby certify that I served DEFENDANTS' MOTION FOR LEAVE TO FILE

REPLY MEMORANDUM on the following person(s) on the date indicated below:

Jeffrey M. Edelson

Molly K. Honore

Markowitz Herbold PC

1211 SW Fifth Avenue, Suite 3000

Portland, OR 97204-3730

Fax: 503-323-9105

Email: JeffEdelson@MarkowitzHerbold.com

LawsonFite@MarkowitzHerbold.com

MollyHonore@MarkowitzHerbold.com

OfAttorneys for Plaintiff

by the following indicated method(s):

• by faxing a full true copy thereofto said attorneys to the fax number noted above, which

is the last known fax number for said attorneys, on the date set forth below.

13 by emailing a full true copy thereof to said attorney to the email address noted above,

which is the last known email address for said attorney, on the date set forth below.

0 by notice ofelectronic filing using the E-filing system (LGR 30).

• by causing a full true copy thereof to be mailed to the attorneys at the attorneys'

last-known office address listed above on the date set forth below.

DATED: December 30, 2015.

Page 1 - DECLARATION OF SERVICE

SEIDL LAW OFFICE, PC

lichael R. Seidl, OSB No. 833190

121 SW Morrison Street, Suite 475

Portland, OR 97204

Email: mick@seidl-law.com

Telephone: 503-224-7840

Attorneyfor Defendants

Case 3:14-cv-01232-AC Document 114 Filed 12/30/15 Page 5 of 5