Page 1 - PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION 

FOR LEAVE TO FILE REPLY MEMORANDUM

Jeffrey M. Edelson, OSB No. 880407

JeffEdelson@MarkowitzHerbold.com

Molly K. Honoré, OSB No. 125250

MollyHonoré@MarkowitzHerbold.com 

MARKOWITZ HERBOLD PC

1211 SW Fifth Avenue, Suite 3000

Portland, OR 97204-3730

Telephone: (503) 295-3085

Fax: (503) 323-9105

Attorneys for Plaintiff Gretchen Brooks

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 d/b/a CASWELL 

GALLERY, an Oregon assumed business 

name, and CASWELL PROPERTIES, 

LLC, a Washington limited liability 

company,

Defendants.

CV No. 3:14-cv-01232-AC

PLAINTIFF’S RESPONSE IN 

OPPOSITION TO DEFENDANTS’ 

MOTION FOR LEAVE TO FILE 

REPLY MEMORANDUM 

INTRODUCTION

Plaintiff Gretchen Brooks (“Brooks”) opposes Defendants’ Motion for Leave to File 

Reply Memorandum on the basis that (1) Defendants seek an extension in bad faith and via 

misrepresentations to counsel and this Court; and (2) Defendants’ proffered Reply Memorandum 

does not address multiple issues of fact raised by Brooks’ Response Memorandum, and is 

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therefore futile. Brooks therefore requests the Court deny Defendants’ Motion. Furthermore, 

Defendants have waived their right to oral argument on the underlying Motion for Partial 

Summary Judgment re: Claim of Missing Molds pursuant to Local Rule 7-1(d)(4)(A), for failing 

to timely file their Reply Memorandum.

MEMORANDUM OF LAW

I. Defendants’ Motion should be denied because Defendants’ misrepresented to 

Plaintiff and the Court their need for additional time to file their Reply.

Brooks filed her Response to Defendants’ Motion for Partial Summary Judgment re: 

Claim of Missing Molds on October 28, 2015. Defendants’ Reply was due on November 11th. 

Although the Court struck the under-advisement date on October 27, 2015—before Brooks filed 

her Response—the parties’ correspondence indicates they were following the required timeline 

for Motions under the rules. On November 2, 2015, Michael R. Seidl, counsel for Defendants, 

emailed Molly K. Honoré, counsel for Brooks, and requested an extension to file the Reply until 

November 13. (Decl. of Molly K. Honoré in Supp. of Pl.’s Resp. in Opp’n to Defs.’ Mot. for 

Leave to File Reply Mem. (“Honoré Decl.”), Ex. 1.) Ms. Honoré consented to the extension. 

(Id.) On November 12, Mr. Seidl again asked for a one-week extension for the Reply, to which 

Ms. Honoré again consented.1 (Id.) Mr. Seidl never filed any motions for extensions with the 

Court, as required under Local Rule 7-1(f)(2). 

Counsel for Brooks did not hear again from Defendants until December 2, 2015, when 

Mr. Seidl requested a scheduling conference with the Court. (Honoré Decl., Ex. 2 at 3.) 

Mr. Seidl did not include counsel for Brooks on the remainder of his communications with the 

Court, where he misrepresented that he determined the October 27 Order obviated the need for 

 

1 Between November 2 and November 12, Mr. Seidl also asked for Brooks’ expert files. 

Mr. Seidl emailed the Court on November 5 asking for those documents to prepare his Reply. 

(Honoré Decl., Ex. 4 at 4-5.) He noted “if a formal motion is needed, I’d ask for a stay of the 

deadline for my Reply under Rule 56(f).” (Id., Ex. 4 at 5.) Paul Gale, the Courtroom Deputy, 

instructed Mr. Seidl to confer with Brooks’ counsel and file an appropriate motion depending on

that conferral. (Id., Ex. 4 at 4.) In response, Brooks’ counsel noted their objection to the 

requested expert discovery. (Id., Ex. 4 at 3-4.) Mr. Seidl did not file any formal motion in 

November, as instructed by Mr. Gale. Instead, Mr. Seidl next emailed counsel for Brooks on 

November 12 and requested another extension on his Reply. (Id., Ex. 1.)

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him to file his Reply or seek any extension from the Court. (Id., Ex. 4 at 1-2.) He had no such 

determination in mid-November, when he sought Plaintiff’s consent for two extensions for the 

Reply Memorandum. (Id., Ex. 1.) And he had no such determination when Mr. Gale instructed 

him on November 5, 2015, to file an appropriate motion if he needed any stay or extension of 

any deadline for his Reply. (Id., Ex. 4 at 4.)

Mr. Seidl formed his opinion that the Court put the Motion for Partial Summary 

Judgment “in abeyance” pending the Court’s ruling on Defendants’ Motion to Dismiss based on 

language Mr. Gale used in a December 2, 2015 email to Mr. Seidl. (Honoré Decl., Ex. 4 at 2.) 

December 2 was well beyond the deadline for Defendants’ Reply or any Motion for Extension. 

In response to Mr. Gale’s email, without copying Brooks’ counsel, Mr. Seidl opined for the first 

time that he had “interpreted the court’s order putting the motion for summary judgment re: 

missing molds in abeyance as not requiring plaintiff’s reply memorandum (which would have 

been due after the court’s order). I’m assuming that if the court lifts that order I would then be 

allowed to file a reply.” (Id., Ex. 4 at 2.) Had Mr. Seidl copied Brooks’ counsel, counsel could 

have informed the Court that Mr. Seidl was—in his terms—engaged in “gamesmanship.” 

Mr. Seidl’s delay in seeking leave from the Court to file his Reply is not “excusable 

neglect,” as required under FRCP (b)(1)(B). He was aware of the deadline, communicated to the 

Court and opposing counsel regarding the deadline, yet chose not to file any timely request for 

an extension. In re Four Seasons Sec. Laws Litig., 493 F.2d 1288, 1290 (10th Cir. 1974) (“We 

recognize that a finding of excusable neglect . . . requires both a demonstration of good faith by 

the parties seeking the enlargement and also it must appear that there was a reasonable basis for 

not complying within the specified period.”)

Brooks objects to Defendants’ ex parte communications with the Court and objects to 

Defendants’ mischaracterization of the facts in his Motion. Defendants fabricated an excuse to 

the Court to buy themselves more time under the Rules to file a futile Reply brief that only 

serves as noise to drown out the genuine issues of fact—some undisputed—raised in Brooks’ 

Response. Brooks is prejudiced by having to expend additional sums responding to Defendants’ 

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counsel’s mischaracterizations. And regardless of the prejudice to Brooks, the Court should not 

reward Defendants’ disingenuousness by granting Defendants’ Motion here. 

II. Defendants’ Motion should be denied because Defendants’ proffered Reply is futile.

As stated above, Defendants’ Reply brief is futile and does not defeat Brooks’ claims 

regarding the Brooks Molds as a matter of law. If Brooks’ expert misidentified two of the 

Brooks Molds due to Defendants’ inconsistent labeling system, that misidentification can be 

explored in expert discovery. However, that single issue does not eliminate the remaining facts 

or issues of fact regarding the Brooks Molds. 

At this point in the litigation, it is undisputed that:

1. Defendant Rip Caswell had, in his possession, at least one of the Brooks Molds in 

May 2015, over three years after Defendants breached the Note in August 2012, 

and nearly a year after Brooks filed suit; and

2. Caswell lied to Brooks via communications from his lawyer, Andy Hahs, and in 

his deposition in August 2015, when he said he had surrendered all access to the 

molds.

There are also genuine issues of material fact over whether:

1. Five of the Brooks Molds were missing in September 2014, and subsequently 

returned by Defendants before Mr. Parks completed his inventory of the molds in 

May 2015;

2. Other molds showed visible deterioration;

3. Caswell used the Brooks Molds in his possession to cast other sculptures, 

effectively impairing the value of the Brooks Molds.

Those issues defeat Defendants’ Motion for Partial Summary Judgment, and Defendants’ 

Reply does nothing to address or resolve those issues.

A. There is a genuine issue of material fact as to Plaintiff’s Third Claim for 

Relief – Breach of the Settlement Agreement and Security Agreement.

There are genuine issues of fact as to whether Defendants breached the Settlement 

Agreement and Security Agreement by failing to properly deliver the Brooks Molds to Parks 

Bronze and leave them in Parks Bronze’s possession and under Parks Bronze’s oversight.

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The Security Agreement and Settlement Agreement required Caswell to “deliver the 

molds to Parks Bronze” and “not remove the molds to any other location without the prior 

written consent of Secured Party.” (Honoré Decl., Ex. 5 at 53, § 4.4 of the Security Agreement.) 

The Settlement Agreement also required RCS to: 

“authorize and direct Parks Bronze, or any other foundry accepting physical 

custody of the Molds, to (i) immediately notify Brooks in the event that RCS 

attempts to re-take custody of the Molds, inquires about placing an order to cast a 

sculpture from the molds, or places an order relating to the Molds; (ii) provide 

copies of all invoices for casting sculptures from the Molds to Brooks on a 

monthly basis; and (iii) provide Brooks (or her designated agent) with access to 

view and inspect the Molds at any time during business hours.”

(Id., Ex. 4 at 12, § 8(d) of the Settlement Agreement.)

The purpose of Section 8(d) was to eliminate any need for Brooks to communicate with 

Caswell about the Brooks Molds. Section 8(d) required Caswell and RCS to put Parks Bronze—

a neutral third party—in the position to have complete control over the Brooks Molds and to be 

able to notify Brooks if Caswell or RCS interfered with Brooks’ rights. But, by Caswell’s 

admission, Caswell never obtained that arrangement with Parks Bronze, because Caswell never 

sufficiently delivered the Brooks Molds to Parks Bronze. He kept the Brooks Molds in his own 

shipping container, intermingled with his own molds, and subject to a labeling system that no 

one but he could understand. 

How would Parks Bronze have been able to “immediately notify Brooks in the event that 

RCS attempts to re-take custody of the Molds” if RCS never clearly labeled the Brooks Molds? 

If RCS never otherwise identified the Brooks Molds to Parks Bronze? If RCS kept the Brooks 

Molds in an unlocked storage container, not subject to any security precautions, and allowed 

Caswell entry to and from the container at his whim? 

The answer to those questions is that Caswell never complied with Section 8(d), thereby 

depriving Brooks of the rights, for which she specifically bargained under the Settlement 

Agreement. Caswell made multiple promises in the Settlement Agreement that he breached. He 

promised to pay Brooks $650,000. He promised to deliver the Brooks Molds to the possession 

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and oversight of a neutral third party, as security for his promise to pay $650,000. Now Brooks 

has neither the money promised by Caswell, nor the arrangement she bargained for regarding the 

storage of and access to that collateral. 

Caswell never complied with the Settlement Agreement because he never made sufficient 

delivery of the Brooks Molds to Parks Bronze. Had he sufficiently transferred oversight of the 

Molds to Parks Bronze, Brooks could have easily contacted Parks Bronze and asked them to do 

an inventory of the Brooks Molds in their possession. Had all the Brooks Molds been present 

and accounted for—as required under the Settlement Agreement—there would not now be any 

question as to the status of the Brooks Molds over time.

Because Defendants initially breached Section 8(d) of the Settlement Agreement, there 

are now genuine issues of fact over whether Defendants retained certain Brooks Molds beyond 

September 21, 2011—when they were due at Parks Bronze under the Settlement Agreement—

and beyond August 2012, when Defendants relinquished all rights to the Brooks Molds by 

breaching the Note. 

B. Plaintiff has established, as a matter of law, as to Plaintiff’s Fifth Claim for 

Relief, that Defendants converted at least one of the Brooks Molds.

Defendants’ proffered Reply brief does not address the fact that Defendants converted at 

least one of the Brooks Molds, and likely five more.2 Caswell admits that he had in his 

possession one of the Brooks Molds beyond both the date of the Settlement Agreement and the 

date of Defendants’ default under the Note. Caswell may have denied that he removed five 

others; however his testimony is refuted by Mr. Pettelle’s, who could not find those five molds 

during his September 2014 inspection. Defendants’ admission establishes that Brooks has 

prevailed on her Fifth Claim for Relief.

 

2 Plaintiff’s Fifth Claim for Relief pleads a conversion claim against Defendants for 

“failing to maintain the molds,” which therefore “deprived Brooks of the opportunity to possess 

the property.” (Am. Compl. ¶ 62.) Defendants, as they note, have been on notice from the 

beginning of this lawsuit that Brooks’ claim also encompassed missing Brooks Molds. Plaintiff 

therefore believes that her Fifth Claim for Relief also covers any molds that were never delivered 

to Parks Bronze. Plaintiff believes she has complied with federal notice pleading requirements 

on her Fifth Claim for Relief; however, if the Court prefers, Plaintiff can re-plead that claim with 

more clarity.

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To the extent there are issues of credibility among the various declarants in this case, only 

one person has affirmatively perjured himself before the Court. Defendants’ proffered Reply 

glosses over Caswell’s perjury during his August 2015 deposition, as if it is a nonissue in this 

litigation. But Caswell’s dishonesty goes to his credibility in this case, and therefore shades all 

representations he has made to the Court. 

Defendants’ reference to Davis v. F.W. Financial Services, Inc., 260 Or. App. 191, 317 

P.3d 916 (2013) does not support Defendants on the facts here. Davis involved a dispute 

between two competing creditors arguing over accounts receivable of a debtor. Davis, a 

judgment creditor, garnished the accounts receivable of a debtor in which F.W. Financial 

Services (“FWFS”) had a perfected security interest. Id. at 916. Both parties sought declarations 

from the trial court as to whose interest was superior. Id. The trial court determined FWFS had 

the superior interest and Davis had converted the funds by garnishing the accounts and refusing 

to return the funds to FWFS. Id. The Court of Appeals upheld the trial court on the conversion 

claim, but first noted that Davis’ initial garnishing of the accounts was not conversion because 

FWFS had not yet exercised its rights in the collateral. Id. at 926. Davis, as a judgment creditor, 

had a lawful right to the funds and in the absence of any claim from FWFS, was not interfering 

with the rights of another. Id. The Court of Appeals concluded that FWFS still prevailed on its 

claim for conversion, however, when Davis refused to return the funds after FWFS made a 

demand. Id.

Davis does not establish that a demand is required as an element of conversion. Rather, a 

demand and refusal is necessary when “a person is rightfully in possession of property of 

another, and is neither asserting title to it nor exercising such dominion over it as is inconsistent 

with the right of the owner . . . for in such a case there is no conversion until there is a demand 

and a refusal, and the demand ordinarily becomes necessary before the rightful possession is 

transformed into a wrongful possession.” Daniels v. Foster & Kleiser, 95 Or. 502, 506-07, 187 

P. 627, 628 (1920).

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Demand and refusal is not necessary, in a case like this one, when a debtor defaults on a 

promise to a secured creditor, and then uses the collateral in violation of the secured creditor’s 

rights. Oregon Bank v. Fox, 73 Or. App. 612, 699 P.2d 1147 (1985), a case cited in Davis, 

involved these exact facts. Oregon Bank involved a fight between a debtor and a secured 

creditor over accounts receivable. The debtor defaulted, and before the parties executed an 

“Agreement in Lieu of Foreclosure,” the debtor transferred sums to a separate bank account. Id. 

at 1148-49. The creditor sued the debtor for conversion. Id. at 1149. The debtor claimed the 

creditor had no rights in the accounts until the Agreement in Lieu of Foreclosure was executed, 

because it was only then that the creditor made a demand for the collateral. Id. The court 

rejected the debtor’s argument. The court determined the creditor had right to possession of the 

collateral immediately upon default, and that when the debtor drew checks on the bank account 

after default, he converted those funds. Id. The debtor’s use of the collateral “was in violation 

of the [creditor’s] right to take immediate possession of [the collateral] and was a conversion in 

and of itself, without prior demand and refusal.” Id. at 1150.

As in Oregon Bank, Brooks was not obligated to make a demand on Defendants of the 

Brooks Molds in order to sustain a claim for conversion. Brooks had an immediate right to take 

possession of the Brooks Molds when Defendants defaulted on the Note. (Honoré Decl., Ex. 5 at 

55, § 7.1 of the Security Agreement.) Defendants converted the Fighting Back mold by 

possessing it beyond the date of Defendants’ breach of the Note. 

Even if a demand and refusal were necessary, Brooks made a demand for the collateral 

when she filed suit. Defendants, in spite of that demand, withheld collateral from Brooks until 

nearly a year into the lawsuit. As Brooks noted in her previous brief, Defendants’ late attempt to 

defeat the conversion claim by returning the Brooks Molds (but still not making a proper 

delivery to Parks Bronze) does not work. See Preble v. Hanna, 117 Or. 306, 318-19, 244 P. 75, 

79 (1926).

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C. There are issues of fact over Defendants’ use of the missing molds.

As noted throughout this case, Defendants—specifically, Caswell—has a propensity to be 

untruthful. To the extent he has used any of the individual Brooks Molds or parts of those 

Brooks Molds for other sculptures, he has impaired the value of the Brooks Molds. Caswell 

claims he has not. Brooks believes this is a disputed issue of material fact.

D. There are issues of fact over the condition of the Brooks Molds.

Defendants’ Reply does not even address the disputed issue of fact regarding the 

condition of the Brooks Molds other than the two Defendants claim were misidentified. As 

noted in Brooks’ Response brief, more work needs to be done to determine the extent of the 

damage to the remaining Brooks Molds. The condition of those Brooks Molds is an issue for 

experts and will be explored further in expert discovery.

E. Even if the Court considers Defendants’ late brief, it should not allow 

Defendants to submit new evidence.

As Brooks’ counsel noted in earlier communications to Defendants and the Court, 

Defendants prematurely filed their Motion for Partial Summary Judgment re: Claim of Missing 

Molds ahead of the deadline for expert disclosures. (Honoré Decl., Ex. 4 at 3-4.) Once Brooks 

identified genuine issues of fact sufficient to defeat Defendants’ Motion, Defendants then 

scrambled to identify new evidence and seek to submit it in connection with their Reply.3 

Brooks’ counsel suggested to Defendants in November that Defendants should withdraw their 

Motion for Partial Summary Judgment and refile at the close of expert discovery, if they believed 

they had grounds to do so. (Id., Ex. 4 at 4.) A Motion filed at that time would be able to fully 

address any issues relating to the condition of the Brooks Molds and processes taken to inventory 

the Brooks Molds. Defendants rejected that offer. 

All Defendants have done, in connection with this Motion and proffered Reply, is to 

establish that there is an issue of fact regarding the two significantly-deteriorated molds. Those 

 

3 Defendants did not attach any declaration of Mr. Caswell in connection with their 

Motion and the supporting Declaration of Michael R. Seidl, so Brooks does not know exactly 

what the “Caswell Decl.” cited to in the proffered Reply will say. 

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issues of fact will be explored during expert discovery. Defendants filed this Motion and their 

Motion to Compel in an attempt to rectify their ill-timed Motion for Partial Summary Judgment. 

To allow Defendant to proceed in this manner—to file a bare-bones brief, requiring Brooks to 

submit evidence ahead of expert discovery, and then to nitpick that evidence in a late-filed 

Reply—distorts the purposes of the Civil Rules regarding motion practice. The Court should not 

allow Defendants to manipulate the Court rules and schedule in such a way that deprives Brooks 

of a chance to respond meaningfully to dispositive motions. 

CONCLUSION

Brooks respectfully requests the Court deny Defendants’ Motion for Leave to File a 

Reply Memorandum. Defendants’ proffered Reply brief is only an attempt to confuse the issues 

before the Court and does not further Defendants’ Motion for Partial Summary Judgment re: 

Claim of Missing Molds. Furthermore, Defendants’ failure to obtain any timely extension from 

the Court constitutes a waiver of Defendants’ right to oral argument on the underlying Motion 

for Summary Judgment, pursuant to LR 7-1(d)(4)(A).

DATED this 15th day of January, 2016.

MARKOWITZ HERBOLD PC

By: s/ Molly K. Honoré

Jeffrey M. Edelson, OSB No. 880407

JeffEdelson@MarkowitzHerbold.com

Molly K. Honoré, OSB No. 125250

MollyHonoré@MarkowitzHerbold.com 

(503) 295-3085

Of Attorneys for Plaintiff

BROOCA\500981

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