Case 3:24-cv-00013-JR Document 14 Filed 04/12/24 Page 1 of 12
`
`SARAH AMES BENEDICT, OSB #132675
`sarahbenedict@dwt.com
`MEAGAN HIMES, OSB #193787
`meaganhimes@dwt.com
`DAVIS WRIGHT TREMAINE LLP
`560 SW Tenth Avenue, Suite 700
`Portland, Oregon 97205
`Telephone: (503) 241-2300
`Facsimile: (503) 778-5299
`
`Attorneys for Defendant
`Shriners Hospitals for Children
`
`
`
`
`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`DISTRICT OF OREGON
`PORTLAND DIVISION
`
`
`
`Case No. 3:24-cv-00013-JR
`
`DEFENDANT’S REPLY IN SUPPORT
`OF MOTION TO DISMISS AND
`ALTERNATIVE MOTION FOR
`SUMMARY JUDGMENT
`
`Oral Argument Requested
`
`MARIA GUILLEN PARRISH, an
`individual, CHARLOTTE THOMPSON, an
`individual,
`
`
`
`v.
`
`
`SHRINERS HOSPITALS FOR CHILDREN,
`a corporation,
`
`
`
`
`Plaintiffs,
`
`Defendant.
`
`Ms. Thompson’s and Ms. Guillen Parrish’s (collectively, “Plaintiffs”) response to
`Shriners Children’s Motion to Dismiss fails to save their claims. The Amended Complaint
`should be dismissed with prejudice because neither Plaintiff pleads that they communicated any
`bona fide religious belief to Shriners Children in connection with seeking accommodation, or
`that such belief actually conflicted with the job requirement that they get vaccinated against
`COVID-19. Moreover, the undisputed facts show that Ms. Guillen Parrish’s purported basis for
`accommodation would impermissibly allow her to avoid virtually all unwanted legal obligations,
`Page 1 - DEFENDANT’S REPLY ISO MOTION TO DISMISS AND ALTERNATIVE MOTION FOR
`SUMMARY JUDGMENT
`DAVIS WRIGHT TREMAINE LLP
`4889-4712-0821v.3 0089371-000042
`560 SW Tenth Avenue, Suite 700
`Portland, Oregon 97205
`(503) 241-2300 main  (503) 778-5299 fax
`
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`Case 3:24-cv-00013-JR Document 14 Filed 04/12/24 Page 2 of 12
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`making it too broad to be subject to Title VII or ORS 659A.030 protection. In their response,
`Plaintiffs fail to address key authority fatal to their position, instead focusing on irrelevant case
`citations and legal principles to distract from their inability to substantively defend their claims.
`The Amended Complaint should be dismissed.
`
`A.
`
`Neither Plaintiff substantively rebutted Shriners Children’s arguments
`under Rule 12, and their claims should be dismissed.
`Plaintiffs fail to grapple with any authority discussed by Shriners Children in its two
`principal Rule 12 arguments: (1) that Plaintiffs’ claims fail because they do not plead what, if
`anything, they told Shriners Children about their beliefs, and (2) because their allegations about
`their beliefs themselves are too conclusory. Compare Opp. at 6-13 with Mot. at 16-28.
`Plaintiffs’ attempt to rely on the doctrine of equitable estoppel is a red herring and also fails. Not
`only does it rely on multiple false premises, but it ignores the fact that Shriners Children has
`advanced a pleading motion and assumes the truth of Plaintiffs’ allegations.
`
`1.
`
`Plaintiffs do not plead that they informed Shriners Children of a
`conflict between a religious belief and a job duty.
`Plaintiffs’ claims should be dismissed because they fail to address, and therefore concede,
`Shriners Children’s first argument: Plaintiffs do not plead they communicated a conflict
`between a religious belief and getting vaccinated against COVID-19, because they do not plead
`anything other than the existence of their exemption requests. See generally Opp.; see also Mot.
`at 16-18. (citing cases, including among others, Denton v. Shriners Hosp. for Child., No. 3:23-
`CV-00826-JR, 2024 WL 1078280, at *3 (D. Or. Feb. 8, 2024), report and recommendation
`adopted, 2024 WL 1075324 (D. Or. Mar. 12, 2024) (dismissing similar claims after holding in
`relevant part that the plaintiff “does not plead she informed defendant of such specific beliefs in
`seeking the exemption” to COVID-19 vaccination); Craven v. Shriners Hosps. for Child., No.
`3:22-cv-01619-IM, 2024 WL 21557, at *4 n.3 (D. Or. Jan. 2, 2024) (dismissing with prejudice
`plaintiff’s religious discrimination claims after noting that “under the second element of a prima
`facie case, the conflict a Title VII Plaintiff alleges must be the same conflict of which he
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`DAVIS WRIGHT TREMAINE LLP
`4889-4712-0821v.3 0089371-000042
`560 SW Tenth Avenue, Suite 700
`Portland, Oregon 97205
`(503) 241-2300 main  (503) 778-5299 fax
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`Case 3:24-cv-00013-JR Document 14 Filed 04/12/24 Page 3 of 12
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`informed his employer”). Plaintiffs’ failure to more than conclusory plead that they
`communicated a conflict is fatal to their claims.
`In response to Shriners Children’s argument, including the cases cited above, Plaintiffs
`provide only truisms and no substantive rebuttal. See Opp. at 11-13. Nor can they, as neither
`Ms. Thompson nor Ms. Guillen Parrish pleaded anything about her exemption request other than
`that she submitted one. See id. This lack of substantive rebuttal should be treated as a
`concession, and this Court should dismiss their claims. See Roberts, et al. v. Shriners Hosps. for
`Child., et al., No. 2:23-cv-0295-TOR, ECF No. 46 at 22 (Mar. 18, 2024 E.D. Wash.) (“[H]aving
`failed to respond to this argument in their briefing, the Court has no choice but to consider the
`issue conceded.”) (citation omitted); Justice v. Rockwell Collins, Inc., 117 F. Supp. 3d 1119,
`1134 (D. Or. 2015), aff’d, 720 F. App’x 365 (9th Cir. 2017) (“if a party fails to counter an
`argument that the opposing party makes . . . the court may treat that argument as conceded”)
`(citation and internal punctuation omitted).
`
`2.
`
`Plaintiffs fail to plead non-conclusory allegations about the nature of
`their belief or how they conflict with taking the COVID-19 vaccine.
`Even if this Court finds that Plaintiffs sufficiently plead that they communicated their
`alleged belief to Shriners Children, their Opposition still does not save their claims, because their
`allegations about their beliefs are too conclusory. Despite devoting nearly five pages of their
`Opposition to the argument that “they hold a sincere belief that conflicts with Defendant’s
`policy,” Plaintiffs ignore every single case cited by Shriners Children, direct the Court to other
`cases that do not avail their claims, and ultimately fail to show where or how they plead anything
`more than impermissible conclusory allegations on the subject. See Opp. at 7-11.
`
`a.
`The caselaw shows why Ms. Thompson’s allegations fail.
`Ms. Thompson’s sole allegation about the substance of her belief allegedly in conflict
`with Shriners Children’s vaccine requirement is that she identifies as a Christian who believes in
`God. FAC ¶ 8. Courts—including those in this District—readily dismiss such allegations as too
`
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`DAVIS WRIGHT TREMAINE LLP
`4889-4712-0821v.3 0089371-000042
`560 SW Tenth Avenue, Suite 700
`Portland, Oregon 97205
`(503) 241-2300 main  (503) 778-5299 fax
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`Case 3:24-cv-00013-JR Document 14 Filed 04/12/24 Page 4 of 12
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`conclusory to identify a belief that conflicts with an employment requirement. See Mot. at 17-22
`(discussing cases); see also Gamon v. Shriners Hosps. for Child., No. 3:23-CV-00216-IM, 2023
`WL 7019980, at *3 (D. Or. Oct. 25, 2023) (“Plaintiff's Complaint must do more than state that
`her [Christian] religious beliefs conflict with Defendant’s policy. Her Complaint must describe
`the conflict with factual specificity, which it failed to do.”); Denton v. Shriners Hosp. for Child.,
`No. 3:23-CV-00826-JR, 2024 WL 1078280, at *3 (D. Or. Feb. 8, 2024), report and
`recommendation adopted, 2024 WL 1075324 (D. Or. Mar. 12, 2024) (though plaintiff alleges her
`Christian belief and the nature of her objection to vaccines developed on aborted fetal cell lines,
`her “complaint does not identify the specific religious belief violated by the vaccine requirement
`and does not allege she informed defendant of such specific beliefs in seeking the exemption,”
`requiring dismissal). This Court is no exception. See Trinh v. Shriners Hosps. for Child., No.
`3:22-CV-01999-SB, 2023 WL 7525228, at *2, 10 (D. Or. Oct. 23, 2023), report and
`recommendation adopted, 2023 WL 7521441 (D. Or. Nov. 13, 2023) (where plaintiff pled she
`was “a deeply religious person who follows tenants [sic] of both the Christian faith and
`Buddhism” who had “serious objections to taking the vaccine because it would constitute
`violating her bodily integrity and the purity of her body,” this Court held that “[a]bsent additional
`factual allegations, [the plaintiff] has not plausibly alleged facts showing that her anti-
`vaccination beliefs are religious in nature and protected by Title VII”).
`Two other in-district cases, decided after Shriners Children filed its Motion, drive home
`this point. In Bulek v. Kaiser Found. Hosps., No. 3:23-CV-01585-MO, 2024 WL 1436134 (D.
`Or. Apr. 3, 2024), the plaintiff “applied for a religious exemption from the vaccine mandate
`based on her sincerely held religious beliefs as a Christian.” Id. at *1. The court dismissed the
`plaintiff’s failure to accommodate claims after observing that she had “not alleged any facts
`showing a conflict between her religious beliefs and [the defendant’s COVID-19] vaccine
`mandate.” Id. at *3. Similarly, in Kamrath v. Addictions Recovery Ctr., Inc., No. 1:23-CV-
`01516-MC, 2024 WL 942092 (D. Or. Mar. 5, 2024), the court dismissed the plaintiff’s failure to
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`DAVIS WRIGHT TREMAINE LLP
`4889-4712-0821v.3 0089371-000042
`560 SW Tenth Avenue, Suite 700
`Portland, Oregon 97205
`(503) 241-2300 main  (503) 778-5299 fax
`
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`Case 3:24-cv-00013-JR Document 14 Filed 04/12/24 Page 5 of 12
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`accommodate claims because, “although Plaintiff identifies as ‘devoutly religious,’ he fails to
`explain how practicing his Christian beliefs actually conflicted with the employment requirement
`to take the COVID-19 vaccine.” Id. at *2.
`Ms. Thompson does not contend, either literally or substantively, with the prevailing
`caselaw. See generally Opp. Her allegations are too conclusory and should be dismissed.
`
`b.
`
`Ms. Guillen Parrish’s allegations also fail under prevailing
`caselaw.
`Ms. Guillen Parrish’s allegations are only incrementally better pled and still too
`conclusory to stand. She pleads first that “her body . . . belongs to God, and that she must do
`nothing that would jeopardize her health spiritually or physically,” and second, that she “also
`cannot knowingly partake of a vaccine which is derived in any measure from the use of fetal
`cells lines [sic] derived from aborted fetuses.” FAC ¶ 5. Neither allegation is sufficient for Ms.
`Guillen Parrish to state a claim, see Mot. at 22-28 (citing cases), and she too does not contend
`with any of the authorities cited by Shriners Children illustrating as much, see generally Opp.
`For example, with respect to the first allegation—that “her body . . . belongs to God”—
`Ms. Guillen Parrish does not attempt to grapple with or even acknowledge this Court’s ruling in
`Ruscitti v. Legacy Health, No. 3:23-CV-00787-JR, 2023 WL 8007620, at *3 (D. Or. Sept. 27,
`2023), report and recommendation adopted, 2023 WL 8006269 (D. Or. Nov. 16, 2023), in which
`the plaintiff alleged her Christian belief and an objection to taking the COVID-19 vaccine
`because “it would constitute violating her bodily integrity and tainting the purity of her body”—
`an allegation that this Court found “fails to establish religious opposition the [defendant’s]
`vaccination policy.” Id. at *3; see Mot. at 24 (discussing same). Neither does Ms. Guillen
`Parrish address Trinh v. Shriners Hosps. for Child., No. 3:22-CV-01999-SB, 2023 WL 7525228,
`at *10 (D. Or. Oct. 23, 2023), report and recommendation adopted, 2023 WL 7521441 (D. Or.
`Nov. 13, 2023), in which the court held that objections of “bodily integrity” and the “purity of
`
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`DAVIS WRIGHT TREMAINE LLP
`4889-4712-0821v.3 0089371-000042
`560 SW Tenth Avenue, Suite 700
`Portland, Oregon 97205
`(503) 241-2300 main  (503) 778-5299 fax
`
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`Case 3:24-cv-00013-JR Document 14 Filed 04/12/24 Page 6 of 12
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`[plaintiff’s] body,” even in the context of her alleged Christian faith, were insufficient to state a
`claim. Id. at *10; see Mot. at 24-25 (discussing same).
`
`These holdings comport with the other bodily integrity cases discussed in the Motion that
`Plaintiffs fail to address in their response. See Mot. at 22-28 (discussing, among other cases,
`Bube v. Aspirus, Inc., 2023 WL 6037655 (Sept. 15, 2023) as inherently holding “that repeated
`references to one’s faith—discussions of Catholicism, God, Jesus, the Holy Spirit, or the like—
`are not sufficient to disguise a non-religious belief as religious for purposes of stating a Title
`VII claim” (emphasis in Motion)).
`
`Ms. Guillen Parrish’s second alleged objection similarly fails. Ms. Guillen Parrish pleads
`only that she holds a religious objection to being “complicit in the act of murder, however far
`removed” and that she objects to a product that is vaguely “connected to” a cell line years (and
`untold generations) removed from one abortion. Put simply: she objects to the occurrence of
`abortions, yet she does not (and cannot) allege that receiving the vaccine would cause or
`increase the likelihood of any abortion, or that any abortion would not have taken place but for
`the vaccine’s development. See generally FAC; Opp. Her objection is insufficient to support a
`conflict between a religious belief and a job duty. See Mot at 26-28 (discussing, among other
`cases, Kiel v. Mayo Clinic Health Sys. Se. Minnesota, 2023 WL 5000255 (D. Minn. Aug. 4,
`2023) (“A religious opposition to abortion is different from an opposition to vaccines that were
`potentially developed using a fetal cell line.”) and Denton v. Shriners Hosp. for Child., No. 3:23-
`CV-00826-JR, 2024 WL 1078280, at *3 (D. Or. Feb. 8, 2024), report and recommendation
`adopted, 2024 WL 1075324 (D. Or. Mar. 12, 2024) (dismissing failure to accommodate claims
`because the “complaint does nothing more than plead a conclusory objection to use of aborted
`fetal cell lines” and the plaintiff’s Christian belief)).
`Because Ms. Guillen Parrish has failed to plead a conflict between her anti-abortion
`belief and her job requirement to receive the vaccine, her claims fail. Cf. Brokken v. Hennepin
`County, 2024 WL 1382150, at *5 (D. Minn. Mar. 29, 2024) (“[W]hen people claim a religious
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`DAVIS WRIGHT TREMAINE LLP
`4889-4712-0821v.3 0089371-000042
`560 SW Tenth Avenue, Suite 700
`Portland, Oregon 97205
`(503) 241-2300 main  (503) 778-5299 fax
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`Case 3:24-cv-00013-JR Document 14 Filed 04/12/24 Page 7 of 12
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`objection to something because of how it has been produced, the Court has been unwilling to
`find that is a sufficient conflict. [Plaintiff] may object to how the [COVID-19] tests are
`developed but that does not specifically relate her religious belief to taking the test.”).
`
`c.
`
`The minimal caselaw cited by Plaintiffs do not save their
`claims.
`The cases Plaintiffs do cite in an attempt to distinguish their facts are insufficient to show
`that their beliefs qualify for Title VII protection. Specifically, Plaintiffs cite two cases: Kather
`v. Asante Health Sys., 2023 WL 4865533 (D. Or. July 28, 2023) and Thompson v. Asante Health
`Sys., 2023 WL 7348812 (D. Or. Sept. 21, 2023), report and recommendation adopted, 2023 WL
`7326496 (D. Or. Nov. 7, 2023). See Opp. at 8-11. Neither case avails them. In each Kather and
`Thompson, the court discusses the facts of only one out-of-district case—Rolovich v. Washington
`State University, 2023 WL 3733894 (E.D. Wash. May 30, 2023)—as informing its analysis. See
`Thompson, 2023 WL 7348812, at *3; Kather, 2023 WL 4865533, at *4. The Rolovich court
`denied a motion to dismiss filed by a plaintiff whose employment was terminated after he
`refused the required COVID-19 vaccine and held that “the plaintiff’s general assertion that his
`Catholic faith motivated his objection to the vaccine was satisfactory at the pleading stage to
`allege a religious conflict with an employment duty.” Thompson, 2023 WL 7348812, at *3
`(discussing Rolovich, 2023 WL 3733894, at *3).
`The analysis in Rolovich upon which Kather and Thompson relied was minimal and
`stands in direct contrast with other more recent opinions in which courts have found the
`opposite—opinions Shriners Children cites in its Motion, see Mot. at 18-28, including (and
`especially) this Court’s own prior findings and recommendations of dismissal in Denton, 2024
`WL 1078280, and Ruscitti, 2023 WL 8007620, discussed above. These cases, unacknowledged
`by Plaintiffs, overwhelmingly demonstrate that Plaintiffs’ allegations are too conclusory and that
`their claims must be dismissed.
`
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`DAVIS WRIGHT TREMAINE LLP
`4889-4712-0821v.3 0089371-000042
`560 SW Tenth Avenue, Suite 700
`Portland, Oregon 97205
`(503) 241-2300 main  (503) 778-5299 fax
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`Case 3:24-cv-00013-JR Document 14 Filed 04/12/24 Page 8 of 12
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`3.
`Equitable estoppel is a red herring.
`Rather than rebut the substance of Shriners Children’s arguments, Plaintiffs raise the
`inapplicable doctrine of equitable estoppel, apparently overlooking that Shriners Children has
`advanced a pleading motion and has treated all allegations in Plaintiffs’ FAC as true. See Mot. at
`8 n.1 (stating same).
`Their equitable estoppel argument is premised on a straw man. Nowhere in its Motion
`does Shriners Children’s question the sincerity of Plaintiffs’ beliefs, either explicitly or
`impliedly. See generally, Mot. Shriners Children’s cannot be “estopped” from making an
`argument it is not, in fact, making in its Motion.
`Even if it had made this argument, equitable estoppel is not a mechanism to avoid the
`requirements of a well-pled complaint; Plaintiffs cite no caselaw where equitable estoppel has
`been used to excuse a plaintiff from meeting her pleading standard. Moreover, Plaintiffs’ FAC
`does not plead that Shriners Children “failed to afford Plaintiffs an opportunity to elaborate” on
`their religious beliefs, “neglect[ed] to request information on the Plaintiffs religious beliefs prior
`to termination,” or disallowed Plaintiffs from “retroactively provid[ing] additional details to
`justify their religious exemption[s],” though their equitable estoppel arguments are premised on
`such notions.1 Opp. at 16.
`In fact, Plaintiffs’ own allegations contravene these premises. Plaintiffs plead that they
`in fact submitted exemption requests, belying the unalleged notion that they were not afforded an
`opportunity to share details about their beliefs. Plaintiffs’ equitable estoppel argument is a
`distraction from the fact that they cannot substantively rebut Shriners Children’s Motion under
`Rule 12, which shows that their claims should be dismissed.
`
`
`1 Shriners Children observes that any such allegation would be subject to the requirements of
`Fed. R. Civ. P. 11(b)(3), which requires that the attorney signing a pleading represents that they
`have conducted an “inquiry reasonable under the circumstances” and that “the factual
`contentions [pleaded] have evidentiary support or, if specifically so identified, will likely have
`evidentiary support[.]”
`
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`DAVIS WRIGHT TREMAINE LLP
`4889-4712-0821v.3 0089371-000042
`560 SW Tenth Avenue, Suite 700
`Portland, Oregon 97205
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`Case 3:24-cv-00013-JR Document 14 Filed 04/12/24 Page 9 of 12
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`B. Ms. Guillen Parrish does not dispute any material facts relevant to Shriners
`Children’s Rule 56 Motion, and Shriners Children is entitled to judgment.
`Even if Ms. Guillen Parrish’s claims survive Shriners Children’s Motion made under
`Rule 12, her claims still fail under Rule 56. See Mot. at 28-31. Ms. Guillen Parrish’s arguments
`to the contrary are unavailing because she identifies no disputed facts relevant to the Motion’s
`Rule 56 argument and misapprehends the procedural propriety of the Motion.
`
`1.
`
`Ms. Guillen Parrish identifies no disputed facts relevant to Shriners
`Children’s Rule 56 arguments.
`Shriners Children’s alternative motion for summary judgment on Ms. Guillen Parrish’s
`claims rests on a narrow set of undisputed facts: the extent to which common products are
`ubiquitously tested on aborted fetal cell lines. Because of this, Ms. Guillen Parrish’s objection to
`any product “derived in any measure from the use of fetal cell lines derived from aborted
`fetuses,” FAC ¶ 5, is so universal that it could be applied to virtually any job requirement thus
`rendering it unprotected under Title VII. Ms. Guillen Parrish does not dispute these facts. See
`generally Opp.
`To be sure, there are facts Ms. Guillen Parrish does dispute, see Opp. at 14, but none bear
`on this issue. For example, Ms. Guillen Parrish identifies a dispute over “whether [her] objection
`to the COVID-19 vaccination is genuinely rooted in her religious beliefs or if it serves as a
`pretext to evade legal obligations,” Opp. at 14. In focusing on the sincerity of her belief and the
`concept of pretext, she overlooks Shriners Children’s position in this Motion. The question at
`the heart of Shriners Children’s Rule 56 Motion is simply whether Ms. Guillen Parrish’s
`objection is so broad that is essentially without boundary, which in turn removes Title VII’s
`protections. The answer to this question does not turn on the sincerity of her belief, but rather
`the breadth of the objection and the unmanageable impact on an ordered society if employees
`were allowed to evade job requirements with as attenuated a connection to abortion as the
`COVID-19 vaccine. See Mot. at 28-31.
`
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`DAVIS WRIGHT TREMAINE LLP
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`560 SW Tenth Avenue, Suite 700
`Portland, Oregon 97205
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`Case 3:24-cv-00013-JR Document 14 Filed 04/12/24 Page 10 of 12
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`Ms. Guillen Parrish also fails to create a material issue of fact by arguing “there exist
`conflicting interpretations regarding the composition of the COVID-19 vaccines and their ethical
`implications.” Id. Shriners Children’s Motion does not dispute that the COVID-19 vaccines at
`issue were “derived in any measure from the use of fetal cells [sic] lines derived from aborted
`fetuses.” FAC ¶ 5. The ethical implications of the use of such cells is not at issue. Mot. at 28-
`31.
`
`Finally, Ms. Guillen Parrish identifies “disagreement over the extent to which [her]
`objection applies to various products or circumstances involving fetal cell lines.” Opp. at 14. It
`is unclear to what disagreement Ms. Guillen Parrish refers, as she alleged an objection to taking a
`vaccine premised on its “deriv[ation] in any measure from the use of fetal cells [sic] lines derived
`from aborted fetuses.” FAC ¶ 5. Without disputing the truth of that objection, Shriners
`Children’s Motion relies on undisputed information about products and circumstances to
`demonstrate the objection’s ubiquity. See Mot. at 28-31. If Ms. Guillen Parrish now argues that
`she may not actually object to those other products or circumstances, this does not defeat
`summary judgment, but instead only calls into question Ms. Guillen Parrish’s own allegation.
`Even assuming Ms. Guillen Parrish did somehow identify a relevant disputed fact in her
`Opposition—which Shriners Children does not concede—Ms. Guillen Parrish does not offer any
`support in the record to establish that dispute as required by Fed. R. Civ. P. 56(c), or identify any
`necessary discovery of facts unavailable to her but essential to justify her opposition under Fed.
`R. Civ. P. 56(d). Vaguely disputing a legal position is not sufficient to create a disputed fact, and
`the undisputed facts here entitle Shriners Children to judgment.
`
`2.
`Ms. Guillen Parrish’s remaining procedural arguments fail.
`Ms. Guillen Parrish argues that Shriners Children’s Rule 56 Motion both was not timely
`and runs afoul of a rule of procedure. Both are incorrect.
`
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`DAVIS WRIGHT TREMAINE LLP
`4889-4712-0821v.3 0089371-000042
`560 SW Tenth Avenue, Suite 700
`Portland, Oregon 97205
`(503) 241-2300 main  (503) 778-5299 fax
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`Case 3:24-cv-00013-JR Document 14 Filed 04/12/24 Page 11 of 12
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`a.
`Shriners Children’s alternative motion is timely.
`Courts in this District, in the context of identical claims brought by Plaintiffs’ counsel,
`have explicitly recognized that a movant need not wait until the closure of discovery to file a
`summary judgment motion. Trinh, 2023 WL 7525228, at *5 (“[N]or does the Court require a
`party to wait until discovery has closed, if that party believes it has a meritorious argument for
`summary judgment.”) (citation omitted); Quinn v. Legacy Health, No. 3:23-CV-00331-JR, 2024
`WL 620344, at *5 (D. Or. Feb. 13, 2024) (stating the Court’s willingness to entertain “a well-
`supported motion for summary judgment . . . before the close of discovery”). Yet Ms. Guillen
`Parrish still objects to the Motion as “premature” because “it [was] filed before the close of
`discovery or before the Plaintiff has had a reasonable opportunity to gather evidence.” Opp. at
`15. But Shriners Children need not wait until the close of discovery, and as outlined above, Ms.
`Guillen Parrish does not—and cannot—point to any specific fact “essential to justify [her]
`opposition” under Rule 56(d) that requires any evidence gathering on the narrow subject of
`Shriners Children’s Rule 56 Motion.
`
`b.
`
`Shriners Children has followed the applicable rules of
`procedure.
`Ms. Guillen Parrish also posits that the Motion “fails to comply with Oregon Rule of
`Civil Procedure 47(C),” which is applicable to summary judgment motions filed in state court
`and requires a “separate concise statement of the material facts as to which the moving party
`contends there is no genuine issue to be tried.” Opp. at 15. Notwithstanding the fact that
`Shriners Children indeed did describe the undisputed facts in its Motion, see Mot. at 28-31, the
`Oregon Rules of Civil Procedure do not apply in federal court, and the Federal Rules of Civil
`Procedure do not include an analogous requirement. See Fed. R. Civ. P. 56.
`Taken together, Shriners Children’s Motion is both substantively meritorious and
`procedurally sound. This Court should therefore dismiss both Plaintiffs’ claims under Rule 12,
`or alternatively on Ms. Guillen Parrish’s claims, enter judgment in favor of Shriners Children
`under Rule 56.
`Page 11 - DEFENDANT’S REPLY ISO MOTION TO DISMISS AND ALTERNATIVE MOTION FOR
`SUMMARY JUDGMENT
`DAVIS WRIGHT TREMAINE LLP
`4889-4712-0821v.3 0089371-000042
`560 SW Tenth Avenue, Suite 700
`Portland, Oregon 97205
`(503) 241-2300 main  (503) 778-5299 fax
`
`
`

`

`Case 3:24-cv-00013-JR Document 14 Filed 04/12/24 Page 12 of 12
`
`DATED this 12th day of April, 2024.
`
`DAVIS WRIGHT TREMAINE LLP
`
`
`
`By s/ Sarah Ames Benedict
`Sarah Ames Benedict, OSB #132675
`sarahbenedict@dwt.com
`Meagan Himes, OSB #193787
`meaganhimes@dwt.com
`Telephone: (503) 241-2300
`Facsimile: (503) 778-5299
`
`Attorneys for Defendant
`Shriners Hospitals for Children
`
`
`
`
`
`Page 12 - DEFENDANT’S REPLY ISO MOTION TO DISMISS AND ALTERNATIVE MOTION FOR
`SUMMARY JUDGMENT
`DAVIS WRIGHT TREMAINE LLP
`4889-4712-0821v.3 0089371-000042
`560 SW Tenth Avenue, Suite 700
`Portland, Oregon 97205
`(503) 241-2300 main  (503) 778-5299 fax
`
`
`