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ORDER – 1 

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

E.W., a minor by and through CRAIG

SCHAUERMAN, her Guardian ad Litem,

Plaintiff,

v.

THOMAS HENRY MOODY; BATTLE

GROUND SCHOOL DISTRICT #119, a

public corporation; MARLA D. ERATH; and

CYNTHIA S. LARSON,

Defendants.

CASE NO. C06-5253BHS

ORDER GRANTING

PLAINTIFF’S MOTION TO

STRIKE PURSUANT TO 

FED. R. CIV. P. 12(f)

This matter comes before the Court on Plaintiff’s Motion to Strike Pursuant to Fed. R.

Civ. P. 12(f) (Dkt. 55). The Court has considered the pleadings filed in support of and opposition

to the motion and the remainder of the file herein, and hereby grants Plaintiff’s motion for the

following reasons.

Plaintiff’s motion seeks to strike Defendants’ fifth, eighth, and eleventh affirmative

defenses as they are a “variation of an allegation that plaintiff shares the fault for her molestation

by Thomas Moody, her fifth grade teacher, and its resulting harm.” Dkt. 55 at 2. Defendants do

not contradict this characterization of any of the challenged affirmative defenses in their

response and therefore the Court will accept Plaintiff’s characterization as accurate. As a result,

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ORDER – 2 

the Court must answer the question of whether a minor child can be said to have a duty to protect

herself from being abused.

In answering this question, the Court notes that there is a lack of controlling authority on

this issue. Case law cited by Defendants for allowing the challenged affirmative defenses did

not confront these issues as they apply to a minor child. Plaintiff relies on Christensen v. Royal

Sch. Dist., 156 Wn.2d 62 (2005). That case sought to answer a similar question as is presented

here. Plaintiff brought her case in the Eastern District of Washington asserting claims against the

school district for, among other things, violations of Title IX, 42 U.S.C. § 1983, and negligence

under state law. Christensen v. Royal Sch. Dist., 2006 WL 2237671 (E.D. Wash. 2006). The

question was certified to the Washington Supreme Court pursuant to the plaintiff’s motion for

partial summary judgment on whether any liability could be allocated to the plaintiff. Id. The

District Court in that case held that the Washington Supreme Court’s ruling resolved the issue in

favor of the plaintiff and granted her summary judgment. Id. As the Eastern District of

Washington court adopted the Washington Supreme Court’s reasoning in granting summary

judgment to the plaintiff, this Court is persuaded to apply the reasoning and policy arguments

relied on by the Washington Supreme Court to the instant matter.

In sum, because we recognize the vulnerability of children in the school setting,

we hold, as a matter of public policy, that children do not have a duty to protect

themselves from sexual abuse by their teachers. Moreover, we conclude that

contributory fault may not be assessed against a [student] child based on the

failure to protect herself from being sexually abused when the defendant or

defendants stand in a special relationship to the child and have a duty to protect

the child.

Christensen, 156 Wn.2d at 71-72. Therefore, the Court should strike Defendants’ affirmative

defenses as they have been characterized by the Plaintiff. As in Christensen, this does not

preclude Defendants from presenting these arguments as evidence that Defendants were not

negligent or did not have knowledge of the alleged acts and were not deliberately indifferent.

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ORDER – 3 

It is therefore ORDERED that Plaintiff’s Motion to Strike Pursuant to Fed. R. Civ. P.

12(f) (Dkt. 55) is hereby GRANTED. Defendants’ fifth, eighth, and eleventh affirmative

defenses are hereby STRICKEN. 

DATED this 15th day of October, 2007.

A 

BENJAMIN H. SETTLE

United States District Judge

Case 3:06-cv-05253-BHS Document 107 Filed 10/15/07 Page 3 of 3