FILED
NOT FOR PUBLICATION
MAY 15 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHAUN LOWRY; ASHLEY LARSON; No. 15-35060
T. L., by and through her father and next
friend, Shaun Lowry; G. L., by and D.C. No. 3:13-cv-01562-HZ
through her father and next friend, Shaun
Lowry,
MEMORANDUM*
Plaintiffs-Appellants,
v.
SHERWOOD CHARTER SCHOOL;
SHERWOOD CHARTER SCHOOL
BOARD,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Argued and Submitted May 10, 2017
Portland, Oregon
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: BYBEE and HURWITZ, Circuit Judges, and RAKOFF,** Senior District
Judge.
Plaintiffs appeal the district court’s judgment and award of costs to
Defendants. We affirm.
The district court properly dismissed Plaintiffs’ cause of action for breach of
contract for failure to state a claim because the complaint did not allege facts
sufficient to establish the existence of a contract between Defendants and
Plaintiffs. See Homestyle Direct, LLC v. Dep’t of Human Servs., 311 P.3d 487,
492–93 (Or. 2013) (en banc) (“The formation of a contract requires a ‘bargain in
which there is a manifestation of mutual assent to the exchange and
consideration.’” (citation omitted)).
The district court properly granted summary judgment to Defendants on
Plaintiffs’ causes of action for violations of Title IX because Plaintiffs failed to
present any evidence that Defendants were an “education program or activity
receiving Federal financial assistance.” 20 U.S.C. § 1681(a); see Castle v.
Eurofresh, Inc., 731 F.3d 901, 909 (9th Cir. 2013) (holding that a plaintiff must
show that the defendant “has affirmatively chosen to ‘provid[e] [services] as a quid
pro quo for the receipt of federal funds’” to prevail under Title IX (first alteration
**
The Honorable Jed S. Rakoff, Senior United States District Judge for
the Southern District of New York, sitting by designation.
2
in original) (quoting U.S. Dep’t of Transp. v. Paralyzed Veterans of Am., 477 U.S.
597, 605 (1986))); Sharer v. Oregon, 581 F.3d 1176, 1181 (9th Cir. 2009)
(“[E]ntities that receive federal assistance . . . through an intermediary[] are
recipients, . . . entities that only benefit economically from federal assistance are
not.” (second and third alterations in original) (quoting NCAA v. Smith, 525 U.S.
459, 468 (1999))).
The district court properly granted summary judgment to Defendants on
Plaintiffs’ negligence claim because Plaintiffs claimed to have suffered only
emotional harm and failed to show that they were in a special relationship with
Defendants. See Shin v. Sunriver Preparatory Sch., Inc., 111 P.3d 762, 770–73
(Or. Ct. App. 2005) (holding that a “surrogate parent relationship in the context of
a boarding school” gave rise to a special relationship by noting that it was “not at
all like a typical high school”); see also Doe ex rel. Farley, Piazza & Assocs. v.
Gladstone Sch. Dist., No. 3:10-CV-01172-JE, 2012 WL 2049173, at *13 (D. Or.
June 6, 2012) (“Neither party has cited, nor have I found, any Oregon case that has
held that such a relationship exists between a public school student and his or her
school.”).
Plaintiffs’ challenge to the district court’s award of costs to Defendants
pursuant to Federal Rule of Civil Procedure 54(d)(1) also fails. The district court
3
did not abuse its discretion in adhering to the presumption of awarding costs to the
prevailing party. See Ass’n of Mexican-Am. Educators v. California, 231 F.3d 572,
592–93 (9th Cir. 2000).
AFFIRMED.
4