                                                                           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                           NOT FOR PUBLICATION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.




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