                                                                           FILED
                           NOT FOR PUBLICATION                             MAR 20 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


BARBARA G. DAUVEN,                               No. 12-35828

              Plaintiff - Appellant,             D.C. No. 3:09-cv-00305-BR

  v.
                                                 MEMORANDUM*
GEORGE FOX UNIVERSITY; et al.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Oregon
                     Anna J. Brown, District Judge, Presiding

                       Argued and Submitted March 5, 2014
                                Portland, Oregon

Before: TROTT and W. FLETCHER, Circuit Judges, and BLOCK, Senior District
Judge. **

       Plaintiff Barbara Dauven sued the defendants in this case alleging numerous

claims arising out of Dauven’s studies at George Fox University’s Graduate


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Frederic Block, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
Department of Counseling and a related internship at the DePaul Adult Drug and

Alcohol Treatment Center. At trial, Dauven lost on her three claims that had

survived summary judgment. She now challenges (1) the district court’s order

denying her motion for summary judgment on her breach of contract claim; (2) the

“actual notice” jury instruction for her Title IX claim; and (3) the district court’s

award of costs for defendants. We have jurisdiction under 28 U.S.C. § 1291. For

the reasons that follow, Dauven’s challenges fail.

      Dauven first claims that the district court erroneously denied her motion for

summary judgment on her breach of contract claim by failing to decide that George

Fox’s graduate handbook governed her relationship with George Fox. Under the

graduate handbook, she claims, no disputed material fact remained for trial.

Dauven’s argument fails because the district court correctly found that disputed

material facts existed under any of the possible governing contracts, including the

graduate handbook. See Banuelos v. Constr. Laborers’ Trust Funds for S. Cal.,

382 F.3d 897, 902–03 (9th Cir. 2004).

      Dauven next argues that the district court erred by instructing the jury that

Dauven’s Title IX claim required her to prove that a George Fox official with the

authority to address the alleged discrimination had “actual notice”of that

discrimination. Rather, Dauven contends that she based that claim on an alleged


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discriminatory institutional policy. But Dauven raised the “institutional policy”

theory for the first time on appeal, and so we need not consider it. See Moreno

Roofing Co. v. Nagle, 99 F.3d 340, 343 (9th Cir. 1996). Moreover, Dauven

declined to object to the instruction, and repeatedly said she understood and agreed

with the instruction. It cannot be plain error for a district court to rely on the overt

statements of a party acquiescing in an instruction, simply because the party

prefers a different theory of the case on appeal. See Fed. R. Civ. P. 51(d)(2).

      Finally, Dauven challenges the district court’s award of costs pursuant to

Fed. R. Civ. P. 54(d)(1) to defendants. Because counsel for defendants has agreed

to vacate the cost judgment against Dauven, we remand for that sole purpose.

Each party will bear its own costs on appeal.

      AFFIRMED IN PART and REMANDED IN PART with instructions to

VACATE the award of costs against the plaintiff.




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