CYR, Circuit Judge.
George Lambert appeals a district court order dismissing his lawsuit for improper venue. We affirm.
Appellant Lambert owns and operates the Rainbow Fruit Company in Boston, Massachusetts, which sells Christmas trees and wreaths at retail during the holiday season. Appellees Sam and Joan Kysar operate a Christmas tree farm in Woodland, Washington. From 1987 through 1989, Lambert purchased Christmas trees at wholesale from the Kysars pursuant to a written form contract signed by both parties. The front of the order form contained spaces in which the size, grade, quantity, and price of each Christmas tree order could be filled in; a small space at the bottom of the page, denominated "other", was used by the parties to note additional
In July 1989, the Kysars visited Boston to discuss Lambert's needs for the upcoming Christmas season. On their return to Washington, they sent Lambert an order form, filled out and signed by Joan Kysar. The numbers handwritten on the form by Joan Kysar provided for an order of 2600 Christmas trees at $11.60 apiece. At the bottom of the form, in the space marked "other", Kysar wrote that the order was "[b]ased on 4 loads of 650 trees each. All trucks will be loaded to capacity. 25% deposit ... balance due on or before 12/10/89."
Lambert received the order form in late July, but apparently thought that it overstated the quantity of trees needed for the next season. Writing on the same order form submitted by the Kysars, he changed the notation "4 loads of 650 trees each," to read "3 loads of 550 trees", and changed the total number ordered from "2600" to "1650." Lambert also recomputed the total amount due and the amount of the required 25% deposit. He inserted the new figures over Joan Kysar's handwritten figures at the bottom of the form, and returned the form to the Kysars. He made no change to the $11.60 unit price or to any other contract provision.
On August 21, 1989, in a letter to Sam and Jean Kysar, Lambert enclosed a $4785 check "for payment of the deposit on our tree order", and stated his understanding "that shipping will be the same as last year. There will be three loads of 1,650 trees at $11.60 for a total cost of $19,140." The record on appeal does not indicate whether the Kysars received Lambert's letter, cashed his deposit check, or issued any written response, but on November 20, 25 and 29, in accordance with the instructions on the altered order form, the Kysars sent Lambert the requested 1,650 trees, in three loads, by overland truck. Following delivery of the trees on November 25, 29, and December 1, Lambert's inspection allegedly revealed that the trees "were dry, not fresh, and appeared old." Citing the allegedly defective condition of the trees, Lambert refused to pay the balance claimed by the Kysars.
In June, 1991, the Kysars filed suit in Clark County, Washington, to recover the balance claimed due. In September, 1991, Lambert filed the present countersuit against the Kysars in Massachusetts Superior Court, alleging misrepresentation, breach of contract, breach of implied warranty, and unfair business practices under Mass.Gen.L. ch. 93A. The Kysars removed Lambert's suit to federal district court and moved to dismiss under Federal Rules 12(b)(3) and 12(b)(6), alleging improper venue and failure to state a claim on which relief could be granted.
On November 18, 1991, the motion to dismiss was granted without hearing, by margin order: "[The defendants'] motion to dismiss is allowed. According to the terms of contract[,] suit must be filed in State Court in Washington." We review the district court dismissal order de novo. See Edwards v. John Hancock Mut. Life Ins. Co., 973 F.2d 1027, 1028 (1st Cir.1992); see also Instrumentation Assocs., Inc. v. Madsen Electronics (Canada) Ltd., 859 F.2d 4, 5 (3d Cir.1988) (de novo review of forum selection clause dismissal under Rule 12(b)(6)); compare, e.g., Pelleport Investors, Inc. v. Budco Quality Theatres, 741 F.2d 273, 280 n. 4 (9th Cir.1984)
The order form filled out by Joan Kysar, and amended by Lambert in July 1989, provided, inter alia, that "[i]n the event any action is brought to enforce [the] terms and conditions [of the order documents], venue shall lie exclusively in Clark County, Washington." The Kysars assert, and the district court impliedly found, that the order form expressed the terms and conditions of the agreement between the parties and that Lambert is bound by the choice of forum made in the order form. Lambert vigorously disagrees. According to Lambert, the changes he made to the quantity term on the Kysars' order form amounted to a material alteration (and therefore a rejection) of the Kysar offer, paving the way for a counteroffer in the form of Lambert's August 21 letter. Since the August 21 letter contained neither a forum selection clause nor an express choice-of-law provision, Lambert asserts that venue and choice-of-law rules are to be determined under general common-law and statutory principles. In particular, Lambert asserts, the Massachusetts venue remains proper under the general rules applicable to removed cases in federal courts, i.e., 28 U.S.C. § 1441.
We agree with the first part of Lambert's argument. The changes Lambert made to the quantity term amounted to a rejection under Article 2 of the Uniform Commercial Code, and the Kysars' performance of the new contract amounted to an acceptance of the new terms proposed by Lambert. We disagree with the second part of Lambert's argument, however. Lambert's counteroffer was made in July, when he amended the order form containing the Kysars' original offer, not in Lambert's August 21 letter. Accordingly, the counteroffer incorporated the unamended terms and conditions contained in the original offer, including its venue and choice-of-law clauses. Since the venue clause — impliedly mandating a Washington forum — is enforceable under both state and federal common law, the district court properly dismissed the action.
A. The Contract
The parties disagree on whether a Massachusetts court would apply Massachusetts or Washington law to the formation of their contract. See Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941) (federal court sitting in diversity must apply forum state's choice-of-law rules). We need not resolve the issue, however, as the outcome is the same under the substantive law of either jurisdiction. See Cohen v. McDonnell Douglas Corp., 389 Mass. 327, 332, 450 N.E.2d 581, 584 (1983) ("the usual first step in applying conflict of laws principles is to determine whether there is a conflict among the laws of the various states involved").
Christmas trees are "goods" within the meaning of Uniform Commercial Code, Article II, as adopted in both Massachusetts and Washington.
Under the law of both Massachusetts and Washington, the order form (signed and forwarded to Lambert in July 1989) comprised an offer to contract in accordance with its terms.
Under the law of both Washington and Massachusetts, Lambert's substitution of a substantially lower quantity term amounted to a rejection of the Kysars' offer to sell, and a counteroffer to purchase the lesser quantity of trees.
Since Lambert's alteration of the quantity term amounted to a rejection of the original offer, rather than a mere modification or supplementation of the boilerplate language in the original offer form, this is not an appropriate case for the application of U.C.C. § 2-207-(2), Mass.Gen.L. ch. 106 § 2-207(2), Wash.Rev.Code 62A.2-207(2). See, e.g., Duval & Co. v. Malcom, 233 Ga. 784, 787, 214 S.E.2d 356, 358 (1975) (holding § 2-207 inapplicable where offer and purported acceptance differed on quantity of goods to be sold); see generally James J. White & Robert S. Summers, Uniform Commercial Code, § 1-3, p. 33 (3d ed.1980) [hereinafter: White & Summers] (suggesting inapplicability of U.C.C. § 2-207 in cases of substantial divergence, e.g., where forms "diverge as to price, quality, quantity, or delivery terms") (emphasis added). Since U.C.C. § 2-207 is inapplicable to the facts of this case, we need not consider the apparent conflict between our interpretation of § 2-207 in Roto-Lith, Ltd. v. F.P. Bartlett & Co., 297 F.2d 497 (1st Cir.1962), and the interpretation adopted by the courts of Washington and other jurisdictions.
B. The Forum Selection Clause
We turn to the forum selection clause. Federal courts have long enforced forum selection clauses as a matter of federal common law. See The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972) (forum clauses "are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be `unreasonable' under the circumstances"); Docksider, Ltd. v. Sea Technology, Ltd., 875 F.2d 762, 764 (9th Cir.1989) ("The prevailing rule is clear ... that where venue is specified with mandatory language the clause will be enforced"). Washington state law on the validity and enforcement of forum selection clauses is drawn from the Restatement (Second) of Conflict of Laws, see Exum v. Vantage Press, Inc., 17 Wn.App. 477, 478, 563 P.2d 1314, 1315 (1977), which appears generally to accord with federal common law. See Zapata, 407 U.S. at 11 and n. 13, 92 S.Ct. at 1913 and n. 13 (citing Restatement (Second) of Conflict of Laws § 80); see also Willis Reese,
Relying on early Massachusetts decisions, however, Lambert argues that forum selection clauses which oust the jurisdiction of Massachusetts courts are unenforceable under Massachusetts law. See Nashua River Paper Co. v. Hammermill Paper Co., 223 Mass. 8, 111 N.E. 678 (1916); see also Nute v. Hamilton Mut. Ins. Co., 72 Mass. (1 Gray) 174 (1856) (intrastate forum clause); cf. Cadillac Auto. Co. v. Engeian, 339 Mass. 26, 29, 157 N.E.2d 657, 659 (1959) (holding forum selection clauses "generally" unenforceable under Massachusetts law, but noting conflicting case-law authority, and declining to reach the issue). It is true that these decisions are still cited and followed, at least in circumstances where the defendant invokes a forum selection clause in an attempt to deprive the Massachusetts forum of jurisdiction. See J.S.B. Industries v. Bakery Machinery Distrib., 1991 Mass.App.Div. 1, 1-2, 1991 WL 35235 (1991) (holding contractual selection of New York forum unenforceable under Massachusetts law); see also Northeast Theatre Corp., 563 F.Supp. at 834 (stating, in dictum, that contractual selection of California forum would be unenforceable under Massachusetts law); compare Graphics Leasing Corp. v. The Y Weekly, 1991 Mass.App.Div. 110, 1991 WL 154794 (1991) (holding forum selection clause enforceable where parties sought to designate Massachusetts forum); Diversified Mortg. Investors v. Viking Gen. Corp., 16 Mass.App.Ct. 142, 450 N.E.2d 176, 179 (1983) (suggesting enforceability of forum clause designating Massachusetts forum). Recently, however, the SJC has indicated (in dictum) a more receptive view toward forum selection clauses, see W.R. Grace & Co. v. Hartford Accident & Indem. Co., 407 Mass. 572, 582 n. 13, 555 N.E.2d 214, 219 n. 13 (1990) ("we see nothing inherently inappropriate in a forum selection clause"), which appears to accord with the view adopted by most other state courts, see Francis M. Dougherty, Annotation, Validity of Contractual Provision Limiting Place or Court in Which Action May Be Brought, 31 A.L.R. 4th 404 (1992), and with the prevailing federal court view that forum clauses foster policy interests important to the parties and the courts. Zapata, 407 U.S. at 8, 92 S.Ct. at 1912; Stewart Organization, 487 U.S. at 33, 108 S.Ct. at 2245 (Kennedy and O'Connor, JJ., concurring); see Fireman's Fund Am. Ins. Cos. v. Puerto Rican Forwarding Co., 492 F.2d 1294, 1297 (1st Cir.1974); Northeast Theatre Corp., 563 F.Supp. at 834; see also Ernest & Norman Hart Bros., Inc. v. Town Contractors, Inc., 18 Mass.App.Ct. 60, 64, 463 N.E.2d 355, 358-59 (1984), rev. den., 392 Mass. 1103, 465 N.E.2d 262 (1984) (surveying caselaw, noting that "the general attitude of courts towards contractual forum selection provisions obviously has changed in the direction of recognizing them", and suggesting that Nashua River
The viability of Nute and Nashua River is not determinative in the present case, however, as we think the Massachusetts courts, consistent with the contracting parties' intention, would apply Washington law to determine the enforceability of the forum selection clause.
C. Reasonableness of Washington Forum
Under federal law and Washington state law, the contracting parties' forum selection is to be respected unless the challenging party "clearly show[s] that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching." Zapata, 407 U.S. at 15, 92 S.Ct. at 1916; see also Exum, 17 Wash.App. at 478-79, 563 P.2d at 1315; cf. Mangham v. Gold Seal Chinchillas, Inc., 69 Wn.2d 37, 45, 416 P.2d 680, 686 (1966) (intrastate agreement); Bechtel Civil & Minerals, Inc. v. South Columbia Basin Irrig. Dist., 51 Wn.App. 143, 146, 752 P.2d 395, 396 (1988) (same). Any alleged overreaching must be based on something more than the mere fact that the clause was a "boilerplate" provision printed on the back of a form contract. See Donovan, 916 F.2d at 377. "It is not the law that one must bargain for
Lambert does not base the present claim on the ground that the forum selection clause is a "boilerplate" provision. The principal contention is that the forum selection clause should be overturned because it would be "seriously inconvenient" for Lambert. Lambert cites Exum, 17 Wash.App. at 478-79, 563 P.2d at 1315, in which the Washington Court of Appeals upheld a trial judge's discretionary refusal to dismiss an action under a forum clause which required the suit to be brought in New York. The Exum court noted that "all contacts were made in Washington, partial performance was to be within the state, all the plaintiff's witnesses reside within the State of Washington, Defendant's Vice President who solicited Plaintiff resides in [a state other than New York, and] it would be unjust, inequitable, and unreasonable to require Plaintiff and all the witnesses to travel to New York State to litigate the case." Id. See also Gold Seal Chinchillas, 69 Wash.2d at 46-47, 416 P.2d at 686 (refusing to transfer case to contractually selected out-of-state forum, on ground that chosen forum was "totally unreasonable": all parties and witnesses resided in Washington, contracts were made and to be performed entirely in Washington, and the dispute was governed by Washington law).
We think Lambert misinterprets Exum. The "serious inconvenience" test applied in Exum was discussed in detail by the Supreme Court in Zapata, which also cited the rule of Restatement (Second) of Conflicts of Laws § 80, see 407 U.S. at 11, 92 S.Ct. at 1913, and which has been cited with approval by the Washington courts. See Bechtel Civil, 51 Wash.App. at 146, 752 P.2d at 397 (citing Zapata); see also Supreme Court Supports Enforcement, supra, at 530 (advocating Zapata's application to state laws which are based on the Restatement (Second)); see generally American Mobile Homes of Washington, Inc. v. Seattle-First Nat'l Bank, 115 Wn.2d 307, 313, 796 P.2d 1276, 1279 (1990) ("when a state rule is similar to a parallel federal rule we sometimes look to analysis of the federal rule for guidance"). Zapata held (as a matter of federal law) that:
407 U.S. at 16-17, 92 S.Ct. at 1916-17 (emphasis added).
The bases for the parties' selection of the Washington forum in the present case are quite dissimilar. The Kysars reside and operate their business in Washington. Their interest in selecting a forum — the consolidation of litigation involving far-flung operations — was eminently reasonable. The contract in litigation has strong links to Washington, where it was accepted and largely performed. Moreover, Washington is no more "remote" from Lambert's place of business than when he executed the order form, either on the occasion of the present agreement or prior agreements between these parties. The forum selection clause was printed clearly on the reverse side of the form, in plain language, and the contract was not so long as to make it difficult or impossible to read. See D'Antuono v. CCH Computax Sys., Inc., 570 F.Supp. 708, 714 (D.R.I.1983) (Selya, J.) (interpreting buyer's signature in similar circumstances as indicative of awareness of forum selection clause and its significance); Lyall v. DeYoung, 42 Wn.App. 252, 256, 711 P.2d 356, 358-59 (1985), rev. den., 105 Wn.2d 1009 (1986) ("[i]n the absence of fraud the signator is deemed to have had ample opportunity to study the contract and its provisions including recitations which are properly referenced on the back side of the instrument"); H.D. Fowler Co. v. Warren, 17 Wn.App. 178, 180-81, 562 P.2d 646 (1977) (enforcing attorney fee provision on back of contract despite signatory's claimed ignorance of its presence). There is no indication that Lambert's assent resulted from "overreaching or the unfair use of equal bargaining power": Lambert is an experienced merchant who had purchased Christmas trees from the Kysars since 1987 and whose family had sold Christmas trees in Boston since 1953, see Lambert Affidavit at ¶ 3. There is nothing to suggest that he was coerced by the Kysars, or that the agreement was anything but an arms-length transaction between parties of roughly equivalent bargaining power. Under these circumstances, the contracting parties are bound to the forum selected in their contract.
D. Application of Forum Selection Clause
Lambert asserts, finally, that even if the district court properly dismissed the contract claims under Rule 12(b)(6), the contract-related tort claims were not directly covered by the forum selection clause, and issues of material fact remain in genuine dispute, precluding their summary dismissal under Rule 12(b)(6). Lambert argues, in effect, that he should be permitted to escape the consequences of the parties' forum selection merely by alleging tortious conduct relating to the formation (rather than the performance) of their contract. We cannot accept the invitation to reward attempts to evade enforcement of forum selection agreements through "artful pleading of [tort] claims" in the context of a contract dispute. Pascalides v. Irwin Yacht Sale North, Inc., 118 F.R.D. 298, 301 (D.R.I.1988) (quoting Coastal Steel, 709 F.2d at 197); D'Antuono, 570 F.Supp. at 715. Although the Zapata Court did indicate that a forum selection clause should not be given effect if it was the product of fraud, see 407 U.S. at 12, 92 S.Ct. at 1914, the Supreme Court subsequently interpreted this exception, in Scherk v. Alberto-Culver Co., 417 U.S. 506, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974), to exclude the sorts of claims raised by Lambert. The Court in Scherk stated that
Id. at 519 n. 14, 94 S.Ct. at 2457 n. 14 (emphasis in original); see also Gruson, Forum-Selection Clauses, 1982 U.Ill. L.Rev. at 165 ("a party should not be permitted to escape a forum-selection provision by merely calling the validity of the entire contract into question").
The better general rule, we think, is that contract-related tort claims involving
As the forum selection clause is valid, exclusive and enforceable, the present action was properly dismissed.
This analysis is not altered by the Kysars' assertion, in their removal petition, that venue in Massachusetts federal district court was proper under 28 U.S.C. § 1391. Even if their assertion could be construed as a waiver of any objection to venue under 28 U.S.C. § 1391, the venue of a removed action is not governed by § 1391, but by 28 U.S.C. § 1441(a). Indeed, removal of an action to a proper forum under § 1441(a) frequently has been considered a waiver or cure of any defect in the original venue of the removed action under 28 U.S.C. § 1391. See Polizzi v. Cowles Magazines, Inc., 345 U.S. 663, 665, 73 S.Ct. 900, 902, 97 L.Ed. 1331 (1953); Seaboard Rice Milling Co. v. Chicago, R.I. & P.R.Co., 270 U.S. 363, 46 S.Ct. 247, 70 L.Ed. 633 (1926); Minnesota Mining & Mfg. Co. v. Kirkevold, 87 F.R.D. 317, 321-22 (D.Minn. 1980); Tanglewood Mall, Inc. v. Chase Manhattan Bank, 371 F.Supp. 722, 725 (W.D.Va.), aff'd, 508 F.2d 838 (4th Cir.1974), cert. denied, 421 U.S. 965, 95 S.Ct. 1954, 44 L.Ed.2d 452 (1975). Here, of course, a different issue is presented, since a valid forum selection clause operates to render the venue improper, not only under § 1391, but also under § 1441(a).
The Washington Supreme Court appears not to have ruled on the issue, but in Hartwig Farms, Inc. v. Pacific Gamble Robinson Co., 28 Wn.App. 539, 543-44, 625 P.2d 171, 174 (1981), the Washington Court of Appeals expressly declined to follow Roto-Lith, holding that the addition of a material term in the buyer's acceptance did not amount to a rejection. Rather, the terms on which parties do not expressly agree "dropped out" of the contract and were replaced (where possible) by the U.C.C.'s "gap-filler" provisions. See, e.g., U.C.C. 2-306(1), Wash.Rev.Code 62A.2-306(1) (implying quantity term in output and requirements contracts; measuring quantity in these cases by "such actual output or requirements as may occur in good faith"). See generally White & Summers, at 38-40 (3d ed. 1988) (collecting cases, and discussing proper interpretation of UCC § 2-207).
It is well established that a forum selection clause does not divest a court of jurisdiction or proper venue over a contractual dispute. Rather, a court addressing the enforceability of a forum selection clause is to consider whether it must, in its discretion, decline jurisdiction and defer to the selected forum. See Zapata, 407 U.S. at 12, 92 S.Ct. at 1914; LFC Lessors, 739 F.2d at 6-7. Thus, the constitutional concerns which prompt the rule that determination of jurisdictional issues should "usually precede" determination of substantive law apply only weakly, if at all, in forum selection cases following Zapata. Moreover, following Norton v. Mathews, 427 U.S. 524, 528-33, 96 S.Ct. 2771, 2773-76, 49 L.Ed.2d 672 (1976), we repeatedly have held that complex jurisdictional issues may be bypassed in circumstances where it is clear that the party challenging jurisdiction will prevail on substantive grounds in any event. See, e.g., Howard v. Rhode Island Hospital Trust, 980 F.2d 823, 829 (1st Cir.1992). Thus, we may bypass the Erie analysis, where state law provides a straightforward substantive basis for resolving the present controversy.
We think that modern caselaw developments, including the Massachusetts courts' willingness to entertain motions to dismiss based on the doctrine of forum non conveniens, see Universal Adjustment Corp. v. Midland Bank, Ltd., 281 Mass. 303, 184 N.E. 152 (1933) (Rugg, J.), to permit forum selection clauses in contracts principally involving nonresidents, Mittenthal v. Mascagni, 183 Mass. 19, 23, 66 N.E. 425 (1903), and to enforce forum selection clauses which vest jurisdiction in Massachusetts courts, see Graphics Leasing, 1991 Mass.App.Div. at 111, suggest that Commonwealth courts have largely abandoned any policy concern that the contracting parties' mutual selection of a non-Massachusetts forum will impugn "the dignity or convenience of the [Massachusetts] courts." Id. Furthermore, the Commonwealth courts' more recent acceptance of contracting parties' choice-of-law provisions, Morris, 385 Mass. at 674, 433 N.E.2d 886, and of "flexible" choice-of-law rules, Bushkin Assoc. v. Raytheon Co., 393 Mass. 622, 473 N.E.2d 662 (1985), would appear to erode Nute's earlier endorsement of the view that the application of "different rules of law in different cases" would lead to "great inconvenience" for courts or juries.
Nashua River, decided after Nute, noted that the rule against enforcement of forum selection clauses "related to a matter as to which uniformity of decision and harmony of law among the several jurisdictions of this country is desirable." 223 Mass. at 16, 111 N.E. 678. The SJC noted in Nashua River that virtually all state and federal courts at that time refused to enforce forum selection clauses. Thus, a fundamental policy consideration, which underlay the Nute and Nashua River decisions, has undergone an about-face in recent years, as forum selection clauses are now favored by the majority of state courts and by the federal courts. See supra p. 1117.
These historical changes may well explain why the only other rationale for the Nute and Nashua River precedents — the presumed invalidity of contractual attempts to "oust appropriate courts of their jurisdiction," Nashua River, 223 Mass. at 19, 111 N.E. 678 — has been rejected by the Supreme Court as "hardly more than a vestigial legal fiction," predicated on "a provincial attitude regarding the fairness of other tribunals." Zapata, 407 U.S. at 12, 92 S.Ct. at 1914. As noted, however, the SJC is not bound by the view expressed in Zapata, and its adoption cannot be presumed. See also Ernest & Norman Hart Bros., 18 Mass.App.Ct. at 64, 463 N.E.2d at 358-59 ("[i]f the Supreme Judicial Court should now decide to [follow Zapata], it may well adopt the modern view prospectively only and in very flexible form"); see also White-Spunner Constr., Inc. v. Cliff, 588 So.2d 865, 866 (Ala.1991) (reaffirming invalidity of forum clauses under Alabama law).