
USCA1 Opinion

	




          March 12, 1993    UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT          No. 91-2244                         GEORGE LAMBERT, d/b/a RAINBOW FRUIT,                                Plaintiff, Appellant,                                          v.                              SAM KYSAR AND JOAN KYSAR,                             d/b/a LEWIS RIVER TREE FARM,                                Defendants, Appellees.                                _____________________          No. 92-1029                         GEORGE LAMBERT, d/b/a RAINBOW FRUIT,                                Plaintiff, Appellant,                                          v.                              SAM KYSAR AND JOAN KYSAR,                             d/b/a LEWIS RIVER TREE FARM,                                Defendants, Appellees.                                _____________________                                     ERRATA SHEET               The opinion of  this Court  issued on January  13, 1993,  is          amended as follows:               Cover sheet:   Spelling of last  name of appellant's counsel                              should be "Gillis";               Page 9, line 7:  change "1988" to "1989";                Page 14, line 4:  change "1988" to "1989." January 13, 1993          January 13, 1993  UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________                                 ____________________        No. 91-2244        No. 91-2244                         GEORGE LAMBERT, d/b/a RAINBOW FRUIT,                         GEORGE LAMBERT, d/b/a RAINBOW FRUIT,                                Plaintiff, Appellant,                                Plaintiff, Appellant,                                          v.                                          v.                              SAM KYSAR AND JOAN KYSAR,                              SAM KYSAR AND JOAN KYSAR,                             d/b/a LEWIS RIVER TREE FARM,                             d/b/a LEWIS RIVER TREE FARM,                                Defendants, Appellees.                                Defendants, Appellees.                                _____________________                                _____________________        No. 92-1029        No. 92-1029                         GEORGE LAMBERT, d/b/a RAINBOW FRUIT,                         GEORGE LAMBERT, d/b/a RAINBOW FRUIT,                                Plaintiff, Appellant,                                Plaintiff, Appellant,                                          v.                                          v.                              SAM KYSAR AND JOAN KYSAR,                              SAM KYSAR AND JOAN KYSAR,                             d/b/a LEWIS RIVER TREE FARM,                             d/b/a LEWIS RIVER TREE FARM,                                Defendants, Appellees.                                Defendants, Appellees.                                _____________________                                _____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                 ____________________                                        Before                                        Before                                  Cyr, Circuit Judge,                                  Cyr, Circuit Judge,                                       _____________                           Campbell, Senior Circuit Judge,                           Campbell, Senior Circuit Judge,                                     ____________________                             and Fust ,* District Judge.                             and Fust ,* District Judge.                                         ______________                                 ____________________                                 ____________________             Brian A. Gillis  with whom Parker, Coulter, Daley &  White was on             Brian A. Gillis  with whom Parker, Coulter, Daley &  White was on             _______________            _______________________________        brief for appellant.        brief for appellant.             James A.  G. Hamilton  with whom  Perkins, Smith  & Cohen  was on             James A.  G. Hamilton  with whom  Perkins, Smith  & Cohen  was on             _____________________             _______________________        brief for appellees.        brief for appellees.                                 ____________________                                 ____________________                                 ____________________                                 ____________________        *Of the District of Puerto Rico, sitting by designation.        *Of the District of Puerto Rico, sitting by designation.                  CYR, Circuit Judge.  George Lambert appeals a district court                  CYR, Circuit Judge.                       _____________        order dismissing his lawsuit for improper venue.  We affirm.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                  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 terms and conditions.   The back of        the order form stated  the fixed terms  of the contract and  provided,        inter alia, that        _____ ____                  "[t]he terms and conditions of the order documents                  applicable to this transaction shall be interpret-                  ed  under the case and statutory  law of the State                  of Washington.  In the event any action is brought                  to enforce such terms  and conditions, venue shall                  lie exclusively in Clark County, Washington."                  In July 1989, the Kysars visited Boston to discuss Lambert's        needs for the upcoming Christmas season.  On  their return to Washing-        ton, they  sent Lambert an order  form, filled out and  signed by Joan                                          3        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,                                          4        and December 1, Lambert's inspection allegedly revealed that the trees        "were dry, not fresh,  and appeared old." Citing the  allegedly defec-        tive  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  Massa-        chusetts  Superior Court,  alleging misrepresentation, breach  of con-        tract, 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.1                    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        _____________     ________________________________                                    ____________________        1The Kysars invoked Rule 12(b)(3) as the procedural vehicle for urging        dismissal under  the forum selection clause in the order form. We have        held  that such  dismissals  are founded  on  Rule 12(b)(6),  see  LFC                                                                      ___  ___        Lessors, Inc. v.  Pacific Sewer Maintenance Corp., 739 F.2d  4, 7 (1st        _____________     _______________________________        Cir. 1984).  No matter, however, since "we are not  bound by the label        employed below,  and we  agree  that the  case should  have been  dis-        missed."   See id.  (quoting Carr v.  Learner, 547 F.2d  135, 137 (1st                   ___ ___           ____     _______        Cir. 1976)).                                          5        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)  ("abuse of        ________________        discretion"  review of  forum  selection clause  dismissal under  Rule        12(b)(3)).                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________                  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  Lam-        bert'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 deter-        mined under general common-law and  statutory principles.  In particu-        lar, Lambert asserts, the Massachusetts venue remains proper under the                                          6        general  rules applicable to removed cases in federal courts, i.e., 28                                                                      ____        U.S.C.   1441.2                  We agree with  the first  part of Lambert's  argument.   The        changes  Lambert made  to the  quantity term  amounted to  a rejection                                    ____________________        2Lambert's opposition to the  Kysars' motion to dismiss also  seems to        assert:   (1) that  the Kysars  waived their  right to  plead improper        venue by filing the removal petition, thereby implicitly acknowledging        the district court's authority to hear  the case; and (2) that even if        the removal petition did not constitute a per se waiver of their right                                                  ___ __        to plead  improper venue,  in the present  case waiver can  be implied        from  the representation made in the removal petition that "[v]enue in        [Massachusetts federal]  Court [was]  proper under 28  U.S.C.   1391."        Neither assertion is sound.  Although it is axiomatic that a defendant        must  mount any challenge to venue at the earliest possible opportuni-        ty, see Graver Tank & Mfg. Corp. v. New England Terminal Co., 125 F.2d            ___ ________________________    ________________________        71,  74 (1st Cir. 1942), the Kysars  properly preserved their right to        challenge venue by  raising it in the state court  action and renewing        it in their first pleading following removal.  It is well settled that        the filing of a removal petition in a diversity action,  without more,        does not waive the right to object in federal court to the state court        venue.  In order to obtain the benefits of a federal forum in diversi-        ty cases, "[the] removal must be 'into the district where such suit is                                 ____ __        pending'[;  n]o  choice is  possible and  for  that reason  nothing in        respect to venue can be waived."  Moss  v. Atlantic Coast Line R. Co.,                                          ____     __________________________        157 F.2d  1005  (2d Cir.  1946),  cert. denied,  330  U.S. 839  (1947)                                          ____  ______        (emphasis added).             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                ___  _______     ________________________        (1953);  Seaboard Rice Milling  Co. v. Chicago,  R.I. & P.R.  Co., 270                 __________________________    __________________________        U.S. 363 (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 (1975).  Here, of  course, a differ-               ____  ______        ent  issue is presented, since a valid forum selection clause operates        to  render the venue improper,  not only under    1391, but also under                                        ___ ____                ___ ____          1441(a).                                          7        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        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 (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 prin-        ciples  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                                          8        Washington.3   Moreover,  the common law of both  jurisdictions, which        remains in  force under the U.C.C. except  as displaced, see U.C.C. 1-                                                                 ___        103, Mass.  Gen. L. ch. 106    1-103, Wash. Rev.  Code 62A.2-103, sup-        ports the validity and enforceability of the subject contract, includ-        ing its forum selection clause.                    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.4  It  set forth  in        detail all the material  terms essential to the proposed  transaction,        including the price, quantity and quality of the goods.  It provided a                                    ____________________        3Christmas trees have been described as "growing crops or other things        attached  to realty  and capable  of severance  without material  harm        thereto,"  U.C.C.   2-107,  Mass. Gen. L.  ch. 106    2-107(2) (1979);        Wash. Rev. Code 62A.2-107(2).  See Groth v. Stillson, 174  N.W.2d 596,                                       ___ _____    ________        598  (Mich. App. 1969); cf. Rainier Nat'l Bank v. Security State Bank,                                ___ __________________    ___________________        59 Wash.  App. 161, 796  P.2d 443  (1990), rev. denied,  117 Wash.  2d                                                   ____ ______        1004, 815 P.2d  166 (1991)  (Christmas trees are  "growing crops"  for        purposes  of Article 9).  Alternatively,  though somewhat less plausi-        bly, the  parties' July  arrangement for delivery  of Christmas  trees        might be viewed as a  contract for sale of "timber to be cut."  U.C.C.          2-107,  Mass. Gen. L.  ch. 106,    2-107(2) (1979); Wash.  Rev. Code        62A.2-107(2).  In either event, a sale of Christmas trees is a "trans-        action in goods" governed by the  Uniform Commercial Code.  See U.C.C.                                                                    ___          2-105, Mass. Gen. L. ch.  106   2-105(1); Wash. Rev. Code 62A.2-105;        see also Traynor  v. Walters, 342  F.Supp. 455, 459  (M.D. Pa.  1972);        ___ ____ _______     _______        Kirk  Co. v. Ashcraft, 684 P.2d 1127  (N.M. 1984);  Whewell v. Dobson,        _________    ________                               _______    ______        227 N.W.2d 115, 117 (Iowa 1975).        4As the evidentiary  foundation for determining  the formation of  the        parties'  contract was  either  undisputed or  consisted of  writings,        Lambert's  present  challenge  raises  issues of  law  for  the court.        Ismert & Associates, Inc. v. New England Mut. Life Ins.  Co., 801 F.2d        _________________________    _______________________________        536 (1st Cir. 1986) (citing David J. Tierney, Jr., Inc. v. T. Welling-                                    ___________________________    ___________        ton Carpets,  Inc., 8 Mass. App.  Ct. 237, 239, 392  N.E.2d 1066, 1068        __________________        (1979));  Bresky v. Rosenberg,  256 Mass.  66, 75,  152 N.E.  347, 351                  ______    _________        (1926); R.J.  Menz Lumber Co.  v. E.J. McNeeley  & Co., 58  Wash. 223,                _____________________     ____________________        229,  108 P. 621,  624 (1910).   Lambert adverts to  no other evidence        which would alter the result reached here.                                          9        space  for  Lambert's signature,  to indicate  that  he had  "read and        accept[ed] the  Terms of Sale on the  reverse side of th[e] document."        It included  the signature  of Joan Kysar,  an officer of  Lewis River        Tree Farm, indicating assent to be bound.  See Restatement (Second) of                                                   ___        Contracts   24 (offer is "manifestation of willingness to enter into a        bargain,  so made as to  justify another person  in understanding that        his assent to that bargain is invited and will conclude it");  Gilbert                                                                       _______        & Bennett  Mfg. Co. v. Westinghouse Elec. Corp., 445 F. Supp. 537, 544        ___________________    ________________________        (D. Mass. 1977) ("an offer is  made when the offeror leads the offeree        to reasonably  believe that an  offer has been  made").   Although the        back of  the form  included a  provision for "approval"  by the  Lewis        River Tree Farm's "main office", Joan  Kysar's status as an officer of        the  company and  her signature on  the front  of the  form reasonably        denoted such approval.   Compare  Kuzmeskus v. Pickup  Motor Co.,  330                                 _______  _________    _________________        Mass.  490, 493,  115 N.E.2d  461, 464  (1953) (contract  proffered by        company's general manager, which contained clause requiring authoriza-        tion by  seller's  corporate officer,  and blank  space for  officer's                                                   _____  _____        signature, held to  be "no more than an invitation  or request to give        orders  on the terms and conditions therein stated"; "[i]f the general        manager was  an officer  of the  company with  power to  authorize the        sales, he  said or  did nothing  to inform the  plaintiff that  he was        taking favorable action").                  Under  the law  of both  Washington and  Massachusetts, Lam-        bert's substitution of a substantially lower quantity term amounted to        a  rejection of  the Kysars'  offer  to sell,  and  a counteroffer  to                                          10        purchase the  lesser quantity of trees.5   See Minneapolis &  St. L.R.                                                   ___ _______________________        v. Columbus Rolling-Mill Co., 119 U.S. 149 (1886) (order for 1200 tons           _________________________        of steel rails  indicated rejection of offer to sell 2000-5000 tons of        rails);   see  generally Restatement  (Second) of  Contracts    59 ("a                  ___  _________        reply to  an offer which purports  to accept it but  is conditional on        the  offeror's assent to terms  additional to or  different from those        offered is not an acceptance  but is a counteroffer"); Banks v.  Cres-                                                               _____     _____        cent  Lumber &  Shingle  Co., 61  Wash.2d  528, 530-31,  379  P.2d 203        ____________________________        (1963); Owens-Corning Fiberglas Corp. v. Fox Smith Sheet Metal Co., 56                _____________________________    _________________________        Wash.2d  167, 170, 351 P.2d 516,  518 (1960); Champlin v. Jackson, 317                                                      ________    _______        Mass. 461, 463-64, 58 N.E.2d 757 (1945); Kehlor Flour Mills v. Linden,                                                 __________________    ______        230 Mass.  119, 123, 119 N.E.  698 (1918).  Lambert's  counteroffer to        purchase,  made on  the same form  as the  Kysars' offer  to sell, and        containing  Lambert's  signature  indicating  that he  had  "read  and        accept[ed]  the Terms of Sale  on the reverse  side," incorporated all        the unamended terms in the original offer form; that is, all its terms        except the quantity of  trees.6  See Construction Aggregates  Corp. v.                                         ___ ______________________________        Hewitt-Robins  Inc., 404 F.2d 505  (7th Cir. 1968),  cert. denied, 395        ___________________                                  ____  ______                                    ____________________        5Our  analysis makes it unnecessary to address Lambert's argument that        the same result might be reached by crediting the printed condition on        the reverse side of the order form:  "No modifications of the terms of        this  agreement  shall  be  effective unless  reduced  to  writing and        executed in writing by both parties hereto."          6Lambert's  August  21,  1989  letter  of  confirmation  ratified  and        reconfirmed the terms  of his  counteroffer.  The  letter referred  to        "our  tree order"  and enclosed a  deposit for  the quantity  of trees        Lambert  ordered.  Nowhere did  it indicate that  the counteroffer was        being revoked or made conditional on an assent to any additional term.                                          11        U.S. 921 (1969) (seller's stated objection to one term of counteroffer        may be treated as  acquiescence in remaining terms); cf.  Romala Corp.                                                             ___  ____________        v.  United  States, 927  F.2d 1219,  1221  (Fed. Cir.  1991) (seller's            ______________        submission of  purchaser's bid form, altering some  paragraphs but not        others, amounted to acquiescence in unaltered terms).                  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.7                                    ____________________        7Roto-Lith holds, as a  matter of Massachusetts law, that  a purported         _________        acceptance "which  states a condition materially  altering the obliga-        tion solely to the disadvantage of the offeror" operates as a counter-        offer expressly conditioned  on the offeror's assent to the additional                                          12                  Whether   the  Kysars  accepted  Lambert's  counteroffer  in        August, by accepting  his deposit  check, see Rockwood  Mfg. Corp.  v.                                                  ___ ____________________        AMP, Inc., 806 F.2d 142, 144-145  (7th Cir. 1986) ("the act of cashing        _________        a  check can function as an acceptance  of an offer in certain circum-        stances") (collecting  cases); cf.  Hobbs v.  Massasoit Whip  Co., 158                                       ___  _____     ___________________        Mass.  194, 197,  33  N.E. 495,  495  (1893) ("conduct  which  imports        acceptance or assent is acceptance or assent in the view of the law"),        or by seasonably shipping  the number of Christmas trees  requested in        Lambert's  counteroffer, see  U.C.C.   2-206(1)  ("an offer to  make a                                 ___        contract shall be construed  as inviting acceptance in any  manner and        by  any medium reasonable  under the circumstances");  see also U.C.C.                                                               ___ ____          2-206(2)  ("an offer  to buy  goods for  prompt or  current shipment        shall  be  construed as  inviting acceptance  . . .  by the  prompt or                                    ____________________        term.   297 F.2d at 500; see also  Teradyne, Inc. v. Mostek Corp., 797                                 ___ ____  ______________    ____________        F.2d  43, 55  (1st Cir.  1986) (citing  Roto-Lith); Gilbert  & Bennett                                                _________   __________________        Mfg., 445 F. Supp. at  546 (same).  The Roto-Lith rule  has never been        ____                                    _________        repudiated by the Massachusetts Supreme Judicial Court ("SJC"), though        it  has been received critically  by commentators, see,  e.g., White &                                                           ___   ____  _______        Summers at 33, and  its precedential value has  been questioned.   See        _______                                                            ___        Polyclad  Laminates, Inc. v. Vits Maschinenbau GmBH, 749 F. Supp. 342,        _________________________    ______________________        344  (D. N.H. 1990);  St. Charles Cable TV,  Inc. v. Eagle Comtronics,                              ___________________________    _________________        Inc., 687 F. Supp. 820, 828 n.19 (S.D.N.Y. 1988).        ____             The Washington Supreme  Court appears  not to have  ruled on  the        issue, but in Hartwig Farms, Inc.  v. Pacific Gamble Robinson Co.,  28                      ___________________     ___________________________        Wash. 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).                                          13        current shipment  of conforming  or non-conforming goods"),  under the        law of both Washington and Massachusetts the Kysars accepted Lambert's        counteroffer  by November 1989 at the latest.  The Kysars' acceptance,        whenever it is deemed to have occurred, operated under the law of both        jurisdictions  to bind the contracting parties to all terms printed on        the  reverse  side of  the original  order  form, including  the forum        selection clause.8        B.   The Forum Selection Clause        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 (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 en-        forced").  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 Wash. 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 (citing                                  ___ ______                                    ____________________        8Lambert  makes  no   claim  that  the  forum  selection   clause  was        insufficiently conspicuous.                                          14        Restatement  (Second)  of  Conflict of  Laws    80);  see also  Willis                                                              ___ ____        Reese,9 Supreme Court  Supports Enforcement of Choice of  Forum Claus-                ______________________________________________________________        es,  7 Intl.  L.  530 (1972)  ["Supreme  Court Supports  Enforcement"]        __                              ____________________________________        (expressing view that  Zapata analysis should  be persuasive in  state                               ______        law context).   Thus, as  we discern no  material discrepancy  between        Washington state law  and federal  law, we need  confront neither  the        choice-of-law issue nor the  daunting question whether forum selection        clauses  are to  be  treated as  substantive  or procedural  for  Erie                                                                          ____        purposes.10   See Coastal Steel  Corp. v. Tilghman  Wheelabrator Ltd.,                      ___ ____________________    ___________________________                                    ____________________        9Professor Reese served as Reporter for the Restatement (Second).        10The Supreme Court has  yet to provide a definitive resolution of the        Erie  issue, see Stewart Organization,  Inc. v. Ricoh  Corp., 487 U.S.        ____         ___ ___________________________    ____________        22,  28-29 (1987) (declining to  reach Erie issue),  which has divided                                               ____        the  commentators and  split  the circuits.    The Second,  Ninth  and        Eleventh Circuits  essentially treat forum clauses  as procedural, and        apply  federal common  law to  determine their  validity in  diversity        cases.   See Jones  v.  Weibrecht, 901  F.2d 17,  19  (2d Cir.  1990);                 ___ _____      _________        Manetti-Farrow,  Inc. v. Gucci America,  Inc., 858 F.2d  509 (9th Cir.        _____________________    ____________________        1988);  Stewart Organization v. Ricoh Corp., 810 F.2d  1066 (11th Cir.                ____________________    ___________        1986) (en banc), aff'd on other grounds, 487 U.S. 22  (1988); see also                         _____ __ _____ _______                       ___ ____        Taylor  v. Titan  Midwest Constr.  Corp., 474  F.Supp. 145  (N.D. Tex.        ______     _____________________________        1979) (applying federal common law on policy  grounds, without consid-        ering  Erie issue); cf. Northwestern  Nat'l. Ins. Co.  v. Donovan, 916               ____         ___ _____________________________     _______        F.2d  372, 374  (7th  Cir. 1990)  (Posner,  J.) (suggesting  that  the        application of federal common  law is "probably correct").   The Third        and  Eighth Circuits, and Justice Scalia (who sought to reach the Erie                                                                          ____        issue  in Stewart), seem to  view forum selection  clauses as substan-                  _______        tive, and  would apply state  law to  determine their validity  in the        diversity context.    See  Stewart Organization,  487  U.S.  at  38-41                              ___  ____________________        (Scalia,  J.,  dissenting); General  Eng'g  Corp.  v. Martin  Marietta                                    _____________________     ________________        Alumina, Inc., 783  F.2d 352, 356 (3rd Cir.  1986); Farmland Indus. v.        _____________                                       _______________        Frazier-Parrott Commodities,  Inc., 806 F.2d 848 (8th  Cir. 1986); but        __________________________________                                 ___        see Sun World Lines, Ltd. v. March Shipping Corp., 801 F.2d 1066, 1069        ___ _____________________    ____________________        (8th  Cir. 1986)  (applying federal  common law)  (alternate holding).        This court has yet to take a position on the  issue, although district        courts within the circuit have endorsed the Ninth and Eleventh Circuit        approach, see, e.g.,  Northeast Theatre  Corp. v. Edie  & Ely  Landau,                  ___  ____   ________________________    ____________________        Inc., 563 F. Supp. 833 (D. Mass. 1983), and on one occasion  we tenta-        ____                                          15        709 F.2d  190 (3rd Cir. 1983)  (declining to reach Erie  issue because                                                           ____        state law and federal law did not conflict).                  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  caselaw 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 selec-        tion  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) (holding contractual  selection of        New  York  forum  unenforceable  under Massachusetts  law);  see  also                                                                     ___  ____        Northeast Theatre Corp. 563 F. Supp. at 834  (D. Mass. 1983) (stating,        _______________________                                    ____________________        tively  treated a forum selection clause as procedural for the limited        purposes  of the factor analysis required under the forum non conveni-        ens doctrine articulated in Gulf Oil v. Gilbert, 330  U.S. 501 (1947).                                    ________    _______        See Royal  Bed & Spring Co. v. Famossul Industria e Comercio de Moveis        ___ _______________________    _______________________________________        Ltda., 906 F.2d 45, 49 (1st Cir. 1990).  The complexities of the issue        _____        have been well documented in several student notes.  See, e.g., Robert                                                             ___  ____        A. de By, Note, Forum Selection Clauses: Substantive or Procedural for                        ______________________________________________________        Erie  Purposes, 89 Colum.  L. Rev.  1068 (1989);   Julia  L. Erickson,        ______________        Forum  Selection Clauses  in Light  of the  Erie Doctrine  and Federal        ______________________________________________________________________        Common Law:  Stewart Organization  v. Ricoh Corporation,  72 Minn.  L.        _______________________________________________________        Rev. 1090 (1988).                                          16        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) (holding  forum            _____________        selection clause enforceable where  parties sought to designate Massa-        chusetts forum); Diversified Mortg. Investors v. Viking Gen. Corp., 16                         ____________________________    _________________        Mass.  App. Ct. 142, 450  N.E.2d 176, 179  (1983) (suggesting enforce-        ability 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, Validi-                                 ___                                   _______        ty  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 impor-        tant to the  parties and the courts.  Zapata, 407  U.S. at 8;  Stewart                                              ______                   _______        Organization, 487 U.S. at  33 (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 Contrac-                  ___ ____ _________________________________     _____________        tors,  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 recog-                                          17        nizing them", and suggesting that Nashua  River and Nute, see supra at                                          _____________     ____  ___ _____        p. 16, no  longer express viable  policy in light of  evolving federal        doctrine).  The  current status of Massachusetts law on this issue has        been termed "unclear," Geiger v. Keilani, 270  F. Supp. 761, 766 (E.D.                               ______    _______        Mich. 1967), and the vitality of the Nute and Nashua River  precedents                                             ____     ____________        clouded.  "Attorneys advising clients probably would be unwise to rely        on the persistence of the Nute principle in future Massachusetts cases                                  ____        . . . . [although] counsel . . . even now cannot be certain . . . that        Massachusetts  will follow [the] newer view [expressed in Zapata].  If                                                                  ______        the Supreme Judicial  Court should now  decide to do  so, it well  may        adopt the modern  view prospectively  only and in  very flexible  form        . . .,"  Ernest &  Norman Hart  Bros., 18  Mass. App.  Ct. at  64, 463                 ____________________________        N.E.2d at 359; but see Scheck v. Burger King  Corp., 756 F. Supp. 543,                       ___ ___ ______    __________________        546 (S.D. Fla. 1991) (assuming, without discussion, that Massachusetts        courts  now would  follow  federal law,  as  enunciated by  the  First        Circuit, and uphold prima facie validity of forum selection clauses).                  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.11  See Michael Gruson, Forum-Selection Clauses in Internation-                   ___                 _______________________________________                                    ____________________        11This approach,  which relies on  the contracting parties'  choice of        law  as  a basis  for determining  the  enforceability of  their forum        selection, has been  criticized on the  ground that "jurisdiction  and        venue are concerns separate from choice  of law, and . . . determining        the former usually precedes  determination of the latter."   See Linda                                                                     ___        S. Mullenix, Another Choice of Forum, Another Choice of Law: Consensu-                     _________________________________________________________                                          18        al and Interstate Commercial Agreements, 1982 U. Ill. L. Rev. 133, 156        _______________________________________        &  n.228  [Forum  Selection   Clauses]  ("most  states  determine  the                   _____  _________   _______        enforceability of forum-selection clauses  under the law governing the        contract").  The present contract provides that the interpretation  of        the "terms and conditions of the order documents," including the forum        selection  clause, must be governed by Washington law; and even though        Massachusetts law on  the enforcement of  forum clauses is  unsettled,        its courts  routinely enforce choice-of-law provisions  unless the law        chosen  violates  established public  policy  or  bears no  reasonable        relationship to the contractual transaction between  the parties.  See                                                                           ___        Mass. Gen. L.   1-105(1);  Morris v. Watsco, Inc., 385 Mass. 672, 674-                                   ______    ____________        75, 433 N.E.2d 886, 887 (1982);   Comdisco Disaster Recovery Servs. v.                                          _________________________________                                    ____________________        al  Adjudicatory Procedure in Federal  Court, 57 Fordham  L. Rev. 291,        ____________________________________________        347 (1988);  see also Instrumentation  Assocs., 859 F.2d at 5 (holding                     ___ ____ ________________________        that "[lower] court erred  by deciding the validity of  the contract's        choice of law before considering the threshold question of whether the        parties' contractual choice  of a Canadian forum was enforceable under        the conflict of laws principles embodied in Erie").  We do not agree.                                                    ____             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;  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 (1976), we                            ______    _______        repeatedly  have held  that complex jurisdictional  issues may  be by-        passed 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, slip  op. at 13 (December        ____  ______    ___________________________        2, 1992).   Thus,  we may  bypass the Erie  analysis, where  state law                                              ____        provides a straightforward substantive basis for resolving the present        controversy.                                          19        Money Management Systems, Inc., 789         ______________________________        F. Supp. 48, 52 (D.  Mass. 1992).  The Nute and Nashua River cases did                                               ____     ____________        invoke  public policy  justifications  for  resisting forum  selection        clauses,  viz., the  dangers of overreaching  and the  difficulties of                  ____        applying foreign  law  in a  chosen  forum.   But  even these  earlier        decisions  "place[d] no great reliance upon"  these public policy con-        siderations, Nute, 72 Mass. (1 Gray) at 184,  which have been undercut                     ____        in any event by  more recent legal and historical  developments.12  We                                    ____________________        12The Nute court  expressed the view that  "the greatest inconvenience              ____        [of  contractual  forum transfers]  would be  in requiring  courts and        juries to  apply different  rules of law  in different  cases, in  the        conduct  of suits,"  72 Mass.  (1 Gray)  at 184.   It also  noted that        "contracts  [including forum  clauses] might  be induced  by consider-        ations tending to bring the  administration of justice into disrepute,        such as the greater  or less intelligence and impartiality  of judges,        the  greater or  less  integrity and  capacity  of juries,  [and]  the        influence,  more or less, arising from the personal, social or politi-        cal standing of parties in one or another [jurisdiction]."  Id.                                                                    ___             We think  that modern caselaw developments,  including the Massa-        chusetts 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. Moscagni, 183 Mass. 19, 23 (1903), and to                       __________    ________        enforce forum  selection clauses which vest  jurisdiction in Massachu-        setts  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  provi-        sions,  Morris, 385  Mass.  at 674,  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.  The                                          20        think  the  diminishing  importance of  the  policies  cited in  these        earlier  cases,  their waning  support  in  more recent  Massachusetts        decisions,  and the  increasing role  and vigor  of federal  doctrine,        would  leave a  Massachusetts court unconstrained  by the  same policy        considerations in applying  the parties' chosen law  to the choice-of-        forum  determination in the present case.  See Restatement (Second) of                                                   ___        Contracts   178(3)  ("in weighing a public  policy against enforcement        of  a term,  account is taken  of (a)  the strength of  that policy as                                                   ________________________        manifested  by legislation or judicial  decisions . .  . .") (emphasis        added).  As we discern no significant public policy militating against        the  application of Washington  law in the  present circumstances, and        Washington law  obviously bore a  reasonable relationship to  the con-        tract  between the  parties, we think  the Massachusetts  courts would        enforce the parties' choice of Washington law.                                    ____________________        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. 17.                                ___ _____             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    has been reject-                             ____________        ed by  the Supreme Court as  "hardly more than a  vestigial legal fic-        tion," predicated on "a provincial  attitude regarding the fairness of        other tribunals."  Zapata, 407 U.S. at 12.  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.  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 prospec-                          ______        tively 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).                                          21                                                  22        C.   Reasonableness of Washington Forum        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; see also Exum, 17  Wash. App.                        ______                   ___ ____ ____        at 478-79, 563  P.2d at 1315;  cf. Mangham v.  Gold Seal  Chinchillas,                                       ___ _______     _______________________        Inc., 69 Wash.2d 37, 45, 416  P.2d 680, 686 (1966) (intrastate  agree-        ____        ment); Bechtel Civil &  Minerals, Inc. v. South Columbia  Basin Irrig.               _______________________________    ____________________________        Dist., 51 Wash. 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 each and every written term  of a contract,"        Lyall v.  DeYoung, 42 Wash. App.  252, 256, 711 P.2d  356, 359 (1985);        _____     _______        "simply because  the provision was part of what is called the 'boiler-        plate' section  of the contract  does not  in itself make  it unfair."        Reynolds Indus.,  Inc. v. Mobil Oil  Corp., 618 F. Supp.  419, 423 (D.        ______________________    ________________        Mass. 1985).                  Lambert does not base the present claim  on the ground  that        the  forum selection clause is a "boilerplate" provision.  The princi-        pal 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              ____                                          23        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 trans-        ___________        fer  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 entire-        ly in Washington, and the dispute was governed by Washington law).                  We think Lambert misinterprets Exum.  The "serious inconven-                                                 ____        ience"  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, 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. Sea-First Nat'l        _________ _________________________________________    _______________        Bank, 115 Wash.2d 307, 313, 796  P.2d 1276, 1279 (1990) ("when a state        ____        rule  is similar  to a  parallel  federal rule  we  sometimes look  to                                          24        analysis of the federal rule for guidance").  Zapata held (as a matter                                                      ______        of federal law) that:                  [W]here it  can be said  with reasonable assurance                  that at  the time  they entered the  contract, the                  parties  to a  freely negotiated  private interna-                  tional   commercial  agreement   contemplated  the                  claimed inconvenience,  it is difficult to see why                  any such claim of inconvenience should be heard to                  render the forum clause unenforceable.  We are not                                                          __ ___ ___                  here dealing with an agreement between two  Ameri-                  ____ _______ ____ __ _________ _______ ___  ______                  cans to  resolve their essentially  local disputes                  ____ __  _______ _____ ___________  _____ ________                  in  a remote  alien forum.   In  such a  case, the                  __  _ ______  _____ _____    __  ____ _  ____  ___                  serious  inconvenience of the contractual forum to                  _______  _____________ __ ___ ___________ _____ __                  one  or both  of the  parties . . .  might suggest                  ___  __ ____  __ ___  _______        _____ _______                  that the  agreement was  an adhesive one,  or that                  ____ ___  _________ ___  __ ________ ___   __ ____                  the parties  did not  have the  particular contro-                  ___ _______  ___ ___  ____ ___  __________ _______                  versy in mind when  they made their agreement; yet                  _____ __ ____ ____  ____ ____ _____ _________  ___                  even there the party  claiming should bear a heavy                  ____ _____ ___ _____  ________ ______ ____ _ _____                  burden of proof.                  ______ __ _____        407  U.S.  at 16-17  (emphasis  added).13   We  think  Exum and,  more                                                               ____        importantly, Gold  Seal Chinchillas, fall within  the exception Zapata                     ______________________                             ______        articulated  to forum selection clause enforceability:   in each case,        the defendant sought transfer  of an "essentially local dispute"  to a        selected forum  which was alien to  all parties (so far  as the record                                            ___ _______        shows),  and largely  unconnected  with the  contractual relations  at        issue in  the case.  See  Gold Seal Chinchillas, 69  Wash.2d at 46-47,                             ___  _____________________        416 P.2d at 686;  Exum, 17 Wash. App. at 479, 563 P.2d at 1316-16.                          ____                                    ____________________        13Later federal  cases, in  this  and other  circuits, have  sometimes        applied an even stricter standard,  requiring sophisticated commercial        defendants to show  that they would suffer  such serious inconvenience        in  litigation in  the foreign  forum that  they would  be effectively        deprived of their day in court.  See Fireman's Fund, 492 F.2d at 1297;                                         ___ ______________        see also, e.g.,  Pelleport Investors,  741 F.2d at  279; LFC  Lessors,        ___ ____  ____   ___________________                     _____________        Inc. v. Pearson, 585 F. Supp. 1362, 1365 (D. Mass. 1984).        ____    _______                                          25                  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 opera-        tions    was  eminently reasonable.   The contract  in litigation  has        strong links to  Washington, where  it was accepted  and largely  per-        formed.  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 signifi-        cance); Lyall v. DeYoung, 42 Wash. App. 252, 256, 711 P.2d 356, 358-59                _____    _______        (1985), rev. den., 105 Wash.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 Wash.  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 bargain-        ing  power":   Lambert is  an experienced  merchant who  had purchased                                          26        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 circum-        stances,  the contracting parties are  bound to the  forum selected in        their contract.        D.   Application of Forum Selection Clause        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 perfor-                                           _________        mance) 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, the Supreme Court  subsequently                          ___                                          27        interpreted this exception, in Scherk v.  Alberto-Culver Co., 417 U.S.                                       ______     __________________        506  (1974), to exclude  the sorts of  claims raised by  Lambert.  The        Court in Scherk stated that                 ______                  [the  Zapata fraud  exception] does not  mean that                        ______                  any time a dispute arising out of a transaction is                  based upon an allegation of fraud . . . the clause                  is unenforceable.  Rather, it means that [a] . . .                  forum-selection clause  in a  contract is  not en-                  forceable if  the inclusion of that  clause in the                                    _________ __ ____  ______ __ ___                  contract was the product of fraud or coercion.                  ________        Id.  at 519 n.14 (emphasis in original); see also Gruson, Forum-Selec-        ___                                      ___ ____         ____________        tion 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 the same operative facts as a parallel claim for        breach  of  contract should  be  heard in  the forum  selected  by the        contracting parties.   Compare General Environmental  Science Corp. v.                               _______ ____________________________________        Horsfall, 753 F. Supp. 664, 668 (N.D. Ohio 1990) (refusing transfer of        ________        contract-related  tort claims  where plaintiff  asserted no  breach of        contract,  and cause of action  did not directly  concern formation or        enforcement of contract containing forum selection clause).                                         III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                  As the forum selection clause is valid, exclusive and                                           28        enforceable, the present action was properly dismissed.                  Affirmed.                  ________                                          29
