  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

                 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.

                                             

            APPEALS FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. Edward F. Harrington, U.S. District Judge]
                                                          

                                             

                                Before

                          Cyr, Circuit Judge,
                                            

                   Campbell, Senior Circuit Judge,
                                                 

                     and Fust ,* District Judge.
                                               

                                             

     Brian A. Gillis  with whom Parker, Coulter, Daley &amp;  White was on
                                                               
brief for appellant.

     James A.  G. Hamilton  with whom  Perkins, Smith  &amp; Cohen  was on
                                                              
brief for appellees.

                                             

                                             

*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

                              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

                              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 &amp; 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. &amp; P.R.  Co., 270
                                                                 
U.S. 363 (1926); Minnesota Mining  &amp; 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
                 

          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 &amp; 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  &amp; 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
                                                                      

&amp; 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 &amp;  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 &amp;  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  &amp; 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 &amp; Robert S. Summers, Uniform Commercial Code,
                                                                     

  1-3, p. 33 (3d ed. 1980) [hereinafter:  White &amp; 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 &amp;
                                                                      

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  &amp; 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 &amp;
                                                                      
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 &amp; 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
                               

          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  &amp; 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 &amp; 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  &amp; Co.  v. Hartford
                                                                      

Accident &amp;  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 &amp;  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 &amp;  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
                                       

&amp;  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 &amp; 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
                                       

          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 &amp;  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
                                          

          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

                              CONCLUSION
                                        

          As the forum selection clause is valid, exclusive and 

                                  28

enforceable, the present action was properly dismissed.

          Affirmed.
                  

                                  29
