Raab v. Nu Skin: CR 12(b)(3) Is Not the Vehicle to Enforce Out-of-State Forum-Selection Clauses in Washington; Voicelink Overruled

Raab v. Nu Skin: CR 12(b)(3) Is Not the Vehicle to Enforce Out-of-State Forum-Selection Clauses in Washington; Voicelink Overruled

Introduction

In a significant procedural ruling with statewide impact on contract litigation, the Washington Supreme Court in Raab v. Nu Skin Enterprises, Inc., No. 102538-6 (Mar. 27, 2025), resolved a longstanding split within the Court of Appeals and clarified how, procedurally, a party must seek to enforce a contractual forum-selection clause that points to a mandatory, non-Washington forum.

The Court held that a motion to dismiss under Civil Rule (CR) 12(b)(3) for “improper venue” is not the correct mechanism to enforce such clauses. Venue under CR 12(b)(3) is determined solely by Washington’s venue statutes and court rules, and a contract cannot convert a statutorily authorized Washington venue into an “improper” one. In doing so, the Court overruled Division One’s contrary decision in Voicelink Data Services, Inc. v. Datapulse, Inc., 86 Wn. App. 613 (1997), and aligned Washington practice with the U.S. Supreme Court’s reasoning in Atlantic Marine Construction Co. v. U.S. District Court, 571 U.S. 49 (2013).

The Court did not decide whether the Nu Skin forum-selection clause is enforceable on the merits or prescribe a single alternative procedural pathway; it remanded and left parties free to bring procedurally proper motions (e.g., summary judgment or forum non conveniens) in superior court.

Background

Plaintiffs are current and former distributors (or their spouses) for Nu Skin Enterprises, Inc. and its affiliate Pharmanex, LLC, companies that market beauty and nutritional products via a multi-level marketing network. Plaintiffs—four from Washington and others from Utah, California, and Oklahoma—filed suit in Spokane County Superior Court alleging, among other claims, violations of Washington’s Consumer Protection Act (CPA), the Antipyramid Promotional Scheme Act, federal RICO, tortious interference with business expectancy, and negligent misrepresentation. They alleged Nu Skin’s business model was an unlawful pyramid scheme.

The parties’ form contract contains both an arbitration agreement (purporting to make arbitration the sole dispute-resolution mechanism) and a forum-selection clause designating Utah as the exclusive venue for arbitration “or any other resolution of any Disputes.” Plaintiffs alleged the arbitration provision—including its forum restrictions—was unconscionable and unenforceable.

Litigation proceeded on two tracks:

  • In Washington state court, Nu Skin moved to dismiss under CR 12(b)(3) based solely on the forum-selection clause (or, in the alternative, to stay), arguing the case belonged exclusively in Utah.
  • In federal court in Utah, Nu Skin moved to compel arbitration under the Federal Arbitration Act (FAA), 9 U.S.C. § 4, and sought to enjoin the Washington action.

The Spokane County Superior Court denied Nu Skin’s motion to dismiss or stay, initially reasoning that the dispute did not fall within the contract’s definition of a “Dispute.” The Utah federal district court, giving preclusive effect to the state court’s interpretation, denied Nu Skin’s motion to compel arbitration. On appeal, the Washington Court of Appeals (Div. III) held that the complaint was a “Dispute” under the contract but nevertheless affirmed the denial of the CR 12(b)(3) motion, ruling that CR 12(b)(3) is not the proper vehicle to enforce a forum-selection clause pointing outside Washington. The Tenth Circuit later reversed the Utah district court’s preclusion ruling and remanded; the Utah federal action remains pending.

The Washington Supreme Court granted review to resolve the procedural split between Division One (Voicelink) and Division Three (this case) concerning CR 12(b)(3).

Summary of the Opinion

The Court held:

  • CR 12(b)(3) is not the correct procedural mechanism to enforce a contractual forum-selection clause that designates a mandatory, non-Washington forum.
  • “Improper venue” in CR 12(b)(3) is determined exclusively by Washington’s venue statutes and court rules (e.g., chapter 4.12 RCW; CR 82). A forum-selection clause cannot render a statutorily authorized Washington venue “improper.”
  • Because Spokane County is an undisputedly proper venue under Washington statutes, Nu Skin’s CR 12(b)(3) motion fails as a matter of law.
  • Voicelink is overruled to the extent it held CR 12(b)(3) is the appropriate vehicle for enforcing such clauses.
  • The Court declined to decide which alternative procedures should be used and did not reach the merits of whether the forum-selection clause is enforceable; those matters are for the superior court on remand upon proper motion.

Analysis

Precedents Cited and Their Influence

  • Voicelink Data Services, Inc. v. Datapulse, Inc., 86 Wn. App. 613 (1997): Division One had held that CR 12(b)(3) was an appropriate mechanism to enforce a forum-selection clause. Raab expressly overrules Voicelink, explaining that later federal authority makes clear “improper venue” is a statutory determination unrelated to private forum-selection agreements.
  • Atlantic Marine Construction Co. v. U.S. District Court, 571 U.S. 49 (2013): The U.S. Supreme Court held that a forum-selection clause does not make venue “improper” under FRCP 12(b)(3); statutory venue is proper if federal venue statutes are satisfied. Instead, the clause is enforced through forum non conveniens (or § 1404(a) transfers). Raab imports Atlantic Marine’s core logic, noting CR 12(b)(3) is textually identical to FRCP 12(b)(3) and that “venue” is a statutory term distinct from the broader concept of “forum.”
  • Dix v. ICT Group, Inc., 160 Wn.2d 826 (2007): Establishes the substantive standard for enforcing forum-selection clauses under Washington law: presumptively valid unless the resisting party clearly shows enforcement would be unreasonable (fraud/overreaching, grave inconvenience depriving a day in court, or strong Washington public policy contrary to enforcement). Raab reaffirms that Dix governs the substantive enforceability analysis.
  • Oltman v. Holland America Line USA, Inc., 163 Wn.2d 236 (2008): Confirms that summary judgment (CR 56) can be an appropriate vehicle to address enforceability of a forum-selection clause and clarifies standards of review. Raab cites Oltman as an example of a procedurally proper alternative to CR 12(b)(3).
  • State v. Walker, 199 Wn.2d 796 (2022): Reiterates that court rules are interpreted like statutes, starting with the plain language. Raab grounds its holding in the plain text of CR 12(b)(3), reading “improper venue” by reference to venue statutes and court rules.
  • Sales v. Weyerhaeuser Co., 163 Wn.2d 14 (2008) and Johnson v. Spider Staging Corp., 87 Wn.2d 577 (1976): Recognize the inherent power of Washington courts to dismiss for forum non conveniens. Raab points to forum non conveniens as a well-established doctrine in Washington that may be used, as in Atlantic Marine, to consider enforcing out-of-state forum-selection clauses.
  • McKee v. AT&T Corp., 164 Wn.2d 372 (2008), applying the Restatement (Second) of Conflict of Laws: Guides choice-of-law analysis when a real conflict exists. While Raab does not decide the choice-of-law question on forum-selection enforceability, it approves the Court of Appeals’ use of McKee/Restatement when that issue is properly raised.
  • Dalton M, LLC v. North Cascade Trustee Services, Inc., 2 Wn.3d 36 (2023) and RAP 12.1(b): Confirm appellate courts’ limited discretion to address issues not fully briefed if necessary to properly decide a case. Raab invokes this authority to resolve the procedural split despite Division Three’s sua sponte framing and the absence of initial party briefing on CR 12(b)(3).

Legal Reasoning

The Court’s reasoning proceeds from textual interpretation and structural logic:

  • Text of CR 12(b)(3): It authorizes dismissal only when “venue” is “improper.” In Washington, “venue” is a statutory term concerning the county within the state where suit may be brought or heard, determined by chapter 4.12 RCW and related rules (e.g., CR 82). It is distinct from “forum,” which may be out-of-state or foreign. Because the Washington venue statutes do not speak to private forum-selection clauses, a clause designating a non-Washington forum cannot, as a matter of law, render a statutorily proper Washington venue “improper.”
  • Alignment with Atlantic Marine: The Court adopts Atlantic Marine’s core premise: do not conflate “venue” (a statutory construct) with “forum” (a broader, contract-influenced concept). If the action is filed in a county permitted by Washington’s venue statutes, venue is proper “irrespective of any forum-selection clause.”
  • Overruling Voicelink: Voicelink had relied on federal cases predating Atlantic Marine, when federal circuits were split. Given Atlantic Marine and Washington’s interpretive approach to court rules, Voicelink’s reasoning no longer holds. The Court therefore overrules Voicelink’s contrary holding.
  • Scope and Limits: The ruling is expressly focused on mandatory, out-of-state forum-selection clauses. The Court does not address:
    • Non-mandatory (permissive) clauses or in-state forum selection;
    • Whether, or how, the FAA might require enforcement in this posture (Nu Skin did not press an FAA-based dismissal on review);
    • Which alternative procedural mechanism(s) are best in every case—acknowledging that the choice can be fact-dependent and strategic.

What Procedural Mechanisms Remain?

The Court declines to prescribe a single route, but identifies viable paths recognized in Washington practice and elsewhere:

  • Forum non conveniens: Washington courts have inherent discretion to dismiss actions when convenience and the interests of justice favor another forum. After Atlantic Marine, many jurisdictions use forum non conveniens (with adjustments) to enforce forum-selection clauses pointing to state or foreign fora.
  • Summary judgment (CR 56): Oltman confirms that summary judgment can address clause enforceability, applying Dix’s substantive standard. However, summary judgment is inappropriate if material factual disputes exist as to the clause’s validity or scope.
  • Other contract-focused motions: Some jurisdictions treat clause enforceability as a merits issue (e.g., contract interpretation) addressable on dispositive motions. Washington leaves room for parties to craft “procedurally proper” motions, potentially including motions to stay, but cautions that the appropriate vehicle may vary with the facts.

Impact

Raab’s procedural holding has immediate and practical consequences:

  • Litigation strategy reset: Defendants can no longer seek dismissal via CR 12(b)(3) solely because a contract selects a non-Washington forum. They must instead choose from alternatives—most commonly, forum non conveniens or summary judgment—and develop a record tailored to Dix’s substantive standard.
  • Clarified trial-court workflow: Trial courts should decide CR 12(b)(3) motions by looking only to Washington’s venue statutes and rules. Contract clauses selecting other jurisdictions are not a CR 12(b)(3) issue. This separation should streamline early motion practice and reduce doctrinal conflation.
  • Substantive enforceability remains intact: The decision does not weaken the enforceability of forum-selection clauses under Dix; it simply channels enforcement to the correct procedural avenues. Clauses remain presumptively valid subject to Dix’s exceptions (fraud/overreaching, practical deprivation of a day in court, or contravention of strong Washington public policy).
  • Contract drafting and arbitration overlay: Businesses should anticipate that enforcing out-of-state forum or arbitration venues in Washington will likely require motions beyond CR 12(b)(3), potentially involving forum non conveniens or a motion to compel arbitration (state or federal). Drafters should ensure clarity and coherence between arbitration and forum clauses and consider how the FAA and choice-of-law provisions interact with Washington public policy and Dix.
  • Choice-of-law nuance preserved: Where the enforceability of a clause implicates a choice-of-law provision, Washington courts will apply McKee/Restatement analysis if a real conflict exists. The Court of Appeals suggested Washington law could apply to unconscionability if enforcement is denied, but Raab reserves these questions for the superior court on a proper record.

Complex Concepts Simplified

  • Venue vs. Forum: “Venue” refers to the specific county within Washington where a case may be filed under state statutes (e.g., RCW 4.12). “Forum” refers more broadly to the jurisdiction (which may be another state or country) where disputes are to be resolved. A contract can select a forum outside Washington, but that does not make a statutorily proper Washington county “improper” for venue purposes.
  • CR 12(b)(3) “Improper Venue”: This rule allows dismissal only when Washington’s venue statutes would deem the chosen county improper. It is not a mechanism to enforce private agreements selecting other jurisdictions.
  • Forum-Selection Clause: A contract provision specifying where disputes must be resolved. In Washington, such clauses are presumptively enforceable under Dix, unless the resisting party clearly shows enforcement is unreasonable under the specific circumstances.
  • Forum Non Conveniens: A discretionary doctrine allowing a court to dismiss a case, even if venue and jurisdiction are proper, when the convenience of parties and witnesses and the interests of justice favor litigation elsewhere. This is commonly used to give effect to out-of-state forum-selection clauses.
  • Summary Judgment (CR 56): A procedure to obtain judgment without trial when there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Enforceability of a forum-selection clause can be resolved on summary judgment when facts are undisputed.
  • Interlocutory Review: Appellate review of a non-final order. Here, the Supreme Court reviewed the denial of a motion to dismiss to resolve a dispositive procedural question dividing the appellate courts.
  • Preclusion and Parallel Proceedings: Decisions in one court can sometimes bind another through res judicata or collateral estoppel. The procedural back-and-forth between Washington state court and the Utah federal court turned, in part, on whether prior state rulings had preclusive effect; the Tenth Circuit ultimately remanded after the Washington Court of Appeals altered the predicate ruling.

Practical Guidance for Litigants

  • Do not use CR 12(b)(3) to enforce an out-of-state forum-selection clause. Establish venue under chapter 4.12 RCW; if venue is statutorily proper, CR 12(b)(3) dismissal is legally unavailable.
  • Choose the appropriate alternative mechanism:
    • Forum non conveniens motion, supported by the forum-selection clause and traditional convenience/public-interest factors, tailored in light of Atlantic Marine.
    • CR 56 summary judgment to enforce the clause under Dix’s substantive standard where no material facts are disputed.
    • Where arbitration is involved, a motion to compel arbitration under the FAA or Washington law, filed in an appropriate forum, may be necessary depending on the contract’s structure and governing law.
  • Build a factual record relevant to Dix’s exceptions (fraud/overreaching; practical deprivation of day in court; contravention of strong Washington public policy), and to any claimed unconscionability or choice-of-law issues under McKee/Restatement.
  • Remember that even when a forum-selection clause is presumptively valid, the court retains discretion under forum non conveniens and must conduct a balancing analysis where required; summary judgment may be inappropriate if the facts are disputed.

Conclusion

Raab delivers a clear procedural rule: a contractual forum-selection clause designating a mandatory, non-Washington forum cannot be enforced via a CR 12(b)(3) “improper venue” motion. Venue, for purposes of CR 12(b)(3), is determined solely by Washington’s venue statutes and court rules; a private contract cannot transform a statutorily proper venue into an improper one. In adopting the logic of Atlantic Marine and overruling Voicelink, the Court provides long-needed clarity and separates statutory venue analysis from contractual forum selection.

Importantly, the decision leaves untouched Washington’s substantive law on enforceability of forum-selection clauses: Dix remains the governing standard, under which such clauses are presumptively valid unless enforcement would be unreasonable based on fraud/overreaching, extreme inconvenience depriving a party of its day in court, or contravention of strong Washington public policy. The Court deliberately refrains from dictating a single procedural vehicle, recognizing that forum non conveniens, summary judgment, and other motions may be appropriate depending on the facts and claims presented.

The key takeaways are:

  • CR 12(b)(3) is not available to enforce out-of-state forum-selection clauses; Voicelink is overruled.
  • Statutory venue in Washington remains proper notwithstanding a contractual clause selecting another jurisdiction.
  • Parties should pursue enforcement through procedurally proper alternatives (e.g., forum non conveniens or summary judgment) and litigate the merits under Dix, with choice-of-law analyzed under McKee/Restatement when necessary.

Going forward, Washington forum-selection litigation will be more orderly: the statutory question of venue stays in its lane, while contractual forum selection is adjudicated on the right procedural track with a developed record and the correct substantive standards.

Case Details

Year: 2025
Court: Supreme Court of Washington

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