MLcO

COURj OFAPPEA' SmSTATE OF WASHINGTON

2013 DEC 23 AH 10: 50

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DEANDRA GRANT, an individual,

Appellant,

v.

NATIONAL COLLEGE OF DUI

DEFENSE, a Washington

corporation,

Respondent.

.)

No. 69691-2-

DIVISION ONE

UNPUBLISHED OPINION

FILED: December 23, 2013

Becker, J. — The plaintiff, an attorney, claims the defendant College

wrongfully refused to certify her as a specialist. The trial court dismissed the

complaint with prejudiceforfailure to state a claim and also on grounds offorum

non conveniens. We affirm.

Appellant Deandra Grant is a Texas attorneywhose practice consists of

defending individuals who are charged with driving under the influence (DUI).

Respondent National College of DUI Defense, a Washington corporation, has a

program recognized and approved bythe American BarAssociation for certifying

DUI defense specialists.

Grant sued the College in June 2012. Her complaint alleged that she took

the College's certification examination and passed it but was denied certification
No. 69691-2-1/2

on account of her gender. The complaint claims the College committed gender

discrimination in violation of RCW 49.60.030, violated the American Bar

Association standards for a certified program, and operates a monopoly in

violation of RCW 19.86. Grant sought declaratory and injunctive relief and

punitive damages.

The College moved to dismiss the complaint on various grounds, including

failure to state a claim under CR 12(b)(6) and forum non conveniens. The trial

court specified both grounds as the bases for the decision to grant dismissal:

First of all, the forum non conveniens issue, weighing all the

factors clearly weighs in favor of finding that Washington is not the

appropriate forum. Aside from the defendant corporation and

having been incorporated here, there's just no other connection

whatsoever. They—nobody lives here; no injury occurred here;

plaintiff doesn't live here; plaintiff doesn't practice here; the

defendant organization doesn't seem to maintain any presence

here beyond just having been incorporated here.

So I find that aside from the fact of incorporation in

Washington, there's just no other good reason for this claim to have

been brought here rather than in either Texas or I guess there's

some connection with Alabama. So for that reason, dismissal is

appropriate.

I also find that there just is no unlawful act that's been pled

that occurred here. I see that there—what we have here is

arguments that there are potential injuries under—that would be

actionable or could be actionable under both the Consumer

Protection Act and the Washington State Act Against

Discrimination. But your client doesn't allege that anything actually

occurred here, and something more is required than what's been

pled.

In addition, under the CPA, it's fairly restrictive. You have to

have an unfair deceptive act inWashington in trade or commerce in

Washington impacting the public interest in Washington and injury

to the plaintiff, and there has to be a connection between factors

three and four. And that's just not been pled, and there are no facts

supporting those elements.

And similarly, the Court finds that there's just not been

sufficient injury pled under the Washington State Act Against
No. 69691-2-1/3

Discrimination.

The order dismissing the case with prejudice was entered on November 16,

2012.

Grant moved for reconsideration and submitted a printout of "Membership

Eligibility Rules" from the College's web site. Rule 8 is entitled "Governing Law

and Jurisdiction." It requires that all disputes "arising from or related to

membership in the College" shall be filed in King County Superior Court at the

Kent Regional Justice Center and decided under Washington law. Grant argued

that in view of the College's insistence in its own rules that litigation arising from

membership must occur in Washington, the College's forum non conveniens

argument was made in bad faith. The trial court denied the motion. This appeal

followed.

On appeal, Grant does not identify or brief any issue related to CR

12(b)(6). She does not demonstrate that her complaint stated a claim. By failing

to assign error to and argue against the court's decision to dismiss for failure to

state a claim, Grant waives this argument. See Smith v. King, 106 Wn.2d 443,

451-52, 722 P.2d 796 (1986). We therefore affirm the order of dismissal insofar

as it is based on CR 12(b)(6).

Grant does make an argument related to forum non conveniens. This

court reviews forum non conveniens dismissals for abuse of discretion. Sales v.

Weyerhaeuser Co., 163 Wn.2d 14, 19, 177 P.3d 1122 (2008). "Forum non

conveniens refers to the discretionary power of a court to decline jurisdiction
No. 69691-2-1/4

when the convenience of the parties and the ends of justice would be better

served ifthe action were brought and tried in another forum." Johnson v. Spider

Staging Corp.. 87 Wn.2d 577, 579, 555 P.2d 997 (1976). To decide whether

dismissal is warranted, the trial court considers factors set forth in Gulf Oil Corp.

v. Gilbert, 330 U.S. 501, 508, 67 S. Ct. 839, 91 L Ed. 1055 (1947). Spider

Staging, 87 Wn.2d at 579.

In part, Grant contends the court's decision to dismiss on grounds of

forum non conveniens rested on an erroneous determination that the court

lacked "jurisdiction" to hear the case. But the court's ruling nowhere mentions

jurisdiction.

To dismiss a case on forum non conveniens grounds presupposes that

the dismissing court has jurisdiction. If not, resort to forum non conveniens

would be unnecessary since the matter could be more easily dismissed by a

motion under CR 12(b)(1) (lack of subject matter jurisdiction) or CR 12(b)(2) (lack

of personal jurisdiction). The forum non conveniens doctrine gives courts the

discretion to decline to exercise jurisdiction where the convenience of the parties

and ends of justice so require. Werner v. Werner. 84 Wn.2d 360, 370, 526 P.2d

370 (1974); 3 Karl B. Tegland, Washington Practice: Rules Practice CR 3

(6th ed. 2013).

The trial court clearly had the correct legal framework in mind when

making its ruling.

Grant does not contend that the trial court misweighed the Gulf Oilfactors.
No. 69691-2-1/5

Instead, she focuses on the College's Rule 8 which requires that disputes related

to membership in the College must be filed in King County. Grant argues that a

corporation should not be able to maintain a rule that requires litigation in a

particular forum while at the same time taking the position that the forum is

inconvenient. This argument was first raised in Grant's motion for

reconsideration.

A trial court's denial of a motion to reconsider is reviewed for abuse of

discretion. River House Dev. Inc. v. Integrus Architecture. P.S.. 167 Wn. App.

221, 231, 272 P.3d 289 (2012). Such discretion "extends to refusing to consider

an argument raised for the first time on reconsideration absent a good excuse."

River House. 167 Wn. App. at 231. Also, a motion for reconsideration is

preserved for appellate review only where it is "not dependent upon new facts."

Reitz v. Knight. 62 Wn. App. 575, 581 n.4, 814 P.2d 1212 (1991).

Grant did not offer an excuse for failing to bring up Rule 8, a new fact,

before the trial court ruled on the motion to dismiss. She does not offer one now.

Additionally, Rule 8 on its face does not apply to certification disputes but rather

only to membership disputes. Grant does not explain how the College's rules

governing membership are relevant to a dispute about whether the College

properly denied certification.

We conclude that Grant did not preserve the Rule 8 issue for appellate

review, and in any event, dismissing the motion to reconsider was not an abuse

of discretion because it was dependent on a new fact. We therefore affirm the
No. 69691-2-1/6

order of dismissal insofar as it is based on forum non conveniens grounds.

Affirmed.

WE CONCUR:

imL