MLcO 

### COURj OFAPPEA' Sm

### STATE OF WASHINGTON 

## 2013DEC23 AH10: 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UNPUBLISHED OPINION FILED: December 23, 2013 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. Thetrial court dismissed the complaintwith 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). 

### RespondentNational College ofDUI Defense, aWashington corporation, has a program recognized and approved bytheAmerican BarAssociation for certifying DUI defense specialists. 

### Grant sued the Collegein June 2012. Her complaint alleged that she took 

### the College's certification examination and passed itbut was deniedcertificationNo. 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 forthe decision to grant dismissal: First of all, the forum non conveniens issue, weighing all the 

### factors clearly weighs in favor of finding thatWashington is not the appropriate forum. Aside from the defendant corporation and 

### having been incorporated here, there'sjust no otherconnection whatsoever. They—nobody lives here; no injuryoccurred here; plaintiffdoesn't livehere; plaintiffdoesn't practice here; the defendant organization doesn't seem to maintain any presence 

### here beyondjust having been incorporated here. So Ifind that aside from the fact of incorporation in 

### Washington, there'sjust no othergood reason for this claim to have been brought here ratherthan ineitherTexas or Iguess there's some connection with Alabama. So for that reason, dismissal is appropriate. 

### Ialso find that therejust 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 ActAgainst 

### Discrimination. But your clientdoesn't allege that anything actually occurred here, and something more is required than what's been pled. 

### Inaddition, under the CPA, it's fairlyrestrictive. You have to 

### have an unfairdeceptive act inWashington intrade 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. Andthat'sjust notbeen pled, and there are no facts supporting those elements. 

### And similarly, the Court finds that there'sjust notbeen 

### sufficientinjury pled under the Washington State Act AgainstNo. 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." Itrequires that all disputes "arising from or related to membership inthe College" shall be filed in KingCounty Superior Court at the 

### Kent Regional Justice Center and decided underWashington law. Grant argued that in view ofthe College's insistence in its own rules that litigation arising from membership must occur inWashington, 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 notdemonstrate that her complaintstated a claim. Byfailing to assign error to and argue againstthe court's decision to dismiss for failure to state a claim, Grantwaives this argument. See Smith v. King, 106 Wn.2d 443, 

### 451-52, 722 P.2d 796 (1986). We therefore affirm the orderofdismissal 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 ofdiscretion. Sales v. Weyerhaeuser Co., 163 Wn.2d 14, 19, 177 P.3d 1122 (2008). "Forum non 

### conveniens refers to the discretionary power of a courtto declinejurisdictionNo. 69691-2-1/4 when the convenience ofthe parties and the ends ofjustice would be better served ifthe action were brought and tried in anotherforum." 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 GulfOil 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 hearthe case. Butthe court's ruling nowhere mentions jurisdiction. To dismiss a case on forum non conveniens grounds presupposes that 

### the dismissing court hasjurisdiction. Ifnot, 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 ofsubject matterjurisdiction) or CR 12(b)(2) (lack 

### of personal jurisdiction). The forum nonconveniens doctrine gives courts the discretion to decline toexercisejurisdiction where the convenience ofthe 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 PracticeCR 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 particularforum 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 forthe 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 itsface does not apply to certification disputes but rather only to membership disputes. Grant does not explain howthe College's rules 

### governing membership are relevant to a dispute aboutwhetherthe 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 reconsiderwas not an abuse ofdiscretion because itwas dependent on a new fact. We therefore affirmtheNo. 69691-2-1/6 

### order of dismissal insofaras it is based onforum non conveniens grounds. Affirmed.

WE CONCUR: 

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