Enforcing an arbitration or forum-selection clause: moving to dismiss

A motion to dismiss based on an arbitration agreement or a mandatory forum-selection clause asks the court to enforce a contractual choice the parties already made about where the dispute will be resolved. It is one of the most successful types of motion at the pleading stage when the agreement is sound, because federal and state policy strongly favor honoring private dispute-resolution agreements. But it also has structural features that catch movants off guard — different doctrinal frameworks for arbitration and forum-selection, delegation issues, and unconscionability defenses that can defeat the clause entirely.

This guide walks through both doctrines in parallel, because most modern contracts contain both kinds of clauses and a single motion often invokes both. The point of the motion is to make the court enforce the contract: send the case to arbitration, transfer it to the agreed forum, or dismiss so the plaintiff can refile where the contract requires.

Two doctrines, one motion

Arbitration and forum-selection clauses are similar in purpose but governed by different rules. An arbitration clause sends the dispute to a private arbitrator instead of a court; the Federal Arbitration Act provides the enforcement framework when the contract affects interstate commerce. A forum-selection clause designates a specific court that will hear the dispute; enforcement is a matter of common law, refracted through Atlantic Marine Construction Co. v. United States District Court, 571 U.S. 49 (2013).

The same motion can invoke both. A contract may require arbitration of most disputes but specify a particular court for narrow claims (injunctive relief, IP infringement). Or the contract may designate a foreign court and that court's arbitration rules. The brief needs to be clear about which clause is in play for which claims, and to apply the right legal framework to each.

The FAA framework for arbitration clauses

The Federal Arbitration Act, 9 U.S.C. § 1 et seq., governs arbitration agreements in contracts involving interstate commerce. The FAA establishes a federal policy favoring arbitration; under AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), state-law rules that single out arbitration agreements for disfavored treatment are preempted.

The enforcement framework has three checkpoints. First, the court asks whether a valid arbitration agreement exists between these parties. This is a question of state contract law: was there offer, acceptance, consideration, and mutual assent? Second, the court asks whether the dispute falls within the scope of the agreement. Doubts about scope are resolved in favor of arbitration. Third, the court asks whether any defense to enforcement applies — fraud in the inducement of the arbitration clause specifically, unconscionability, or waiver.

If all three are answered in the movant's favor, the court must stay or dismiss the case and compel arbitration. A stay preserves the court's authority to confirm or vacate the eventual award; a dismissal ends the case and sends the parties to the arbitrator. Federal circuits split on whether dismissal is appropriate when all claims are arbitrable. The motion should request the relief the local circuit endorses.

The Atlantic Marine framework for forum-selection

Forum-selection clauses are enforced through a different mechanism. In federal court, when the agreed forum is another federal district, the right vehicle is 28 U.S.C. § 1404(a) transfer. When the agreed forum is a state court or a foreign court, the doctrine is forum non conveniens dismissal.

Atlantic Marine reset the analysis. The forum non conveniens factors that normally apply do not apply the same way when the parties have agreed on a forum. The plaintiff's choice of forum is entitled to no weight; the private interest factors are deemed to weigh entirely in favor of the agreed forum; only public interest factors can defeat the clause, and they will rarely do so.

The practical effect is that a valid forum-selection clause is almost always enforced. The plaintiff's burden to defeat enforcement is steep: the plaintiff must show that the clause was procured by fraud, that the agreed forum is fundamentally inadequate, or that public-interest factors uniquely weigh against transfer. None of these is easy to establish.

State-court treatment of forum-selection clauses varies. Some states adopt the Bremen framework (M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972)) wholesale; others apply a more flexible reasonableness test; a few are openly hostile to forum-selection clauses in consumer or employment contexts. The motion should cite controlling state-court authority alongside the federal framework.

Proving a valid agreement

Both doctrines require a valid contractual agreement. The motion should attach the contract, identify the specific clause, and walk through formation: signed by both parties, dated, supported by consideration, integrated into the broader agreement.

For online or click-through agreements, additional steps may be required. Was the user given reasonable notice of the terms? Did the user manifest assent through a meaningful act — a click, an electronic signature, continued use? Browsewrap agreements (terms posted on a site without affirmative acceptance) face an uphill battle in most jurisdictions; clickwrap (affirmative click to accept) is generally enforceable.

For arbitration clauses in employment contracts, additional state-law considerations apply. Some states require specific disclosures or font sizes; some refuse to enforce clauses imposed as a condition of continued employment without separate consideration; California and a few others have unique unconscionability rules that may apply.

Scope: does the clause cover these claims?

A common defense argument is that the clause does not reach the claims actually pleaded. The plaintiff may argue that tort claims, statutory claims, or claims against non-signatories fall outside the clause.

The movant's response is grounded in the language of the clause. Broadly drafted arbitration clauses ("any dispute arising out of or relating to this agreement") typically cover statutory and tort claims when the underlying conduct relates to the contract. Narrower clauses ("any dispute over the interpretation of this agreement") may not. The brief should quote the clause exactly and trace the plaintiff's claims back to the contractual relationship.

The FAA's policy favoring arbitration includes a presumption that ambiguities about scope are resolved in favor of coverage. Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1 (1983). Forum-selection clauses get less presumptive support, but courts still read them in line with their evident purpose.

Claims against non-signatories are more complex. Equitable estoppel, agency theories, and third-party beneficiary doctrine can sometimes pull non-signatories into the arbitration. The motion should anticipate the plaintiff's "I never signed the arbitration agreement" argument and address it.

Unconscionability and other defenses

Even valid clauses can be defeated by contract defenses. Unconscionability is the most common and the most state-variable.

Procedural unconscionability looks at how the clause was presented: surprise, fine print, take-it-or-leave-it offer, imbalance of bargaining power. Substantive unconscionability looks at what the clause does: limits remedies, shifts costs, restricts discovery, forbids class action, restricts the forum to a remote or expensive location.

Most states require both procedural and substantive unconscionability, on a sliding scale: high procedural unconscionability requires less substantive, and vice versa. California is the most aggressive on substantive unconscionability; some jurisdictions are highly deferential.

Other defenses include fraud in the inducement of the arbitration clause specifically (general fraud arguments about the contract go to the arbitrator), waiver (the movant has actively litigated and now wants arbitration), and statutory carve-outs (the Magnuson-Moss Warranty Act, certain civil-rights statutes).

Delegation clauses and arbitrability

Many modern arbitration clauses include a delegation provision: a clause that sends questions of arbitrability (validity, scope, defenses) to the arbitrator, not the court. The Supreme Court has held that clear and unmistakable delegation provisions are themselves enforceable. Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010).

If the arbitration clause incorporates AAA, JAMS, or similar institutional rules that delegate arbitrability to the arbitrator, the court's role can be reduced to confirming that there is a valid agreement. Everything else — scope, unconscionability of provisions other than the delegation itself, waiver — goes to the arbitrator.

The motion should identify the delegation provision when one exists and use it to short-circuit the plaintiff's substantive defenses. The plaintiff's response that "the clause is unconscionable" is a question for the arbitrator if the clause delegates arbitrability.

How to structure the brief

The motion has a natural structure.

Open by identifying the clause. Quote it. Attach the contract. Establish that both parties signed or otherwise assented. The clause is the central exhibit; everything else flows from there.

Establish the legal framework. For arbitration, the FAA and its preemptive force. For forum-selection, Atlantic Marine and the near-automatic enforcement it requires. Cite circuit and state authority.

Apply the framework. Walk through the validity-scope-defenses analysis methodically. Show that each checkpoint favors enforcement. If a delegation clause is present, lead with it and demonstrate that most of the plaintiff's likely arguments belong to the arbitrator, not the court.

Address the relief. For arbitration, request a stay or dismissal under the local circuit's preferred form. For forum-selection, request transfer to the agreed federal district or dismissal in favor of the agreed state or foreign court.

Common mistakes

Failing to attach the contract. The court cannot enforce a clause it has not seen. The contract should be filed as an exhibit to the motion, with the specific clause highlighted or quoted in the brief.

Confusing arbitration and forum-selection. The two doctrines have distinct frameworks. A motion that conflates them invites the court to apply the wrong test. The brief should be clear about which clause governs which claims.

Treating delegation as a fallback. When a delegation clause is present and clear, it should lead. Arguing the substantive merits first and only later raising delegation makes the brief read backward.

Ignoring the choice-of-law issue. State contract law governs formation. The contract may select the law of one state; the litigation may be filed in another. The motion should establish which state's law governs and apply it.

Asking for arbitration after substantial litigation. The waiver defense is real. A motion filed after answering, conducting discovery, or moving on the merits invites the plaintiff to argue that the movant has waived its right to arbitrate.

The bottom line

Arbitration and forum-selection motions enforce dispute-resolution agreements the parties already made. The federal and state policy in favor of enforcement is strong, and the legal frameworks (FAA for arbitration, Atlantic Marine for forum-selection) heavily favor the movant. A motion that attaches the contract, walks the relevant framework, addresses scope and defenses methodically, and leans on delegation provisions when available will usually succeed. The plaintiff's most reliable defense is unconscionability, and the brief should anticipate it.

When granted, the motion sends the dispute where the parties agreed it would go. When denied, the court has usually identified a formation or scope problem that should reshape the substantive defense strategy in the chosen forum.