2024 IL App (1st) 221245-U 

SIXTH DIVISION

January 26, 2024

No. 1-22-1245 

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the 

limited circumstances allowed under Rule 23(e)(1).

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

XINXIN WANG et al., 

Plaintiffs-Appellants, 

v. 

JIN HUI GUO et al.,

Defendants-Appellees. 

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Appeal from the

Circuit Court of

Cook County 

No. 2021 L 10030 

The Honorable 

Mary Colleen Roberts, 

 Judge, presiding. 

JUSTICE TAILOR delivered the judgment of the court.

Presiding Justice Oden Johnson and Justice C.A. Walker concurred in the judgment.

ORDER

Held: We affirm the circuit court decision to dismiss the plaintiffs’ complaint based on the 

provision in the loan agreement selecting China as the forum for the resolution of any disputes.

¶ 1 I. BACKGROUND

¶ 2 This appeal arises out of the alleged breach of a loan agreement to finance a real estate 

development project in China. We begin, as we typically do, by summarizing the allegations of 

the complaint. However, our task is difficult because the allegations in the complaint are in many 

respects incomprehensible and appear at times counterintuitive if the purpose of the agreement 
No. 1-22-1245 

2 

was to loan money or invest in a real estate project. The gist of the complaint is that the parties 

agreed that the plaintiff lender would loan the defendant borrower millions of dollars and the 

defendant borrower was to immediately repay the plaintiff. The plaintiff sent the defendant over 

$13 million by wire transfers but the defendant only repaid $5.4 million. In an affidavit supporting 

plaintiffs’ motion for service by special order of court, plaintiffs’ counsel avers that defendants 

Jinhui Guo and Ashley Liu were being investigated for money laundering. We do not know 

whether the parties were engaged in money laundering here but raise this point because of the 

peculiar allegations of the parties’ dealings and the fundamental principle that courts do not assist 

those seeking to enforce illegal contracts. Merchandise Nat. Bank of Chicago v. Kolber, 50 Ill. 

App. 3d 365, 369-370 (1977) (“Where enforcement of an illegal contract is sought, the courts will 

aid neither party but will leave them where they have placed themselves[.]”); see also, Galan v. 

Jackson, No. B184916, 2006 WL 648852 (Cal. Ct. App. Mar. 16, 2006) (court declined to rescind 

an illegal money laundering contract); Martinez v. Guajardo, No. 13-20-00165-CV, 2022 WL 

400837 (Tex. App. Feb. 10, 2022) (court declined to enforce an agreement to launder drug money). 

¶ 3 On October 10, 2021, plaintiffs XinXin Wang and Primatrix Investment, Inc., filed a sixcount complaint against defendants Jinhui Guo, Xin Li, Xiangyu Zhou, Ashley Liu, and three 

companies owned by Zhou and Li (who are married to each other and live in Cook County, 

Illinois): RM Material, LLC, Cabinets Depot, LLC, and Rimei International, Inc. Count I alleges 

breach of contract against Guo and counts II and III allege breach of contract against Liu. Counts 

IV and V allege fraud and conversion, respectively, against Guo, Liu, Zhou, and Li. Count VI 

alleges a civil conspiracy against all defendants. 

¶ 4 We summarize the allegations as best we can. In March 2019, plaintiff Wang, a Chinese 

citizen who resides in China, and his “attorney-in-fact” and agent Ming Dou, attended a real estate 
No. 1-22-1245 

3 

developer event in Chicago where they met defendant Li. Wang told Li that he was interested in 

real estate development opportunities. Li introduced Wang and Dou to a third party who was 

developing real estate in Glenview, Illinois. At Li’s urging, Wang invested in that project. 

¶ 5 On August 1, 2019, Zhou contacted Dou and told him that Guo, a resident of China, was 

seeking funding for a real estate development project in China and that “Guo had $3 Million dollars 

that he can wire to Wang’s bank accounts.” It is unclear from the complaint why Guo, who was 

seeking funding for a real estate development project in China, would wire $3 million to Wang. 

¶ 6 On August 2, 2019, Zhou sent a text message to Dou advising him that Guo had obtained 

funding for his project in China through other investors and now only needed $720,000. That same 

day, Zhou sent Dou the payee and bank account information over the WeChat messaging 

application. On August 3, 2019, Wang transferred by wire 5,000,000 RMB (the currency of 

China), the equivalent of $720,000, to the two Chinese bank accounts designated by Guo. 

¶ 7 Dou also provided Zhou with Wang’s bank account information into which Guo was to 

wire transfer $720,000. Zhou advised Dou at 11:27 pm on August 2, 2019, that the transfer of the 

$720,000 to Wang should be completed before midnight Chicago time. As of August 4, 2019, 

however, Wang had not received the funds from Guo, and Dou so advised Zhou. Zhou assured 

Dou that the “money is safe. His relatives (Ashley Liu) in the United States are next to me now.” 

¶ 8 On August 5, 2019, Zhou told Dou that Guo was willing to take additional funding from 

Wang and provided Dou the bank account information for defendants RM Materials, LLC and 

Cabinet Depot, LLC, which Zhou represented were companies she owned. Zhou told Dou that 

“each of her company account would receive $2.5 Million Dollar USD for Wang; Dou’s two 

company bank accounts would receive $500,000 dollars USD each; and Wang’s three bank 

accounts would receive a total of $8 million Dollars USD.” Later that day, Zhou told Dou that she 
No. 1-22-1245 

4 

had “already told [Guo] and [Liu] that [Wang] will want the whole 14 million USD.” Zhou then 

provided Dou the bank account information for four individuals, including Guo; Liu’s mother,

Zixia Zhao; and two other individuals, Bo Li and Dong Xu. Zhou said that Guo would receive 10 

million RMB, Xu would receive 20 million RMB, and Zhao would receive the remaining amount. 

¶ 9 On August 6, 2019, Dou told Zhao that Wang wanted “all of the $14 million USD” and 

gave Zhao information for seven U.S. bank accounts where the funds could be transferred by wire. 

Later that day, Zhou sent Dou a text message, stating, “You need to transfer the RMB as soon as 

the bank opens at 9:00 am. Otherwise there will be the other competitors who also need USD, once 

then made the transfer first, Guo and Liu will have the deal with other people.” Zhou then left Dou 

a voicemail, stating, “If we can just send the first wire transfer receipt of RMB to him, then it will 

show to Guo that we are committed to do the deal, he will not go to the other guys.” Zhou called 

Dou shortly thereafter, and said, “I just called. Your friend need to transfer 20 million RMB to 

each of the four people. Guo and Liu will confirm the last account, and will transfer the balance 

left into the 3rd account.” Shortly thereafter, Zhou told Dou, “You just transferred the first, once 

you have the bank receipt, pls send to me as soon as possible.” Two hours later, Zhou texted Dou, 

stating, “Hurry up, Please!” and “The competitors are using the wire transfer, they are faster than 

us.” 

¶ 10 Dou then sent Zhou pictures of four receipts showing the transfer of 20 million RMB to 

each of Guo, Xu, Li, and Zhao.

¶ 11 When Dou told Zhou that Wang was getting nervous, Zhou replied, “You don’t have to 

worry about security of the fund, tell [Wang] that we can be guarantee.” Zhou also told Dou, “If 

you guys are really not comfortable, I can freeze the same amount of fund in my company’s 
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5 

account and provide the guarantee to you. When his money finally received, we defreeze the fund, 

then.” 

¶ 12 On August 7, 2019, when Dou expressed concern that Guo had not wired money to Wang, 

Zhou replied, “Yesterday they transferred 6 million USD in total. They will finish all of the other 

amount tomorrow. The wire transfer receipts are all ready. Because they are using the same 

company and that company already transferred 2.4 Million USD.” Zhou also stated, “I will use 

my company’s fund to provide proof of fund today. So your friend will not be worried.” Zhou also 

stated, “Yesterday there are 6,427,000 USD wired; and Wang wired 80 million RMB, equals to 

11,222,715 USD. The USD not wired yet is: 11,222,715-6,427,000=$4,795,715.” 

¶ 13 On August 12, 2019, when Dou told Zhou that the $2.1 million had not arrived in the 

Primatrix Investment, Inc. (Primatrix) account, Zhou responded, “I will call the BOA customer 

service number of our company accounts, to see whether it is pending or not.” When the $2.1 

million did not arrive the next day, Zhou told Dou, “Guo and Ashley Liu will arrange someone to 

go to the bank. If there is still nothing showed up, they will see what to do at the bank.”

¶ 14 Zhou stated that, as of August 14, 2019, the “current status is: previous unpaid balance to 

Mr. Wang is $6,322,732, 8/14, $4,200,000 was wired, still 2,122,732 left; on 8/15, Wang will wire 

transfer 27,000,000 RMB according to the exchange rate of USD: RMB=1:703.85; it will be 

additional $3,836,045. On 8/15, they should wire total $5,958,777 to Wang’s US account.”

¶ 15 On August 19, 2019, Zhou told Dou, “Singapore just gave the latest confirmation. On 

Tuesday morning, Singapore time, the bank will release the 3 wires together (to three business 

accounts), they asked us to check on Tuesday U.S. time.” On August 20, 2019, when Dou asked 

Zhou for an update on the transfers, Zhou responded by asking Dou for his identification, stating, 

“The bank is asking for company accounts’ holder IDs. Once we sent the IDs to the bank, the wires 
No. 1-22-1245 

6 

will be processed.” Dou then sent Zhou a copy of his driver’s license, to which Zhou responded, 

“Now everything is OK. All approved.”

¶ 16 No funds were ever transferred from the bank in Singapore. Zhou continued to mislead 

Dou by falsely stating that she had been advised by her bank, Bank of America, that wire transfers 

from Singapore would appear on her company’s bank account within 24 to 48 hours. Zhou blamed 

the Chinese government for the delay in the wire transfers from Singapore.

¶ 17 On August 29, 2019, Zhou offered to have her husband, Li, send Dou a screenshot of the 

wire transfer of funds into Zhou and Li’s company bank account but he never did. On August 30, 

2019, Zhou sent Dou a screenshot (an image of which is embedded in the complaint) purporting 

to be that of her company bank account, stating, “This wire came in yesterday. Still pending now.” 

When Dou asked if the $2.1 million transfer was for Wang, Zhou replied, “Yes, after so many days 

we just have a pending.” Dou continued to ask Zhou if the $2.1 million wire transfer had cleared, 

and Zhou continued to represent that it was still pending. Li subsequently admitted that the $2.1 

million “was never received by anyone in the United States and that the screenshot was a fake, 

photoshopped picture.”

¶ 18 In total, Wang loaned Guo $13,022,714 but was only repaid $5,422,260. The balance 

Wang is owed from Guo is $7,600,454.

¶ 19 On October 24, 2019, Liu executed a personal guarantee agreeing to pay the remaining 

balance of 53,461,850 RMB by October 25, 2019, if Guo failed to repay Wang. On November 8, 

2019, Liu executed a “promissory note” wherein she agreed to pay the remaining amount owed 

Wang, plus interest and penalties by November 22, 2019, in the event that Guo failed to repay 

Wang. That same day, Guo executed a loan agreement promising to pay Primatrix the remaining 

balance of RMB 53,461,850 owed to Wang plus interest by November 15, 2019. 
No. 1-22-1245 

7 

¶ 20 The loan agreement identifies Primatrix as the “lender” and a “wholly-owned subsidiary 

of a Chinese company located in Illinois, USA.” According to a power of attorney in the record, 

Wang is the “director and majority shareholder” of Primatrix, although the complaint does not 

allege any facts to that effect. Moreover, although the complaint alleges that money Duo owed 

Wang would be paid to Primatrix, the complaint does not allege that Primatrix received any 

payment. 

¶ 21 When neither Guo nor Liu paid the amount due to Wang or Primatrix, Liu requested and 

received an extension of her personal guarantee to February 14, 2020. 

¶ 22 On October 10, 2021, plaintiffs filed their complaint against defendants for breach of 

contract, fraud, conversion and civil conspiracy. On April 8, 2022, Zhou, Li, and the company 

defendants (collectively “Moving Defendants”) filed a combined motion to dismiss counts IV, V, 

and VI pursuant to 735 ILCS 5/2-619.1 (West 2020). On May 25, 2022, the circuit court entered 

default judgment against Guo for $8,779,448.69 and against Liu for $8,279,467.30 on counts I, II, 

and III, and they are not parties to this appeal. 

¶ 23 The Moving Defendants raised several defenses in their motion to dismiss. First, without 

citing any authority, they argued that Wang could not proceed in absentia with Dou acting as his 

attorney-in-fact because Wang is unwilling to submit himself to the jurisdiction of the court, and 

that Primatrix lacked legal capacity to sue because it was involuntarily dissolved. Plaintiffs 

responded that the Moving Defendants waived these arguments by failing to cite any legal 

authority. They alternatively responded that the individual plaintiffs may prosecute a case via an 

attorney-in-fact and provided a certificate from the Illinois Secretary of State indicating that 

Primatrix was in good standing.
No. 1-22-1245 

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¶ 24 Next, the Moving Defendants argued that the complaint must be dismissed pursuant to the 

forum selection and choice of law clauses in the loan agreement between Primatrix and Guo, which 

states, respectively, that a “dispute may be filed in the people’s court with jurisdiction at the place 

of execution of this Contract (Xicheng District, Beijing),” and that “the laws of the People’s 

Republic of China[]” will govern the dispute. In support, the Moving Defendants primarily relied 

on Solargenix Energy, LLC v. Acciona, S.A., 2014 IL App (1st) 123403, to argue that even though 

they are not parties to the loan agreement, they may still enforce the forum-selection clause therein 

and that the forum selection clause also applies to the non-contractual claims against them. The 

plaintiffs responded by arguing that the Moving Defendants lack “standing” to enforce a contract 

that is only between Primatrix and Guo.

¶ 25 Next, the Moving Defendants argued that because the plaintiffs, after learning of the 

defendants’ fraud, affirmed the underlying oral agreement by entering into the written loan 

agreement, they could not sustain a fraud claim. In response, the plaintiffs argued that questions 

of material fact remained, and that any alleged contractual affirmations did not involve the 

plaintiffs where the written contracts were only between Primatrix, Liu, and Guo. 

¶ 26 Finally, the Moving Defendants argued that the allegations in the complaint were 

insufficient to support the conversion and civil conspiracy claims (counts V and VI). 

¶ 27 On July 22, 2023, the circuit court issued an order granting the Moving Defendants’ motion 

to dismiss the complaint in its entirety “due to jurisdictional defect []” and did not address any of 

the other grounds for dismissal. The circuit court reasoned that “[Plaintiffs] fail in meeting their 

burden to show that non-signatories could not foresee being bound by the loan agreement because 

[plaintiffs] allege that all [defendants] were in conspiracy to defraud [plaintiffs] through the loan 

agreement.” In support of its conclusion to enforce the forum selection clause against the plaintiffs, 
No. 1-22-1245 

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the circuit court stated that the “[defendants] introduced [plaintiff] Wang to Guo to foster the loan 

agreement in question[.]” 

¶ 28 On August 17, 2022, the plaintiffs timely filed this appeal. 

¶ 29 II. ANALYSIS

¶ 30 The circuit court dismissed plaintiffs’ complaint under section 2-619 of the Civil Practice 

Law (735 ILCS 5/2-619 (West 2020)) based on the clause in the loan agreement between Primatrix 

and Guo selecting China as the forum for the resolution of any disputes. Dismissal under section 

2-619 is appropriate when an affirmative matter bars the plaintiff’s claims. Smith v. Waukegan 

Park District, 231 Ill. 2d 111, 120 (2008). This court has considered the existence of an 

enforceable forum selection clause in a contract as an affirmative matter that may warrant 

dismissal under section 2-619. See, e.g., Eckhardt v. Idea Factory, LLC, 2021 IL App (1st) 

210813, ¶ 38; Brandt v. MillerCoors, LLC, 2013 IL App (1st) 120431, ¶¶ 12, 23; Dace 

International, Inc. v. Apple Computer, Inc., 275 Ill. App. 3d 234, 237 (1995). The defendant bears 

the burden of proving any affirmative defense it relies on. Wright v. Pucinski, 352 Ill. App. 3d 769, 

772 (1st Dist. 2004). We review the circuit court’s section 2-619 dismissal de novo. Patrick 

Engineering, Inc. v. City of Naperville, 2012 IL 113148, ¶ 31.

¶ 31 Before turning to the merits, we must address four threshold matters. First, although the 

court based its dismissal on a “jurisdictional defect,” this appeal is not about the circuit court’s 

jurisdiction over the defendants or subject matter. A contract selecting another forum neither 

deprives the court of subject-matter jurisdiction nor personal jurisdiction. See Eckhardt v. Idea 

Factory, LLC, 2021 IL App (1st) 210813, ¶ 38. The circuit court has subject-matter jurisdiction to 

determine both the scope and enforceability of the forum selection clause. Id. The circuit court’s 

determination of the scope and enforceability of the forum selection clause only resolves the issue 
No. 1-22-1245 

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of where the plaintiff may litigate the merits of his claim. Wright, 352 Ill. App. 3d at 772. In 

addition, a decision enforcing a forum-selection clause has no bearing on the question of whether 

there are any facts which the plaintiff can prove that will entitle him to recover, i.e. the merits of 

his claim. Fabian v. BGC Holdings, LP, 2014 IL App (1st) 141576, ¶ 23. We further note that the 

Moving Defendants have never disputed the circuit court’s jurisdiction over them. 

¶ 32 Second, the loan agreement states that “the dispute may be filed in the people’s court with 

jurisdiction at the place of execution of this Contract (Xicheng District, Beijing),” suggesting that 

the Chinese dispute resolution forum is optional (emphasis added). However, the plaintiffs do not 

advance this argument on appeal, so we consider the issue forfeited (In re H.B., 2022 IL App (2d) 

210404, ¶ 41 (“A party forfeits an argument when he or she fails to adequately develop it”)) and 

assume, without deciding, that the word “may” means “shall” in this instance. 

¶ 33 Third, although the loan agreement provides that it shall be governed by Chinese law, the 

parties have only cited and argued Illinois and federal case law. Accordingly, we consider the 

issue of governing law waived and assume, without deciding, that Illinois and federal case law 

apply to the issues raised in this appeal. See Adams v. Raintree Vacation Exch., LLC, 702 F.3d 

436, 438 (7th Cir. 2012) (“Notice that the clause is a choice of law provision as well as a forum 

selection clause, implying that the law governing the enforceability of the forum selection clause 

is Mexican law, since the clause is, obviously, a term in the contract. But neither side has asked 

either the district judge or us to apply Mexican law to the clause; their debate over its enforceability 

is framed entirely as a dispute about American law, and so the issue of the applicable law has been 

waived.”)

¶ 34 Fourth, the plaintiffs argue that the court improperly shifted the burden to them to prove 

that the forum selection clause does not require the dismissal of the complaint. We agree with the 
No. 1-22-1245 

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plaintiffs that the Moving Defendants bear the burden of proving that they may enforce the forum 

selection clause against the plaintiffs. See Eckhardt v. The Idea Factory, 2021 IL App (1st) 

210813, ¶ 38. Imposing the burden on the Moving Defendants is consistent with our approach to 

claims for breach of contract by an alleged third-party beneficiary, where we have held that the 

party seeking to enforce a contract to which it is not a party bears the burden of proof. See Martis 

v. Grinnel Mut. Reinsurance Co., 388 Ill. App. 3d 1017, 1020 (2009). Thus, the circuit court erred 

in imposing the burden on the plaintiffs to prove that the forum selection clause may not be invoked 

by the Moving Defendants. Accordingly, because the Moving Defendants have not submitted any 

affidavits or other evidence, the only way they can meet their burden is if the complaint itself 

alleges facts to show they may enforce the forum selection clause in their favor. See Direct Auto 

Insurance Company v. Bahena, 2019 IL App (1st) 172918, ¶ 46 (The appellate court may affirm 

on any basis appearing on the record.) Indeed, the Moving Defendants concede as much, arguing 

that trial court’s error is a “red herring” because the complaint itself alleges facts to show that the 

Moving Defendants can enforce the forum selection clause against the plaintiffs.

¶ 35 Turning to the merits, the plaintiffs argue that the Moving Defendants may not enforce the 

forum selection clause in the loan agreement between Primatrix and Guo because the Moving 

Defendants are not parties to that agreement. However, “a nonparty to a contract containing a 

forum selection clause can nonetheless be bound by the clause where the non-signatory is ‘closely 

related to the dispute such that it becomes foreseeable that it will be bound.” Solargenix, 2014 IL 

App (1st) 123403, ¶ 36 (citing Hugel v. Corp. of Lloyd’s, 999 F.2d 206, 209 (7th Cir. 1993) 

(Internal quotation marks omitted)). “[A] range of transaction participants, parties and nonparties, 

should benefit from and be subject to forum selection clauses.” Id. ¶ 37 (emphasis added) (citing 

Manetti-Farrow, Inc. v. Gucci America, Inc., 858 F.2d 509, 514 n. 5 (9th Cir. 1988)). While a 
No. 1-22-1245 

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third-party beneficiary satisfies the closely related and foreseeability requirements, the nonparty 

does not have to be a third-party beneficiary for the forum selection clause to apply. Id. 

¶ 36 Plaintiffs contend that the Moving Defendants failed to establish that they were “closely 

related” to the dispute or that it was “foreseeable” that they would be bound by the forum selection 

clause. In response, the Moving Defendants argue that because the complaint establishes that all 

claims against them are based on the original oral agreement between Wang and Guo and that the 

Moving Defendants conspired with Guo to “induce the loan,” the Moving Defendants are closely 

related to the dispute, and it was foreseeable that they would be bound by (and in this case may 

invoke) the forum selection clause. Courts have found that parties are “closely related” and that it 

is “foreseeable” that one will be bound by a forum selection clause when there is a corporate 

relationship between the signatories and non-signatories or where the doctrine of mutuality applies. 

See Adams v. Raintree Vacation Exchange, LLC, 702 F.3d 436, 442 (7th Cir. 2012). 

¶ 37 The mutuality doctrine provides that “if a signatory can enforce the forum selection clause 

against a non-signatory, then the non-signatory should be allowed to do the same.” United Airlines, 

Inc. v. Zaman, 152 F. Supp. 3d 1041, 1054 (N.D. Ill. 2015). In Adams, the court found that “an 

alleged conspirator can invoke a forum selection clause contained in a contract, signed by his 

alleged co-conspirator, that created or advanced the conspiracy.” Adams, 702 F.3d at 442. There, 

the plaintiffs alleged that the non-signatory company defendant conspired with the defendant 

parent company of the signatory, which was not a defendant, to defraud the plaintiffs. Id. at 442-

43. Although the court reasoned that the mutuality doctrine applied in that case because the 

complaint alleged that the signatory was the agent of a secret principal and a co-conspirator (Id.), 

application of the mutuality doctrine does not require allegations of a secret principal. See Stifel, 

Nicolous & Co., Inc. v. Lac Du Flambeau Band of Lake Superior Chippewa Indians, 807 F. 3d 
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184, 213 (7th Cir. 2015) (“Nothing in our case law *** suggests that ‘mutuality’ is limited to 

[secret principals and co-conspirators].”). Other courts have applied the mutuality doctrine to

allegations of conspiracy alone. See Wilson v. 5 Choices, LLC, 776 F. App’x 320, 329 n.7 (6th Cir. 

2019) (holding that non-signatory defendants alleged to be co-conspirators with signatory 

defendant were entitled to enforce a forum selection clause and finding that it “need not decide 

whether all Defendants indeed were in conspiracy ***; it is enough that Plaintiffs’ complaint 

alleges that this was the case.”); Pomerantz v. Hard Rock Café Franchise Group, LLC, No. 18 CV 

5470, 2020 WL 6447306 (N.D. Ill. Nov. 3, 2020) (signatory and non-signatory were coconspirators according to the allegations in the complaint and therefore non-signatory coconspirator can enforce a forum selection clause). 

¶ 38 We hold that the circuit court correctly dismissed the complaint under the forum selection 

clause based on the mutuality doctrine and the allegations in the plaintiffs’ complaint. We start 

with two obvious propositions. First, Guo, as one of the parties to the loan agreement, can enforce 

the forum selection clause and so can Liu who executed a “guarantee” that expressly adopted the 

loan agreement. Second, Primatrix, who is also party to the loan agreement, and Wang, who is 

Primatrix’s president, can enforce the forum selection clause. See Solargenix 2014 IL App (1st) 

123403, ¶¶ 4, 47-48 (non-signatories were bound by forum selection clause because their executive 

committee “discussed and reviewed the investment” and their senior officials negotiated the joint 

agreement, and their CEO was “personally involved in the decision to invest *** [and] approved 

the initial decision to enter the joint venture[.]”) Id. at 47-48. 

¶ 39 The allegations here make clear that the amount due under the loan agreement is the same 

amount that the Moving Defendants, Guo and Liu obtained from Wang and Primatrix by fraud. 

The loan agreement states that money was loaned, the money was not paid back, and the amount 
No. 1-22-1245 

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due is 53,461,850 RMB, the same amount allegedly owed to Wang and Primatrix before they 

signed the loan agreement. These funds were sent based on the communications, actions, and 

representations between and among the Moving Defendants, Guo, Liu, Dou, and Wang. Guo, a 

party to the loan agreement, is alleged to have conspired with the Moving Defendants to defraud 

the plaintiffs. Because the complaint alleges that the Moving Defendants conspired with Guo to 

defraud Wang and Primatrix of the same funds to be repaid under the loan agreement, Wang and 

Primatrix could have enforced the forum selection clause against the Moving Defendants and 

brought suit in China against them if they so elected. See Adams 702 F.3d at 443 (because a nonsignatory defendant is bound by a forum selection clause where the plaintiff alleges that the 

signatory defendant conspired with the non-signatory defendant, “it follows that [non-signatory 

defendant] can hold the plaintiffs to the clause in the opposite situation.”) Therefore, under the 

principle of mutuality, the Moving Defendants too can enforce the forum selection clause against 

Wang and Primatrix. Although the only defendant that is a party to the loan agreement is Guo, the 

allegations make plain that the loan agreement would not have been signed had the Moving 

Defendants and Liu not conspired with Guo to defraud Wang and Primatrix. Accordingly, we hold 

that, even though they are not parties to the loan agreement, the Moving Defendants may invoke 

the forum selection clause in the loan agreement against the plaintiffs.

¶ 40 Next, we address whether the forum selection clause applies to the plaintiffs’ tort claims 

for fraud (Count IV), conversion (Count V), and conspiracy (count VI). The forum selection clause 

applies to “[a]ny dispute arising from the performance of this Contract[.]” Thus, we must 

determine whether the tort claims arise from the performance of this contract. See Eckhardt v. Idea 

Factory, LLC, 2021 IL App (1st) 210813, ¶ 24. There are three approaches to resolve whether tort 

claims arise from a specific contract. Id. The first approach is to determine whether the tort claims 
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ultimately depend on a contractual relationship between the parties. Id. The second approach is to 

determine whether resolution of the claims would arguably require interpretation of the contract. 

Id. The third approach, which we have determined is the best approach, is to determine whether 

the claims involve the same operative facts as the breach of contract claim. Id. ¶ 25 (“As our 

guiding principle is to honor the reasonable expectations of the parties, we find that the third 

approach best effectuates that principle when parties have agreed upon a generic forum selection 

clause, particularly for a party to whom the clause adhered. If a party should reasonably expect the 

clause to apply to breach of contract claims, they should also reasonably expect the clause to apply 

when the same operative facts of a noncontractual claim would be cognizable as a breach of the 

contract.”). A tort claim involves the same operative facts as a parallel claim for breach of contract 

when “[t]he same exact facts surrounding [the plaintiff’s] tort claims would also give rise to a 

breach of contract claim.” Id. ¶ 26. As we explain above, the loan agreement between Primatrix 

and Guo does nothing more than reduce to writing an oral agreement to loan money with the 

promise that the money will be repaid and the tort claims are intricately dependent on what 

occurred prior to the formation of the loan agreement. We examine each tort claim individually.

¶ 41 We begin by noting that the contract and tort claims brought by Wang and Primatrix rely 

on the same allegations. Every tort count realleges and incorporates the allegations about the loan 

agreement, which states:

“[T]he lender lent to the borrower loans totaling RMB 92,083, 706 *** on August 7, 2019 

and September 11, 2019. The Agreed repayment date was October 25, 2019. As at (sic) 

October 25, there was still a total of RMB 53, 461,850 that has not yet been repaid. With 

the written consent of the Lender, it was agreed to extend full repayment date of the 

outstanding amount to November 15, 2019.”
No. 1-22-1245 

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¶ 42 On October 24, 2019, Liu signed a handwritten personal guarantee to pay any amount that 

Guo did not repay by October 25, 2019, which corresponds to the original repayment deadline in 

the loan agreement. Count IV for fraud alleges that Guo, Liu, Li, and Zhou all made false 

statements of material fact to induce Wang to wire $13 million—the same $13 million under the 

loan agreement—to Guo, Liu, Li, and Zhou. Thus, while the fraud claim is additionally based on 

a false statement of material fact, both the contract and fraud claims are based on the same factual 

allegation that Guo and Liu did not repay the money that was owed the plaintiffs. Similarly, Count 

V for conversion is based on the same operative facts as the breach of contract claim because it 

alleges that Guo, Li, Liu, and Zhou retained the money that Wang wired and that Primatrix is owed 

under the loan agreement, and that instead of repaying the money, Guo, Li, Liu, and Zhou have 

retained the money. Finally, Count VI for civil conspiracy realleges the same operative facts as 

the breach of contract claim but also alleges that the Moving Defendants along with Guo and Liu 

conspired to deprive Wang and Primatrix of the same funds that are the subject of the contract 

claim. Because the tort counts allege the same operative facts as the breach of contract count, we 

conclude that the forum selection clause applies to the claims for fraud (Count IV), conversion 

(Count V), and conspiracy (count VI). 

¶ 43 III. CONCLUSION

¶ 44 For the foregoing reasons, we conclude that the circuit court did not err in dismissing the 

plaintiffs’ complaint under the forum selection clause in the loan agreement between Primatrix 

and Guo. 

¶ 45 Affirmed.