before the Seventh Circuit on appeal that “Elias and Raida Abuelizam, had lost
investments of $90,000 . . .; even allowing for minor attorneys’ fees and costs, they
easily satisfy the $100,000 exclusion figure.” (App. Reply. 15). However, even
after Plaintiffs’ argument was made, the Seventh Circuit issued its ruling, finding
that “8 of the 11” claims are plead for less than $100,000. Sharif, 376 F.3d at 727.
The Seventh Circuit also found on appeal that Plaintiffs’ attempts to
artificially raise the claims above the $100,000 amount were improper noting that
the legal certainty test is not the proper test and noting that the Plaintiffs could not
aggregate their claims to meet the amount in question. /d. We also note that
Defendants assert that typically a contingency fee is based upon the total recovery on
the Abuelizam claims and that Plaintiffs’ attorneys would be paid out of the total
$90,000 recovered. Plaintiffs have not sought to file a sur-reply to contest this fact.

Therefore, we order the Abuelizam claims to arbitration.

IL Remaining Claims

Defendants argue that this court should dismiss the remaining three claims of
Plaintiffs that have allegedly sustained damages of more than $100,000. Defendants
argue that for the Plaintiffs bringing the remaining three claims there was a forum
selection clause in the Associate Agreements signed by Plaintiffs providing that
disputes would be addressed in Texas. The Seventh Circuit has held that where a

forum selection clause specifies venue with “mandatory or obligatory language,” the


DISCUSSION
The parties agree that seven of the Plaintiffs’ claims are subject to arbitration
and therefore should be ordered to arbitration. Therefore, we order to arbitration the
claims of: 1) Rosee Torres, 2) Peggy Carey, 3) Oussama and Ghina Jammal, 4) Ali
and Abida Jammal, 5) Mahmoud Yassin and Taghreen Nassar, 6) Abdullatif and

Nabilah Saleh, and 7) Hamid and Maimoona Khan.

1. Abuelizam Claims

In regards to the claims brought by Plaintiffs Elias and Raida Abuelizam
(“Abuelizam claims”), Plaintiffs argue that the Abuelizam claims involve more than
$100,000 and are therefore exempt from the arbitration provision. Plaintiffs argue
that the Abuelizam claims are worth $90,000 in damages and that Plaintiffs’
attorneys will receive a twenty-five percent contingency fee. On appeal the Seventh
Circuit clearly stated that “only those plaintiffs with claims less than $100,000 must
be compelled to arbitrate” and that “[a]ccording to the complaint, the majority of
plaintiffs have such claims” and that “the plaintiffs plead that 8 of the 11 claims are
for damages of less than $100,000.” /d. The Abuelizam claims would be included
in the Seventh Circuit’s computation of “8 of the 11 claims” and Plaintiffs’
contention that only 7 of the 11 claims are subject to arbitration is inconsistent with

the Seventh Circuit’s ruling. In fact Plaintiffs specifically argued in their reply brief



clause is a mandatory forum selection clause, limiting litigation to the designated
venue. Paper Express Ltd. v. Pfankuch Maschinen GmbH, 972 F.2d 753, 757 (7th
Cir. 1992). However, if the clause instead merely refers to “jurisdiction,” it is
generally not mandatory unless some further language expresses “the parties’ intent
to make venue exclusive.” /d.

In the Associate Agreements signed by plaintiffs, the forum selection clause
stated the following: “Jurisdiction and venue over any disputes arising out of this
agreement shall be proper only in the federal or state courts in Dallas County,
Texas.” (Agr. Par. 24). Such language clearly indicates that the clause is mandatory
and that it provides for exclusive jurisdiction in Texas courts.

Plaintiffs argue that the forum selection clause should not be interpreted as
mandatory because of language in the consent-to-personal jurisdiction clause in the
Distribution Agreements signed by Plaintiffs that refers to “non-exclusive
jurisdiction.” However, as Defendants correctly point out the consent-to-personal
jurisdiction and venue clauses serve different purposes and the consent-to-personal
jurisdiction clause in the Distribution Agreements in no way detract from the clear
and express statement in the forum selection clause that all actions will be brought in
Dallas, Dallas County, Texas. See C/T Group/Credit Finance Inc. v. Lott, 1993 WL
157617, at *1 (N.D. Ill. 1993)(upholding forum selection clause despite the fact that
in regards to personal jurisdiction the agreement stated that the “Guarantor hereby

irrevocably submits and consents and to the non-exclusive jurisdiction of the state


Minute Once Fora (06°97)

United States District Court, Northern District of Hlinois

Name of Assigned Judge
or Magistrate Judge

Samuel Der-Yeghiayan

Sitting Judge if Other
than Assigned Judge

CASE NUMBER 02 C 5801 DATE 12/1/2004
CASE Torress vs. Wellness Intl
TITLE
[In the following box (a) indivate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.

DOCKET ENTRY:

dd) ao Filed motion of [ use listing in “Motion” box above.]

(2) oO Brief in support of motion duc

Q) Oo Answer brief to motion due___. Reply to answer brief duc

(4) a Ruling/Hearingon set for at

(5) oO Status hearing{heid/continucd to} [set for/re-set for}on__— set for at

(6) a Pretrial conference[held/continued to] [set for/re-set for)on set for at

mM a Trial[set for/re-set for}on_—— at

(8) Oo [Bench/Jury triat] [Hearing] held/continued to at

0 6 This case is dismissed [with/without] prejudice and without costs[by/agrcement/pursuant to]

QFRCP4(m) CC) Local Rule 41.1 OOFRCP41(a\(1) OO FRCP41(a)(2).

(io) =f {Other docket entry] For the reasons stated in the attached memorandum opinion, we vacate our
denial of defendants’ motion to compel arbitration, grant the motion to compel arbitration and grant the
motion to dismiss. All pending dates and motions are hereby stricken as moot. Terminating case. Enter
Memorandum Opinion.

(il) @ (For further detail sce order attached lo the original minute order.]

No notices required, advised in open court Document
Number
No notices required. suonerotvetives
Notices mailed by judge's stalf.
Notified counsel by telephone
UY | Docketing to mail notices, q
Mail AO 430 form, iS
Copy to judge/magistrate judge.
date nue potce
courtroom
MW deputy’s .
initials
Dateltime received in
central Clerk's Office van dpaty initia



and federal courts. . . .”). Therefore, we grant Defendants’ motion to dismiss the
remaining three claims of Plaintiffs that have allegedly sustained damages of more

than $100,000.

CONCLUSION
Based on the foregoing analysis, we vacate our denial of Defendants’ motion
to compel arbitration, grant the motion to compel arbitration, and order certain
claims to arbitration as indicated above. We also grant Defendants’ motion to
dismiss the remaining three claims of Plaintiffs that have allegedly sustained

damages of more than $100,000.

soc Deal : )

United States District Court Judge

Dated: December 1, 2004


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ROSEE TORRES; OUSSAMA and
GHINA JAMMAL; ELIAS and RAIDA
ABUELIZAM; PRATIMA J.
MUZUMDAR; TRANQUIL PASSAGE
LLC; ABDUL and SHAHEEN RASHID;
WAQAR and SHAFQUT KHAN;
McERLEAN-CAREY; MAHMOUD
YASSIN and TAGHREED NASSAR;
ALIS. and NABILAH SALEH; and
HAMID and MAIMOONA KHAN,

DEY 9

Bey Nig

Plaintiffs,

No. 02 C 5801

WELLNESS INTERNATIONAL
NETWORK, LTD., A/K/A WIN; WIN
NETWORK, INC.; RALPH OATS;
CATHY OATS; and SHERI
MATTHEWS,

wer ws SSS WS SS SS SS SS YS OS Owes Sew

Defendants.

MEMORANDUM OPINION

SAMUEL DER-YEGHIAYAN, District Judge

This matter is before the court on Defendants’ motion to compel arbitration
and motion to dismiss. For the reasons stated below, we vacate our denial of

Defendants’ motion to compel arbitration, grant the motion to compel arbitration,

| 4


and grant the motion to dismiss.

BACKGROUND

Plaintiffs entered into agreements with Defendants to sell Defendants’ health
and personal care products. Plaintiffs allege that Defendants’ business was actually
an illegal pyramid scheme and that Defendants engaged in fraud. Plaintiffs brought
the instant action seeking to have their agreements with Defendants declared null
and void as contrary to Illinois law and public policy, and to recover for loss and
damage to Plaintiffs’ businesses and property, On October 20, 2003, Defendants
filed a motion to compel arbitration, asserting that the agreements signed by
Plaintiffs contained a clause that provided that disputes between Plaintiffs and
Defendants would be referred to arbitration. On October 23, 2003, we denied the
motion to compel arbitration. Defendants appealed the ruling and on November 7,
2003, Defendants moved to stay this action pending the appeal. On December 4,
2003, we denied the motion to stay, finding that the action should not be stayed
because Defendants had a motion to dismiss for improper venue pending at the time
that the motion to compel arbitration was filed. (12/4/03 ruling p. 2-3). On appeal
the Seventh Circuit remanded the case back to this court and ordered the court to
vacate the denial of Defendants’ motion to compel arbitration and to “order
arbitration on those claims subject to arbitration.” Sharif vy. Wellness Intern.

Network, Ltd., 376 F.3d 720, 727 (7 Cir. 2004).