In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-4345

CAROLYN MACKEN, as next friend of her children

Shannon M. Macken and Sean M. Macken,

Plaintiff-Appellant,

v.

ERIK JENSEN, individually and as trustee of the

Richard J. Macken, Jr., Trust,

Defendant-Appellee.

____________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 02 C 6152—Suzanne B. Conlon, Judge.

____________

ARGUED MAY 30, 2003—DECIDED JUNE 24, 2003

____________

Before FLAUM, Chief Judge, and EASTERBROOK and

RIPPLE, Circuit Judges.

EASTERBROOK, Circuit Judge. To provide for his heirs,

Richard Macken established and funded a trust. Richard

had complete discretion over the disposition of the trust’s

assets and unbridled power to change the trust’s terms.

After his death in 2001 the trust’s plan took effect. Beneficiaries of the trust include Shannon and Sean Macken,

Richard’s minor children by Carolyn Macken, his former

wife. Each of Richard’s children becomes entitled to some
2 No. 02-4345

of the principal at age 25; the trustee has discretion to

distribute interest and principal earlier “for the health,

maintenance in reasonable comfort, education (including postgraduate) and best interests of the child”.

Article IV §7 requires the trustee to “render an account of its receipts and disbursements at least annually

to each adult income beneficiary.” Shortly after Richard’s

death, Carolyn asked the trustee for an accounting, even

though Shannon and Sean are minors. When the trustee

declined, Carolyn filed this suit on their behalf under the

diversity jurisdiction, 28 U.S.C. §1332, demanding an

accounting and unredacted copies of the trust documents.

The complaint alleged that all plaintiffs are citizens of

Illinois and that Erik Jensen, who succeeded Richard as

trustee, is a “resident” of Indiana. That allegation is

defective—citizenship may differ from residence, see

Denlinger v. Brennan, 87 F.3d 214 (7th Cir. 1996)—but, as

Jensen concedes that he is a citizen of Indiana, the

error does not require dismissal.

There are two other potential problems with subjectmatter jurisdiction. One is the nonstatutory, but established, exception for the administration of decedents’

estates. See Markham v. Allen, 326 U.S. 490, 494 (1946);

Dragan v. Miller, 679 F.2d 712 (7th Cir. 1982). Richard’s

trust appears to be a will substitute. The assets he controlled through the trust at the time of his death bypassed probate, and it is unclear whether he even had a

will. Federal taxing authorities treated the trust assets

as part of Richard’s holdings, and thus as subject to

the estate tax. We held in Storm v. Storm, No. 02-3078

(7th Cir. May 13, 2003), that the probate exception applies to disputes about trusts used in lieu of wills, if

the parties present an issue that would be resolved in

probate had a will been used, or the issue is ancillary to

such a dispute. Compare Hamilton v. Nielsen, 678 F.2d
No. 02-4345 3

709 (7th Cir. 1982), with Georges v. Glick, 856 F.2d 971 (7th

Cir. 1988).

The second problem is the amount in controversy, which

must exceed $75,000 for a case to proceed in federal court.

Carolyn does not contend that the trust has failed to

honor any financial obligation to Shannon or Sean. Instead she wants documents that will help her determine

whether the principal is being prudently managed and

the income applied according to the trust’s terms. The

complaint did not make any effort to estimate the value

of this information, contending instead that jurisdiction is

automatic because the trust corpus exceeds $75,000.

The district judge rejected that proposition and dismissed

the suit for want of subject-matter jurisdiction. Because

we agree with the district judge’s conclusion, we need

not decide whether the probate exception to the diversity jurisdiction independently precludes the use of §1332.

Carolyn estimates (though without unredacted copies

of the documents she cannot be sure) that the value of

Shannon’s and Sean’s interests (taken jointly) is about

$300,000. That comfortably exceeds $75,000, even when

each child’s interest is considered separately—as it must be.

See Snyder v. Harris, 394 U.S. 332 (1969); Clark v. Paul

Gray, Inc., 306 U.S. 583 (1939). But there is no dispute

about the value of the assets held in trust or either child’s

entitlement, so that sum is no more “in controversy” than

the value of a Rolls Royce would be relevant to a dispute

about the price of new shock absorbers. See GardynskiLeschuck v. Ford Motor Co., 142 F.3d 955 (7th Cir. 1998); cf.

Caudle v. American Arbitration Association, 230 F.3d 920

(7th Cir. 2000). Shannon and Sean seek equitable relief—a

complete copy of the trust plus an accounting of its assets

and cash flows—rather than damages. In a suit for injunctive relief, “the amount in controversy is measured by the

value of the object of the litigation.” Hunt v. Washington

State Apple Advertising Commission, 432 U.S. 333, 347
4 No. 02-4345

(1977). And, at least in this circuit, the object may be

valued from either perspective—what the plaintiff stands to

gain, or what it would cost the defendant to meet the

plaintiff’s demand. See In re Brand Name Prescription

Drugs Antitrust Litigation, 123 F.3d 599, 609-10

(7th Cir. 1997); Uhl v. Thoroughbred Technology &

Telecommunications, Inc., 309 F.3d 978, 983-84 (7th

Cir. 2002). The cost to the trustee of turning over an

unexpurgated copy is negligible, and Carolyn does not

contend that an audit would cost the trust more than

$75,000 to conduct. Indeed, after the district court dismissed the complaint, the trustee furnished Carolyn with

a copy of the accounting that had been performed under

Article IV §7. Any debate about the accounting is moot.

So what could be the value, from the minor children’s

perspective, of obtaining the full text of the trust instrument and all amendments? It is not as if the trustee

were hiding information that ought to be disclosed before any litigation occurs and would, if known, reveal

whether a substantive controversy exceeds the jurisdictional amount. Whether Carolyn is entitled to see the

complete trust documents is the very matter in issue, so

the question “what is the value of this secret?” cannot

be elided. Their lawyer concedes that he hasn’t a clue

what the omitted information, which concerns other beneficiaries’ entitlements (and may affect their privacy),

may be worth to Shannon and Sean. The potential value

would lie in monitoring the trustee to prevent improper

distribution of income and principal to beneficiaries

other than the children. Yet only a grave error by the

trustee in determining other beneficiaries’ entitlements

could cost either Shannon or Sean $75,000, and Carolyn

concedes that she has no reason to suspect that the trustee has made, or will in the future make, any error, let

alone a whopper. So how could $75,000 per child now be

in controversy?
No. 02-4345 5

Counsel’s response invokes the principle that a case

may be dismissed only if the court is certain that the

plaintiff cannot recover the jurisdictional amount. St.

Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S.

283, 289 (1938). See also Pratt Central Park Limited

Partnership v. Dames & Moore, Inc., 60 F.3d 350 (7th Cir.

1995). This is the rule for damages actions, not for equitable actions; it does not eliminate the need to place a

realistic value on injunctive relief. Moreover, the rule of

St. Paul supposes that the plaintiff has first made a good

faith effort to estimate the stakes. No one is entitled to

file in federal court and throw on the defendant (and

the judicial system) the entire burden of estimation plus

the risk of uncertainty in that process. To the contrary,

Fed. R. Civ. P. 11(b)(3) requires the plaintiff (personally

or through counsel) to establish evidentiary support, or

at least a likelihood of obtaining that support, before filing suit in federal court. What Carolyn’s lawyer contends—that a plaintiff may file a federal suit with no

basis for an assertion that the stakes exceed $75,000, and

then use the discovery process to have the merits resolved ahead of any jurisdictional inquiry (recall that

this dispute is about access to potentially discoverable

information)—does nothing other than confess a violation of Rule 11.

When the monetary value of a controversy cannot be

estimated, litigation must commence in state court. If

evidence developed in state litigation shows that the

value exceeds the jurisdictional minimum, then the defendant may remove the suit under 28 U.S.C. §§ 1441(a) and

1446(b). A plaintiff may be able to move to federal court

by dismissal and refiling if time remains in the statute

of limitations. Not until it becomes evident that the information in these trust instruments is worth more than

$75,000 should anyone knock on the federal court’s door.

AFFIRMED
6 No. 02-4345

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-24-03