jurisdiction pursuant to 28 U.S.C. § 1332. Merrill Lynch relied on the face of Jennings’s
complaint to support both the diversity-of-citizenship and amount-in-controversy requirements.
The diversity-of-citizenship requirement is not contested by either party: Jennings is a citizen of
the state of Illinois, while Merrill Lynch is incorporated under the laws of the state of Delaware
with its principal place of business in New York. (/d. at §6.) As to the amount-in-controversy
requirement, however, Merrill Lynch relied solely on the ad damnum clauses of Jennings’s state
court complaint, which sought damages in excess of $75,000 for both Counts II and Ill. (id. at 14
4,7.) On August 19, 2003, the day after Merrill Lynch filed its notice of removal, Jennings filed
an emergency motion to remand. (R. 2, Pl.’s Emergency Mot. to Remand at 4 2, 6.) Jennings
also sought to file an amended complaint to amend the amount of damages to less than $75,000
for Counts II and Il. (/d. at {{] 4-5.) Presently before the Court is Jennings’s motion to remand.
ANALYSIS

Jennings essentially argues in his motion to remand that his prayer for damages in excess
of $75,000 in his state court complaint was in error and that he intended to limit his damages in
state court to less than the jurisdictional minimum required for diversity jurisdiction under 28
U.S.C. § 1332.' In the alternative, Jennings argues that Merrill Lynch failed to meet its burden of
showing that the amount in controversy exceeds the jurisdictional requirement, thus making
removal improper.

The party invoking federal diversity jurisdiction assumes the burden of demonstrating

that both the complete diversity and amount in controversy requirements are met. Chase v. Stop

'28 U.S.C. § 1332 provides that “[t]he district courts shall have original jurisdiction . . .
where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and
costs, and is between . . . citizens of different states... .”

4


Jennings’s assessment of his damages in the complaint. Jd. at 368.

On pain of sanction, by signing the complaint, Jennings’s counsel is treated as certifying
that: (1) a reasonable inquiry has taken place; (2) the complaint is well-grounded in law and fact;
(3) the complaint is not interposed for any improper purpose; and (4) it has been read. See Il.
Sup. Ct. R. 137. Neither this Court nor the defendant can be left to speculate as to what the
plaintiff really meant; it is the province of counsel to make reasonable efforts to insure that the
complaint is accurate before it is filed. Therefore, this Court assumes that Jennings made a good-
faith claim as to his damages suffered. Similarly, this Court assumes that Merrill Lynch
conducted an adequate investigation into the allegation since it averred in its removal petition
that at least $75,000 was indeed in controversy. Thus, federal diversity jurisdiction existed at the
time of removal, and remand is not now warranted.

Jennings relies on Newman-Green, Ine. v. Alfonzo-Larrain, 490 U.S. 826, 830-33 (1989)
for the proposition that, under 28 U.S.C. § 1653,” he is permitted to amend his complaint to
correct a defective jurisdictional allegation. (R. 6, Pl.’s Reply in Supp. of Pl.’s Mot. to Remand
at 1.) Newman-Green, however, dealt with the existence of complete diversity where the
question was whether an appellate court could dismiss a dispensable party in order to preserve
federal jurisdiction. Jd. at 830-31. The Newman-Green Court interpreted section 1653 as
applying only in situations where jurisdiction actually exists but the jurisdictional allegation is

incorrect.? Jd. at 831. Jennings’s situation is not analogous because he is not attempting to

228 U.S.C. § 1653 provides that “[d]efective allegations of jurisdiction may be amended,
upon terms, in the trial or appellate courts.”

3 The claim in Newman-Green was originally brought in district court on the basis of
diversity jurisdiction. During oral argument before the Seventh Circuit, an inquiry into the basis

7



Lynch’s conduct has significantly impaired Jennings’s relationships with his clients and amounts
to a breach of the settlement agreement. (Jd. at {ff 14, 18.) The complaint further alleges that
Merrill Lynch failed to transfer to Jennings’s new employer all of Jennings’s clients who
requested to be transferred, (id. at §{] 10-11), and that Merrill Lynch has and continues to solicit
Jennings’s yet-to-be transferred clients through verbal and written requests and actual meetings,
(id. at] 12). Jennings asserts that Merrill Lynch’s conduct has caused him the “loss of business,
customers, business opportunities, profits, good will, and reputation.” (Jd. at ] 27.)

Specifically, Jennings’s complaint claims that: (1) there is a genuine controversy as to the
parties’ rights under the settlement agreement; (2) Merrill Lynch’s conduct amounts to tortious
interference with contractual relations; and (3) Merrill Lynch’s conduct violates the ICDBPA and
the IUDTPA. (Id. at ff] 20, 24-25, 29-33.) The complaint prays the Court to award
“compensatory damages . . . [and] punitive damages in such sum as is consistent with the
evidence presented at trial, plus costs of the suit” and “any and all other such relief as [the]
{C]ourt deems just and equitable,” but also describes the injury and damages as “in excess of
$75,000” for Counts II and WII. (Id. at 27, 34.) Additionally, Jennings prays for injunctive
relief on Count I, seeking to: (1) halt Merrill Lynch’s supposed communications and
solicitations with Jennings’s clients; (2) recover from Merrill Lynch the identity of his clients
with whom Merrill Lynch has had contact since the date of the settlement agreement; and (3)
require Merrill Lynch to produce all documentation sent to Jennings’s clients since the settlement
agreement date. (Id. at 421.)

On August 18, 2003, Merrill Lynch timely filed a notice of removal with this Court. QR.

1, Def.’s Notice of Removal.) Subject matter jurisdiction rested on the basis of federal diversity



‘N Save Warehouse Foods, Inc., 110 F.3d 424, 427 (7th Cir. 1997). In order to meet this burden,
the defendant must support the jurisdictional allegations with “competent proof,” McNutt v. Gen.
Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936), which in the Seventh Circuit
requires the removing party to proffer evidence that establishes “to a reasonable probability that
jurisdiction exists.” Chase, 110 F.3d at 427 (citing Gould v. Artisoft, Inc., 1 F.3d 544, 547 (7th
Cir. 1993)). Because neither Jennings nor Merrill Lynch disputes the presence of complete
diversity of citizenship, Merrill Lynch must show, to a reasonable probability, that the amount in
controversy exceeds $75,000.

An inquiry into determining the amount in controversy typically starts with the face of the
complaint, where the plaintiff’s request for relief indicates the value of the claim. Chase, 110
F.3d at 427. Here, Jennings claimed damages in “excess of $75,000" in two of his three counts.
(R. 5, Def.’s Mem. in Opp’n to Pl.’s Mot. to Remand, Ex. A, Pl.’s Compl. at 9 27, 34.)
Jennings, however, apparently reconsidered the value of his claims after Merrill Lynch filed its
motion to remand, and he now desires to amend his complaint to reduce the amount in his ad
damnum clauses to “less than $75,000” for both Counts II and II. (R. 2, Pl.’s Emergency Mot. to
Remand at {{[ 2, 4-6.) In examining the amount in controversy, the Court is restricted, however,
to considering only the evidence that was present at the time the removal petition was filed. Jn re
Shell Oil Co., 970 F.2d 355, 356 (7th Cir. 1992) (per curium) (stating that a post-removal
stipulation or affidavit limiting recovery of damages to less than the jurisdictional amount is no
more effective than a post-removal amendment of the complaint in authorizing remand).

Thus, the relevant question is whether the evidence of the amount in controversy present

at the time of removal proved to a reasonable probability that the jurisdictional amount was met.


preserve federal jurisdiction; he is trying to oust this Court’s jurisdiction.

Once a case has been removed, the plaintiff cannot by stipulation, affidavit, or
amendment of his pleading, deprive the district court of jurisdiction by reducing the claim to less
than the jurisdictional minimum. S¢. Paul Mercury Indemnity Co. v. Red Cab Co,, 303 U.S. 283,
292 (1939). As the Supreme Court explained in St. Paul:

If the plaintiff could, no matter how bona fide his original claim in state court, reduce

the amount of his demand to defeat federal jurisdiction the defendant’s supposed

statutory right of removal would be subject to the plaintiffs caprice. The claim,

whether well or ill founded in fact, fixes the right of the defendant to remove, and the
plaintiff ought not to be able to defeat that right and bring the cause back to the state

court at his election.

Id. at 294. Jennings’s attempt to amend his complaint post-removal does not deprive this Court
of jurisdiction. Merrill Lynch was entitled to rely on the face of the complaint to invoke federal
jurisdiction. After removal, reducing the amount of damages claimed does not eliminate that
right. Id. at 296.

CONCLUSION

For the foregoing reasons, we deny Jennings’s motion to remand. (R. 2.)

eo

Judge Ruben Castillo
United States District Court

Dated: October 2, 2003

of the court’s jurisdiction revealed that one of the defendants did not meet the diversity of
citizenship requirement as she was “stateless” for purposes of section 1332(a)(3), which defeated
federal jurisdiction. Newman-Green, 490 U.S. at 828-30. Thus, section 1653 did not apply in
Newman-Green because federal jurisdiction did not actually exist.

8


Minute Order Form (06497)

United States District Court, Northern District of Illinois

Name of Assigned Jud asti Sitti
roe Magistrate odge Ruben Castillo thaw Acsged Judge
CASE NUMBER 03 C 5766 DATE 10/2/2003
CASE J. Craig Jennings vs. Merrill Lynch Pierce Fenner
TITLE

of the motion being presented.]

MOTION:

[In the following box (a) indicate the party filing the motion, c.g., plaintiff, defendant, 3rd party plaintitY, and (b) state briefly the nature

DOCKET ENTRY:

() o Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) a Answer brief to motion due___. Reply to answer brief due___.

(4) o Ruling/Hearingon___setfor__at

(5) a Status hearing set for 10/23/2003 at 10:00 A.M..

(6) Oo Pretrial conference{held/continued to] [set for/re-set for]on___—_esetfor__—at_.
(7) QO Trial[set for/re-set for] on at

(8) Oo (Bench/Jury trial] [Hearing] held/continued to____saat

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}

OOFRCP4(m) OLocal Rule 41.1. COFRCP41(a\(1) OO FRCP41(a\(2).

is denied.

(1) [For further detail see order attached to the original minute order.]

co) of [Other docket entry] Enter Memorandum Opinion and Order. Plaintiffs motion to remand [2-1]

No notices required, advised in open court.

No notices required. umber of novices

Document
Number

Notices mailed by judge's staff.

Notified counsel by telephone, ocT,,

3 2003

e docketed

docketing S H Is

vv Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge. a
date mailed notice
courtroom },
RO deputy’s s
initials
1 cénjral Clerk's Office malting deputy initials



In meeting its burden, Merrill Lynch relied upon the amounts claimed in the ad damnum clauses
of the complaint, which demand compensatory damages in excess of $75,000 and also upon its
information and belief as to the value of Jennings’s claim. (R. 1, Def.’s Mot. to Remove at 7; R.
5, Def.’s Mem in Opp. to Pi.’s Mot. to Remand at 1.) Specifically, in Count II, Jennings seeks
both compensatory and punitive damages for tortious interference with contractual relations, and
in Count III, he seeks damages under the ICDBPA, which allows for the grant of actual economic
damages or any other relief deemed proper by the Court. See 815 ILCS § 505/10(a). (R. 5,
Def.’s Mem. in Opp’n to P1.’s Mot. to Remand, Ex. A, Pl.’s Compl. at { 27, 34.) Jennings
describes Merrill Lynch’s conduct as “intending to harass, annoy, injure, destroy and/or
otherwise interfere with plaintiff's business,” and states that Merrill Lynch has diminished his
“good will, reputation, profits, business opportunities, referrals and clients” by “willfully and
intentionally interfered with . . . [his] business advantage.” (R. 1, Def.’s Notice of Removal, Ex.
A, Pl.’s Compl. at §] 25-26, 34.)

Jennings argues that in relying solely on the complaint, Merrilt Lynch failed to
demonstrate to a reasonable probability that the amount in controversy exceeds $75,000 because
it failed to provide any further evidence. Jennings asserts that Merrill Lynch would be neither
willing or able to produce a corporate representative to testify that damages exceed $75,000.
Perhaps this is true, but Merrill Lynch was not required to proffer additional evidence that the
jurisdictional amount was satisfied when, as here, all of the evidence it needs is obvious from the
face of the complaint. Shaw v. Dow Brands, Inc. 994 F.2d 364, 366-68 (7th Cir. 1993) (stating
that removal decisions are normally determined by looking to the plaintiff's state court complaint

and the record at the time of removal). Merrill Lynch and this Court are entitled to rely on



IN THE UNITED STATED DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
J. CRAIG JENNINGS, )
)
Plaintiff, )
)
v. ) No. 03 C 5766
)
) Sudge Ruben Castillo j
MERRILL LYNCH PIERCE FENNER & ) Ny,
SMITH, INCORPORATED, ) Oy “Tey
) 99
Defendant. ) <M;

MEMORANDUM OPINION AND ORDER

Plaintiff J. Craig Jennings (“Jennings”) filed suit in the Circuit Court of Kane County,
Illinois against defendant Merrill Lynch Pierce Fenner & Smith, Inc. (“Merrill Lynch”), alleging
that Merrill Lynch breached a settlement agreement between the parties by failing to transfer
Jennings’s client’s assets to Jennings’s new employer, actively soliciting Jennings’s clients and
impairing Jennings’s relationship with those clients. Jennings prayed for injunctive relief, (R. 1,
Def.’s Notice of Removal, Ex. A., Pl.’s Compl. at §§ 21, 34(c)), and requested damages in excess
of $75,000 for tortious interference with contractual relations, violation of the Illinois Consumer
Fraud and Deceptive Business Practices Act (“ICDBPA”), 815 ILCS § 505/1 et seg., and
violation of the Illinois Uniform Deceptive Trade Practices Act (““IUDTPA”), 815 ILCS § 510/1
et seq. (id. at JJ 21, 27, 34.) Merrili Lynch removed the case to federal court pursuant to 28
U.S.C. § 1441(a) on the basis of diversity jurisdiction. 28 U.S.C. § 1332. Jennings now moves
for an emergency remand to state court for lack of subject matter jurisdiction, asserting that his

claims are now worth less than the minimum amount in controversy required for federal


jurisdiction. (R. 2, Pl.’s Emergency Mot. to Remand at {/ 2.) Jennings also seeks leave to file an
amended complaint to reflect that the amount sought is less than $75,000. (/d. at 6.) For the
reasons set out herein, we deny Jennings’s motion to remand. (R. 2-1.)

RELEVANT FACTS

Jennings first filed a complaint against Merrill Lynch on July 5, 2001, alleging that
Merrill Lynch placed Jennings in a false light and committed age discrimination against him in
violation of 28 U.S.C. § 621 et seg. (R. 5, Def.’s Mem. in Opp’n to PI.’s Mot. to Remand, Ex. A,
Pl.’s Comp! at 3.) Jennings and Merrill Lynch entered into a settlement agreement in
connection with the suit, the alleged breach of which forms the basis of the present dispute. The
settlement agreement contained various provisions regarding Jennings’s retirement from Merrill
Lynch as a securities broker, including an agreement by Jennings to dismiss with prejudice his
age discrimination suit and assurances that he would release Merrill Lynch from liability to “the
fullest extent of the law.” (Id. at J 8.)

Under the terms of the settlement agreement, Merrill Lynch agreed to “take no actions, at
any time, to interfere with or delay the prompt, documented and efficient transfer of accounts
and/or assets as directed by any of Jennings’s clients.” (Jd. at ] 6.) The settlement agreement
also provided that Merrill Lynch would: (1) place Jennings’s clients on a “do not solicit list”; (2)
not discourage any of Jennings’s clients from transferring assets or accounts from Merrill Lynch
to Jennings’s new employer; and (3) not solicit any of Jennings’s clients before December 31,
2003. (ld. at 7.)

Jennings now claims, in a complaint filed in the Circuit Court of Kane County on August

6, 2003, that Merrill Lynch did not keep its end of the bargain. Jennings alleges that Merrill