Circuit Judge Terence T. Evans died on August 10, 2011, and



did not participate in the decision of this case, which is being

resolved by a quorum of the panel under 28 U.S.C. § 46(d).

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-4111

MATTHEW CARROLL,

Plaintiff-Appellant,

v.

STRYKER CORPORATION,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 09-cv-29—Stephen L. Crocker, Magistrate Judge.

ARGUED JUNE 3, 2010—DECIDED SEPTEMBER 6, 2011

Before MANION, EVANS , and SYKES, Circuit Judges.



SYKES, Circuit Judge. Matthew Carroll was a commissioned sales representative assigned to solicit orders in

Wisconsin for Stryker Corporation (“Stryker”), a medicalinstrument manufacturer based in Michigan. Stryker
2 No. 09-4111

terminated Carroll’s employment in 2008 because he

failed to meet his quarterly sales quota. When Stryker

refused to pay him a commission he felt he was

rightfully owed, Carroll sued Stryker in state court for

unpaid wages under Wisconsin’s wage-claim statute

and alternatively sought recovery under equitable contract doctrines. Stryker removed the action to federal

court and later moved for summary judgment, arguing

that Carroll was barred from pursuing a statutory wage

claim because he worked on commission, and also

that equitable contract relief was unavailable because

Carroll’s compensation was the subject of an express

contract.

Carroll responded by voluntarily dismissing his statutory claim and seeking leave to amend his complaint to

add a cause of action for breach of contract. The district

court entered summary judgment for Stryker, agreeing

that Carroll could not recover under any equitable

contract doctrine. The court also denied Carroll’s

motion for leave to amend because the deadline for

amending the pleadings had long since passed and no

reasonable cause had been shown for the undue delay.

Carroll appealed.

At oral argument we noted a possible jurisdictional

issue regarding the amount in controversy. We ordered

supplemental briefing and now conclude that the

damages Carroll seeks exceed the $75,000 threshold for

diversity jurisdiction. See 28 U.S.C. § 1332(a). On the

merits, we affirm. Although Carroll was an at-will employee, his commission-based compensation was the
No. 09-4111 3

subject of an express contract, which under Wisconsin

law precludes quasi-contractual relief. The district court

did not abuse its discretion in denying leave to amend

the complaint because Carroll’s motion came unjustifiably late in the litigation, many months after the deadline for amending the pleadings had passed.

I. Background

In January 2003 Stryker offered Carroll a position as a

marketing associate. At that time Carroll signed an employment application reflecting that he was a “terminableat-will employee” and could be “terminated with or

without cause and with or without notice, at any time, at

the option of either the company or [himself].” Carroll

also signed a confidentiality agreement and an acknowledgment that he had received a copy of Stryker’s employee handbook. The receipt stated in part:

I understand that any previous contracts, policies, or

representations relating to my employment are no

longer in effect and have been replaced by the Handbook. I understand that the purpose of the Handbook

is to inform me of the Company’s policies and rules

and that no one is authorized to make changes in the

terms of this Handbook, except through written

revision authorized by Stryker Leibinger’s General

Manager. Stryker Leibinger may add, change, or

rescind any of the policies, benefits, or practices

listed, with or without advance notice, at the discretion of management.
4 No. 09-4111

Except for the paragraph below [dealing with a sixmonth limitation on lawsuits after termination],

I understand that nothing contained in the Handbook

constitutes an employment contract between the

Company and me. I understand that my employment

can be terminated with or without cause and with

or without notice by the Company or by me.

In 2005 Stryker promoted Carroll to commissioned

sales representative and in 2006 assigned him to a

territory in Wisconsin. Every year Stryker sent a written

compensation plan to its commission-based sales

staff outlining the company’s commission structure. As

relevant here, the 2008 compensation plan provided that

for the first six months of employment, a commissioned

sales representative would receive a monthly draw of

$6,000, with commissions paid on a varying percentage

basis (depending on applicable discounts) for orders

above the draw. Starting at month seven, if a sales representative’s commissions did not cover the monthly draw,

then the representative would incur a “draw deficit”

recoverable by Stryker. The compensation plan also

included bonuses for meeting or exceeding sales quotas.

The company expressly reserved the right to change

the commission compensation plan at any time.

In 2006 and 2007, Carroll’s sales totaled less than half

of his quota. As a result, for the 2008 calendar year,

Stryker placed Carroll on a “performance improvement

plan” that required him to meet his year-to-date sales

quotas each quarter or face termination. On March 31—the

last day of the first quarter of 2008—Carroll’s sales
No. 09-4111 5

were still under his quarterly quota, but he had a sale

in progress with Aurora Health Care (“Aurora”) that

might allow him to meet his quota and save his job.

That day Carroll emailed an Aurora purchase order to

his supervisor in the amount of $299,008.13. Stryker did

not accept this order, however. Aurora had proposed

substantial modifications to Stryker’s standard terms

and conditions, most of which were unacceptable to

Stryker. In particular, Aurora demanded 120 days to

pay, while Stryker normally required payment to be

made within 30 days. Also, Stryker’s finance department had advised Aurora that it would have to sign a

financing agreement to obtain financing for the order.

When presented with this requirement, Aurora refused. Stryker offered a compromise, but Aurora

balked again. In the meantime Carroll’s supervisor extended his deadline for making his quarterly quota

from March 31 to April 1. When it became clear that

Aurora would not complete the transaction on terms

that were acceptable to Stryker, Stryker informed Carroll

that he had not met his quota as required by his performance improvement plan. His employment was terminated on April 2.

After his termination Carroll asked Stryker to treat

the Aurora deal as a “contingent order”—a term for an

unofficial order that would likely be finalized on a

timely basis—so that he could meet his quota, save his

job, and receive a commission. Contingent orders were

generally not permitted, although sales representatives

who were not on performance improvement plans were

sometimes given credit for contingent orders toward
6 No. 09-4111

the end of the year. Because Carroll was on a performance improvement plan, Stryker declined to treat

the Aurora transaction as a contingent order.

Later in April 2008, Stryker resumed negotiations

with Aurora through the sales representative who replaced Carroll, but Aurora maintained its refusal to sign

a financing agreement. Stryker eventually arranged for

financing on terms that put itself on the hook to the

financing company if Aurora failed to pay. Stryker accepted Aurora’s purchase order on April 30, 2008, and

credited Carroll’s replacement with the commission.

Carroll sued Stryker in Wisconsin state court for

unpaid wages under section 109.03 of the Wisconsin

Statutes and also asserted claims for quantum meruit

and unjust enrichment. Carroll’s complaint sought a

little over $67,000 in damages (the commission on the

Aurora deal plus a 50% civil penalty authorized by WIS.

STAT. § 109.11) in addition to “costs, disbursements, and

attorney’s fees.” Stryker removed the case to federal

district court. In the notice of removal, Stryker asserted

that the $75,000 threshold for diversity jurisdiction was

satisfied by the statutory damages (the commission + the

50% penalty = $67,276.83) plus an award of attorney’s

fees also available by statute (a demand letter from

Carroll’s counsel pegged prefiling attorney’s fees at

$19,105). The docketing sheet accompanying the notice

of removal stated that the complaint demanded

“$67,276.83, plus attorney’s fees.”

In its answer, however, Stryker asserted that Carroll

could not recover under section 109.03 because the
No. 09-4111 7

statute by its terms does not apply to commissioned

sales representatives. Stryker asserted that Carroll was

informed of this by letter from the Equal Rights

Division of the Wisconsin Department of Workforce

Development before he filed his suit in state court. The

letter pointed Carroll to an alternative statutory cause of

action: one under section 134.93 of the Wisconsin Statutes,

which governs wage disputes for commissioned sales

representatives. After Stryker’s answer was filed, the

magistrate judge, presiding by consent of the parties, see

28 U.S.C. § 636(c)(1), held a scheduling conference and

set a deadline for amending the pleadings, which Carroll

let pass without seeking leave to file an amended complaint.

Stryker later moved for summary judgment, reiterating

its defense that section 109.03 did not apply to commissioned sales representatives. In addition, Stryker contended that Carroll’s equitable claims could not proceed because the 2008 compensation plan constituted

an express contract regarding Carroll’s compensation.

Carroll responded by withdrawing his statutory wage

claim and later moving to amend his complaint to add

a claim for breach of contract. The magistrate judge

granted Stryker’s motion for summary judgment, holding

that equitable contract remedies were unavailable in

light of the express contract governing Carroll’s compensation. The judge also denied leave to amend the

complaint, explaining that Carroll had delayed well

beyond the deadline for amending the pleadings and

had not shown good cause for waiting so long to seek

leave to amend.
8 No. 09-4111

In Meridian Security Insurance Co. v. Sadowski, 441 F.3d 536, 539- 1

40 (7th Cir. 2006), we retracted language in previous opinions,

beginning with Shaw v. Dow Brands, Inc., 994 F.2d 364, 366

(7th Cir. 1993), suggesting that the proponent of jurisdiction

must “prove” to a “reasonable probability” that jurisdiction

exists.

II. Discussion

A. Jurisdiction

Although neither the parties nor the district court

addressed subject-matter jurisdiction, we have an independent obligation to satisfy ourselves that jurisdiction

is secure before proceeding to the merits. Smith v. Am.

Gen. Life & Accident Ins. Co., 337 F.3d 888, 892 (7th Cir.

2003); see also McNutt v. Gen. Motors Acceptance Corp., 298

U.S. 178, 189 (1936). At oral argument we asked whether

it was clear that the $75,000 amount-in-controversy requirement for diversity jurisdiction was met, see 28

U.S.C. § 1332(a), and ordered the parties to file supplemental briefs on the matter. Not surprisingly, Carroll

argued against federal jurisdiction, while Stryker supported it.

As the party removing the case to federal court,

Stryker had the initial burden of establishing by a preponderance of the evidence facts that suggest the jurisdictional amount has been satisfied. Oshana v. Coca-Cola 1

Co., 472 F.3d 506, 511 (7th Cir. 2006). Once it has made

this showing, jurisdiction will be defeated only if it

appears to a legal certainty that the stakes of the lawsuit

do not exceed $75,000. Back Doctors Ltd. v. Metro. Prop. &
No. 09-4111 9

Cas. Co., Inc., 637 F.3d 827, 830 (7th Cir. 2011)

(“[T]he estimate of the dispute’s stakes advanced by the

proponent of federal jurisdiction controls unless a recovery that large is legally impossible.”); Rising-Moore

v. Red Roof Inns, Inc., 435 F.3d 813, 815-16 (7th Cir. 2006);

see also St. Paul Mercury Indem. Co. v. Red Cab Co., 303

U.S. 283, 289 (1938). The amount in controversy is evaluated as of the time of removal, Oshana, 472 F.3d at 511,

although events subsequent to removal may clarify what

the plaintiff was actually seeking when the case was

removed, Rising-Moore, 435 F.3d at 816; BEM I, L.L.C. v.

Anthropologie, Inc., 301 F.3d 548, 552 (7th Cir. 2002).

If Carroll’s damages were measured by reference to

the statutory claim alone, the “legal certainty” test might

kick in to defeat jurisdiction. As the Wisconsin Department of Workforce Development informed both Carroll

and Stryker before the suit was filed, section 109.03,

Wisconsin’s wage-claim statute, was amended in 2003

to specifically exclude commissioned salespersons. So

Carroll was not a proper claimant under that statute

and could not receive its enhanced recovery of a 50%

penalty and attorney’s fees. The Department told Carroll

that he could potentially file suit under section 134.93,

which provides a statutory cause of action to recover

payment of commissions owed to independent sales

representatives and applies to any sales representative

“who is compensated, in whole or in part, by commission.” WIS. STAT. § 134.93(1)(b).

The legal-certainty test sets the bar high for excluding

federal subject-matter jurisdiction, and for good reason:
10 No. 09-4111

District courts should not get bogged down at the time

of removal in evaluating claims on the merits to determine if jurisdiction exists. See Rising-Moore, 435 F.3d at

816. Nonetheless, removal is obviously improper if jurisdiction never existed in the first place. See Cunningham

Charter Corp. v. Learjet, Inc., 592 F.3d 805, 807 (7th Cir.

2010). Counting the statutory damages—including the

50% penalty and attorney’s fees—toward the jurisdictional amount when the statute by its terms does not

apply would rest jurisdiction on a form of recovery

that was legally impossible. True, this case does not

involve a statutory or contractual cap on damages—common examples of claims that are considered

“legally impossible” for jurisdictional purposes. See

Johnson v. Wattenbarger, 361 F.3d 991, 994 (7th Cir. 2004).

But from the face of the statute and Carroll’s complaint,

it was clear from the beginning that as a sales representative who worked on commission, he could not recover

under section 109.03.

But statutory damages are not the sole measure

of the amount in controversy in this case. The complaint also demands “wages and other compensation

and benefits” as general compensatory damages under

the equitable contract doctrines of quantum meruit and

unjust enrichment. In its supplemental brief in this court,

Stryker supplied evidence of Carroll’s damages demand

under these doctrines. First, Stryker pointed to a letter

from Carroll’s counsel sent before the state-court suit

was initiated. In it Carroll demanded $41,122.35 in lost

commissions, nine months of draw in the amount of

$54,000, and prefiling attorney’s fees of $19,105, for a
No. 09-4111 11

Even though settlement offers are inadmissible to prove

2

liability under Rule 408 of the Federal Rules of Evidence, they

are admissible to show that the amount in controversy for

jurisdictional purposes has been met. See Rising-Moore v. Red

Roof Inns, Inc., 435 F.3d 813, 816 (7th Cir. 2006) (holding that

“the willingness to accept $60,000 [in a settlement] supports

a conclusion that the ‘controversy’ exceeds $75,000”).

total of $114,227.35 in damages. Minus the attorney’s

fees, Carroll’s damages demand totaled $95,122.35. Moreover, Carroll testified in deposition that he was seeking

$50,000 to $60,000 in commissions, $200,000 to $300,000

in lost salary (presumably future salary in the form of

commissions), a 10% bonus, a 401K distribution, and

$15,000 to $20,000 in attorney’s fees.

Finally, during the pendency of the case in federal

court, Carroll’s counsel sent a settlement offer to

Stryker’s counsel by email stating that Carroll had

reduced his demand from an earlier figure of “$100,000 or

more” and would now settle for $60,000 plus certain

nonmonetary relief. We also note that the parties 2

agreed in their proposed findings of fact that Carroll

was seeking $200,000 to $300,000 in lost wages and that

the jurisdictional amount had been met. While litigants

cannot create federal jurisdiction where none exists,

we take this agreement as further proof that the stakes

of the suit exceeded the $75,000 jurisdictional threshold

at the time of removal.

This evidence is enough to establish that the jurisdictional amount has been satisfied. In his supplemental
12 No. 09-4111

brief arguing against jurisdiction, Carroll concentrates

solely on the subject of statutory damages, ignoring the

abundant evidence that the stakes of the suit exceeded

the jurisdictional threshold when just the common-law

claims are considered. We conclude that Stryker has

shown more than the “theoretical availability of certain

categories of damages,” McMillian v. Sheraton Chi. Hotel &

Towers, 567 F.3d 839, 844 (7th Cir. 2009) (quotation

marks omitted); it has established that “what the plaintiff hopes to get out of the litigation,” Rising-Moore, 435

F.3d at 816, was well over $75,000. Subject-matter jurisdiction is secure, removal was proper, and we proceed

to the merits.

B. Quasi-contractual Remedies

We review de novo a district court’s grant of summary

judgment, construing all facts and reasonable inferences

in favor of the nonmoving party. Musch v. Domtar Indus.,

Inc., 587 F.3d 857, 859 (7th Cir. 2009). Stryker argues

that under Wisconsin law Carroll cannot invoke the

equitable remedies of quantum meruit and unjust enrichment in light of the parties’ express contract

regarding compensation. Carroll responds that the 2008

compensation plan laying out Stryker’s commission

structure did not amount to an express contract because

he did not sign it, Stryker reserved the right to modify

it, and the receipt for the employee handbook disclaimed the existence of a contract.

In Wisconsin the quasi-contractual theories of quantum

meruit and unjust enrichment are legal causes of action
No. 09-4111 13

grounded in equitable principles and can be invoked

only in the absence of an enforceable contract. See Lindquist

Ford, Inc. v. Middleton Motors, Inc., 557 F.3d 469, 476 (7th

Cir. 2009); Meyer v. Laser Vision Inst., 714 N.W.2d 223, 230

(Wis. Ct. App. 2006) (equitable claims barred by express

contract); Greenlee v. Rainbow Auction/Realty Co., 553

N.W.2d 257, 265 (Wis. Ct. App. 1996) (doctrine of unjust

enrichment does not apply where parties have entered

into a valid contract). Where there is an enforceable

contract, the proper claim is for breach of contract; quantum meruit and unjust enrichment are unavailable. See

Lindquist Ford, 557 F.3d at 476; Gorton v. Hostak, Henzl &

Bichler, S.C., 577 N.W.2d 617, 624 n.13 (Wis. 1998);

Schultz v. Andrus’ Estate, 190 N.W. 83, 84 (Wis. 1922)

(“Where a valid, express contract is proven, no recovery

can be had on an implied contract.”). Carroll insists that

there was no express contract between the parties.

We have little trouble rejecting this argument. It is

undisputed that Carroll was an at-will employee; he

had no employment contract. Under employment at

will, the “employer may discharge an employee for

good cause, for no cause, or even for cause morally

wrong, without being thereby guilty of legal wrong.” Tatge

v. Chambers & Owen, Inc., 579 N.W.2d 217, 222-23 (Wis.

1998) (internal quotation marks omitted). Though he

could be discharged at will, his compensation was the

subject of an express contract. The 2008 compensation

plan spelled out in detail the pay structure for Stryker’s

commission-based sales representatives. See Piaskoski &

Assocs. v. Ricciardi, 686 N.W.2d 675, 679 (Wis. Ct. App.

2004) (listing the three basic requirements for a con-
14 No. 09-4111

tract: offer, acceptance, and consideration); Petersen v.

Pilgrim Vill., 42 N.W.2d 273, 274 (Wis. 1950) (“An offer

must be so definite in its terms, or require such definite

terms in the acceptance, that the promises and performances to be rendered by each party are reasonably

certain.” (quotation marks omitted)). The parties manifested their consent to be bound by the compensation

plan when Carroll continued to work for the company

after receiving it, and Stryker paid him in accordance

with its terms until he was terminated. Ricciardi, 686

N.W.2d at 679 (holding that “[o]ffer and acceptance

exist when the parties mutually express assent”). This

exchange of services for pay also supplied the consideration. See Wis. Dep’t of Revenue v. River City Refuse

Removal, Inc., 729 N.W.2d 396, 408 (Wis. 2007) (defining

consideration as either a benefit to the promisor or a

detriment to the promisee).

That Carroll did not sign the plan doesn’t mean it’s not

a contract. Carroll accepted the 2008 compensation plan

by performing under its terms, and the lack of his signature does not defeat this acceptance by performance.

See Chudnow Constr. Corp. v. Commercial Disc. Corp.,

180 N.W.2d 697, 698 (Wis. 1970) (explaining that a

contract may be effective even though it is not signed

by parties). Nor is the contract illusory because

Stryker reserved the right to change the terms of payment in the future. A promise is illusory and thus unenforceable only where one party “assumes no detriment

or obligation” and therefore has given no consideration.

Devine v. Notter, 753 N.W.2d 557, 559 (Wis. Ct. App. 2008).

Here, Stryker undertook an obligation to pay Carroll
No. 09-4111 15

in accordance with the terms of the compensation plan

as long as the plan was in force. A contract can be

modified by future agreement, see Lakeshore Commercial

Fin. Corp. v. Drobac, 319 N.W.2d 839, 845 (Wis. 1982), and

Stryker’s reservation of the right to modify the pay

plan does not make this an illusory contract. The

company agreed to pay for services performed in accordance with the compensation plan’s terms while the

plan was in effect. If Stryker had exercised its right to

modify the commission structure, Carroll would have

had an opportunity to accept the new terms by continuing to work for the company.

Finally, we reject Carroll’s argument that the receipt

he signed when he accepted a copy of the employee

handbook disclaimed the existence of any contract

between the parties. Carroll is misreading both the

receipt and the employee handbook. The receipt simply

acknowledged that the handbook was meant “to

inform me of the Company’s policies and rules,” and

cautioned that “nothing contained in the Handbook

constitutes an employment contract” and “any previous

contracts, policies, or representations . . . are no longer in

effect and have been replaced by the Handbook.” The

receipt was thus a straightforward acknowledgment of

the handbook’s purpose: It was not an employment

contract but rather a statement of the company’s workplace policies and practices. By all accounts nothing in

the receipt or the handbook sheds any light on whether

the compensation plan is an enforceable contract;

neither the receipt nor the handbook itself specifies payment schedules for Stryker’s commission-based em-
16 No. 09-4111

While the parties did not include a copy of the employee 3

handbook in the record, no one has suggested that it contained

specific salary schedules for any of Stryker’s employees. At

oral argument Carroll’s counsel acknowledged that it probably did not.

ployees. Accordingly, we agree with the magistrate 3

judge that Stryker’s 2008 compensation plan constitutes

an express contract and Carroll may not recover under

the quasi-contractual doctrines of quantum meruit or

unjust enrichment.

C. Denial of Leave to Amend Complaint

We review a district court’s denial of leave to amend

the complaint for abuse of discretion and “reverse only

if no reasonable person could agree with that decision.”

Schor v. City of Chicago, 576 F.3d 775, 780 (7th Cir. 2009).

The magistrate judge denied the motion to amend

because Carroll had no good cause for missing the

deadline established in the scheduling order and the

undue delay prejudiced Stryker.

Carroll sought leave to amend his complaint more

than seven months after the deadline for amending the

pleadings, less than a month before discovery was to

close, and eleven days after Stryker had filed its reply

to Carroll’s opposition to its motion for summary judgment. Carroll’s counsel insists that he did not fully understand Stryker’s argument that quasi-contractual causes

of action were unavailable until after Stryker had filed
No. 09-4111 17

its reply brief in support of its motion for summary

judgment. This is doubtful. Stryker had asserted in its

answer that quantum meruit and unjust enrichment were

unavailable forms of relief, so Carroll was alerted to the

basic problem with these claims—and the need for an

amended complaint substituting a breach-of-contract

claim—at the outset of the federal proceedings.

Regardless, ignorance is hardly a valid reason for

missing the deadline by so many months; the failure to

anticipate an obvious and legally well-grounded defense

does not excuse the delay. More than a month before the

deadline for amending the pleadings, our decision in

Lindquist Motors explained in some detail the conceptual

and remedial distinctions between contract and quasicontractual claims under Wisconsin law. 557 F.3d at 476-

81. Accordingly, the magistrate judge reasonably denied

Carroll’s motion for leave to amend based on his lack

of good cause for missing the deadline and the prejudice

to Stryker of allowing an amended complaint so late in

the day. See Alioto v. Town of Lisbon, No. 09-3921, 2011

WL 2642369, at *3 (7th Cir. July 7, 2011) (explaining the

interplay between the requirements of Rule 15(a) pertaining to amendments to pleadings and Rule 16(b)(4)

pertaining to modifications of scheduling orders);

Trustmark Ins. Co. v. Gen. & Cologne Life Re of Am., 424 F.3d

542, 553 (7th Cir. 2005) (same).

AFFIRMED.

9-6-11