In the

United States Court of Appeals

For the Seventh Circuit

No. 00-3689

Fred J. Hart,

Plaintiff-Appellant,

v.

Schering-Plough Corporation,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 98 C 0814--David H. Coar, Judge.

Argued April 2, 2001--Decided June 7, 2001

 Before Bauer, Cudahy, and Easterbrook,

Circuit Judges.

 Easterbrook, Circuit Judge. Alarm bells

went off when we read the jurisdictional

statement of Fred Hart’s brief: "Amount

in controversy: $72,436.62 plus

Plaintiff’s attorney’s fees, to be

assessed by the court, should plaintiff

prevail, pursuant to 705 ILCS sec.225/1."

Oops. "The district courts shall have

original jurisdiction of all civil

actions where the matter in controversy

exceeds the sum or value of $75,000,

exclusive of interest and costs" and the

parties are of diverse citizenship. 28

U.S.C. sec.1332(a). The Illinois statute

on which Hart relies defines attorneys’

fees as part of costs, making it hard to

see how this case belongs in federal

court, for diversity of citizenship is

its only jurisdictional foundation.

 Schering-Plough Corp., the defendant,

recognized that something is amiss. The

jurisdictional statement in its brief

asserts: "The amount in controversy is

$90,000 plus attorney fees." Why the

difference? Hart contends that he is

entitled to one year’s pay as a severance

benefit, and according to the complaint

his annual salary at the time of his

discharge was $90,000. But this does not

mean that the amount in controversy is

$90,000, because Schering-Plough made a

severance payment of $17,463.38 when it
let Hart go. The amount in controversy is

whatever is required to satisfy the

plaintiff’s demand, in full, on the date

suit begins. See Gardynski-Leschuck v.

Ford Motor Co., 142 F.3d 955, 958-59 (7th

Cir. 1998). The controverted amount--the

stake of this case--is Hart’s annual

salary, less what Schering-Plough already

has paid. So Hart was right to deduct the

severance payment, and the jurisdictional

problem remains. (If the severance

payment were due under a welfare-benefit

plan, then the claim would arise under

federal law and the amount in controversy

would not matter. But the claim rests on

a contract negotiated in Australia;

neither side contends that this contract

creates a plan covered by ERISA.)

 At oral argument we directed the parties

to file supplemental memoranda on

subject-matter jurisdiction. ScheringPlough’s response relies on the

attorneys’ fees authorized by 705 ILCS

sec.225/1 in the event an employee

obtains fringe benefits though

litigation. Although that statute defines

fees as part of costs, and sec.1332(a)

says that the amount in controversy must

exceed $75,000 "exclusive of interest and

costs", we know from Missouri State Life

Insurance Co. v. Jones, 290 U.S. 199

(1933), that the division between

"damages" and "costs" in sec.1332 depends

on federal law. It is therefore possible

in principle for attorneys’ fees under

705 ILCS sec.225/1 to count toward the

amount in controversy, just as Jones held

that attorneys’ fees under the state law

in question were treated as part of

damages. If, for example, Hart had

incurred fees pursuing his demand before

filing suit, and if these were

compensable under 705 ILCS sec.225/1,

they might propel the amount in

controversy over $75,000. See Sarnoff v.

American Home Products Corp., 798 F.2d

1075, 1078 (7th Cir. 1986); Ross v.

Inter-Ocean Insurance Co., 693 F.2d 659

(7th Cir. 1982). But neither Hart nor

Schering-Plough relies on this

possibility. Instead Schering-Plough

contends that legal expenses incurred

after filing count toward the amount in

controversy. That submission can’t be

reconciled with Gardynski-Leschuck or the

proposition that jurisdiction depends on

events that exist on or before the date

of filing. If the defendant can

extinguish the plaintiff’s entire claim
by tendering $75,000 or less at the

outset, then the amount "in controversy"

does not exceed $75,000. (To the extent

Sarnoff, Ross, and Batts Restaurant, Inc.

v. Commercial Insurance Co. of Newark,

406 F.2d 118 (7th Cir. 1969), imply that

attorneys’ fees incurred during the

federal litigation count toward the

jurisdictional minimum, they have been

superseded by Gardynski-Leschuck. None of

the earlier opinions dealt with the

question how fees yet to be incurred

could be "in controversy" on the date the

complaint is filed, and none can be

deemed a holding on a point that was

assumed but not decided. GardynskiLeschuck squarely addresses that question

and represents this circuit’s resolution

of it.)

 As it happens, however, Hart’s salary

was more than $90,000 per year. Hart’s

jurisdictional memorandum states that

"[d]uring discovery, it developed that .

. . [Hart’s] annual salary, at the time

of his termination, was in fact

$99,972.80". Actually it was higher

still. The document to which Hart’s

memorandum referred us shows that his

salary for 1996 was $109,472.80, of which

$9,500 was contributed to a retirement

plan but must be included in the base for

purposes of severance pay. Surely Hart

did not need discovery to learn his own

salary. Much pain could have been avoided

had Hart’s complaint correctly identified

the stakes. But the fact remains that the

amount in controversy on the date of fil

ing was $91,910.42 ($109,472.80 

$17,562.38). Even on appeal the parties

may amend their pleadings under 28 U.S.C.

sec.1653 to show the true jurisdictional

facts when the litigation began. NewmanGreen, Inc. v. Alfonzo-Larrain, 490 U.S.

826, 831 (1989). Hart’s jurisdictional

memorandum implies a motion to amend the

pleadings under sec.1653, and we grant

that motion. Jurisdiction is secure.

 Pitman-Moore employed Hart as a

scientist in Australia, his native land.

Knowing that his position was about to be

reorganized out of existence, Hart agreed

to accept a transfer to Pitman-Moore’s

facilities in the United States. He

signed a contract, which the parties

called a "Foreign Assignment Agreement",

providing for 12 months’ employment, plus

an option to extend this period for an

extra six months. Pitman-Moore promised
to add substantial housing benefits, an

automobile allowance, and a cost-ofliving allowance to Hart’s annual salary

of $54,000. The agreement wraps up with

this termination clause:

Should your employment be

involuntarily terminated by PitmanMoore, Inc., other than for cause as

defined in the Policy Manual, or

there is no assignment available in

Australia at the end of your twelve

(12) month assignment, the Company

will provide you with a severance

payment of one (1) year’s salary in

effect at the time of termination.

Hart moved to the United States in

January 1994 and went to work at PitmanMoore’s facility in Mundelein, Illinois.

At the end of that year Pitman-Moore

(which renamed itself Mallinckrodt

Veterinary, Inc., in March 1994)

exercised its option to extend the

agreement for six months. In July 1995

Hart could have taken advantage of the

termination clause and demanded a

transfer home or severance pay if no

position then was available in Australia.

Instead he agreed to stay on at

Mallinckrodt, which substantially

increased his base salary but withdrew

the allowances and other benefits

required by the Foreign Assignment

Agreement. Mallinckrodt also sponsored

Hart for permanent residence under U.S.

immigration laws. That status, once

granted, allowed Hart to take any job

available in the U.S. (a privilege he did

not possess under the visa obtained to

carry out the Foreign Assignment

Agreement). Schering-Plough acquired

Mallinckrodt in July 1997 and promptly

told Hart that his services were no

longer required. It paid Hart a severance

benefit appropriate under its own

policies; Hart replied with this suit

demanding the rest of one year’s salary

under the Foreign Assignment Agreement--

though Hart did not return to Australia,

using his permanent-residence status to

take a new position in Connecticut. After

a bench trial, the district judge found

that the termination provision of that

Agreement expired in July 1995 and

entered judgment for Schering-Plough.

2000 U.S. Dist. Lexis 13879 (N.D. Ill.

Sept. 18, 2000).

 For reasons that are not entirely clear,
the parties have agreed that Illinois law

rather than Australian law governs the

interpretation of the Foreign Assignment

Agreement. But it is hard to see how

choice of law could matter, or for that

matter why a trial was necessary. Both

the Agreement and its termination clause

are clear: the assignment lasts for 18

months at most. Work after the end of

June 1995 was governed by new terms. The

Agreement had lapsed, and Hart forewent

his opportunity to return home (or be

paid in lieu of reemployment). What the

trial added is confirmation that the

parties behaved in accordance with this

straightforward reading of the Foreign

Assignment Agreement and did not extend

its duration by conduct. See Foster v.

Springfield Clinic, 88 Ill. App. 3d 459,

410 N.E.2d 604 (4th Dist. 1980). When the

Agreement ran out, they forged a new

arrangement: the fringe benefits

specified by the Agreement vanished, the

base salary rose, and Hart’s visa status

changed. He became a permanent resident,

no longer exposed to the risks attendant

on visas linked to particular jobs and

therefore no longer in need of special

protection should that job come to an

end. The district judge found that the

parties’ conduct in mid-1995, and later,

confirmed the natural-language reading of

the Agreement and its termination clause.

No extrinsic ambiguity turned up. Hart

stresses that the Agreement was to last

for the period of the "assignment," but

the Agreement also shows (and the

parties’ conduct confirms) that the

"assignment" was to run a maximum of 18

months; the word "assignment" in this

contract was not a synonym for

"employment." None of the district

court’s findings or conclusions is

clearly erroneous.

Affirmed