Nature of the Case
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Facts
D offered P a position as a marketing associate. P signed an employment application reflecting that he was a 'terminable at- 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].' P received a copy of D's employee handbook. In 2005 P was promoted to commissioned sales representative and in 2006 D assigned him to a territory in Wisconsin. 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 D. The compensation plan also included bonuses for meeting or exceeding sales quotas. D expressly reserved the right to change the commission compensation plan at any time. P's sales totaled less than half of his quota. P placed D on a 'performance improvement plan' that required him to meet his year-to-date sales quotas each quarter or face termination. P's sales were still under his quarterly quota, but he had a sale in progress with Aurora Health Care that might allow him to meet his quota and save his job. P emailed an Aurora purchase order to his supervisor in the amount of $299,008.13. D did not accept this order. Aurora demanded 120 days to pay. D demanded that Aurora would have to sign a financing agreement to obtain financing for the order. Aurora refused. P's supervisor extended his deadline for making his quarterly quota from March 31 to April 1. P's employment was terminated on April 2 when it was clear that Aurora would not complete the transaction. P asked D 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. Because P was on a performance improvement plan, D declined to treat the Aurora transaction as a contingent order. D accepted Aurora's purchase order on April 30, 2008, and credited P's replacement with the commission. P sued D for unpaid wages under section 109.03 of the Wisconsin Statutes and also asserted claims for quantum meruit and unjust enrichment. P 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.' D removed the case to the federal district court. D 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 P'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, D asserted that P could not recover under section 109.03 because the statute by its terms does not apply to commissioned sales representatives. But P had an alternative statutory cause of action under section 134.93 of the Wisconsin Statutes, which governs wage disputes for commissioned sales representatives. The magistrate judge, presiding by consent of the parties, set a deadline for amending the pleadings, which P let pass without seeking leave to file an amended complaint. D moved for summary judgment, reiterating its defense that section 109.03 did not apply to commissioned sales representatives. D claimed that P's equitable claims could not proceed because the 2008 compensation plan constituted an express contract regarding P's compensation. P withdrew his statutory wage claim and moved to amend his complaint to add a claim for breach of contract. D's motion for summary judgment was granted. The judge also denied leave to amend the complaint. P appealed.
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