United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE.
civil action, plaintiff Adam Eberle seeks damages for breach
of an employee agreement by defendant Overdrive, Inc., his
former employer. Eberle initially brought this suit in the
Circuit Court for Lincoln County, Wisconsin. Overdrive
removed it to this court, asserting diversity under 28 U.S.C.
§ 1332 as the basis for federal jurisdiction. Eberle
filed a motion to remand to the circuit court, asserting that
Overdrive did not remove the case within 30 days of the
filing of the complaint as required under 28 U.S.C. §
1446, and that the parties are not diverse because both
Eberle and Overdrive are citizens of Ohio.
removal to this court was filed within 30 days of an
affidavit in the state-court action that put Overdrive on
notice of Eberle’s potential Wisconsin citizenship, so
it was timely filed. But the issue of Eberle’s
citizenship raises fact disputes that the court cannot
resolve on the papers. So the court will schedule an
evidentiary hearing and will defer deciding the diversity
question until it has heard testimony from the parties.
is an Ohio corporation with its principal place of business
in Cleveland, Ohio. In May of 2017, Overdrive hired Eberle to
work in an executive role for the company. Eberle and his
family moved from Gleason, Wisconsin to Cleveland, Ohio to be
near Overdrive’s headquarters. Eberle alleges that
after working at Overdrive for about 18 months, he was
“effectively pushed . . . out of the position he had
been hired to fill.” Dkt. 1-1, ¶ 24.
February 25, 2019, Eberle filed a complaint in the Circuit
Court of Lincoln County, Wisconsin, alleging breach of his
employment agreement by Overdrive. In the complaint, Eberle
alleged that he was a current resident of Ohio, and that he
had moved there from Wisconsin after Overdrive recruited him.
Dkt. 1-1, ¶ 1. Overdrive filed an answer and a motion to
stay proceedings so that the case could be litigated in Ohio,
asserting that Ohio would be a more convenient place for
trial. Dkt. 1-2. Eberle filed a brief in opposition to that
motion on May 30, 2019. In an affidavit attached to his
brief, Eberle asserted that the case should remain in
• He is “a longtime resident of Wisconsin, having
been born and raised here, and lived here most of [his] adult
life.” Dkt. 1-3, at 11.
• He obtained “a vast majority of [his] education
in this state, including graduating from high school and
going to college in this state.” Id. at 12.
• He “worked most of [his] adult life here.”
• He still maintains a residence in Gleason, Wisconsin,
and filed taxes earlier this year “as a Wisconsin
public record searches conducted by Overdrive showed that
Eberle also had a vehicle and two boats registered in
Wisconsin. Dkt. 4, ¶¶ 3–4.
6, 2019, seven days after Eberle submitted his affidavit
asserting his Wisconsin ties, Overdrive removed the case to
this court. Dkt. 1. Overdrive says that this court has
diversity jurisdiction based on the new facts contained in
Eberle’s affidavit regarding his current ties to
2, 2019, Eberle filed a motion to remand the case to state
court. Dkt. 7. He contends that: (1) Overdrive’s notice
of removal was untimely under 28 U.S.C. § 1446 because
it was not filed within 30 days of the complaint; and (2)
this court lacks subject matter jurisdiction because Eberle
is actually a citizen of Ohio. Eberle also asks for costs and