Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Eberle v. Overdrive, Inc.

United States District Court, W.D. Wisconsin

September 27, 2019

ADAM EBERLE, Plaintiff,
v.
OVERDRIVE, INC. d/b/a OVERDRIVE DIGITAL, INC., Defendant.

          OPINION AND ORDER

          JAMES D. PETERSON DISTRICT JUDGE.

         In this 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.

         Overdrive’s 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.

         BACKGROUND

         Overdrive 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.

         On 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 Wisconsin because:

• 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.” Id.
• He still maintains a residence in Gleason, Wisconsin, and filed taxes earlier this year “as a Wisconsin resident.” Id.

         Subsequent public record searches conducted by Overdrive showed that Eberle also had a vehicle and two boats registered in Wisconsin. Dkt. 4, ¶¶ 3–4.

         On June 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 Wisconsin. Id.

         On July 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.