Sherman Whitaker v. Heinrich Schepers GMBH& Co. KG

On August 14, 2002, Sherman E. Whitaker was injured while working as a longshoreman on a boat docked in Portsmouth, Virginia and owned by Heinrich Schepers GMBH & Co. KG, a German corporation (Heinrich). On January 30, 2004, Whitaker filed a motion for judgment in the Circuit Court of the City of Portsmouth alleging Heinrich's negligence caused Whitaker's injuries and seeking damages of $74,000. In answers to interrogatories filed on April 26, 2004, Whitaker stated that his damages exceeded $74,000, but he did not seek to amend the ad damnum clause of his motion for judgment. Whitaker supplemented these answers on October 14, 2004, again indicating that his damages exceeded $74,000.<br><br>In November 2004, Heinrich asked Whitaker to stipulate that his damage claim was limited to $74,000. Whitaker declined to make the requested stipulation. On December 14, 2004, Heinrich filed a notice of removal in the United States District Court for the Eastern District of Virginia based on diversity and because "the amount in controversy now exceeds $75,000.” See 28 U.S.C. § 1332(a) (2000). Whitaker filed a motion to remand the case to the state court asserting that Heinrich's notice of removal was untimely. Whitaker argued that the April 26 interrogatory answers put Heinrich on notice that the damage claim exceeded $74,000 and therefore, under 28 U.S.C. § 1446(b) (2000) Heinrich was required to file its notice of removal within 30 days of that date. Prior to any hearing on either party's motion, Heinrich agreed to a consent order remanding the case to the state court.<br><br>In December 2005, Whitaker filed a motion to amend his ad damnum clause to $2.5 million. The trial court denied that motion and Whitaker's motion for reconsideration. Whitaker sought to amend the ad damnum clause again in June 2006, and the trial court again denied that motion, finding that the original motion for judgment seeking damages of only $74,000 was filed in bad faith because it deliberately pled "damages below the jurisdictional amount with the intention of evading federal jurisdiction” and that Heinrich would be prejudiced by this bad faith action. The trial court granted Whitaker leave to file a petition for interlocutory appeal pursuant to Code § 8.01-670.1. This Court declined to grant the interlocutory appeal and dismissed the petition for appeal by order entered on January 9, 2007. Whitaker v. Heinrich Schepers GMBH & Co. KG, Record No. 061672 (January 9, 2007).<br><br>On February 22, 2007, Whitaker filed another motion to increase the ad damnum clause to $5,000,000, which motion was again denied by the trial court on the ground previously stated. Whitaker then chose to have the matter tried by the court rather than by a jury. After Whitaker presented his evidence, Heinrich asked that summary judgment be entered in Whitaker's favor and that damages be awarded in the amount requested in the ad damnum clause, $74,000. In response, Whitaker argued that his evidence established damages in excess of $74,000, and requested that the court either grant his renewed request to amend the ad damnum clause, or enter judgment for an amount "that would fairly and reasonably compensate Mr. Whitaker for his injuries.” The trial court denied Heinrich's summary judgment motion and Whitaker's motions, but entered judgment in favor of Whitaker for $74,000. This order was reversed on appeal.<br><br>

Plaintiff's verdict for $5 million.