Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and 

Goodwyn, JJ., and Lacy, S.J. 

SHERMAN WHITAKER 

v. Record No. 071197 OPINION BY SENIOR JUSTICE 

 ELIZABETH B. LACY 

 June 6, 2008 

HEINRICH SCHEPERS GMBH & CO. KG 

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH 

James A. Cales, Jr., Judge 

In this appeal we consider whether the trial court abused 

its discretion in denying the plaintiff’s motion to amend his 

ad damnum clause. 

FACTS and PROCEEDINGS 

 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. 
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. 

 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 

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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). 

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. Whitaker timely appealed to this Court. 

DISCUSSION 

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 In deciding whether to grant the amendment of a pleading 

to increase the amount sought in the ad damnum clause, “a 

circuit court must consider whether the defendant will be 

prejudiced” by allowing the amendment, and “whether such 

prejudice will affect the defendant’s ability to have a fair 

trial.” Peterson v. Castano, 260 Va. 299, 303, 534 S.E.2d 

736, 738 (2000). In addition, the circuit court must consider 

“the plaintiff’s right to be compensated fully for any damages 

caused by the defendant’s acts or omissions.” Id. This 

decision rests within the discretion of the circuit court and 

our review on appeal is limited to whether the circuit court 

abused its discretion. Id.

Whitaker argues that the factual premise upon which the 

trial court relied in determining prejudice was erroneous and, 

thus, the trial court abused its discretion in denying the 

motion to amend the ad damnum clause. Whitaker also argues 

that Heinrich would not have been prejudiced by the amendment 

to the ad damnum clause in December 2005 because Heinrich had 

been aware of the increased damage claim since April 26 or 

October 14, 2004, no discovery had been taken, the discovery 

deadline was March 24, 2006, the period afforded for expert 

designation had not expired, and trial was set for April 26, 

2006. Therefore, Whitaker asserts that allowing him to amend 

his ad damnum clause would not have prejudiced Heinrich’s 

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ability to have a fair trial and that refusing the motion 

denied Whitaker the ability to be fully compensated for his 

losses. 

Because the denial of a motion to amend is based on a 

finding of prejudice to the defendant, we begin by reviewing 

the prejudice the trial court found in this case. The trial 

court determined that the “[d]efendant would be prejudiced 

from plaintiff’s bad faith conduct in deliberately pleading 

damages below the jurisdictional amount with the intention of 

evading federal jurisdiction by virtue of the pleading.”1 

Stated another way, the trial court found that Heinrich was 

prejudiced because Whitaker intentionally declined to increase 

the ad damnum clause until after Heinrich’s right to remove 

the case to federal court “evaporated.”

Under 28 U.S.C. § 1446(b), a litigant may remove a case 

to federal court if there is diversity of citizenship between 

the litigants and the amount in controversy exceeds $75,000. 

See 28 U.S.C. § 1332(a). Notice of removal must be filed 

within 30 days of the filing of the original pleading or any 

“other paper” indicating that the amount sought in damages 

exceeds $75,000. 28 U.S.C. § 1446(b). The case is removed to 

 1

 Although the trial court stated that Whitaker’s counsel 

engaged in bad faith conduct, neither Heinrich nor the trial 

court, sua sponte, suggested that sanctions for such conduct 

should be imposed under Code § 8.01-271.1. 

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federal court upon filing the notice of removal but may be 

remanded to the state court if the conditions for removal are 

not met. 28 U.S.C. § 1446(d). In construing this provision, 

federal courts have not limited the amount in controversy to 

the amount requested in the plaintiff’s ad damnum clause. The 

amount in controversy for purposes of removing a case to 

federal court can be determined from the “totality of the 

circumstances,” including answers to interrogatories. See

Schwenk v. Cobra Mfg. Co., 322 F.Supp.2d 676, 678 (E.D. Va. 

2004); Lien v. H.E.R.C. Prods., Inc., 8 F.Supp.2d 531, 534 

(E.D. Va. 1998); see also Van Gosen v. Arcadian Motor 

Carriers, 825 F.Supp. 981, 982 (D. Kan. 1993) (answers to 

interrogatories can constitute an “other paper” under 28 

U.S.C. § 1446(b) giving notice that a state court action has 

become removable); accord Smith v. International Harvester, 

621 F.Supp. 1005, 1006-08 (D. Nev. 1985). 

In this case, Whitaker sent Heinrich answers to 

interrogatories on April 26, 2004, which indicated that his 

damages were likely to exceed $75,000. Specifically, Whitaker 

stated that he had incurred lost wages of $57,031.11 and 

future lost wages of $452,364.12. The interrogatory answers 

also indicated that his injuries would require continued 

treatment and future surgery. In supplemental answers served 

on Heinrich on October 14, 2004, Whitaker stated that his 

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claimed future and past medical expenses totaled $119,070.32. 

Although Heinrich received “other papers” indicating the 

damages claimed exceeded $75,000, it did not file a notice of 

removal with the federal court until December 14, 2004, well 

beyond the 30-day limitations period available to him under 28 

U.S.C. § 1446(b). Furthermore, Heinrich’s counsel signed an 

agreed consent order remanding the case to the Circuit Court 

of the City of Portsmouth and stated to that court and to this 

Court in oral argument that, although he had notice of the 

increased damage claim, he failed to timely file the notice of 

removal in federal court. 

This record demonstrates that Whitaker’s actions did not 

cause Heinrich’s right to remove the case to federal court to 

“evaporate” as stated by the trial court. Rather, Heinrich’s 

inability to remove the case to the federal court resulted 

from its failure to timely file a notice of removal. 

Therefore, the trial court’s finding of prejudice was based on 

an incorrect factual premise and denying Whitaker’s motion to 

amend the ad damnum clause on this basis was an abuse of 

discretion.2 Nothing in this record indicates any other 

 2

 In resolving this issue we need not consider whether 

precluding the ability to remove a case to federal court would 

constitute prejudice to the defendant under Peterson, 260 Va. 

at 303, 534 S.E.2d at 738. 

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prejudice that Heinrich would have suffered if Whitaker’s 

motion to amend the ad damnum clause had been granted. 

Accordingly, the judgment of the trial court must be 

reversed and the case remanded for further proceedings.3 The 

further proceedings, however, will be limited to the issue of 

damages, as the trial court’s decision on liability has not 

been challenged by either party. 

Reversed in part and remanded.

 3

 In light of our decision we need not consider Whitaker’s 

remaining claim that the denial of his motion to amend denied 

his right to have the amount of damage determined by a jury.