
    STARNS v. SUCCESS PORTRAIT CO.
    Civ. No. 52.
    (District Court, E. D. Tennessee, S. D.
    Dec. 4, 1940.
    Thach & Thach, by Tom S. Thach, all of Chattanooga, Tenn., for plaintiff.
    Lynch, Whitaker, Hall & Allison, by William W. Haynes and Carmack Water-house, all of Chattanooga, Tenn., for defendants.
   DARR, District Judge.

The defendant has submitted a motion seeking a dismissal of the suit on the grounds that the amount actually in controversy is less that $3,000, exclusive of interest and costs.

This motion is an appropriate manner to challenge the allegations of jurisdictional facts. Federal Rules of Civil Procedure, rule 12(b) (1), 28 U.S.C.A. following section 723c.

The jurisdictional facts being challenged in an appropriate manner, the plaintiff must support them by competent proof. McNutt v. General Motors Acceptance Corporation, 298 U.S. 178, 186, 56 S.Ct. 780, 80 L.Ed. 1135; KVOS v. Associated Press, 299 U.S. 269, 57 S.Ct. 197, 81 L.Ed. 183.

Such proof may be submitted under authority of and in the manner provided by Rule 43(e), Federal Rules of Civil Procedure.

The plaintiff did not submit any proof on this question. On the other hand, the defendant introduced proof sustaining the proposition that the amount in controversy is less than $3,000, exclusive of interest and costs.

The motion should be sustained because the plaintiff has failed to justify his allegations of jurisdictional facts by a preponderance of evidence.

I have looked into the allegations in the complaint and reviewed the affidavits submitted by the defendant, from all of which I am impressed that the amount involved is less than that required to give this court jurisdiction.

The motion will be sustained and the suit dismissed.

Order accordingly.  