Gulbenkian v. Gulbenkian

Citation33 F. Supp. 19
PartiesGULBENKIAN v. GULBENKIAN et al.
Decision Date03 April 1940
CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

Kirlin, Campbell, Hickox, Keating & McGrann, by James H. Herbert, all of New York City, for plaintiff.

Thomas A. McGrath, of New York City, for defendants.

BONDY, District Judge.

The defendants move to dismiss the action on the ground that the amount actually in controversy is less than $3,000, exclusive of interest and costs.

No facts are alleged in support of the motion, which denies the formal allegation of the complaint as to jurisdictional amount. The defendants contend that it appears from the complaint that the jurisdictional amount is not involved.

The plaintiff must plead the facts essential to show jurisdiction, and he bears the burden of showing that the matter in controversy exceeds the sum or value of $3,000, exclusive of interest and costs. 28 U.S.Code, § 41(1), 28 U.S.C.A. § 41(1); McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135. The immediate question is whether the formal allegation as to jurisdictional amount is qualified by other allegations which so detract from it that when all are considered together it can not fairly be said that jurisdiction appears on the face of the complaint. KVOS, Inc., v. Associated Press, 299 U.S. 269, 277, 57 S.Ct. 197, 81 L.Ed. 183; Gibbs v. Buck, 307 U.S. 66, 72, 59 S.Ct. 725, 83 L.Ed. 1111. This question may appropriately be raised by motion or by the court sua sponte. KVOS, Inc., v. Associated Press, 299 U.S. at page 277, 57 S.Ct. 197, 81 L.Ed. 183, supra; Gibbs v. Buck, 307 U.S. at page 72, 59 S.Ct. 725, 83 L.Ed. 1111, supra.

This is an action for the specific enforcement of defendants' agreement to reorganize the Gulbenkian Seamless Rug Co., and to issue to plaintiff 600 shares of the second preferred stock of the reorganized company. Plaintiff also prays that the defendants be directed to convey the assets of the copartnership of Gullabi Gulbenkian Co. to plaintiff or to a receiver as security for the performance of the agreement.

The matter in controversy relates to the 600 shares of second preferred stock of the reorganized company. While the allegations of the complaint do not strengthen the formal allegation as to the jurisdictional amount, the court is of the opinion that they do not qualify or detract from it in such measure that it can not fairly be said that jurisdiction appears on the face of the complaint. The action therefore should not be dismissed on the ground of insufficient pleading of the amount in controversy.

Upon the argument, the defendant requested that if the court should not dismiss the action upon the complaint alone, the plaintiff be required to submit evidence to substantiate his allegation as to jurisdictional amount. Where the allegations as to the amount in controversy are challenged by the defendant in an appropriate manner, the plaintiff must support them by competent proof. McNutt v. General Motors Acceptance Corp., 298 U.S. at page 189, 56 S.Ct. 780, 80 L.Ed. 1135, supra; KVOS, Inc., v. Associated Press, 299 U.S. at page 278, 57 S.Ct. 197, 81 L.Ed. 183, supra; Hague v. Committee for Industrial Organization, 307 U.S. 496, 507, 508, 59 S.Ct. 954, 83 L.Ed. 1423. A motion to dismiss based upon the absence of the jurisdictional amount apparently is an appropriate...

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5 cases
  • Smith v. Sperling
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • December 16, 1953
    ...is left to the trial court." Gibbs v. Buck, 1939, 307 U.S. 66, 71-72, 59 S.Ct. 725, 729, 83 L.Ed. 1111; cf. Gulbenkian v. Gulbenkian, D.C.S.D.N.Y. 1940, 33 F.Supp. 19. As a general rule therefore the trial court may, in its discretion, try all issues of fact as to jurisdiction by receiving ......
  • Shaffer v. Coty, Inc.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • May 3, 1960
    ...71-72, 59 S.Ct. at page 729; see Land v. Dollar, 1947, 330 U.S. 731, 735, 67 S.Ct. 1009, 91 L.Ed. 1209; see e. g. Gulbenkian v. Gulbenkian, D.C.S.D.N.Y.1940, 33 F.Supp. 19, 20. Moreover it has been held that, in the exercise of this broad discretion, the District Court may hear testimony an......
  • Bennett v. Sinclair Nav. Co., 46 and 153 of 1938.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • May 16, 1940
  • Columbia Pictures Corporation v. Rogers
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • January 4, 1949
    ...Cir., 127 F.2d 583; Kurn et al. v. Beasley, 8 Cir., 109 F.2d 687; Reese v. Holm, D.C. Minn.1940, 31 F.Supp. 435; Gulbenkian v. Gulbenkian et al., D.C.S.D.N.Y.1940, 33 F.Supp. 19. They further contend that an affidavit based entirely on hearsay is not competent proof, and that therefore plai......
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