Shiрton Sportswear Company (“Shipton”) appeals from a judgment entered in the United States District Court for the Southern District of New York (Miriam G. Cedarbaum, Judge). Tongkook America, Inc., (“Tong-kook”) commenced this diversity action in the district court alleging breach of contract by Shipton and demanding judgment in the sum of $117,621.05, plus interest. During the course of pre-trial discovery it became clear that the actual amount Shipton owed Tong-kook was $36,861.05. Following a one-day non-jury trial, judgment for Tongkook was entered in the amount of $40,759.73, including interest. In an order dated March 2, 1993, the district court explained that it had subject-mаtter jurisdiction because both parties believed that the amount in controversy was more than $50,000 when the action was commenced. For the reasons set forth below,- we vacate the judgment of the district court, and remand with instructions to dismiss the complaint.
BACKGROUND
Tongkook is a New York corporation that manufacturers clothing abroad which is imported into the United States. Shipton is a Missouri corporation which sells men’s and boy’s apparel to the retail trade. In 1989 and 1990, Shipton ordered, through several shipments, sports pants and jackets from Tongkook, at an agreed price of $306,762.16. Shiрton paid $189,141.11 against the sum due, leaving an unpaid balance of $117,-621.05. 2 Shipton’s bank also issued a letter of credit for Tongkook’s benefit. On February 5,1990, Tongkook drew $80,760.00 on the *783 letter of credit, but apparently both Tong-kook and Shipton neglected to credit this amount to the outstanding balance of $117,-621.05. Thus, when the suit was commenced, the balance due was actually $36,861.05, not $117,621.05.
On February 1, 1991, Tongkook commenced the subject diversity action in the Southern District of New York, pursuant to 28 U.S.C. § 1332(a)(1), alleging damages for breach of contract of $117,621.05. Shipton answered the complaint on or about September 5, 1991, denying liаbility and asserting, inter alia, that: (i) Tongkook’s “goods were not of the quality and classification as promised and warranted;” (ii) Tongkook’s “goods were not of the customs category agreed upon;” and (iii) Tongkook’s “conduct impaired the value of the goods.” Shipton also asserted lack of persоnal jurisdiction, insufficiency of service of process, and improper venue. On January 15,1992, Shipton amended its answer to include the defenses of (i) partial payment, and (ii) accord and satisfaction. Shipton did not raise the defense of lack of subject-matter jurisdiction based upon plаintiffs failure to meet the statutory jurisdictional amount of $50,000, required under § 1332(a)(1). However, in February 1992, during the course of pre-trial discovery, the letter of credit error was discovered by both parties. On May 29, 1992, Tongkook moved for summary judgment, pursuant to Fed.R.Civ.P. 56, acknowledging the payment pursuant to the letter of credit, claiming that Shipton accepted and used its goods without objection, and asserting that it was entitled to recover $37,275.77 in damages. 3
On June 5, 1992, during a court conference, the district judge raised the issue of whether the jurisdictional amount for diversity eases was satisfied. On June 25, 1992, Shipton filed opposition рapers to Tongkook’s summary judgment motion. Shipton asserted, inter alia, that the district court lacked subject-matter jurisdiction because Tongkook had failed to show that the amount in controversy was in excess of $50,000. On August 28, 1992, Tongkook’s president, Seok S. Ha, submitted an affidavit in which he stated that when the complaint was filed, he had a good-faith belief that Tongkook was entitled to recover $117,621.05 in damages.
On September 3, 1992, the district court denied Tongkook’s motion for summary judgment, stating that there were genuine issues of disputed fact. On November 5, 1992, following a one-day non-jury trial; the district court found in favor of Tongkook and awarded damages in the sum of $36,861.05.
4
On November 19, 1992, judgment for Tongkook was entered in the amount of $36,861.05, plus $3,898.68 in interest, totalling $40,759.73. Shipton timely filed a notice of appeal from the November 19, 1992 judgment of the district court. In a March 2, 1993 order explaining the basis of its determination that the court had subject-matter jurisdiction, thе district court explained that it had relied upon
St. Paul Mercury Indemnity Co. v. Red Cab Co.,
DISCUSSION
On appeal, Shipton argues that the district court was “clearly erroneous” in retaining subject-matter jurisdiction over Tongkook’s suit because, as a matter of “objective” fact, it was evident before trial that Tongkook could not rеcover the minimum statutory jurisdictional amount required for diversity cases. This is so, Shipton, argues, because Tongkook conceded in its motion for summary judgment that the actual amount owed was approximately $37,000.
*784 The United States Code confers jurisdiction upon district courts in civil actions where, inter alia, “the matter in controversy exceeds the sum or value of $50,000.” 28 U.S.C. § 1332(a)(1) (1988). The test for determining whether a plaintiff has met the statutory jurisdictional amount was established by the Supreme Court in St. Paul Mercury. In that ease, the Court stated that:
. The rule governing dismissal for want of jurisdiction in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by the plаintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.
St. Paul Mercury,
if, from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed, or if, from the proofs, the court is satisfied to a like certainty that the plaintiff never wаs entitled to recover that amount, and that his claim was therefore colorable for the purpose of conferring jurisdiction, the suit will be dismissed.
Id.
(footnote omitted). This rule was reaffirmed in
Horton v. Liberty Mutual Insurance Co.,
In
Deutsch v. Hewes Street Realty Corp.,
Tongkoоk argues that the district court had subject-matter jurisdiction because when the complaint was filed — February 1, 1991 — it believed that the amount owed by Shipton was $117,621.05. In support of its “good faith” claim, Tongkook points out that (i) both parties proceeded with the litigation believing that the amount in controversy exceeded $50,000 until February 1992, when the letter of credit error was uncovered during the course of discovery; and (ii) at no time prior to February 1992 did Shipton assert the defense of lack of subject-matter jurisdiction. Tongkook’s arguments are unpersuasive.
A party invoking the jurisdiction of the federal court hаs the burden of proving that it appears to a “reasonable probability” that the claim is in excess of the statutory jurisdictional amount.
See Moore v. Betit,
In St. Paul Mercury, the Supreme Court stated that a plaintiff is responsible for knowing if its claim is within the statutory jurisdictional amount, and, thus
[a plaintiffs] good faith in choosing the federal forum is open to challenge not only by resort to the face of [its] complaint, but by the facts disclosed at trial, and if from еither source it is clear that [the plaintiffs] claim never could have amounted to the sum necessary to give jurisdiction there is no injustice in dismissing the suit.
Tongkook argues that the facts of this case are distinguishable from casеs such as
Zacharia v. Harbor Island Spa, Inc.,
We accept Tongkook’s assertion that, at the time it instituted suit, it believed the amount in controversy exceeded the statutory jurisdictional amount. However, good faith has an objective element, and we cannot ignore what pre-trial discovery revealed— that from the outset, Tongkook, to a “legal certainty,” could not recover the statutory jurisdictional amount.. A plaintiffs subjective belief, alone, cannot be the controlling factor where, pre-trial, there is “[a] showing that, as a legal cеrtainty, [the] plaintiff cannot recover the jurisdictional amount.”
American Mut. Liab. Ins. Co. v. Campbell Lumber Mfg. Corp.,
be dismissed for want of jurisdiction.... However, the legal impossibility of recovery must be so certain as virtually to negative the plaintiffs good faith in asserting the claim. If the right of recovery is uncertain, the doubt should be resolved ... *786 in favor of the subjective good faith of the plaintiff.
Patton,
Consistent with the reasoning of the
American Mutual Liability
ease, the Sixth Circuit has recently held that a “subsequent discovery of the true amount” in controversy, below the minimum statutory jurisdictional amount, required dismissal for lack of subject-matter jurisdiction.
See Jones v. Knox Exploration Corp.,
Herein, although Tongkook was apparently unaware of it at the time it sued, it had drawn upon the letter of credit from Ship-ton’s bank prior to the filing of its suit— hence, an event which preceded the commеncement of the suit objectively altered the amount of Tongkook’s claim. In a similar circumstance, a federal district court in Texas wrote
[the plaintifQ was mistaken when [it] demanded the larger sum.... If [it] had known the true facts, [it] could not have in good faith claimed the amount stated.... [I]t is obvious that a recovery of the jurisdictional amount has been at all relevant times a legal impossibility. The fact that a mistake may have been honestly made in claiming the original amount could not convert what in the absence of the mistake would have been bad faith, into the kind of good faith necessary to vest jurisdiction in [the district court].
Flournoy v. United States Aviation Underwriters, Inc.,
Herein, the mistake was discovered later through pre-trial discovery — at that point, the suit should have been dismissed for lack of subject-matter jurisdiction. The fact that Shipton did not raise the defense of lack of subject-matter jurisdiction in its answer is not determinative, since subject-matter jurisdiction cannot be waived and the issue can be raised at any time in the course of litigation. Fed.R.Civ.P. 12(h)(3); see also 5A Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure: Civil 2d § 1393, at 764-776 (2d ed. 1990). Accordingly, we conclude that since Tongkook could not properly assert the minimum statutory jurisdictional amount, the district court lacked jurisdiction over the suit.
Under Texas law, the statute of limitations for a breach of contract for the sale of goods is four years. Tex.Bus. & Com.Code Ann. § 2.725(a) (West 1993). Thus, Tongkook, which has successfully litigated its claim in the district court, may be left in the position of being unable to recover the funds owed to it by Shipton. While we empathize with Tongkook’s situation, this cannot justify conferring federal jurisdiction where it does not exist. This must be so, because “a court cannot obtain jurisdiction over a case merely by trying it; otherwise its decision to retain jurisdiction would be, effectively, unreviewable.”
Parker & Parsley Petroleum Co. v. Dresser Indus.,
CONCLUSION
For the foregoing rеasons, we vacate the judgment of the district court; we remand to the district court with instructions to dismiss Tongkook’s complaint for lack of subject-matter jurisdiction.
Notes
. The $117,621.05 balance represented "an unpaid invoice of $39,347.16 dated September 14, 1990, and $78,273.89 withheld by Shipton for an alleged potential custоms duty liability for goods other than those invoiced on September 14, 1990.” (emphasis in text).
. The sum of $37,275.77 represents the outstanding balance of $36,861.05, combined with "an unpaid invoice sent to Shipton dated February 7, 1990[,] for $414.72.”
. Shipton conceded liability, except with regards to a $3,000 "set-off” claim for damaged goods, at the beginning of trial, agreeing that the "only [defense] now is lack of subject-matter jurisdiction,” and apparently waiving the other defenses it had earlier raised against Tongkook’s complaint.