                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-2379
                                    ___________

Motion Control Corporation,            *
                                       *
            Petitioner-Appellant,      *
                                       * Appeal from the United States
     v.                                * District Court for the
                                       * District of Minnesota.
SICK, Inc.,                            *
                                       *
            Respondent-Appellee.       *
                                  ___________

                              Submitted: November 20, 2003

                                   Filed: December 30, 2003
                                    ___________

Before MURPHY, LAY, and BRIGHT, Circuit Judges.
                           ___________

LAY, Circuit Judge.

      Motion Control Corporation (“MCC”) appeals the district court’s decision
allowing removal of MCC’s Minnesota state law claim. The district court based its
removal decision on the grounds that the claim was “factually interdependent” with,
and therefore “ancillary” to, a case already pending before the federal district court.
We hold that 28 U.S.C. § 1441 does not allow removal under these circumstances,
and therefore vacate the district court’s decision with directions to the district court
to remand the case to the Minnesota state court.
                                I. BACKGROUND

       MCC, a Michigan corporation, is a distributor of automotive products and other
products. SICK, Inc. (“SICK”), a Minnesota corporation, is a manufacturer of a
wide-range of products. In 1998, MCC and SICK entered into a distribution
agreement (the “contract”) under which MCC would be the exclusive distributor of
SICK products in Michigan. The contract was limited to one year, but would extend
automatically unless either party gave ninety-days written notice. It also provided,
however, that SICK could not terminate the contract so long as MCC continued to
meet certain distributor requirements set forth in the contract. If SICK sought to
terminate on the basis that MCC was not performing under the contract, the question
of MCC’s performance was subject to binding arbitration in Minneapolis, Minnesota,
to be governed by Minnesota law. Section 17 of the contract provides that it is to be
construed and governed by the laws of the State of Minnesota and that the parties
“submit to and limit litigation concerning this Agreement to the jurisdiction and
venue of the courts of the State of Minnesota.” (J.A. at 40) (emphasis added).

       Unhappy with the exclusive distributorship agreement, on September 28, 2000,
SICK notified MCC of its intention to terminate the contract due to deficiencies in
MCC’s performance. MCC demanded arbitration, as provided in the contract. On
August 2, 2001, the state arbitration panel found that while there were some problems
with MCC’s performance, SICK had failed to give proper notice to MCC under the
contract in order to give MCC an opportunity to cure those deficiencies. Thus, the
arbitration panel held the contract was not terminated.1



      1
       MCC submitted the first arbitration award to the Minnesota state court for
confirmation. Confirmation was ordered on December 13, 2001, by Hennepin
County District Court Judge Bruce Peterson. The order provided that the Court
Administrator was directed to enter judgment pursuant to the arbitration award by
docketing the judgment in Hennepin County, Minnesota.

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       Thereafter, on August 16, 2001, SICK filed a diversity suit against MCC in
United States District Court for the District of Minnesota. SICK claimed, inter alia,2
that MCC breached the contract by selling competitor’s products through its “shell
company,” Commerce Industrial Controls, Inc. In the meantime, the parties agreed
to undergo a second arbitration.3 On April 1, 2002, the arbitrator held that the
contract had not been terminated and would remain in force and effect for two more
years, until March 31, 2004.

       MCC maintained that by imposing a March 31, 2004, termination date on the
contract, Arbitrator Solum had ruled on a matter that was not submitted to him, had
violated the terms of the contract, and had exceeded his authority. MCC served an
application to modify, clarify, and correct the award of the arbitrator and SICK
responded. On May 6, 2002, Arbitrator Solum denied MCC’s application for
modification.

       Displeased with the result reached by the arbitrator, on June 28, 2002, MCC
filed suit in Minnesota state court, pursuant to Minn. Stat. § 572.20, seeking an order
to either modify or vacate the second arbitration award. In response, SICK filed
notice to remove MCC’s state court action to the United States District Court for the
District of Minnesota. On July 18, 2002, the removed case was assigned to the
district judge before whom SICK’s original lawsuit was still pending. The district



      2
        SICK included claims of tortious interference with contractual relations,
breach of fiduciary duty, unjust enrichment, and breach of the covenants of good faith
and fair dealing. MCC counterclaimed for breach of contract and breach of fiduciary
duty.
      3
        No motion to compel arbitration was ever presented to the federal district
court. The district court did not order arbitration or stay SICK’s action pending the
parties’ arbitration. Instead, it would appear the arbitration and SICK’s action
proceeded concurrently.

                                         -3-
judge did not join or consolidate the cases, but treated them as independent actions.4
MCC moved to remand the removed state court action, asserting that removal was not
proper under 28 U.S.C. § 1441. It argued that, under § 1441(b), a defendant may not
remove an action to the federal district court on the basis of diversity if any of the
defendants are a citizen of the state where the action is filed. Here, SICK is a citizen
of Minnesota and the action was brought in the Minnesota state court.5

       Notwithstanding § 1441(b), the district court held that removal was proper
under the doctrine of “ancillary jurisdiction.” Quoting Kokkonen v. Guardian Life
Ins. Co. of America, 511 U.S. 375, 378 (1994), it explained that the doctrine of
ancillary jurisdiction “recognizes federal courts’ jurisdiction over some matters
(otherwise beyond their competence) that are incidental to other matters properly
before them.” Id. The district court found that because MCC’s state court action and
SICK’s original action were “factually interdependent,” it therefore “ha[d] ancillary
jurisdiction over this action and . . . it was properly removed.”

      4
        If the district court had joined the removed case with SICK’s breach of
contract case, then MCC potentially would have the additional problem of an invalid
interlocutory appeal, given that SICK’s breach of contract claims were still pending
and there was no certification by the district court to allow a separate appeal of the
removal. As it stands, however, both parties and the district court have always treated
the two cases as independent actions. The two actions were given separate docket
numbers, and the district court chose not to join or even consolidate the state court
case with the federal suit brought by SICK. Instead, the district court entered an
order asserting jurisdiction and denying MCC modification or vacation of the
arbitration award. This constituted a final decision, and MCC’s separate appeal is
therefore proper. See 28 U.S.C. § 1291.
      5
        Although we need not decide, we seriously question whether the federal
district court would have jurisdiction to review the state arbitration award when the
parties have stipulated that the state court is to be given jurisdiction to review the
award, and the Minnesota Statutes specifically authorize such review. See Minn.
Stat. § 572.20. To this court’s knowledge, neither party attempted in the federal
district court to invoke arbitration under the Federal Arbitration Act, 9 U.S.C. § 3.

                                          -4-
     Having determined that it had jurisdiction, the district court denied MCC’s
motion to modify or vacate the arbitration award. This appeal followed.

                                    II. ANALYSIS

      We review a district court’s exercise of removal jurisdiction and the denial of
a motion to remand de novo. See United States v. Todd, 245 F.3d 691, 693 (8th Cir.
2001). 28 U.S.C. § 1441 governs the removal of actions from a state court to a
federal district court, and provides in relevant part:

      (a) Except as otherwise expressly provided by Act of Congress, any civil
      action brought in a State court of which the district courts of the United
      States have original jurisdiction, may be removed by the defendant or
      the defendants, to the district court of the United States for the district
      and division embracing the place where such action is pending. . . .

      (b) Any civil action of which the district courts have original jurisdiction
      founded on a claim or right arising under the Constitution, treaties or
      laws of the United States shall be removable without regard to the
      citizenship or residence of the parties. Any other such action shall be
      removable only if none of the parties in interest properly joined and
      served as defendants is a citizen of the State in which such action is
      brought.

28 U.S.C. § 1441 (emphasis added).

       The district court acknowledged that if its jurisdiction rested solely on the basis
of diversity, § 1441(b) would prohibit removal of MCC’s Minnesota state court case
because SICK is a citizen of Minnesota and was properly named and served as a
defendant6 in MCC’s case. See Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996);

      6
        SICK suggests that we “realign the parties according to their true interests,”
but realignment would not be appropriate under these circumstances. See Pub. Serv.

                                           -5-
Hurt v. Dow Chem. Co., 963 F.2d 1142, 1145 (8th Cir. 1992). The district court
reasoned, however, that § 1441(b) did not bar removal because the “removal was not
based solely on diversity,” but was also based on the doctrine of ancillary jurisdiction.
We must respectfully disagree.

       First, ancillary jurisdiction does not provide an independent source of removal
separate from § 1441. In 1990, Congress consolidated and codified the common law
doctrines of ancillary and pendant jurisdiction under the title “Supplemental
jurisdiction,” in 28 U.S.C. § 1367. See Willman v. Heartland Hosp. E., 34 F.3d 605,
613 (8th Cir. 1994), cert. denied, 514 U.S. 1018 (1995). Section 1367(a) does not
mention removal at all. It provides in relevant part:

      in any civil action of which the district courts have original jurisdiction,
      the district courts shall have supplemental jurisdiction over all other
      claims that are so related to claims in the action within such original
      jurisdiction that they form part of the same case or controversy under
      Article III of the United States Constitution.

28 U.S.C. § 1367(a). While this statute does allow factually related state law claims
to be joined with the claim over which the federal district court has original
jurisdiction, it plainly does not provide a separate basis for removal of independent
state law actions. See Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 34 (2002)
(“Removal is governed by statute, and invocation of ancillary jurisdiction . . . does
not dispense with the need for compliance with statutory requirements [for
removal].”); see also In re Estate of Tabas, 879 F. Supp. 464, 467 (E.D. Pa. 1995)
(“[T]he supplemental jurisdiction statute does not allow a party to remove an


Comm’n of Utah v. Wycoff Co., Inc., 344 U.S. 237, 248 (1952) (holding that courts
may realign the parties where a declaratory plaintiff seeks, in effect, to establish a
defense against a cause of action which the declaratory defendant might assert in state
court). The parties are aligned according to their true interests here, given the nature
of MCC’s claim for vacation or modification of the arbitration award.

                                          -6-
otherwise unremovable action to federal court for consolidation with a related federal
action,” even if “such an approach would have the benefits of efficiency . . . .”).

       Second, ancillary jurisdiction does not authorize removal under § 1441.
Section 1441(a) provides that removal is only proper where the federal district court
has “original jurisdiction” over the state court case. Ancillary jurisdiction is not
original jurisdiction, as the Supreme Court has recently explained. See Syngenta, 537
U.S. at 34 (“Ancillary jurisdiction . . . cannot provide the original jurisdiction that
petitioners must show in order to qualify for removal under § 1441.”); see also
Ahearn v. Charter Township of Bloomfield, 100 F.3d 451, 456 (6th Cir. 1996) (“The
supplemental-jurisdiction statute is not a source of original subject-matter
jurisdiction, and a removal petition therefore may not base subject-matter jurisdiction
on the supplemental-jurisdiction statute, even if the action which a defendant seeks
to remove is related to another action over which the federal district court already has
subject-matter jurisdiction. . . .”) (citations omitted); Brown v. Prudential Ins. Co. of
Am., 954 F. Supp. 1582, 1584 (S.D. Ga. 1997) (holding that supplemental jurisdiction
does not provide the original jurisdiction necessary for removal under § 1441); Holt
v. Lockheed Support Sys., Inc., 835 F. Supp. 325, 329 (W.D. La. 1993) (same); 29A
Federal Procedure: Lawyers Edition, § 69:2, at 10 (1998) (“The original jurisdiction
requirement is an absolute and nonwaivable prerequisite to removal jurisdiction. A
District Court is not endowed with jurisdiction to hear a case on removal merely
because . . . a related case is pending in the federal court.”) (footnote omitted);
16 James Wm. Moore et al., Moore’s Federal Practice ¶ 107.14[1] (3d ed. 1999)
(“The supplemental jurisdiction statute is not itself a source of original jurisdiction
and therefore is not a proper basis for removal.”) (footnote omitted). Therefore,
because ancillary jurisdiction does not provide an independent basis for removal or
authorize removal under § 1441, and because the district court’s diversity jurisdiction
did not permit removal due to the prohibition of § 1441(b), we hold removal was
improper.



                                          -7-
                                  III. CONCLUSION

       For the reasons stated above, 28 U.S.C. § 1441 prohibits removal of MCC’s
state court action to federal district court. The district court therefore did not have the
jurisdiction to reach the merits of MCC’s claim for modification or vacation of the
arbitration award. Accordingly, we VACATE the judgment of the district court with
directions to the district court to REMAND the action to the Minnesota state court
from which it was removed.
                         ______________________________




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