                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 12-2779
                       ___________________________

Joel Baker; Kathy Baker; Margaret L. Barnett; Matthew Wagner; Victoria Wagner;
     Todd Durbin; Stephanie Durbin; Kendra Sallam; Evelyn Tombleson; Glen
Tombleson; Timothy Gust; Kiersten Gust; Diana Anderson; Cheri Williams; Laura
          Decourcy; Richard Decourcy; Phillip Cooper; Marilyn Cooper

                     lllllllllllllllllllll Plaintiffs - Appellants

                                          v.

Martin Marietta Materials, Inc.; Hunt Martin Materials, LLC; Material Transport
 Company; Hanrahan Asphalt Paving Co., Inc.; Vance Brothers, Inc.; Patrick L.
Dusselier Foundation Company, Inc.; Superior Bowen Asphalt Company, L.L.C.;
 Tom Peace Trucking, Co.; Bill Cassidy Trucking, Inc.; Lone Wolf Enterprises,
 Inc.; Bluestem Trucking, Inc.; George J. Shaw Construction, Co.; Pavlich, Inc.;
 O’Neil Trucking; Greg Bordner Construction Co., Inc.; Miles Excavating, Inc.;
Acker Trucking; Show-Me Trucking & Freight, Inc.; Pavestone Company, LLC;
     Heller’s Trucking; Roadhog Trucking, LLC; Geiger Trucking Company

                     lllllllllllllllllllll Defendants - Appellees
                                      ____________

                    Appeal from United States District Court
               for the Western District of Missouri - Kansas City
                                ____________

                         Submitted: September 24, 2013
                            Filed: March 20, 2014
                                ____________

Before WOLLMAN, BEAM, and SMITH, Circuit Judges.
                          ____________
WOLLMAN, Circuit Judge.

       Eighteen citizens (the citizens) of Greenwood, Missouri (the City), sued Martin
Marietta Materials, Inc., Hunt Martin Materials, LLC, and several trucking companies
(collectively, “the quarry defendants”) in Missouri state court, asserting various state-
law tort claims. The quarry defendants removed the case to federal district court,
whereupon the district court issued an injunction prohibiting the citizens from
pursuing their claims in any forum. The citizens appeal the district court’s denial of
their motion to remand to state court and its issuance of the injunction. We reverse
and remand.

                                   I. Background

                                 A. Prior Litigation

       Martin Marietta Materials, Inc. (MMM), and Hunt Martin Materials, LLC
(HMM), own and operate a quarry outside the City. Second Avenue runs through
residential areas of the City and provides access to the quarry. In 1991, the City and
MMM entered into a contract that allowed trucking companies to use the Second
Avenue route when traveling to and from the quarry. Use of the route continued
without incident until 2006, when, in an attempt to reduce truck traffic, the City
passed an ordinance that imposed weight restrictions on trucks using Second Avenue.
In response, MMM and HMM filed suit against the City in federal district court. The
ordinance was later invalidated.

      The City subsequently passed a new ordinance (the Ordinance) that prohibited
commercial vehicles from using the City’s streets unless the street was a designated
“Commercial Use Route.” In effect, the Ordinance prevented trucks from using
Second Avenue to gain access to the quarry. MMM and HMM challenged the
Ordinance in federal district court.

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       In September 2008, the district court issued an injunction that permanently
enjoined the City from enforcing the Ordinance (the 2008 Permanent Injunction). The
district court determined that the Ordinance “impose[d] a burden on interstate
commerce that [wa]s clearly excessive in relation to the purported local benefits[,]”
and thus concluded that the Ordinance violated the dormant Commerce Clause.
Martin Marietta Materials, Inc. v. City of Greenwood, No. 06-697-CV-W-W, 2008
WL 4832638, at *7 (W.D. Mo. Sept. 4, 2008). Further, the district court ordered:

      [U]nder the Commerce Clause, the City of Greenwood is enjoined from
      taking any action that has the effect of prohibiting all through truck
      traffic through the City. Based on the facts of this case, that means that
      truck traffic must be able to make use of either the existing Second
      Avenue Route or a route utilizing Allendale Lake Road to travel to and
      from Highway 150 through the City . . . .

Id. at *8. Following the issuance of the 2008 Permanent Injunction, the City, MMM,
and HMM entered into a settlement agreement in which the City designated Second
Avenue as the route to be used for quarry traffic.1

                               B. Current Litigation

       The citizens, who reside on Second Avenue, filed suit against the quarry
defendants in state court in 2011, asserting state-law tort claims for private nuisance,
intentional infliction of emotional distress, and negligence per se. The citizens sought




      1
       Because the background information related to the state and federal litigation
between the City, MMM, and HMM regarding Second Avenue is lengthy and
complex, we include only the information relevant to this appeal. Additional factual
material can be found in Martin Marietta Materials, Inc. v. City of Greenwood, No.
06-697-CV-W-W, 2008 WL 4832638 (W.D. Mo. Sept. 4, 2008), and City of
Greenwood v. Martin Marietta Materials, Inc., 299 S.W.3d 606 (Mo. Ct. App. 2009).

                                          -3-
actual, compensatory, and punitive damages. They did not seek declaratory or
injunctive relief.

        The quarry defendants removed the case to federal district court. In response,
the citizens moved to remand the case to state court, asserting that the district court
lacked jurisdiction over the case. The district court acknowledged that the citizens’
claims were brought under state law and that the parties were not diverse, but denied
the citizens’ motion to remand, concluding that it had jurisdiction because the citizens’
claims “raise[d] important federal questions, including whether [the quarry
defendants’] use of Second Avenue remain[ed] protected by the dormant Commerce
Clause.” D. Ct. Order of Dec. 16, 2011, at 11. Further, the district court concluded
that it had ancillary jurisdiction to protect and enforce the 2008 Permanent Injunction.
In response to the quarry defendants’ motion, the district court later issued an
injunction pursuant to the All Writs Act, 28 U.S.C. § 1651(a), prohibiting the citizens
from pursuing their claims in any forum.

                               II. Motion to Remand

       “A defendant may remove a state law claim to federal court only if the action
originally could have been filed there.” In re Prempro Prods. Liab. Litig., 591 F.3d
613, 619 (8th Cir. 2010); see also 28 U.S.C. § 1441. “[T]he party seeking removal has
the burden to establish federal subject matter jurisdiction, [and] all doubts about
federal jurisdiction must be resolved in favor of remand.” Cent. Iowa Power Coop.
v. Midwest Indep. Transmission Sys. Operator, Inc., 561 F.3d 904, 912 (8th Cir. 2009)
(internal citations omitted). “We review the district court’s exercise of removal
jurisdiction and its denial of a motion to remand de novo.” Id. at 911-12.

      The quarry defendants argue that removal was proper because the district court
had both federal-question jurisdiction and ancillary jurisdiction over the case. We
address each of these arguments in turn.

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                         A. Federal-Question Jurisdiction

       “Removal based on federal question jurisdiction is governed by the well
pleaded complaint rule: jurisdiction is established only if a federal question is
presented on the face of the plaintiff’s properly pleaded complaint.” Pet Quarters, Inc.
v. Depository Trust & Clearing Corp., 559 F.3d 772, 779 (8th Cir. 2009).
Accordingly, a plaintiff “may avoid federal jurisdiction by exclusive reliance on state
law.” Cent. Iowa Power, 561 F.3d at 912 (quoting Caterpillar Inc. v. Williams, 482
U.S. 386, 392 (1987)). Defendants may not “inject a federal question into an
otherwise state-law claim and thereby transform the action into one arising under
federal law.” Gore v. Trans World Airlines, 210 F.3d 944, 948 (8th Cir. 2000).
Moreover, “[i]t is firmly established that a federal defense, including a preemption
defense, does not provide a basis for removal, ‘even if the defense is anticipated in the
plaintiff’s complaint, and even if both parties concede that the federal defense is the
only question truly at issue in the case.’” Cent. Iowa Power, 561 F.3d at 912 (quoting
Caterpillar, 482 U.S. at 393).

       The United States Supreme Court has recognized, however, that “in certain
cases federal-question jurisdiction will lie over state-law claims that implicate
significant federal issues.” Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg.,
545 U.S. 308, 312 (2005). “There is no ‘single, precise, all-embracing test for
jurisdiction over federal issues embedded in state-law claims between nondiverse
parties.’” Cent. Iowa Power, 561 F.3d at 912 (quoting Grable & Sons, 545 U.S. at
314). “Instead, the question is, does a state-law claim necessarily raise a stated federal
issue, actually disputed and substantial, which a federal forum may entertain without
disturbing any congressionally approved balance of federal and state judicial
responsibilities.” Grable & Sons, 545 U.S. at 314.

       The quarry defendants argue that removal was proper because the citizens’
state-law claims implicate substantial federal issues regarding the quarry defendants’

                                           -5-
constitutional rights under the dormant Commerce Clause and the 2008 Permanent
Injunction. They contend that the district court’s determination that the Ordinance
violated the dormant Commerce Clause and its issuance of the 2008 Permanent
Injunction established that they have a constitutional right to use Second Avenue. The
quarry defendants further contend that the citizens must prove that the conduct of the
quarry defendants was unreasonable in order to succeed on each state-law claim and
that such a determination hinges on whether the quarry defendants’ conduct exceeded
the scope of their constitutional right. Accordingly, they argue that substantial federal
issues are present in the citizens’ case-in-chief, making federal-question jurisdiction
proper.

       In support of their argument, the quarry defendants rely on Nicodemus v. Union
Pacific Corp., 440 F.3d 1227 (10th Cir. 2006). In Nicodemus, federal land-grant
statutes gave a railroad company rights-of-way over several landowners’ properties.
Id. at 1233. After the railroad company licensed to various telecommunications
providers the right to install cables in the rights-of-way, the landowners filed suit in
federal court. Id. at 1233-34. The landowners alleged various state law claims based
on their assertion that the railroad company exceeded the scope of its rights under the
land-grant statutes by allowing the telecommunications providers to install cables in
the rights-of-way. Id. at 1234. The district court dismissed the case for lack of
jurisdiction. Id. at 1230. On appeal, the Tenth Circuit reversed, concluding that “[a]ll
of [the landowners’] claims hinge on whether [the railroad company’s] use of the
right-of-way has exceeded the purpose for which it was granted[,]” and that the court
would be required to first “look at the vehicle by which [the railroad company]
obtained the right-of-way—in this case, the federal-land grant statutes.” Id. at 1234.
Because federal issues thus arose in the landowners’ case-in-chief, federal jurisdiction
was found to exist. Id. at 1234-37.

      Nicodemus is distinguishable, however, for it involved federal statutes that
conferred actual rights on the railroad company, whereas the present case involves a

                                          -6-
district court’s order that enjoined a municipality from taking certain action. In
comparing this case to Nicodemus, the quarry defendants make several incorrect
assertions regarding the effect of the 2008 Permanent Injunction and the application
of the dormant Commerce Clause.

       First, the quarry defendants assert the 2008 Permanent Injunction established
that they had a constitutional right to use Second Avenue and that their use of Second
Avenue was reasonable. The issue presented to the district court in 2008, however,
was limited to whether the Ordinance was valid. The district court determined that the
Ordinance violated the dormant Commerce Clause because it imposed a burden on
interstate commerce that was excessive in comparison to the putative local benefits,
and thus it enjoined the City from enforcing the Ordinance or any other ordinance
“prohibiting all through truck traffic through the City.” Nevertheless, the district court
acknowledged that the City retained the authority to pass other, less-restrictive
ordinances to address its concerns regarding the quarry defendants’ use of Second
Avenue. See City of Greenwood, 2008 WL 4832638, at *7 (“[I]t is clear that any
local interests could be promoted with a lesser impact on interstate activities.”). The
2008 Permanent Injunction was thus limited to prohibiting the City from completely
barring the quarry defendants’ use of Second Avenue. It did not confer upon the
quarry defendants an unrestricted constitutional right to use Second Avenue, nor did
it establish that their use of Second Avenue was reasonable.

      Next, the quarry defendants assert that the citizens’ claims violate the dormant
Commerce Clause and, in effect, the 2008 Permanent Injunction, because truck travel
on Second Avenue would be burdened if the citizens recovered on their claims. The
dormant Commerce Clause, however, “prohibits states [and municipalities] from
enacting laws that ‘discriminate against or unduly burden interstate commerce.’”
Jones v. Gale, 470 F.3d 1261, 1267 (8th Cir. 2006) (quoting S.D. Farm Bureau, Inc.
v. Hazeltine, 340 F.3d 583, 592 (8th Cir. 2003)); see also U & I Sanitation v. City of
Columbus, 205 F.3d 1063 (8th Cir. 2000) (considering whether a municipal ordinance

                                           -7-
violated the dormant Commerce Clause). The quarry defendants cite no case in which
the dormant Commerce Clause precluded private citizens from bringing state-law tort
claims. Furthermore, the 2008 Permanent Injunction enjoins the City from enforcing
the Ordinance or passing similar ordinances; it does not prevent the citizens from
pursuing their state-law claims. Because the quarry defendants’ arguments in support
of federal-question jurisdiction are premised on incorrect assertions about the effect
of the 2008 Permanent Injunction, their attempt to analogize to Nicodemus is
unpersuasive, and thus they have not established that the citizens’ state-law tort claims
implicate substantial federal issues that would justify removal based on federal-
question jurisdiction.

       As an additional basis for asserting that the district court had federal-question
jurisdiction, the quarry defendants argue that the 2008 Permanent Injunction will be
undermined if the citizens’ suit is allowed to proceed in state court. They contend that
by seeking punitive damages, the citizens are attempting to prohibit trucks from using
Second Avenue and are thus seeking to accomplish through this action that which the
City could not do by ordinance. The citizens’ suit, however, does not seek the
prohibition of truck traffic on Second Avenue but instead seeks damages for the
tortious use thereof. Consequently, whether the citizens’ request for punitive damages
constitutes the functional equivalent of a prohibitory ordinance barring truck traffic
is a question for another day. Suffice it to say that it does not at this time establish the
existence of federal-question jurisdiction.

       We note that although they disclaim any intention of doing so, the quarry
defendants seem to rely on principles of collateral estoppel and res judicata to justify
removal. To the extent that their arguments are more properly characterized as
preclusion defenses, such defenses do not constitute grounds for removal. See Rivet
v. Regions Bank of La., 522 U.S. 470, 478 (1998) (“[C]laim preclusion by reason of
a prior federal judgment is a defensive plea that provides no basis for removal under
§ 1441(b). Such a defense is properly made in the state proceedings . . . .”).

                                            -8-
                              B. Ancillary Jurisdiction

       The quarry defendants also contend that the district court possessed ancillary
jurisdiction over this case to protect the 2008 Permanent Injunction. The Supreme
Court’s decision in Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28 (2002),
however, forecloses this argument. In Syngenta, the Court concluded that ancillary
jurisdiction could not serve as the basis for removal:

             Read in light of the question presented in the petition for
      certiorari, perhaps petitioners’ argument is that ancillary jurisdiction
      authorizes removal under 28 U.S.C. § 1441. As we explained in
      Peacock, however, a “court must have jurisdiction over a case or
      controversy before it may assert jurisdiction over ancillary claims.”
      Ancillary jurisdiction, therefore, cannot provide the original jurisdiction
      that petitioners must show in order to qualify for removal under § 1441.

Id. at 34 (internal citation omitted); see also Motion Control Corp. v. SICK, Inc., 354
F.3d 702, 706 (8th Cir. 2003) (“[A]ncillary jurisdiction does not provide an
independent basis for removal or authorize removal under § 1441 . . . .”).
Accordingly, because we conclude the district court did not have original jurisdiction
over this action, ancillary jurisdiction cannot provide the jurisdiction necessary to
qualify for removal.

                                   III. Conclusion

       The quarry defendants have not met their burden of establishing the district
court’s jurisdiction over the citizens’ claims. Removal of the case was thus improper,
and the district court erred in denying the motion to remand. The denial of the
citizens’ motion to remand is reversed, the order enjoining the citizens from pursuing
their claims in any forum is vacated, and the case is remanded to the district court with
directions to remand the case to the Missouri state court from which it was removed.


                                          -9-
BEAM, Circuit Judge, concurring.

        I agree with the court's opinion that neither federal-question jurisdiction nor
ancillary jurisdiction provided a basis for removal in this case. I write separately,
however, to highlight the cumulative, purposeful and vexatious nature of this
litigation. In my view, the plaintiffs (and their lawyers), through artful pleadings,
continue to use the courts as a means of harassment rather than legitimate redress.

       The district court's several orders aptly chronicle the tortuous history of this
case. Without belaboring the point, I briefly emphasize how this case has progressed
through the judicial system. In 2006, the City of Greenwood–at the behest of then-
mayor Richard DeCourcy, who lived on Second Avenue–began enacting ordinances
to discontinue the flow of truck traffic on the Second Avenue route. Martin Marietta
Materials ("Martin") challenged the ordinances in federal district court. After the
district court invalidated the first ordinance, Greenwood went back to the drawing
board and enacted a final ordinance, again attempting to prevent quarry trucks from
traveling on the Second Avenue route. On February 28, 2007, finding the final
ordinance constitutionally suspect, the district court preliminarily enjoined the final
ordinance. On July 3, 2008, through oral pronouncement, the district invalidated the
final ordinance and permanently enjoined Greenwood from closing off all city routes
to quarry truck traffic.

       Undeterred by the federal proceedings–and seeking a more favorable
outcome–on January 30, 2007, Greenwood and the lawyers involved in this case took
its cause to Missouri state court, initiating parallel litigation concerning the final
ordinance. Greenwood also added a public nuisance claim to its state complaint,
alleging "Defendants' truck traffic annoys, injures, endangers, renders insecure,
interferes with, or obstructs the rights or property of the whole community." City of
Greenwood v. Martin Marietta Materials, Inc., 299 S.W.3d 606, 616 (Mo. Ct. App.
2009) (quotation omitted).

                                         -10-
       After obtaining a nearly $12 million judgment stemming from its public
nuisance claims–and notwithstanding the federal preliminary injunction–Greenwood
requested the state court to permanently enjoin quarry trucks from using Second
Avenue. The state court issued the injunction. Two separate state appeals followed.
In the first appeal, the Missouri Court of Appeals upheld the monetary judgment, but
in the second appeal, it reversed the state trial court's injunction. Before entering any
subsequent injunctions, the Missouri Court of Appeals cautioned the trial court to
"consider thoroughly all previous rulings in state and federal court actions between
these parties reflecting on the propriety of injunctive relief prohibiting through trucks
in Greenwood." City of Greenwood v. Martin Marietta Materials, Inc., 311 S.W.3d
258, 268 (Mo. Ct. App. 2010). Once the state appeals had concluded, Greenwood and
Martin entered into a settlement in which Martin agreed to pay Greenwood
$7,000,000 in satisfaction of the state court judgment, and Greenwood designated
Second Avenue as the route for quarry truck traffic.

       The present litigation now enters its third installment with familiar faces and
issues. With DeCourcy no longer the mayor and the City no longer willing to bear the
time and expense of excessive litigation, these eighteen individual plaintiffs, who
either own property or live on the Second Avenue route, have filled the void.
Unsurprisingly, DeCourcy has resurfaced as a plaintiff, and perhaps more
unsurprisingly, the same counsel have initiated the matter. This time around the
plaintiffs have alleged a private nuisance, not a public nuisance. These claims
"overlap and are interrelated." City of St. Louis v. Varahi, Inc., 39 S.W.3d 531, 536
(Mo. Ct. App. 2001); see generally 58 Am. Jur. 2d Nuisances § 25 (discussing "mixed
nuisances"). Indeed, the only distinguishing characteristic between a public nuisance
and a private nuisance is whether damages arise from an offender's unreasonable
interference with either a public community right or a private property right. Varahi,
39 S.W.3d at 536. No doubt, plaintiffs will present the same proof that the City used
to prove its public nuisance claim. Through settlement, the City has already collected
substantial nuisance damages on behalf of the "whole community"–including those

                                          -11-
living on Second Avenue–and this repetitive nuisance claim is nothing more than a
repeated attempt to extract damages that have already been paid and extinguished.
Although this rendition may technically evade federal jurisdiction, the harassing
nature of this litigation and plaintiffs' counsel's tactics are apparent. Perhaps timely
application of the doctrine of res judicata and collateral estoppel, possibly,
accompanied by healthy doses of cost and fee shifting and well-placed lawyer and
party sanctions, will return some measure of sensibility to this seemingly everlasting
dispute.

      I concur.
                        ______________________________




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