                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 04-1531
                                     ___________

Matthew D. Pinnavaia,                  *
                                       *
            Appellant,                 *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Minnesota
National Arbitration Forum, Inc.,      *
                                       C [Unpublished]
            Appellee.                  *
                                  ___________

                               Submitted: November 18, 2004
                                  Filed: December 8, 2004
                                   ___________

Before RILEY, McMILLIAN, and GRUENDER, Circuit Judges.
                            ___________

PER CURIAM.

       Matthew Pinnavaia appeals from the final judgment entered in the District
Court for the District of Minnesota dismissing his civil complaint. For reversal
Pinnavaia argues, inter alia, the district court erred in determining that he did not state
a claim under the Federal Arbitration Act, 9 U.S.C. § 10. For the reasons discussed
below, we modify the judgment of the district court and affirm as modified.

      In keeping with the other circuits that have addressed the issue, we hold that
9 U.S.C. § 10 does not provide an independent jurisdictional basis for filing suit in
federal court. See Smith v. Rush Retail Ctrs., Inc., 360 F.3d 504, 505 & n.6 (5th Cir.
2004) (per curiam) (holding, in reliance on Moses H. Cone Mem’l Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 25 n.32 (1983), that § 10 does not confer subject matter
jurisdiction; listing cases from D.C., Second, Sixth, Seventh, Ninth, and Eleventh
Circuits holding same). Pinnavaia did not allege his action arose under any other
federal statute or under the Constitution, see 28 U.S.C. § 1331 (federal question
jurisdiction), and he did not allege a matter in controversy exceeding the value of
$75,000, exclusive of interest and costs, see 28 U.S.C. § 1332 (diversity jurisdiction).
We thus conclude that the district court lacked subject matter jurisdiction of
Pinnavaia’s civil action. See Bueford v. Resolution Trust Corp., 991 F.2d 481, 485
(8th Cir. 1993) (lack of subject matter jurisdiction cannot be waived, and may be
raised sua sponte by court at any time).

      Accordingly, we modify the dismissal to be without prejudice and affirm as
modified. See Hernandez v. Conriv Realty Assocs., 182 F.3d 121, 123-24 (2d Cir.
1999) (Article III prevents federal courts from dismissing case with prejudice where
subject matter jurisdiction is lacking); Miller v. Benson, 51 F.3d 166, 170 (8th Cir.
1995) (appeals court may affirm on any ground supported by record). We also deny
appellee’s motion for fees and costs.
                        ______________________________




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