OPINION AND ORDER
Thе motion before the Court in these ten related cases represents a small but procedurally complex skirmish in the tobacco wars raging throughout the courts of this country. The plaintiffs are various employee benefit plans (collectively referred to hereinafter as the “Funds”) which seek to recoup from the defendants, cigarette manufacturers and tobacco industry organizations (collectively referred to hereinafter as the “Companies”), medical and health care benefits which the Funds claim they have paid to their beneficiaries because of the allegedly tortious conduct of the Companies. Plaintiffs originally filed these actions in New York State Supreme Court but the defendants removed the actions to this Court, claiming federal question jurisdiction. The Funds now move to remand the actions to the state court on the ground that this Court lacks subject matter jurisdiction. For the reasons that follow, the Court grants the Funds’ motion to remand.
BACKGROUND
The complaints in these cases allege the following facts. Each of the plaintiffs is an employee benefit plan governed by the provisions of the Employee Retirement Income Security Act of 1974 (“ERISA”),- as amended, 29 U.S.C. § 1001 et seq., and are established to provide health-care benefits to participants and their dependents. The Funds assert various common-law' tort and statutory causes of action stemming from the Companies’ marketing of tobacco products. The first twelve claims allege torts committed directly against the Funds themselves — e.g., that the Companies’ alleged fraudulent concealment of the health hazards of tobacco use resulted in the Funds’ failure to take actions to discourage smoking among its participants and in correspondingly higher benefit payments to those participants.
The claim which provides the alleged federal jurisdictional basis is the thirteenth cause of action of the Complaint, entitled “Subrogation.” Although the details of the parties’ arguments will be discussed in much greater detail below, in essence the dispute *388 over subject matter jurisdiction is that the Funds claim that they have a cause of action, arising solely under New York state law, for subrogation of the tort claims which their plan participants could assert against the Companies. That is, as subrogees of their participants, the Funds claim a state-law based right to recover the medical costs of their participants attributable to the Companies’ allegedly tortious conduct towards those participants, up to and including the amount actually paid out by the Funds to the beneficiaries.
The Funds’ actions were filed in the Supreme Court of New York, New York County. The Companies removed each.case to this district, and the Funds have now moved, pursuant to 28 U.S.C. § 1447(c), to remand for lack of subject-matter jurisdiction. 1
DISCUSSION
Under 28 U.S.C. § 1441(a), any action filed in state court “of which the district courts of the United States have original jurisdiction” may be removed by the defendants to federal district court, assuming the procedural requirements of 28 U.S.C. § 1446, not in dispute here, are met. The question, in other words, is whether the case originally could have been filed in federal court.
See Marcus v. AT&T Corp.,
The Companies make two arguments for federal question jurisdiction. First, they assert that the resolution of the Funds’ subro-gation claims depends upon this Court’s answering several substantial issues of federal law. Second, the Companies claim that ERISA so completely preempts New York subrogation law that any subrogation claim necessarily arises under federal law and is removable on that basis.
The Companies do not contest that the first twelve causes of action arise under state law, not federal; only the subrogation action is asserted as a possible federal-law claim. As will be discussed, the Funds, for their part, have completely disclaimed any federal cause of action for subrogation and have chosen instead to rely solely on the validity of their state-law claim. The Companies assert in arguing this motion, and almost certainly will continue to argue after this jurisdictional question is decided, that a state-law subrogation claim is preempted by ERISA and must be dismissed.
There are thus two possible scenarios following this motion to remand. If the Court decides to remand, then the New York courts will decide all thirteen claims, including the question of whether ERISA preempts the state law of subrogation. If the Court decides not to remain, then this Court will determine the preemption question; if the state-law cause of action is determined to be preempted, then the Funds’ disclaimer of a federal subrogation claim will require dismissal of the thirteenth count, and if the state law cause of action is not preempted, of course, the state-law subrogation claim remains. In either case, only state law causes of action will remain, and this Court is almost certain to decline to exercise supplemental jurisdiction. In other words, these cases look to be heading back to state court under any conceivable scenario.
The only issue at stake in this motion, then, is which court — federal or state — will decide whether the Funds’ New York subro-gation claim is preempted by ERISA. See Stanley Blumenfeld Jr., Artful Pleading and *389 Removal Jurisdiction, 35 UCLA L.Rev. 315, 354-55 (1987). The Court does not minimize the importance of this question, at least to the parties. The parties may very well feel that the courts of New York and the federal courts differ in their disposition towards deciding federal preemption questions. Regardless of the accuracy of that view, Congress has given certain defendants the right to invoke the jurisdiction of the federal courts and a converse right to certain plaintiffs not to be subject to such jurisdiction, and it is not for this Court to assess the motives for invoking either right. The Court is mindful, however, that it must attempt to avoid mooting the only question at stake in this motion by passing upon the merits of thе preemption question on the way to deciding the jurisdictional issue.
1. Federal Removal Jurisdiction
The general principles of federal question removal jurisdiction are easy to state, although their precise contours are less clear. The federal-question jurisdiction statute, 28 U.S.C. § 1331, gives the district courts original jurisdiction of “all civil actions arising under the Constitution, laws, or treaties of the United States.” The scope of this statutory grant of jurisdiction (as opposed to that found in Article III of the Constitution
2
) has, virtually from its inception, been limited by the basic principle of the “well-pleaded complaint rule”: “Federal jurisdiction exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint.”
Rivet v. Regions Bank,
— U.S. -, -,
The well-pleaded complaint rule implies several corollary principles which are crucial to this motion. First, pursuant to the well-pleaded complaint rule, it is well-settled that because “a defense is not part of a plaintiffs properly pleaded statement of his or her claim,”
Rivet,
— U.S. at -,
Second, by determining jurisdiction solely on the basis of the plaintiffs complaint, the well-pleaded complaint rule makes the plaintiff “master оf the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law.”
Caterpillar Inc. v. Williams,
It is this second principle that makes removal jurisdiction, contrary to the defendant’s assertion, a somewhat different animal than original federal question jurisdiction— i.e., where the plaintiff files originally in federal court. When a plaintiff files in federal court, there is no clash between the principle *390 that the plaintiff can control the complaint— and therefore, the choice' between state and federal forums — and the principle that federal courts have jurisdiction over federal questions; the plaintiff, after all, by filing in a federal forum is asserting reliance upon both principles, and the only question a defendant can raise is whether plaintiff has a federal claim.
On the other hand, when plaintiff files in state court and purports to only raise state law claims, for the federal court to assert jurisdiction it has to look beyond the complaint and partially recharacterize the plaintiffs claims — which places the assertion of jurisdiction directly at odds with the principle of plaintiff as master of the complaint. It is for this reason that removal jurisdiction must be viewed with a somewhat more skeptical eye; the fact that a plaintiff in one ease chooses to bring a claim as a federal one and thus invoke federal jurisdiction does not mean that federal removal jurisdiction will lie in an identical case if the plaintiff chooses not to assert a federal claim.
Both of the above principles — that a federal defense will not support jurisdiction, and that the plaintiff can- avoid federal jurisdiction by pleading state-law claims only — give way to one very limited exception — the “complete preemption doctrine.” A claim that the state law upon which plaintiff relies in his or her complaint is preempted by federal law is normally a defense which will not support federal jurisdiction.
See Caterpillar,
the preemptive force of a statute is so “extraordinary” that it “converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.” Once an area of state law has been completely preempted, any claim purportedly based on that preempted state law is considered, from its inception, a federal claim, and therefore arises under federal law.
Id.
at 393,
In conjunction with the well-pleaded complaint rule, there are two principles for determining whether the claims in the well-рleaded complaint “arise under” federal law so as to support federal question jurisdiction. The first is Justice Holmes’ statement that “a suit arises under the law that creates the cause of action.”
American Well Works Co. v. Layne & Bowler Co.,
Finally, the above principles of federal jurisdiction are by no means bright-line rules. Rather, the Supreme Court has repeatedly stressed “the need for careful judgments about the exercise of federal judicial power in
*391
an area of uncertain jurisdiction.”
Merrell Dow,
A roadmap of the discussion to come will be helpful. First, the Court will look at the plaintiffs’ Complaint to see whether it asserts a federal question, unaided by any anticipated preemption defense. The Companies assert that it does, on two grounds. First, the Companies note that the basis of the subro-gation claim — that is, whether it is asserted under federal or state law — is unstated on the face of the Complaint, and they urge this Court to resolve this ambiguity in favor of federal jurisdiction, either because other language in the Complaint makes it clear that a federal claim is being pled or because the preemption of state subrogation law by ERISA means that the plaintiffs must be pleading a federal claim. The Court rejects these arguments, primarily in light of the plaintiffs’ express disclaimer of any federal subrogation claim but also because principles of removal jurisdiction warrant resolution of ambiguity against a finding of jurisdiction, not in favor of it.
Second, the Companies argue that, because ERISA must preempt state subrogation laws insofar as they relate to ERISA plans, several substantive issues — including whether there is any subrogation right at all — raised by the plaintiffs’ subrogation claim must be resolved by reference to federal law, thus injecting the necessary federal questions into the plaintiff’s Complaint. The Court rejects these arguments because the state law sub-rogation claim asserted by the Funds does not require the references to federal law asserted by the Companies; rather, the Companies’ asserted federal issues are all preemption defenses which cannot support federal jurisdiction under the well-pleaded complaint rule.
The Court does address one argument not expressly raised by the Companies — namely, that as an element of the New York subrogation claim, the Funds must prove their obligation to make payments to the purported subrogors (i.e., the plan participants), an obligation which arises from the terms of the ERISA plans and thus is a matter of federal law. This argument "will not support jurisdiction, however, because the federal question, though present in the well-pleaded complaint, is insufficiently substantial.
Next, the Court turns to the “complete preemption” doctrine — that is, whether ERISA has so completely preempted the plaintiffs’ subrogation claim that it must be said to arise under federal law regardless of the plaintiffs’ reliance on state law principles only. The Court rejects this argument as well, because the subrogation claim raised by the Funds does not fall within the scope of the civil enforcement provisions of ERISA § 502, which is a necessary prerequisite to a finding of complete preemption. The Court now discusses each of these arguments in greater depth.
II. Substantial Federal Question
Defendants first assert that the plaintiff’s subrogation cause of action poses a substantial federal question. They argue that, because the complaint is silent as to the source of the plaintiffs’ subrogation rights, this Court is free to determine under which law the subrogation rights “really” arise for purposes of federal question jurisdiction. The defendants then contend that a federal common lаw of subrogation preempts any state law subrogation rights that may exist, and that therefore the Court must construe the (unstated) basis of the plaintiffs’ subroga *392 tion rights to be federal common law, thus supporting federal question jurisdiction.
As noted earlier, it is well-settled law that, short of complete preemption, federal preemption of a state law cause of action is a defense which will not support federal question jurisdiction because it does not appear on the face of the plaintiffs well-pleaded complaint. Defendants maintain, however, that the silence in the complaint as to whether federal or state law provides the subrogation- claim makes the well-pleaded complaint rule inapplicable. For this proposition they rely on
Derrico v. Sheehan Emergency Hosp.,
In Derrico, the plaintiff sought to enforce the terms of an expired collective bargaining agreement (CBA) not by relying on the CBA itself but rather through the more subtle tactic of asserting that “an expired CBA defines the status quo for purpose of evaluating the duty to bargain in good faith” and that therefore an implied contract arose whose terms were identical to the expired CBA; this implied- contract was assertedly enforceable as a matter of state contract law, and plaintiff sought remand to state court on the ground that he raised in the complaint a purely state law cause of action. Although the plaintiff did not expressly state that the expired-CBA-as-status-quo principle was one of federal law, the Second Circuit found that the complaint’s “references to the ‘collective bargaining process’ left no doubt that the source was federal labor law” and that any possible ambiguity was dispelled by the plaintiffs counsel when he asserted that the status-quo principle he relied upon had its origin in various decisions of the National Labor Relations Board. See id.
The Derrico court concluded that the plaintiffs complaint, bolstered by the assertions of counsel, had clearly invoked princi-pies of federal law. Most importantly, the Derrico court did not engage in an analysis of whether the principles relied upon by plaintiff could have only existed under federal law because of preemption. Instead the court resolved the ambiguity in the complaint by focusing on what the plaintiff intended to plead. 3 In other words, the Derrico court determined that the plaintiffs complaint had in fact relied upon federal law, not that the status-quo principle stated in the complaint was a federal one as a matter of law. There is no exception to the well-pleaded complaint rule to be found here; Derrico simply stands for the unexceptional proposition that courts must subject complaints to reasonable construction to determine what claims are being asserted, and that a complaint which is clear in its reliance on federal law raises a federal question notwithstanding its failure to unambiguously assert the federal nature of its claim.
Here, the complaints are admittedly unclear on the source of the subrogation rights asserted, but unlike
Derrico,
principles of subrogation are not clearly federal law; if anything, subrogation to various state law causes of action would seem to more logically invoke principles of state law.
4
At best, a fair construction of the language in the complaint is in equipoise as to the federal or state nature of the claim. Like
Derrico,
however, any ambiguity has been resolved by the plaintiffs’ moving papers and the assertions of plaintiffs’ counsel to this Court that they are expressly relying solely upon state law for their subrogation rights and foregoing any subrogation claims they may have under federal law.
See
Pl.Mem. at 7 (“Plaintiffs seek recovery only on New York statutory and common law grounds”);
id.
at 8 (“Plaintiffs’ subrogation claim is brought in common law and is unrelated in substance to ERISA”); PI. Reply Mem. at
2-A
(grounding claim in New York common law); Tr. of Oral Arg., 2/5/98, at 14 (“Court: So are you foregoing your federal subrogation rights now
*393
and forever in this litigation? [Plaintiffs’ Counsel]: Yes.”).
See Design Science Toys, Inc. v. McCann,
Furthermore, even if this Court were unable to rely upon plaintiffs representations to resolve the ambiguity, principles of federal jurisdiction warrant construction of ambiguous complaints against removal. Because Congress has expressed a policy limiting removal to specifically defined cases, the removal statutes are to be strictly construed in favor of remand. And while the Companies are correct that it is construction of the plaintiffs complaint, not the removal statutes, that is at issue here, the principle of construction against removal extends to ambiguous pleadings as well.
See Greenshields v. Warren Petroleum Corp.,
Defendants asserted in a letter brief submitted after oral argument that allowing the plaintiffs’ post-complaint representations as to foregoing a federal right of subrogation runs counter to the principle that removal jurisdiction is judged by the Complaint at the time of removal, and that voluntary dismissal of federal сlaims after removal does not divest the federal court of removal jurisdiction otherwise properly invoked.
See, e.g., Ching v. Mitre Corp.,
The Funds did not clearly assert a federal claim which would support jurisdiction; rather, the complaint asserted an ambiguous claim which this Court, as noted above, construes to be one raising a claim under the state law of subrogation. Thus, unlike Ching, in which the complaint undisputedly stated' a federal claim which was later dismissed . after removal, see id. at 13, 5 the construction of the complaint by this Court in effect means that the plaintiffs never raised a federal claim at all, but rather that the sub-rogation claim is deemed to have been a state one from its inception. This is highlighted by the fact that there has been no amendment to the complaint; the original complaint required some interpretation by this Court, but that hardly makes these cases unique. The fact that the Court has had to construe the complaint, and that a different construction might have been possible, does not make this construction tantamount to a post-removal amendment. 6 The Court therefore in *394 terprets the complaint to assert only a claim for equitable subrogation under New York law.
Defendants assert that a federal common law of subrogation created pursuant ERISA necessarily governs whether or not the Funds have any right of subrogation vis-a-vis their plan participants, and that therefore the Funds’ subrogation claims raise several substantial issues of federal common law. In support of this proposition, they most strongly rely upon
FMC Corp. v. Holliday,
Defendants may very well be correct in this assertion, but even assuming that federal common law dictates the subrogation rights of ERISA plans, that fact alone does not mean the plaintiffs’ state law claims “arise under” federal law for jurisdictional purposes. Couch it as they will in “arising under” language, the defendants fail to explain why their assertion that federal common law governs ERISA subrogation is not simply a preemption defense which, while it may very well be a winning argument on a motion to dismiss in the state court, will not support removal jurisdiction to this Court.
See Joyce v. RJR Nabisco Holdings Corp.,
The well-pleaded complaint rule, as always, is the basic limiting principle of federal question jurisdiction. Under this rule, the Court must look to see whether “a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiffs cause of action.”
Franchise Tax Board,
Several cases are illustrative. In
West 14th Street Commercial Corp. v. 5 West 14th Owners Corp.,
In the instant cases, the Funds’ complaint, as construed by this Court, alleges a right of subrogation which arises under New York common law, not one which arises under federal law. The Companies nevertheless assert that there are several federal questions that will necessarily be decided in determining this subrogation right, among them (1) whether there is any right of subro-gation at all; (2) if so, whether the Funds as subrogees are entitled to compensation for non-medical expenses; and (3) whether the “make-whole” rule — i.e., whether an insurer is only entitled to subrogation after the insured has been made whole — applies to the action. • These and many other questions may very well have to be resolved if a court ever reaches the merits of the subrogation claim, but the New York law cause of action for subrogation does not appear to itself require reference to federal law to answer any of these questions — at least, the Companies have averted to no principle of subrogation under New York law which requires reference to federal law.
Again, the Companies may be quite right that New York law rules on these questions are preempted by ERISA, but such a claim is a defense upon which jurisdiction may not rest. Take, for example, the “make-whole” rule. The Funds, in pressing their subrogation claim under New York law, would have to argue that, under New York law, an insurer is entitled to the first dollar of any tort recоvery up to and including the amount actually paid out by the insurer. The Companies would counter that, because this is an ERISA plan, ERISA subrogation law preempts the New York law, the “make-whole” rule applies as part of the federal common law under ERISA, 7 and that the subrogation claim must therefore fail. New York subrogation law would not require the Funds to prove that the federal rule was inapplicable; the Companies would bear the burden of the preemption defense. As such, even were it crystal clear that the New York law would be preempted and that the court deciding the subrogation claim would have to advert to federal law, jurisdiction will not lie. The well-pleaded complaint rule was designed precisely with such a situation in mind.
Moreover, this Court would, in order to accept the Companies’ argument, have to decide on the merits that the New York subrogation law was' preempted in order to determine that any federal questions need be answered. But, as noted earlier, the precise issue at stake in this motion to remand is which court has jurisdiction to decide the preemption question. Fortunately, the principles of federal jurisdiction require this Court only to look at the well-pleaded complaint and determine whether the cause of action relied upon by the plaintiff raises a substantial issue of federal law, unaided by the defendants’ probable defenses. 8
*396
Finally, the Companies’ reliance upon
Bollman Hat Co. v. Root,
In each of the three cases cited by the Companies, it was the
plaintiffs
which had sought to invoke the jurisdiction of the federal courts.
See Bollman,
The instant cases arise in the very different context of removal, however, so what the Companies wish this Court to do is to force upon the Funds a federal common-law cause of action, despite the absence of such an action on the face of the complaint and the Funds’ express disclaimer of such a right, merely because the facts alleged in the complaint
could
potentially support a federal claim. The Companies assert that the removal context makes no difference, because “removal is proper if the district court would have had original jurisdiction over the suit.” Def.Mem.Opp. at 10. True as this statement may be, it does not mean that removal is proper any time the plaintiffs could have raised a federal claim but chose not to. It is well-settled that the plaintiff “may avoid federal jurisdiction by exclusive reliance on state law.”
Caterpillar,
There is, however, one way in which the state law subrogation cause of action pled by the Funds does appear, as a matter of state law, to reference federal law. The Companies have never actually pressed the following argument to this Court. In fact, the Court gave the Companies an opportunity at oral argument to explore this issue, but counsel for the Companies failed to take up the invitation, instead continuing to press its pre *397 emption argument. 10 Nevertheless, in the interest of completeness, the Court will address it.
Under New York law, equitable sub-rogation is “the principle by which an insurer, having paid losses of its insured, is placed in the position of its insured so that it may recover from the third party legally responsible for the loss.”
Winkelmann v. Excelsior Ins. Co.,
However, it appears the second element the plaintiff must prove is that any payment to the subrogor was not made voluntarily but rather pursuant to some obligation running from the subrogee to the subrogor.
See Reliance Ins. Co. v. Aerodyne Engineers Inc.,
A state law cause of action will not support federal question jurisdiction solely because of the presence of a federal issue.
See Merrell Dow,
Merrell Dow
provides one test for whether a federal issue is “sufficiently substantial” to warrant federal jurisdiction. In
Merrell Dow,
the plaintiffs- had asserted a state law negligence cause of action which included, as an element, a purported rebuttable presumption of negligence created by the defendants’ alleged “misbranding” of drugs in violation of the Federal Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. § 301 et seq.
See Merrell Dow,
The instant cases present themselves in a somewhat different posture than Merrell Dow, in that the incorporated federal question — i.e., whether the Funds were obligated to pay the medical bills of their participants — is one which would normally not be pressed by the plaintiffs but rather by the participants, who are not parties to- these suits. That is, the plaintiffs in Merrell Dow were claiming injury from the defendants’ alleged violation of federal law, while the plaintiff Funds must seek to establish exactly the oрposite — i.e., that in fact they were complying with federal law by making benefit payments. Regardless, the basic question— what is the obligation of an ERISA plan visa-vis its participants? — is one which the federal courts can be called upon to adjudicate— namely, via a suit brought by a participant against a plan to enforce and/or clarify his or her rights under the plan. See ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B). Having provided for such suits, it cannot be said that Congress has made a determination that the question is not “substantial,” and thus the Merrell Dow test does not by itself bar federal jurisdiction here.
' However, as demonstrated by
Greenblatt,
while the
Merrell Dow
test works to exclude jurisdiction over federal issues for which Congress has determined there should be no federal cause of action, the converse proposition does not follow — that is, the fact that the incorporated federal question is one for which Congress
has
provided a private remedy does not mean that its presence in a state cause of action automatically results in federal-question jurisdiction. In
Greenblatt,
trustees of a union ERISA benefit plan brought suit against both an employer who had defaulted on its obligations under the collective bargaining agreement to make payments to the’ plan and against a surety who had furnished a surety bond guaranteeing the defaulting employer’s obligations. When the defaulting employer went bankrupt, the only remaining claims were against the surety to enforce the bond.
See Greenblatt,
The
Greenblatt
court noted that, as an element of its state law claim to enforce the bond, the plaintiffs would have to prove that the employer (the principal on the bond) had defaulted on its obligations under the CBA.
See id.
at 570. Despite the acknоwledged fact that the CBA was “ ‘a federal contract and is therefore governed and enforceable by federal law,’ ”
id.
(quoting
International Ass’n of Machinists v. Central Airlines, Inc.,
The instant cases are remarkably similar to Greenblatt. As noted, the right of subro-gation sought to be established by the Funds is created by New York law, as was the right to recover on the surety bond in Greenblatt. Like the bond claim, which as one element required interpretation of a CBA under federal law, the Funds’ subrogation claim has an element requiring the interpretation of the ERISA plan, which is also governed by federal law. However, like a CBA, an ERISA plan “itself is not federal law,” and thus construction of the ERISA plan to determine the Funds’ obligations, being merely an element of the state law claim and not providing the cause of action itself, is no more substantial a federal question than that presented in Greenblatt. See id.
If anything, in fact, the subrogation claims made by the Funds are even more insubstantial than those in Greenblatt. Subrogation is itself not a cause of action in the usual sense; it is wholly derivative, dependent upon there being a cause of action available to the subro-gor. Any flaw which would doom the subro-gors’ suits against the Companies (including any valid defenses the Companies would have against such suits) also negates the Funds’ cause of action. Subrogation is thus in merely a procedural device whereby one party is substituted for another.
Therefore, in these cases, we have a potential federal issue that is in effect “twice removed” from the primary cause of action. That is, the primary cause of action is the cause of action which participants would have against the Companies; there is no question that the causes of action asserted are all state tort law and would in no way give rise to federal question jurisdiction if brought by the participants. The Funds assert a right to step into the participants’ shoes via a right of subrogation which is also not a creature of federal law. Federal law only potentially comes into this suit because one element of the state-law subrogation right requires construction of the Funds’ plan provisions, which are themselves not federal law but whose interpretation is governed by federal law. With an eye toward “picking] the substantial causes out of the web and lay[ing] the other ones aside,”
Merrell Dow,
III. Complete Preemption under ERISA
As noted above, removal jurisdiction may be proper in this case under the doctrine of “complete preemption” — -i.e., if the cause of action asserted by the plaintiffs is not only preempted by ERISA but is in effect transformed by that preemption into a federal cause of action. In order for complete preemption under ERISA to apply, two conditions must obtain: “(1) the cause of action is based on a state law that is preempted by ERISA, and (2) the cause of action is “within the scope of the civil enforcement provisions’ of ERISA § 502(a), 29 U.S.C. § 1132(a).”
Romney v. Lin,
The civil enforcement provisions of ERISA § 502 grant standing for various entities to sue for specific types of relief. The only provision which arguably applies to the instant suit is § 502(a)(3):
(a) A civil action may be brought—
(3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subehapter or the terms of the plan.
29 U.S.C. § 1132(a)(3).
Although the exact limits of the phrase “within the scope of’ § 502 are not defined, the Second Circuit, along with other courts, has looked to see (1) whether the suit at issue is brought by a party to whom ERISA grants standing and (2) whether the rights sought to be enforced by the suit are of the kind prоtected by § 502.
See, e.g., Plumbing Industry Board v. E.W. Howell Co.,
The Funds’ subrogation claim does not fall within the scope of § 502. To begin with, each of the suits is brought by the benefit fund itself, not by a “participant, beneficiary, or fiduciary” — the only plaintiffs granted
*401
standing in § 502.
12
The Second Circuit has taken a very strict view of who has standing to bring suits under § 502, refusing to extend standing beyond the plaintiffs specifically named in ERISA.
See Pressroom Unions-Printers League Income Sec. Fund v. Continental Assurance Co.,
The Companies argue that the Court should look beyond the nominal plaintiffs to determine that in reality this is a suit by the plan trusteеs in their capacity as fiduciaries. However, the Companies cite no authority for this proposition,
13
nor could it be squared with this Circuit’s interpretation of the standing provisions of § 502.
Pressroom’s
restrictive reading of the standing provisions of § 502 would be rendered meaningless if courts could simply transform the named plaintiff to create standing. Nor is this a case where a party normally lacking standing under ERISA — e.g., an employer — is actually acting in a fiduciary capacity so as to achieve standing.
See, e.g., United States Steel Corp. v. Commonwealth Penn. Human Relations Comm’n,
The Companies attempt to distinguish the clear mandate of Pressroom by noting that Pressroom did not involve a “plaintiff attempting to escape ERISA’s grant of federal jurisdiction by artful pleading,” Def.Mem. in Opp. at 19, the argument apparently being that whether the plaintiff is viewed as a plan or a fiduciary is determined by which view best thwarts the plaintiffs choice of forum. This of course has a basic principle of federal jurisdiction precisely backwards — namely, that the plaintiff is master of his complaint and can presumptively choose his forum. In any case, whether a plaintiff has standing under ERISA is a matter of interpreting the statute, and there is certainly no indication in ERISA that its standing provisions are to be interpreted differently depending upоn whether the plaintiff files in federal court or *402 the defendant attempts to remove there. Either the cause of action falls within the scope of § 502, or it does not; a suit by a plaintiff who lacks standing clearly does not.
The Court does not disagree with the Companies that the Funds, in order to avoid federal jurisdiction, have taken advantage of a provision of ERISA that is perhaps more form than substance. However, this Court is not free to ignore either the language of ERISA’s standing provisions or the Second Circuit’s interpretation of that language. Moreover, the price the Funds pay to avoid a federal forum is, of course, reliance upon state law and the not inconsiderable risk here that their state law subrogation claim will be swept away by ERISA’s broad preemptive power. What they gain is the right to have this preemption issue decided in state court, subject of course to the possibility (however remote) of federal review by the Supreme Court. The mere fact, however, that the ERISA preemption issue will be decided in the first instance in state court is neither new nor, at least in the eyes of the courts, an impermissible construction of ERISA.
See Romney II,
The Court thus refuses to recharacterize the plaintiffs in these suits as fiduciaries. Therefore, because the Funds have no standing to bring these suits under ERISA § 502, they cannot be said to fall within the scope of § 502.
Accord C.C. Mid West, Inc. v. McDougall,
Even if, however, the Court were to accept that these suits are actually brought by the fiduciaries, the suits still fail to fall within the scope of § 502 because they do not assert claims for relief that are cognizable under § 502. The Funds do not claim that their subrogation rights are grounded in the plans themselves, so it is clear that these are in no way suits “to enforce ... the terms of the plan.” ERISA § 502(a)(3)(B)(ii), 29 U.S.C. § 1132(a)(3)(B)(ii). The only possible characterization of this suit that falls within § 502, then, is characterizing the suit as one “to enforce [a] provision[] of this subchap-ter,” id. — namely, enforcing an equitable sub-rogation right found in the federal common law created under ERISA. 14
Whether such a right actually exists — or could be created — is questionable.
See, e.g., Member Services Life Ins. Co. v. American Nat'l Bank and Trust Co.,
In Romney, the Second Circuit held that a suit to recover plan contributions against the principal shareholder of a corporate employer was within the scope of § 502 regardless of the fact that shareholders are not made liable under ERISA for such contributions— i.e., a suit could be within the scope of § 502 yet still be dismissed for failure to state a claim. See id. The Romney court found it important that a “suit to collect ERISA contributions is very much of central concern to the federal statute” and that “ERISA provides ... a cause of action for [the plaintiff], at least vis-a-vis the employer.” Id. The import of Romney, it seems, is that ERISA was intended to regulate the plan/employer relationship, at least as far as contributions are concerned, and that § 502 was intended to provide a cause of action to adjudicate that relationship — which includes, of course, the possibility of finding that certain parties are outside that relationship just as much as finding other parties are within.
The question, then, would seem to be whether the subrogation suits brought by the Funds adjudicate the rights and relationship of parties which ERISA was intended to regulate. As will be discussed, the Court believes that the gravamen of the Funds’ suits does not involve a relationship central to ERISA.
The Companies have directed this Court to only two cases — and thosе in a letter brief filed after oral argument — in which a plan fiduciary’s (or a plan’s) suit as subrogee against a third party was held to be within the scope of § 502, both of them removal jurisdiction cases like those before the Court currently. 15 See West Virginia-Ohio Valley Area I.B.E.W. Welfare Fund v. American Tobacco Co., No. 2:97-0978 (S.D.W.Va. Mar. 19, 1998) (unpublished slip opinion); Central III. Carpenters Health & Welfare Trust Fund v. Philip Morris, Inc., No. 97-CIV-568-WDS (S.D.Ill. Mar. 16, 1998) (unpublished slip opinion). The Court respectfully declines to follow these decisions.
Preliminarily, the Court notes that in Central Illinois, the court accepted that a plan could bring suit in its own name under ERISA, relying on the “sue or be sued” language of § 502(d)(1). See Central III., slip op. at 18. The IBEW court, meanwhile, did not even directly address the question but appeared to simply assume that a plan could bring suit under § 502. See IBEW, slip op. at 6-7. Assuming that both cases correctly state (or assume) the law of their respective circuits, the proposition that plans have § 502 standing has been squarely rejected in this Circuit by Pressroom, as noted above, and on that ground alone this Court would have to part ways with both cases.
As to whether these suits are the types of claims cognizable under § 502, the Court must simply disagree with these two courts’ analyses.
Central Illinois
appears to rely heavily on two factors: (1) that the plans are only juridical entities capable of bringing suit by virtue of ERISA, and (2) that plaintiffs had alleged (as to the plaintiffs in the instant
*404
cases) that ERISA obligates them as fiduciaries to maintain these suits.
See Central Ill.,
at 19.
16
This analysis appears to this Court to be question-begging: the fact that without ERISA, benefit plans would have no capacity to sue (itself an uncontroversial proposition,
see Pressroom,
Turning to IBEW, that court relied heavily (as do the defendants) upon the persuasive authority of cases which found that a claim brought by a plan (or a plan fiduciary) against a participant for reimbursement was removable as within the scope of § 502. See IBEW, slip op., at 6. As will be discussed at length below, this Court believes that relying upon these cases misses a crucial distinction which makes these cases inapposite. The IBEW court also relied upon “the macroeconomic impact of this type of litigation on plans generally and the negative implications of inconsistent adjudications that might result from disparate state regulation.” Id. at 7. While the sort of inconsistent regulation which the IBEW court feared is certainly a concern, that is an argument for ERISA preemption of state subrogation law, not for the antecedent question of jurisdiction — i.e., which court will decide the preemption question. This Court is unpersuaded that the jurisdictional question presents any special need for uniformity.
To begin with, the possibility of inconsistent adjudications of the preemption question is not diminished by finding federal jurisdiction over that question; if anything, such a finding only expands the number of courts which can potentially pass on the preemption issue. What has to be argued for is not the presence of federal-question jurisdiction but rather the absence of state court jurisdiction.
See Merrell Dow,
The Companies’ other cases also fail to persuade this Court that the instant suits fall within the scope of § 502.
A. Copeland En
*405
terprises, Inc. v. Slidell Mem’l Hosp.,
Defendants do point to reimbursement cases in which the fiduciary of a plan was entitled to sue under § 502 to enforce subro-gation rights, conferred by the terms of the plan, against plan participants — i.e., the purported subrogors.
See, e.g., Southern Council of Industrial Workers Trust Fund v. Ford,
The Companies argue that this distinction — between a reimbursement suit by an ERISA plan to recover from a participant and a suit by a plan, as subrogee to a participant’s claims, directly against the third party tortfeasor — as merely one of “sequencing,” without substantive implications for this Court’s jurisdiction. The distinction is much more fundamental than merely one of sequence, however.
This Court agrees with the assessment of the Ninth Circuit that the key to understanding the preemptive force of ERISA is recognizing that ERISA “comprehensively regulates certain relationships: for instance, the relationship between plan and plan member, between plan and employer, between employer and employee (to the extent an employee benefit plan is involved), and between plan and trustee.”
General Am. Life Ins. Co. v. Castonguay,
As correctly noted by the Companies, the Funds’ purported subrogation claim against the Companies comprises two substantive parts: (1) the rights of the Funds vis-a-vis their participants to be subrogated to the participants’ tort claims, and (2) the rights of the participants to recover from the Companies for the alleged torts. It seems clear beyond peradventure that the latter of these issues is of no concern to ERISA whatsoever; that is, a stand-alone tort suit brought by one of the Funds’ participants against thе Companies would not be within the scope of § 502 merely because the plaintiffs happen to be participants in the ERISA plans, even plans that have subrogation provisions.
See Pfefferle v. Solomon,
The difference between suits by an ERISA plan against its participants for reimbursement from tort recoveries and one by the plan as subrogor directly against the third party tortfeasor is that the gravamen of the former is the adjudication of the relationship between plans and participants. By contrast, the heart of the subrogation suits at issue here is the relationship between the participants and the Companies — that is, the torts allegedly committed against the participants; the subrogation issue allows the Funds step into the shoes of participants, but it is still the participants’ rights vis-a-vis the Companies that is at stake. Even though a successful suit by the Funds would require a court to determine whether the Funds did have subrogation rights, participants would not be bound by that judgment and could challenge the Funds’ subrogation rights in a suit directly against the Funds. See Restatement (Second) Judgments, § 37 cmt. e. Thus, the difference between these types of suits is not merely “sequencing,” but rather the quite critical distinction of which relationship is being adjudicated. Standing issues aside, the reimbursement suit quite clearly falls within the scope of § 502; the latter — that is, the suits involved here — just as clearly do not. 18
Thus, even were these suits to be considered ones brought by fiduciaries (thus avoiding the standing problem), the Court does not believe that a subrogation suit brought by a fiduciary against a third-party tortfea-sor would be cognizable under § 502. Therefore, these suits not falling within the scope of § 502, the requirements of complete preemption are not satisfied, and this Court need not, and does not, determine whether the purported equitable subrogation claim under New York law is preempted by ERISA.
In sum, the plaintiff Funds have chosen to rely solely on state law, and to forego federal law, for their subrogation claim. State law, not federal law, creates the cause of action. The well-pleaded state-law subrogation claim requires resolution of a federal issue, but not one that is sufficiently substantial to create federal-question jurisdiction. And though the defendants claim that this state-law claim is preempted by federal law, they have failed to meet the requirements of complete preemption because this subrogation claim does not fall within the civil enforcement provisions of ERISA § 502. Although the arguments on both sides were well-crafted and the question is a close one, the Court concludes that this Court is without subject-matter jurisdiction, and therefore remands these cases to the state courts of New York from whence they were removed.
IV. Award of Costs & Fees
The Funds also request this Court to award costs and fees pursuant to 28 U.S.C. § 1447(c), which provides that “[a]n order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” The Court denies the Funds’ request.
The award of costs and fees under § 1447(c) is a matter committed largely to the discretion of the Court.
See Morgan Guaranty Trust Co. v. Republic of Palau,
In addition, the Court also notes that a large part of why this case became a close question for removal was the Funds’ ambiguity in pleading their subrogation claim. To the extent that plaintiffs’ own conduct contributed to the removal, this Court believes that such conduct counsels against awarding costs; in fact, an award of costs and fees under such circumstances has been held by some circuits to be an abuse of discretion.
See, e.g., Avitts v. Amoco Prod. Co.,
CONCLUSION
For the foregoing reasons, the Court concludes it has no subject-matter jurisdiction over these eases. Therefore, the Court grants the plaintiffs’ motions and direсts the Clerk of the Court to remand these cases to the New York State Supreme Court, New York County. The Court denies the plaintiffs’ motion for costs and fees associated with the removal.
SO ORDERED.
Notes
. In an Order dated January 6, 1998, these cases were deemed related to a set a of cases currently before Judge Shira A. Scheindlin. In that Order, I retained my individual cases for purposes of deciding any remand motions that would be filed; however, for discovery and all other purposes these cases are now all before Judge Scheindlin.
. "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” U.S. Const, art. Ill, § 2. The constitutional grant of jurisdiction — that is, the outer limit of the jurisdiction which Congress may vest in the federal courts — has been construed broadly to cover "all cases in which a federal question is ‘an ingredient' of the action.”
Merrell Dow Pharmaceuticals Inc. v. Thompson,
. Notably, the plaintiff did not dispute that the "origin” of the implied contract was federal law, but sought remand on the ground that the right to enforce an implied contract arose under state law.
See Derrico
. The Court rejects defendants' suggestion that the various references in the complaint to the Funds’ status as ERISA plans "mak[e] clear” that the source of the subrogation claims is ERISA.
. The Companies also rely on
Bruan, Gordon & Co. v. Hellmers,
. The Court also notes, tangentially, that even if the Court were to treat this clarification by the plaintiffs as the equivalent of a post-removal amendment, remand would not be improper. As noted by Judge McKenna in a recent opinion involving the same defendants, where the only federal claim supporting jurisdiction has been
*394
abandoned, the Court retains jurisdiction over the remaining claims but may choose to exercise that jurisdiction at its discretion pursuant to 28 U.S.C. § 1367(c).
See New York v. Philip Morris, Inc.,
No. 97 Civ. 794,
. The Court expresses no opinion as to whether ERISA itself or the federal common law fashioned by courts in deciding ERISA cases actually embrace the "make-whole” rule of subrogation.
. The Court also notes that the Companies are rather selective in their assertion of which state rules are preеmpted by ERISA and which are not. The "federal” questions asserted by the Companies only would arise, by the Companies' own argument, if the provisions of N.Y.C.P.L.R. 4545 apply to bar the Funds from recovering the medical benefits paid to their participants.
See
N.Y.C.P.L.R. 4545(c) (In personal injury cases seeking recovery of medical costs, the court "shall reduce the amount of the award” by any amount "reasonablfy] certain[]” to be replaced "from any collateral source such as ... employee
*396
benefit programs....”). Given this statute’s express reference to employee benefit plans, this statute seems at least as ripe a candidate for ERISA preemption as the New York common law of equitable subrogation.
See, e.g., Shaw v. Delta Air Lines, Inc.,
. To the extent that what the Companies claim is that it is the combination of the alleged preemption of the New York subrogation cause of action and the existence of a purported federal common-law right of subrogation under ERISA that creates jurisdiction, this is of course the doctrine of "complete preemption,” which will be discussed infra.
. The Court: What defenses would you have to a subrogation claim, meaning, if the plan has paid the benefits, would you be able to attack their payment as unnecessary under the plan?
Mr. Hein [counsel for defendants]: I think we would have a whole litany of defenses here, but for purposes of today's issue — which is a jurisdictional issue — I think the critical point is that the right of subrogation, if it exists at all, existed under the federal common law of ERISA.
Tr. Oral Arg. at 24.
. The
Greenblatt
court also relied on the fact that, as litigated in the district court, the employer's obligations under the CBA and ERISA had never actually been in dispute.
See Greenblatt,
. The Secretary of Labor and the states are also authorized to bring suits in certain instances inapplicable here.
. In
Alessi v. Raybestos-Manhattan, Inc.,
. Some commentators have suggested that the Second Circuit in
Lupo v. Human Affairs Int’l,
. The Companies did submit a third case, Massachusetts Laborers’ Health & Welfare Fund v. Philip Morris, et al., No. 97-11552-GAO (D.Mass. June 19, 1998) (slip op.), in a letter brief on June 23. Although the Court would not normally consider so late a submission, the Court briefly addresses this case. In Massachusetts Laborers, an ERISA benefit plan sued "by and through its trustees” for restitution from the defendants, a claim the court construed as one of subrogation and allowed removal. That case is distinguishable from the situation here, however. To begin with, that court held that the suit was actually brought by the fiduciaries, based on the "by and through” language in the complaint, so the problem with lack of standing was overcome (unlike in this case, where no such "by and through” language is included). Second, for the reasons to be more fully discussed below, this Court disagrees with the Massachusetts Laborers court's reasoning that a subrogation suit against a third party tortfeasor is a suit "to enforce the terms of the plan.”
. The court there states,
Clearly, plaintiffs can maintain this cause of action on their own behalf and in their own names under ERISA. Even plaintiffs, in their complaint, contemplate this fact as evidenced by the allegations [that they have authority to 'bring suit in their own names under ERISA] contained therein. As discussed by defendants, plaintiffs even go so far as to allege that ERISA obligates them as fiduciaries to maintain this action against these defendants. Thus, absent ERISA, this cause of action would neither be required nor would it even be possible.
Central Ill., at 19.
. The plan also made state-law subrogation claims which were rejected, on state-law grounds, by the court.
See Copeland,
. The Court expresses no opinion as to whether the jurisdictional analysis would be different if plan participants joined the suits (or were im-pled) for purposes both of asserting tort claims against the Companies and of challenging the Funds' subrogation rights. The Court only notes that, should such an intervention occur and should this provide a basis for removal, the federal removal statute would appear to allow the Companies to attempt removal anew.
See
28 U.S.C. § 1446(b) (cases not removable on the basis of the initial pleadings may be removed within 30 days of the receipt by defendant of the pleading or other papers "from which if may first be ascertained that the case is one which is or has become removable"); S.W.S.
Erectors, Inc. v. Infax, Inc.,