pursue fully" his administrative remedies. See Ringer 466 U.S. at 617. Accordingly, the Secretary's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction is granted.
In reaching this conclusion, the Court notes LCA's argument that it is unable to present a claim to the Secretary because it is not clear whether the services at issue are covered by the Medicare Statute. However, as the Secretary correctly points out, this argument was rejected in Ringer, where the Supreme Court reasoned that a claim for future benefits "must be construed as a 'claim arising under' the Medicare Act." Ringer, 466 U.S. at 621. Accordingly, these claims are subject to the same exhaustion requirements as those for medical expenses already incurred. As a result, regardless of whether the services at issue are ultimately determined to be covered by Medicare, they still must be litigated through the administrative process.
Finally, the Court distinguishes the decision Greenery Rehabilitation Group, Inc. v. Sabol, 841 F. Supp. 58 (N.D.N.Y. 1993), relied on by LCA. The substantive issue in Greenery was whether the plaintiff, the Greenery Rehabilitation Group, Inc. ("Greenery"), was entitled to Medicaid reimbursement for services provided to three "aliens" as treatment for "emergency medical conditions." The critical distinguishing feature of Greenery is that the court in that case was addressing the Secretary's motion to dismiss claims brought pursuant to the Medicaid, not the Medicare statute. The statutory requirements with respect to exhaustion of administrative remedies for Medicare claims do not exist under the Medicaid Statute. Accordingly, this Court does not have the same discretion to waive the exhaustion requirements as the court did in Greenery and the third party complaint in this case must be dismissed.
B. The State's motion to remand
The plaintiff moves to remand the case back to the state court pursuant to 28 U.S.C. § 1447(c). As stated above, on July 11, 1996 the State filed its original complaint in the New York Supreme Court, Suffolk County. On August 27, 1996, the defendant removed the case pursuant to 28 U.S.C. § 1441 pursuant to this Court's federal question jurisdiction. See 28 U.S.C § 1331.
1. The standard for removal
"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 . . . to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a); see also Lupo v. Human Affairs Int'l, Inc., 28 F.3d 269, 271 (2d Cir. 1994) ("[a] civil action filed in state court may be removed by the defendant to federal district court if the district court has original subject matter jurisdiction over the plaintiff's claim"). Subject matter jurisdiction may be based on a federal question, see 28 U.S.C. § 1331, or diversity of citizenship. See 28 U.S.C. § 1332. Removal statutes are to be strictly construed however, and the burden of establishing that a case falls within the Court's removal jurisdiction falls upon the removing party, in this case LCA. See Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990), cert. denied, 498 U.S. 1085, 112 L. Ed. 2d 1046, 111 S. Ct. 959 (1991); Greenfield v. National Westminster Bank USA, 846 F. Supp. 302, 304 (S.D.N.Y. 1994); see also Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994) ("removal statutes are construed narrowly; where plaintiff and defendant clash about jurisdiction, uncertainties are resolved in favor of remand"). LCA removed this case to federal court based on the court's federal question subject matter jurisdiction.
2. Federal question jurisdiction
Pursuant to 28 U.S.C. § 1331, the district courts have original jurisdiction over "all civil actions arising under the Constitution, laws or treaties of the United States." Where the defendants' attempt to remove a case is predicated upon federal question jurisdiction, the "well-pleaded complaint rule" governs. See Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 96 L. Ed. 2d 318, 107 S. Ct. 2425 (1987), citing, Gully v. First Nat'l Bank, 299 U.S. 109, 113, 81 L. Ed. 70, 57 S. Ct. 96 (1936). Moreover, where there may be both federal and state law claims available, the plaintiff is free to ignore his federal claims in favor of his state claims, which he may pursue in state court. Derrico v. Sheehan Emergency Hosp., 844 F.2d 22, 27 (2d Cir. 1988) ("It is well settled that a plaintiff as 'master of the complaint' may preclude removal by electing to disregard an available federal dimension of a claim and asserting only a distinct state law cause of action"); Travelers Indem. Co. v. Sarkisian, 794 F.2d 754, 758 (2d Cir.), cert. denied, 479 U.S. 885, 93 L. Ed. 2d 253, 107 S. Ct. 277 (1986) ("It has been the law for decades that the party who brings a suit is master to decide what law he will rely upon . . . .") (internal quotation omitted); Reed v. Cohen, 876 F. Supp. 25, 27 (E.D.N.Y. 1995) ("the plaintiff is the master of the claim; he or she may avoid federal jurisdiction by the exclusive reliance on state law") (internal quotation omitted).
This is not to say that the Court is bound by the plaintiff's characterization of her own claims. See Greenfield, 846 F. Supp. at 305. Where a complaint initially appears to be grounded in state law but is actually "federal in nature" and "disguised by the plaintiff's artful pleading," the case may still be removed. In re Agent Orange Product Liability Litigation, 996 F.2d 1425, 1430 (2d Cir. 1993), citing, 14A Charles A. Wright et al., Federal Practice and Procedure § 3722 at 266-75 (2d ed. 1985); see Reed, 876 F. Supp. at 28, citing, Sarkisian, 794 F.2d at 758.
3. Jurisdiction over the State's claims
The defendant argues that this Court has jurisdiction over the State's claims because the allegations contained in the complaint "are governed by Title XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq. [sic] (commonly known as the 'Medicare Statute'), and Title XIX of the Social Security Act, 42 U.S.C. §§ 1396 et seq. [sic] (commonly known as the 'Medicaid Statute')." Affidavit of Peter Mastaglio, Nov. 26, 1996 ("Mastaglio Aff.") P2. In fact, LCA characterizes the State's claims as follows:
The gravamen of the State's Complaint, that Lutheran received Medicaid reimbursement payments from the State in excess of the amount to which it was actually entitled since the reimbursement for such services were covered by Medicare, is based upon federal law. The State's attempt to disguise the causes of action alleged in its Complaint as those arising under state law, specifically New York State Social Services Law § 145-b and Executive Law 63-c, is unpersuasive. The statutes cited by the State simply enable the State to enforce its rights and remedies as granted to it by the Medicare Act and the Medicaid Act, both federal statutes. The underlying causes of action do not arise out of any state statutes, but rather under the federal Medicaid Statute.