United States District Court, W.D. Texas, Austin Division
PITMAN, UNITED STATES DISTRICT JUDGE.
the Court is the report and recommendation of United States
Magistrate Judge Andrew W. Austin, (Dkt. 102), which
recommends granting Defendant MetroCare Services-Austin,
LP's (“MetroCare”) Motion for Summary
Judgment, (Dkt. 80).
case was referred to United States Magistrate Judge Austin
for a report and recommendation on the merits pursuant to 28
U.S.C. § 636(b), Rule 72 of the Federal Rules of Civil
Procedure, and Rule 1(d) of Appendix C of the Local Rules of
the United States District Court for the Western District of
report and recommendation, Magistrate Judge Austin
recommended that MetroCare's motion be granted. (R. &
R., Dkt. 102, at 10). MetroCare timely filed objections
pertaining only to part of the report and recommendation.
(Obj., Dkt. 103). Having considered the parties'
submissions, the record, and the applicable law, the Court
will adopt the report and recommendation.
federal statute and the Federal Rules of Civil Procedure,
magistrate judges may make findings and recommendations on
dispositive motions. 28 U.S.C. § 636(b)(1)(B);
Fed.R.Civ.P. 72(b)(1). Motions for summary judgment are
dispositive motions under the Federal Magistrates Act.
Davidson v. Georgia-Pac., L.L.C., 819 F.3d 758, 763
(5th Cir. 2016) (citing 28 U.S.C. § 636(b)(1)(A)). For
dispositive motions, parties are entitled to de novo
review of any part of the magistrate judge's disposition
that has been properly objected to. Fed.R.Civ.P. 72(b)(3).
When no objections are timely filed, a district court can
review the magistrate's report and recommendation for
clear error. See Fed. R. Civ. P. 72 advisory
committee's note (“When no timely objection is
filed, the [district] court need only satisfy itself that
there is no clear error on the face of the record in order to
accept the recommendation.”).
Alicia Cluck (“Cluck”) asserts causes of action
against MetroCare for negligent misrepresentation, breach of
contract, civil conspiracy, and fraudulent concealment. (R.
& R., Dkt. 102, at 4). MetroCare moved for summary
judgment on these claims on the grounds that they are
preempted by federal statute. (Id.). Finding that
those claims are preempted, (id. at 7), the
magistrate judge recommended that the Court grant summary
judgment in MetroCare's favor and dismiss those claims,
(id. at 8). Only MetroCare filed objections to the
report and recommendation, (Dkt. 103), and MetroCare did not
object to the portion of the report and recommendation
pertaining to those claims, (id.). There being no
objections to that portion of the magistrate's report and
recommendation, the Court reviews that portion of the report
and recommendation for clear error. Finding none, the Court
accepts that portion magistrate judge's report and
recommendation and grants summary judgment against Cluck on
her causes of action for negligent misrepresentation, breach
of contract, civil conspiracy, and fraudulent concealment.
that remains, then, is Cluck's state-law negligence claim
against non-diverse parties. (R. & R., Dkt. 102, at 8-9).
The magistrate judge recommended remanding this claim to
state court, (id. at 8-10), and MetroCare timely
objected, (Dkt. 103). The Court must therefore review this
portion of the report and recommendation de novo.
the Court lacks original jurisdiction over the remaining
negligence claim, the question before the Court is whether to
decline to exercise its discretionary supplemental
jurisdiction over the claim. See 28 U.S.C. §
1367(c) (“The district courts may decline to exercise
supplemental jurisdiction over a claim under subsection (a)
if . . . (3) the district court has dismissed all claims over
which it has original jurisdiction.”).
assessing whether to exercise its discretion to decline
supplemental jurisdiction over state law claims under 28
U.S.C. § 1367, a district court should be “guided
by the statutory factors set forth in section
1367(c) as well as the common law factors of
judicial economy, convenience, fairness, and comity.”
Brookshire Bros. Holding v. Dayco Prod., Inc., 554
F.3d 595, 601-02 (5th Cir. 2009) (citation omitted). No.
single factor is necessarily dispositive. Id.
“The general rule is that a court should decline to
exercise jurisdiction over remaining state-law claims when
all federal-law claims are eliminated before trial, but this
rule is neither mandatory nor absolute.” Id.
Fifth Circuit has held that a district court abuses its
discretion when it declines to exercise supplemental
jurisdiction over remaining state law claims and remanding an
action “after investing a significant amount of
judicial resources.” Id. (collecting cases).
In Brookshire Brothers, for example, a district
court remanded a suit after the parties had litigated the
action before the court for “more than three years,
generating more than 1, 300 entries” in the court
docket. Id. at 598. In that time, the district court
had “decided forty-one dispositive motions, fourteen
Daubert motions, and seven other motions in limine.
Discovery had closed and the parties were making final
preparations for trial.” Id. The Fifth Circuit
has similarly emphasized the importance of resource
expenditure in other cases. See Batiste v. Island Records
Inc., 179 F.3d 217, 228 (5th Cir. 1999) (holding that
the district court abused its discretion in declining to
exercise supplemental jurisdiction when the case had
“produced more than sixteen volumes of record over the
course of three years, numerous depositions and discovery
disputes, and significant consideration by the district court
of multiple motions to dismiss claims or grant summary
judgment”); Newport Ltd. v. Sears, Roebuck and
Co., 941 F.2d 302, 308 (5th Cir.1991) (holding that the
district court abused its discretion in remanding state law
claims “after four years of litigation produced 23
volumes and thousands of pages of record, the preparation of
a pretrial order exceeding 200 pages, over a hundred
depositions, and according to counsel nearly two hundred
thousand pages of discovery production, ” and involved
the district court “declining to hear th[e] case on the
eve of trial”).
the Fifth Circuit has held that a district court is within
its discretion to remand a case despite moderate resource
investment when the dismissal of some claims effectively
“restarted” a case and trial was not imminent.
Knatt v. Hosp. Serv. Dist. No. 1 of E. Baton Rough
Par., 373 Fed.Appx. 438, 443 (5th Cir. 2010). In
Knatt, the Fifth Circuit held that the trial court
did not abuse its discretion even though “the parties
have produced over 7, 000 pages of discovery and deposed
twenty-nine witnesses.” Id. The magistrate
judge had been involved in overseeing discovery and there was
“no indication that the district judge ha[d]
substantial familiarity with the merits of the case.”
Id. The parties “ha[d] not yet filed motions
in limine, the district court ha[d] not ruled on the
admissibility of any significant amount of evidence, the
parties ha[d] yet to brief the remaining state law issues on
the merits, and no trial date ha[d] been set.”
a district court abuses its discretion by retaining
jurisdiction when there has been relatively little resource
investment and trying the remaining issues in state court
would not be unduly burdensome. Parker & Parsley
Petroleum Co. v. Dresser Indus., 972 F.2d 580, 587-90
(5th Cir.1992) (holding that the district court abused its
discretion in retaining jurisdiction when the case had been
pending for only nine months, discovery had not been