IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

UNITED STATES and STATE OF TEXAS, §

ex rel. CHRISTOPHER A. CAREW, §

§

Plaintiffs, §

§

VS. § CIVIL ACTION NO. SA-20-CV-0657-FB 

§

SENSEONICS HOLDINGS, INC. and §

SENSEONICS, INC. §

§

Defendants. §

ORDER ACCEPTING REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Before the Court are the Report and Recommendation of United States Magistrate Judge filed

on March 3, 2023 (docket #42); Relator’s Objections to the Report and Recommendation on

Defendants’ Motion to Dismiss filed on March 17, 2023 (docket #45); and Senseonics Defendants’

Very Limited Objections to the Report and Recommendation of the United States Magistrate Judge

filed on March 17, 2023 (docket #46). 

Where no party has objected to a Magistrate Judge's Report and Recommendation, the Court

need not conduct a de novo review of them. See 28 U.S.C. § 636(b)(1) ("A judge of the court shall

make a de novo determination of those portions of the report or specified proposed findings and

recommendations to which objection is made."). In such cases, the Court need only review the Report

and Recommendation and determine whether they are either clearly erroneous or contrary to law.

United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.), cert. denied, 492 U.S. 918 (1989).

On the other hand, any Report or Recommendation to which there are objections requires de

novo review by the Court. Such a review means that the Court will examine the entire record, and will

make an independent assessment of the law. The Court need not, however, conduct a de novo review

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when the objections are frivolous, conclusive, or general in nature. Battle v. United States Parole

Commission, 834 F.2d 419, 421 (5th Cir. 1987).

In the Report, Magistrate Judge Chestney recommends to this Court that Defendants’ Motion

to Dismiss the Amended Complaint (docket #31) should be GRANTED based on her analysis that the

Amended Complaint “still fails to plead reliable indicia that false claims were actually submitted to

a federal payor that were connected to the Eversense CGM System.” Report, docket #42 at page 7. 

In addition, Magistrate Judge Chestney recommends that because all of the federal claims should be

dismissed, this Court should decline to exercise supplemental jurisdiction over the remaining state law

claims asserted under the Texas Medicaid Fraud Prevention Act.

The Court has reviewed the plaintiff’s objections and the defendants’ very limited objections

and has conducted a de novo review of those issues raised by the parties. The Court finds, after careful

consideration of the record and the Report and Recommendation, that the Plaintiff’s objections lack

merit but will grant the defendants’ very limited objections as set forth herein. Therefore, the Court

hereby accepts, approves, and adopts the Magistrate Judge's factual findings and legal conclusions

contained in the Report and Recommendation (docket #42), incorporates herein the arguments and

authorities presented in Senseonics Defendants’ Motion to Dismiss the Amended Complaint (docket

#31) and Defendants’ Reply in Support of Motion to Dismiss (docket #38), and finds the

recommendation should be accepted such that Senseonics Defendants’ Motion to Dismiss the

Amended Complaint (docket #31) shall be GRANTED such that all of Plaintiff’s federal claims shall

beDISMISSEDWITH PREJUDICE and Plaintiff’s state law claims shall be DISMISSED WITHOUT

PREJUDICE as this Court declines to exercise supplemental jurisdiction over these claims pursuant

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to 28 U.S.C. § 1367. Based on Meyer v. Coffey, 231 F. Supp. 3d 137, 152 (N.D. Tex. 2017) 1

“‘(granting leave to replead even though the plaintiff had already amended her complaint because it

was “the first time the court had addressed whether plaintiff’s pleadings sufficiently stated a claim on

which relief can be granted’),” Plaintiff seeks leave to replead. Plaintiff’s Objections, docket #45 at

page 24. That request is denied. Unlike Meyer, in which the Plaintiff amended her complaint prior

to the Court addressing the Motion to Dismiss for the first time, this Court has previously ruled on

Defendants’ first Motion to Dismiss (docket #27) and accorded Plaintiff leave to file a First Amended

Complaint which has now been addressed by this Court via Defendants’ second motion to dismiss. 

Title 28 U.S.C. § 1367 governs supplemental jurisdiction and provides in part:

1

(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by

Federal statute, in any civil action of which the district courts have original jurisdiction,

the district courts shall have supplemental jurisdiction over all other claims that are so

related to claims in the action within such original jurisdiction that they form part of

the same case or controversy under Article III of the United States Constitution. Such

supplemental jurisdiction shall include claims that involve the joinder or intervention

of additional parties.

(c) The district courts may decline to exercise supplemental jurisdiction over a claim under

subsection (a) if –

(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or claims over which the

district court has original jurisdiction,

(3) the district court has dismissed all claims over which it has original

jurisdiction, or

(4) in exceptional circumstances, there are other compelling reasons for

declining jurisdiction.

(d) The period of limitations for any claim asserted under subsection (a), and for any other

claim in the same action that is voluntarily dismissed at the same time as or after the

dismissal of the claim under subsection (a), shall be tolled while the claim is pending

and for a period of 30 days after it is dismissed unless State law provides for a longer

tolling period.

(Emphasis added). A district court’s application of 28 U.S.C. § 1367(c)(3) is reviewed for an abuse of iscretion.

Priester v. Lowndes Cnty., 354 F.3d 414, 425 (5 Cir. 2004); see Welch v. Thompson, 20 F.3d 636, 644 (5 Cir.

th th

1994) (“When all federal claims are dismissed, the district court enjoys wide discretion in determining whether to

retain jurisdictional over the remaining state law claims.”). The general rule in cases in which all federal claims

are dismissed before trial is “that a district court may decline to exercise supplemental jurisdiction if the court has

dismissed all claims over which it had pendent jurisdiction.” Priester, 354 F.3d at 425.

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Moreover, Plaintiff has failed to provide this Court with any additional facts or information which

could be used in a second amended complaint to cure any of the previously discussed deficiencies.

Accordingly, IT IS HEREBY ORDERED that the Report and Recommendation of United

States Magistrate Judge, filed in this case on March 3, 2023 (docket #42), is ACCEPTED such that

Senseonics Defendants’ Motion to Dismiss the Amended Complaint (docket #31) is GRANTED and 

all of Plaintiff’s federal claims are DISMISSED WITH PREJUDICE for failure to state a claim and

Plaintiff’s state law claims are DISMISSED WITHOUT PREJUDICE as this Court declines to

exercise supplemental jurisdiction over these claims pursuant to 28 U.S.C. § 1367. IT IS FURTHER

ORDERED that motions pending, if any, are also DISMISSED, and this case is now CLOSED.

 It is so ORDERED.

SIGNED this 30th day of March, 2023.

 _________________________________________________

 FRED BIERY

 UNITED STATES DISTRICT JUDGE

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