                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                         May 23, 2006

                                                                Charles R. Fulbruge III
                                                                        Clerk
                               No. 04-41265
                             Summary Calendar



TERRY LEE SCOTT,

                                         Plaintiff-Appellant,

versus

PFIZER INC., ET AL.,

                                         Defendants,

PFIZER INC.; WRIGHT MEDICO; UNIVERSITY OF TEXAS MEDICAL BRANCH;
MICHAEL J. GRECULA, Medical Doctor; JAMES W. SIMMONS, III,
Medical Doctor; VINCENT PHAN, Medical Doctor; GARRETT J. TALLMAN,
Medical Doctor; MTG DIVESTITURES INC,

                                         Defendants-Appellees.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                        USDC No. 3:03-CV-790
                        --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Terry Lee Scott, federal prisoner #62305-079, appeals the

dismissal of his products liability and medical malpractice civil

action concerning two hip replacement surgeries occurring prior

to his incarceration for lack of subject matter jurisdiction and

on the basis of Eleventh Amendment immunity.


     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
                           No. 04-41265
                                -2-

     For the first time on appeal, Scott argues that the district

court judge was biased and should have recused himself because he

had presided over the criminal proceedings that resulted in

Scott’s incarceration.   As Scott did not raise this issue in the

district court, he failed to present his disqualification

argument at a reasonable time in the litigation.   See Hollywood

Fantasy Corp. v. Gabor, 151 F.3d 203, 216 (5th Cir. 1998).

Moreover, Scott cannot show that the district court judge was

biased based solely on his adverse rulings.   See Liteky v. United

States, 510 U.S. 540, 555 (1994).

     Scott argues that the district court abused its discretion

by denying his motion to amend his complaint to remove all claims

except his claims against Pfizer, Inc., and MTG Divestitures,

Inc., in order to create complete diversity of parties.    As Scott

waited to move to amend his complaint until the eve of its

dismissal, gave no reason for his delay in moving to amend, and

argued the sufficiency of the complaint against all of the

defendants until his claims against the other defendants were

dismissed, the district court did not abuse its discretion by

denying his motion to amend his complaint pursuant to FED. R. CIV.

P. 15(a).   See Whitaker v. City of Houston, 963 F.2d 831, 836-37

(5th Cir. 1992).   Furthermore, to the extent that Scott’s motion

to amend was a request to drop the nondiverse parties pursuant to

FED. R. CIV. P. 21, the district court did not abuse its

discretion in denying the request, given Scott’s myriad of
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                                -3-

shifting theories regarding the basis of jurisdiction.    See

Dayton Independent School District v. U.S. Mineral Products Co.,

906 F.2d 1059, 1067 (5th Cir. 1990).

     Scott asserts that the district court erred by dismissing

his claims against Pfizer and MTG for lack of subject matter

jurisdiction.   As Scott and several of the defendants were

citizens of Texas, the district court did not have diversity

jurisdiction over Scott’s complaint.     See Whalen v. Carter, 954

F.2d 1087, 1094 (5th Cir. 1992).   Scott’s assertion that he met

the requirements for standing to bring his complaint is

irrelevant; the presence of standing does not create jurisdiction

in the absence of diversity or federal question jurisdiction.

See Sierra Club v. Peterson, 185 F.3d 349, 362 n.15 (5th Cir.

1999) (noting that a party must establish both standing and

subject matter jurisdiction).   Scott has not shown that the

district court had federal question jurisdiction under the

commerce clause or because he was raising product liability

claims.   See U.S. CONST. art. I, § 8; Peoples Nat’l Bank v. Office

of the Comptroller of Currency of U.S., 362 F.3d 333, 336 (5th

Cir. 2004) (party asserting federal court jurisdiction has burden

of proving that it exists).   Nor has he shown that either the

Food, Drug and Cosmetic Act, 21 U.S.C. §§ 301-93 (FDCA), or the

Medical Device Amendments, 21 U.S.C. §§ 360c-360m (MDA), to the

FDCA create a private right of action.    See 21 U.S.C. § 337.

Furthermore, the MDA does not completely preempt state products
                             No. 04-41265
                                  -4-

liability law and, therefore, does not create jurisdiction under

the complete preemption exception to the well-pleaded complaint

rule.   See Martin v. Medtronic, Inc., 254 F.3d 573, 578-81 (5th

Cir. 2001) (applying Medtronic, Inc. v. Lohr, 518 U.S. 470

(1996)) (MDA does not preempt all state law product liability

claims regarding devices covered by the MDA); Caterpillar, Inc.

v. Williams, 482 U.S. 386, 393 (1987) (exception to well-pleaded

complaint rule requires complete preemption).      The district court

did not err by dismissing Scott’s claims against Pfizer and MTG

for lack of subject matter jurisdiction.

     Scott maintains that the district court erred by dismissing

his claims against the University of Texas Medical Branch (UTMB)

on the basis of Eleventh Amendment immunity.      UTMB is an agency

of the State of Texas, giving it Eleventh Amendment immunity.

See TEX. EDUC. CODE ANN. § 61.003(5); TEX. GOV’T CODE ANN.

§ 572.002(10)(B); Richardson v. Southern Univ., 118 F.3d 450, 452

(5th Cir. 1997).   As nothing in the Medicare Act, 42 U.S.C.

§ 1395 or the Medicaid Act, 42 U.S.C. § 1396, conditions a

state’s receipt of money from those programs upon its waiver of

immunity, UTMB’s receipt of medicare or medicaid funds as payment

for Scott’s surgeries did not act as a waiver of its Eleventh

Amendment immunity.     See Atascadero State Hosp. v. Scanlon, 473

U.S. 234, 238 (1985).    Scott’s contention that Eleventh Amendment

immunity was not applicable because his claims against UTMB

concerned public health and welfare is unfounded.       The district
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                                  -5-

court did not err by dismissing Scott’s claims against UTMB on

the basis of Eleventh Amendment immunity.

     Scott contends that the district court erred by dismissing

his claims against Michael J. Grecula, M.D., James W. Simmons,

III, M.D., and Vincent Phan, M.D. (the doctors), for lack of

subject matter jurisdiction.    Because the district court did not

have jurisdiction over the remainder of Scott’s claims, it did

not have supplemental jurisdiction over Scott’s claims against

the doctors.     See 28 U.S.C. § 1367(a); United Mine Workers of

America v. Gibbs, 383 U.S. 715, 725 (1966).    Furthermore, the

doctors’ receipt of medicare or medicaid funds as payment for the

surgeries did not confer jurisdiction on the district court as

the Medicare Act and the Medicaid Act do not provide for a

private cause of action.     See Stewart v. Bernstein, 769 F.2d

1088, 1092-94 (5th Cir. 1985).    The district court did not err by

dismissing Scott’s claims against the doctors for lack of subject

matter jurisdiction.

     AFFIRMED.
