09-4490-cv
         Rost v. Pfizer

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 17 th day of November, two thousand and ten.
 5
 6       PRESENT: BARRINGTON D. PARKER,
 7                RICHARD C. WESLEY,
 8                         Circuit Judges.
 9
10                      BARBARA S. JONES,
11                               District Judge. *
12
13
14       PETER ROST,
15
16                                     Plaintiff-Appellant,
17
18                      -v.-                                                09-4490-cv
19
20       PFIZER, INC., PHARMACIA, INC.,
21       MARIE CAROLINE SAINPY,
22
23                                     Defendants-Appellees,
24
25       KAREN KATEN, JERFFERY KINDLER,
26       HENRY McKINNELL,
27
28                                     Defendants.
29


                *
                  The Honorable Barbara S. Jones, of the United States District Court
         for the Southern District of New York, sitting by designation.
 1   FOR APPELLANT:       KEVIN MINTZER, Law Office of Kevin
 2                        Mintzer, P.C., New York, NY.
 3
 4   FOR APPELLEES:       JOHN HOUSTON POPE, (Michael A. Kalish,
 5                        Ronald M. Green, on the brief), Epstein
 6                        Becker & Green, P.C., New York, NY.
 7
 8        Appeal from the United States District Court for the
 9   Southern District of New York (Daniels, J.).
10
11       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

12   AND DECREED that the judgment of the district court be

13   AFFIRMED in part and REVERSED and REMANDED in part.

14       Peter Rost (“Appellant”) appeals from a judgment of the

15   United States District Court for the Southern District of

16   New York (Daniels, J.) entered on September 24, 2009,

17   granting summary judgment on all claims to Defendants-

18   Appellees Pfizer, Inc., Pharmacia, Inc., and Marie Caroline

19   Sainpy.     We assume the parties’ familiarity with the

20   underlying facts, the procedural history, and the issues

21   presented for review.

22       We review a grant of summary judgment de novo.        Miller

23   v. Wolpoff & Abramson, L.L.P., 

, 300 (2d Cir.

24   2003). Summary judgment is proper if “there is no genuine

25   issue as to any material fact and . . . the movant is

26   entitled to judgment as a matter of law.”     Fed. R. Civ. P.

27   56(c)(2).

                                     2
 1       Appellant argues that the district court erred by

 2   granting summary judgment to Appellees on his federal False

 3   Claims Act (“FCA”) claim.   We disagree.    The FCA protects

 4   employees who are discriminated against “because of lawful

 5   acts done by the employee on behalf of the employee or

 6   others in furtherance of an action under [the FCA],

 7   including investigation for, initiation of, testimony for,

 8   or assistance in an action filed or to be filed under” the

 9   FCA. 31 U.S.C. § 3730(h).   Here, Appellant presents no

10   evidence that he took any action relevant under the FCA

11   until he filed his qui tam action in June 2003.     For

12   substantially the reasons set forth by the district court,

13   Appellant has failed to establish a prima facie case that

14   the adverse employment actions taken against him were

15   causally connected to his qui tam action.     Accordingly, the

16   district court properly granted summary judgment to

17   Appellees on Appellant’s FCA claim.

18       Appellant also argues that the district court erred by

19   granting summary judgment to Appellees on his claims under

20   the New Jersey Conscientious Employee Protection Act

21   (“CEPA”) and New Jersey common law.   The district court

22   apparently misunderstood the scope of CEPA; it examined


                                   3
 1   whether Appellant made disclosures to “a supervisory or

 2   public body.” Rost v. Pfizer, Inc., 

, at *4

 3   (S.D.N.Y. Sept. 29, 2009).      In fact, CEPA protects employees

 4   who disclose information “to a supervisor or to a      public

 5   body.”   N.J.S.A. 34:19-3(a).     Because Appellant alleges that

 6   he made disclosures to Sainpy and other supervisors within

 7   Pfizer, New Jersey law may recognize that Appellant engaged

 8   in protected activity beginning in Fall 2002 or Spring 2003.

 9   We express no view on whether summary judgment is

10   appropriate on Appellant’s New Jersey state law claims at

11   this time.   Instead, we reverse summary judgment on the

12   state law claims and remand to allow the district court to

13   revisit whether Rost has raised a genuine issue of material

14   fact on those claims.   At oral argument, the parties agreed

15   that the only basis for federal jurisdiction in this case is

16   federal question jurisdiction, and not diversity

17   jurisdiction. Thus, the district court may also consider

18   whether to decline to exercise supplemental jurisdiction

19   over the pendent state law claims so that they may be

20   brought in New Jersey state court.

21       For the foregoing reasons, the judgment of the district

22   court is hereby AFFIRMED in part as to Appellant’s FCA claim


                                      4
1   and REVERSED and REMANDED in part as to Appellant’s New

2   Jersey state law claims.

3
4                               FOR THE COURT:
5                               Catherine O’Hagan Wolfe, Clerk
6
7




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