The Honorable Barbara S. Jones, of the United States District Court *

for the Southern District of New York, sitting by designation. 

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 day of November, two thousand and ten. th

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 
2

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 Defendants18 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., 321 F.3d 292, 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). 
3

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
4

1 whether Appellant made disclosures to “a supervisory or

2 public body.” Rost v. Pfizer, Inc., 2009 WL 3097231, 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
5

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