    08-5745-cv
    West v. Timex Corp.



                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                   SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO N O T HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN CITING A SUM M ARY ORDER
IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (W ITH THE NOTATIO N “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY
ORDER M UST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

           At a stated term of the United States Court of Appeals for the Second Circuit, held at
    the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
    York, on the 21st day of January, two thousand ten.

    PRESENT:
                PIERRE N. LEVAL,
                PETER W. HALL,
                DEBRA ANN LIVINGSTON,
                            Circuit Judges.
    __________________________________________

    J. Richard West, individually, USA ex rel.,

                            Plaintiff-Appellant,

                      v.                                               08-5745-cv

    Timex Corporation,

                      Defendant-Appellee.
    __________________________________________




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FOR APPELLANT: LEWIS H. CHIMES, (Nina T. Pirrotti, on the brief); Garrison, Levin-Epstein,
               Chimes, Richardson & Fitzgerald, P.C.; New Haven, Connecticut.

FOR APPELLEE:          J. CHRISTOPHER ROONEY , (Lee Friend Lizotte, Anne D. Peterson, on the
                       brief); Carmody & Torrance LLP; New Haven, Connecticut.

        Appeal from a judgment of the United States District Court for the District of Connecticut

(Underhill, J.).

        UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court be AFFIRMED.

        Plaintiff-Appellant West appeals from the district court’s November 17, 2008 grant of

judgment as a matter of law for Timex with respect to West’s claims under (1) the False Claims Act

(“FCA”) for false billing and retaliation and (2) Connecticut General Statute § 31-51q for the

retaliatory termination of his employment. We assume the parties’ familiarity with the facts,

procedural history, and specification of issues on appeal.

        We review de novo a grant of a Rule 50 judgment as a matter of law, drawing all inferences

in favor of the nonmoving party. Runner v. N.Y. Stock Exch., Inc., 568 F.3d 383, 386 (2d Cir.

2009). Evidentiary rulings are reviewed under an abuse of discretion standard. United States v.

Mercado, 573 F.3d 138, 141 (2d Cir. 2009).

        Under 31 U.S.C. § 3729(a)(1), in effect when West filed his complaint, the FCA imposed

liability if the defendant “‘knowingly presents, or causes to be presented, to an officer or employee

of the United States Government . . . a false or fraudulent claim for payment or approval.’” U.S. ex

rel. Mergent Servs. v. Flaherty, 540 F.3d 89, 91 n.1 (2d Cir. 2008) (quoting 31 U.S.C.

§ 3729(a)(2006)). The crux of West’s claim is that Timex and the Army and Air Force Exchange

Service (“AAFES”) had a contract with a “most favored customer” (“MFC”) clause, requiring


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Timex to provide AAFES a net price for Timex products equal to, or better than, any price given to

another Timex customer, and that Timex breached that contract provision in offering Walmart a net

price better than the one offered to AAFES.

       We agree with the district court that West was unable to produce sufficient evidence to

permit a jury to infer the existence of a contract between AAFES and Timex containing an MFC

clause. The draft contract upon which West relied specified material conditions precedent to the

contract becoming effective, and West failed to demonstrate that those conditions were fulfilled.

For example, the draft contract states that the contract is not effective until Timex and AAFES

“negotiate all ‘vendor-specific terms’ such as accepted items, prices.” West presented no evidence

that the parties reached agreement on these terms. Without demonstrating that Timex and AAFES

had a contract containing the MFC clause, West’s FCA claim for false billing necessarily fails.

Like the district court, we need not, and therefore do not, decide whether West could show the

remaining elements of an FCA claim, specifically whether AAFES was a government entity that

paid Timex with government monies.

       The success of West’s retaliation claims, under both the FCA and Connecticut state law,

hinges upon a showing that he was terminated because he raised concerns with his supervisors

concerning disparate net pricing between Walmart and AAFES in violation of the MFC provision in

the contract between Timex and AAFES. See 31 U.S.C. § 3730(h); Conn. Gen. Stat. § 31-51q;

O’Connor v. Pierson, 568 F.3d 64, 67 (2d Cir. 2009) (explaining the Connecticut statute “prohibits

employers from disciplining or discharging employees in retaliation for exercising their right to free

speech”). While West did express concerns about the pricing of sales to Walmart, nothing

submitted into evidence demonstrated under either the FCA or Connecticut state law that West was



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terminated because of these statements. West relies solely on the fact that the decision to discharge

him came approximately a week following his final complaint. However, his final complaint came

after a year of similar complaints, and Timex offered evidence that his termination was pursuant to

a general restructuring. The evidence could not support a reasonable jury finding that his dismissal

was retaliatory.

       Accordingly, the judgment of the district court is AFFIRMED.



                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




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