         11-2372-cv
         Rost v. Pfizer Inc., et al.

                                 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 9th day of November, two thousand twelve.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                DENNY CHIN,
 8                         Circuit Judges,
 9                DAVID G. LARIMER,*
10                         District Judge.
11
12
13       Peter Rost,
14                                                    Plaintiff-Appellee,
15
16                      v.                                           11-2372-cv
17
18       Pfizer Inc., Pharmacia, Inc., and Marie Caroline Sainpy,
19
20                                                    Defendants-Appellants.
21
22
23
24       FOR APPELLANT:                JOHN HOUSTON POPE (Ronald M Green,
25                                     Michael A. Kalish, on the brief), Epstein
26                                     Becker & Green, P.C., New York, NY.
27

28

                *
                The Honorable David G. Larimer, of the United States
         District Court for the Western District of New York, sitting by
         designation.
1    FOR APPELLEE:      MARK D. LURIE, Lurie Law Firm LLC,
2                       Montclair, NJ.
3
4        Appeal from the United States District Court for the
5    Southern District of New York (Daniels, J.).
6
7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
8    AND DECREED that the judgment and order of the United States
9    District Court for the Southern District of New York is
10   AFFIRMED.
11       Defendants-Appellants Pfizer Inc., Pharmacia, Inc., and
12   Marie Caroline Sainpy (collectively, “Appellants”) appeal
13   from the February 2, 2011 judgment and the May 10, 2011
14   order of the United States District Court for the Southern
15   District of New York (Daniels, J.) dismissing Appellees’
16   state claims without prejudice and then denying Appellants’
17   motion to vacate or amend that dismissal to restore the case
18   to the docket pursuant to Fed. R. Civ. P. 59(e) and
19   60(b)(6). The panel has reviewed the briefs and the record
20   in this appeal and agrees unanimously that oral argument is
21   unnecessary because “the facts and legal arguments [have
22   been] adequately presented in the briefs and record, and the
23   decisional process would not be significantly aided by oral
24   argument.”   Fed. R. App. P. 34(a)(2)(c).   We assume the
25   parties’ familiarity with the facts, the procedural history
26   of the case, and the issues on appeal.
27       On September 24, 2009, the district court granted
28   summary judgment for Appellants on a federal claim and two

                                   2
1    state claims.   Plaintiff-Appellee Peter Rost (“Rost”)
2    appealed to this Court.    We affirmed the district court’s
3    summary judgment on the federal claim and, without
4    commenting on the merits, remanded the state claims for the
5    district court to “revisit whether Rost has raised a genuine
6    issue of material fact on those claims.”        Rost v. Pfizer,
7    Inc., 400 F. App’x 602, 603 (2d Cir. 2010). Because the
8    federal claim was the only basis for federal jurisdiction,
9    as confirmed by the parties at oral argument, we invited the
10   district court to consider whether to decline to exercise
11   supplemental jurisdiction.     Id. at 603-04.    The district
12   court accepted that invitation and entered a mandate
13   dismissing the state claims without prejudice.
14       “This Court reviews a district court’s denial of a
15   Federal Rule of Civil Procedure 60(b) motion for
16   reconsideration for an abuse of discretion.       The denial of a
17   motion to amend a judgment under Federal Rule of Civil
18   Procedure 59 will not be overturned on appeal absent an
19   abuse of discretion.”     Harris v. Kuhlmann, 346 F.3d 330, 348
20   (2d Cir. 2003)(internal quotation marks and citations
21   omitted).   “[R]econsideration will generally be denied
22   unless the moving party can point to controlling decisions
23   or data that the court overlooked—matters, in other words,
24   that might reasonably be expected to alter the conclusion
25   reached by the court.”     Shrader v. CSX Transp., Inc., 70
26   F.3d 255, 257 (2d Cir. 1995).

                                     3
1        Here, Appellants argue that the district court erred in
2    denying the motion for reconsideration because it was
3    required to grant their motion to dismiss the non-diverse
4    defendant Pharmacia, Inc. (“Pharmacia”), pursuant to Rule 21
5    of the Federal Rules of Civil Procedure, and thereby
6    maintain federal jurisdiction.   Appellants cite two cases in
7    which we either affirmed the district court’s dismissal of a
8    non-diverse defendant at the defendant’s request, see Call
9    Center Techs., Inc. v. Grand Adventures Tour and Travel
10   Pub’g Corp., 635 F.3d 48, 51 (2d Cir. 2011), or granted such
11   a request ourselves on appeal, see Turtur v. Rothschild
12   Registry Int’l, Inc., 26 F.3d 304, 307-09 (2d Cir. 1994).
13   In neither case, however, did we suggest it would have been
14   an abuse of discretion for the district court to deny the
15   defendant’s request.
16       Furthermore, in both cases, dismissing the non-diverse
17   party preserved a final judgment in favor of the remaining
18   defendants and prevented repetitive litigation.   See Call
19   Center Techs., Inc, 635 F.3d at 51; Turtur, 26 F.3d at 309.
20   In contrast, dismissing Pharmacia here would have reopened
21   this case and led to two parallel litigations: one in
22   federal court against the diverse defendants and one in
23   state court against Pharmacia.   Under these circumstances,
24   it was not an abuse of discretion for the district court to
25   deny the motion to dismiss the claims against Pharmacia and
26   dismiss the case for lack of jurisdiction.   Appellants’

                                  4
1    arguments that Appellee would not separately pursue his
2    claims against Pharmacia because it is now a wholly-owned
3    subsidiary of defendant Pfizer, Inc., are unpersuasive.
4    Appellee has pursued his claims against Pharmacia from the
5    outset of this litigation and has shown no inclination to
6    voluntarily dismiss them. He has even included them in a now
7    pending New Jersey state court action.    We further note that
8    the District of New Jersey rejected Appellants’ arguments
9    that Pharmacia was fraudulently joined in that action to
10   avoid federal jurisdiction.    See Rost v. Pfizer, Inc., No
11   11-1383, 2011 WL 5238805, at *3 (D.N.J. Oct. 28, 2011).     For
12   these reasons, we cannot say that the district court abused
13   its discretion in refusing to dismiss Appellee’s claims
14   against Pharmacia over his objection and force him to pursue
15   his claims in two different courts.
16       We have considered Appellants’ remaining arguments
17   including their contention that the district court
18   improperly declined to exercise supplemental jurisdiction
19   and, after a thorough review of the record, find them to be
20   without merit.
21       For the foregoing reasons, the judgment and order of
22   the district court is hereby AFFIRMED.
23                                 FOR THE COURT:
24                                 Catherine O’Hagan Wolfe, Clerk
25
26
27
28

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