* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-50768

Summary Calendar

KENNETH LEWALLEN

Plaintiff–Appellant

CONMED CORPORATION

Defendant–Appellee

Appeal from the United States District Court

for the Western District of Texas, San Antonio

No. 5:06-CV-286

Before KING, DAVIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Plaintiff-appellant Kenneth Lewallen appeals the district court’s summary

judgment for defendant-appellee ConMed Corporation on his tortious

interference with employment relations claim. For the following reasons, we

AFFIRM the judgment of the district court.

United States Court of Appeals

Fifth Circuit

F I L E D

January 8, 2008

Charles R. Fulbruge III

Clerk
No. 07-50768

2

I. FACTUAL AND PROCEDURAL BACKGROUND

In September 2005, Kenneth Lewallen was hired by ConMed Corporation

(“ConMed”), a medical supply company, as a full-time territory sales manager

for the Austin, Texas area. Unbeknownst to ConMed, Lewallen had been

working full time as a sales representative for Molnlycke Health Care, Inc.

(“Molnlycke”), selling medical supplies in Austin, Texas, since September 2003.

While both companies’ employee handbooks permit some outside employment,

they both prohibit any outside employment that presents an actual or apparent

conflict of interest unless itis disclosed and approved by the respective company.

As Lewallen was employed and expected to work fulltime for two medical supply

companies in the same territory, by the definitions in the companies’ policies,

there was at least an apparent conflict, yet Lewallen failed to disclose or seek

approval for his dual employment from either company. 

In early November 2005, David Thomas, ConMed’s Area Director for the

Southwest Region and Lewallen’s supervisor, suspected that Lewallen was

engaged in outside employment. Thomas called Molnlycke’s Human Resources

(“HR”) Department attempting to confirm or refute his suspicions, but the

voicemail he left was never returned. Subsequently, Thomas called Molnlycke’s

Customer Service Department and asked for the sales representative in Austin,

Texas. He was put through to a voicemail that identified Lewallen as the Austin

sales representative for Molnlycke. But, because the voicemail may not have

been updated since Lewallen recently joined ConMed, and Thomas had not

confirmed his suspicions with an authoritative source, he called Molnlycke’s

Customer Service Department a second time and asked for the Austin area

manager. Thomas was given David Baker’s name and phone number. Thomas

called Baker to determine for certain whether Lewallen was then still employed

by Molnlycke. When Baker told Thomas that Lewallen was so employed,

Thomas attempted to end the phone call by thanking Baker and saying goodbye.
No. 07-50768

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However, Baker stopped Thomas by saying,“Whoa, whoa, whoa. Wait a minute.

Why are you asking me that?” Thomas replied that he “had just hired a

Kenneth Lewallen to work for ConMed in Austin, Texas.”

At a later date, Baker contacted Thomas as part of Molnlycke’s own

investigation into Lewallen’s conduct. Baker asked Thomas to confirm

Lewallen’s employment dates and duties at ConMed. Both Thomas and Baker

attest that at no point did Thomas suggest, direct, or encourage Baker or anyone

else at Molnlycke to terminate Lewallen. After Thomas consulted with

ConMed’s HR Department about Lewallen’s dual employment, ConMed

terminated Lewallen on November 10, 2005. Bruce Osterhaus, Molnlycke’s HR

Manager, informed Lewallen he was terminated on November 18, 2005, for

cause. Prior to being terminated, Lewallen admitted that his dual employment

was poor judgment and recognized that it might have jeopardized his

employment status with Molnlycke. 

On May 7, 2006, Lewallen filed suit against ConMed in Texas state court

for tortious interference with his Molnlycke employment contract. ConMed

removed the case to federal court pursuant to 28 U.S.C. §§ 1332 and 1441.

Lewallen attempted to join a non-diverse defendant in an attempt to defeat

diversity jurisdiction and moved to remand the case to state court. The district

court denied the motion to remand, and after discovery, ConMed filed for

summary judgment on April 12, 2007. Failing to comply with the requirements

of Western District of Texas Local Rule CV-7(d), Lewallen filed his response six

days late. Consequently, the district court considered ConMed’s proffered

summary judgment evidence as undisputed, and after weighing that evidence

and determining that ConMed made a prima facie showing that Lewallen could

not show three of the four elements of his claim, granted summary judgment for

ConMed on May 21, 2007. After Lewallen’s motions to reconsider were denied,

this timely appeal followed. 
No. 07-50768

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II. STANDARD OF REVIEW

We review a district court’s order granting summary judgment de novo,

applying the same legal standards that the district court applied to determine

whether summary judgment was appropriate. Harvill v. Westward Commc’ns,

L.L.C., 433 F.3d 428, 433-34 (5th Cir. 2005). Summary judgment is proper when

the pleadings, discovery responses, and affidavits show that there is no genuine

issue of material fact, and that the moving party is entitled to a judgment as a

matter of law. FED. R. CIV. P. 56(c). A dispute over a material fact is genuine if

the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In

determining whether there is a genuine issue of material fact, we must view all

evidence in the light most favorable to the non-moving party. Daniels v. City of

Arlington, 246 F.3d 500, 502 (5th Cir. 2001). Nevertheless, we have made clear

that “unsubstantiated assertions are not competent summary judgment

evidence . . . . In response to motions for summary judgment, it is . . . incumbent

upon the non-moving party to present evidence—not just conjecture and

speculation—” to support each element of the claim. Grimes v. Tex. Dep’t of

Mental Health & Mental Retardation, 102 F.3d 137, 139-40 (5th Cir. 1996).

III. DISCUSSION

On appeal, Lewallen argues thatthe district court should have considered

options short of dismissal for failure to file a timely response under Western

District of Texas Local Rule CV-7(d). ConMed argues that the district court did

not automatically dismiss Lewallen’s claim for failure to file a timely response.

Rather, the district court weighed the evidence properly before it and

determined, based on that evidence, that ConMed should prevail on summary

judgment. Because we conclude that Lewallen cannot make a prima facie case

of tortious interference with an employment contract even in light of the
No. 07-50768

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evidence he proffered in support of his response to ConMed’s motion, we decline

to address the local rule issue.

In order to prevail on a claim for tortious interference with an

employment contract, a plaintiff must prove: (1) the existence of a contract

subjectto interference; (2) a willful and intentional act of interference;(3)the act

was the proximate cause of plaintiff’s damages; and (4) actual damage or loss.

Texas Beef Cattle Co. v. Green, 921 S.W.2d 203, 210 (Tex. 1996).

The district court granted summary judgmentfor ConMed in part because

there was no evidence to support the second element of Lewallen’s claim.

Viewing all the evidence before this court in the light most favorable to

Lewallen, we agree. “Interference with contract is tortious only if it is

intentional.” Sw. Bell Tel. Co., v. John Carlo Tex., Inc., 843 S.W.2d 470, 472

(Tex. 1992). Under Texas law, while “intentional interference does not require

intent to injure,” it does require that “the actor desires to cause the

consequences of his act, or that he believes that the consequences are

substantially certain to result from it.” Id. (citing RESTATEMENT (SECOND) OF

TORTS § 8A (1965)) (internal citations and quotation marks omitted). In a

comment to § 8A, the Restatement explains further:

If the actor knows that the consequences are certain, or

substantially certain, to result from his act, and still

goes ahead, he is treated by the law as if he had in fact

desired to produce the result. As the probability that

the consequences will follow decreases, and becomes

less than substantial certainty, the actor’s conduct loses

the character of intent, and becomes mere

recklessness . . . . As the probability decreases further,

and amounts only to a risk that the result will follow, it

becomes ordinary negligence.

RESTATEMENT (SECOND) OF TORTS § 8A cmt. b. 

The summary judgment evidence in this case, even viewed in a light most

favorable to Lewallen, shows, at most, negligent interference. No fact-finder
No. 07-50768

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could reasonably infer intent to tortiously interfere with Lewallen’s contract

with Molnlycke from the phone calls between Thomas and Molnlycke personnel

or Baker. The only reasonable conclusion based on the deposition testimony of

both Thomas and Baker is that the calls were intended only to refute or confirm

Lewallen’s employment status from an authoritative source. Also, when asked

in his deposition what consequences Thomas could foresee of calling an

applicant’s present employer for a reference, although the applicant asked the

prospective employer not to call, Thomas replied that the applicant’s losing his

presentjob “could be a possibility.” Further, both Thomas and Baker attest that

Thomas never suggested, directed, or encouraged Baker or anyone else at

Molnlycke to terminate Lewallen. This evidence does not approach a showing

of “a willful and intentional act of interference with the contract.” Sw. Bell Tel.

Co., 843 S.W.2d at 472. A “possibility” is far from a “substantial certainty.”

Thus, summary judgment was properly entered in favor of ConMed.

Since we conclude that ConMed proved that Lewallen could not meet all

the elements of his claim, we decline to decide whether ConMed’s actions would

have been justified nonetheless.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment.

Costs shall be borne by Lewallen.