           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                          January 8, 2008

                                     No. 07-50768                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


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.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-50768

           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 it is disclosed and approved by the respective company.
As Lewallen was employed and expected to work full time 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.


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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.


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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 non-
moving 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 that the 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



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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
subject to 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 judgment for 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

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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
present job “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.




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