UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 00-30458 Summary Calendar

BAUMER FOODS, INC.,

Plaintiff-Appellant,

VERSUS

NEW JERSEY MACHINE, INC.,

Defendant-Appellee.

Appeal from the United States District Court For the Eastern District of Louisiana (99-CV-3611-G) October 26, 2000 Before DAVIS, JONES, and DeMoss, Circuit Judges.

PER CURIAM:*

Baumer Foods, Inc. (“Baumer”) purchased a commercial labeling

machine from New Jersey Machine, Inc. (“NJM”) in 1998. The

documents used to effect this purchase were a purchase order from

Baumer to NJM which had attached to it a prior quotation from NJM

to a third party covering a similar machine. One of the printed

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. pages of this prior quotation contained “Additional Terms and

Conditions” which set forth a forum selection clause and a clause

limiting damages. The machine was built, delivered, and put into

operation. Unfortunately the machine failed to operate as expected

by Baumer and required substantial and continuing repairs to keep

it operating. Finally in 1999 Baumer filed suit against NJM in the

federal district court in New Orleans asserting diversity

jurisdiction and seeking damages and redhibition under Louisiana

law. However, unbeknownst to Baumer, NJM had previously filed suit

against Baumer in the State of New Hampshire pursuant to the forum

selection clause in the quotation appended to the purchase order.

NJM moved to dismiss the federal court proceeding in Louisiana and

the district court granted such motion. Baumer timely appeals.

We have carefully reviewed the briefs, the record excerpts,

and relevant portions of the record itself. For the reasons stated

by the district court in its Memorandum and Order filed March 17,

2000, we affirm the judgment entered on March 23, 2000 dismissing

Baumer’s petition.

AFFIRMED.

2