UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 01-11463

ALCAN ALUMINUM CORPORATION,

Plaintiff-Appellant,

VERSUS

BASF CORPORATION d/b/a DELAWARE NEW CORPORATION,

Defendant-Appellee.

Appeal from the United States District Court For the Northern District of Texas 97-CV-1480

September 30, 2002

Before DAVIS, SMITH and BENAVIDES, Circuit Judges.

PER CURIAM:*

Alcan filed this action against BASF to recover for losses

occasioned from alleged defects in foam Alcan purchased from BASF.

The district court granted summary judgment to BASF on grounds that

BASF established that it provided a disclaimer of warranty to Alcan

before the sale which effectively barred Alcan’s action.

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Our review of the summary judgment record reveals that the

district court did not err in reaching this conclusion. In support

of its motion for summary judgment BASF provided an affidavit that

under the circumstances of the sale in question, BASF would have,

pursuant to its cumstomary practices, provided a document entitled

“Terms and Conditions” which contained the disclaimer of warranty

BASF relies upon in this case. In response to that motion for

summary judgment, Alcan provided no evidence supporting its view

that BASF failed to provide the document containing the disclaimer

to it before the sale. The district court correctly concluded that

BASF had produced sufficient evidence to establish, at least a

prima facie case, that it had provided the disclaimer sheet.

Accordingly, the district court entered summary judgment in favor

of BASF on Alcan’s breach of warranty claim.

Approximately seven months after the district court ruled on

BASF’s motion, Alcan filed a motion for reconsideration. In

support of this motion, Alcan, for the first time attached an

affidavit from its purchasing agent asserting that he had reviewed

the file and found no document received from BASF containing a

disclaimer of warranty. This same witness also stated in

conclusory fashion that he at no time received the “Terms and

Conditions” sheet containing the warranty disclaimer. Because

Alcan provided no justification for the late filing of its summary

judgment evidence, the district court denied the motion for

reconsideration. The district court did not abuse its discretion

2 in refusing to consider this evidence filed months after the

court’s ruling without explanation or justification. Russ v.

International Paper Co.,

(5th Cir. 1991).

Because the district court correctly determined that BASF

established at least a prima facie case that it furnished the

“Terms and Conditions” sheet which included the disclaimer of

warranty, it correctly granted summary judgment in favor of BASF.

The district court’s thorough memorandum opinion and order of

January 30, 2001 adequately explains the court’s dismissal of

Alcan’s remaining claims and for essentially the reasons stated by

the district court, we agree that the remaining claims were

properly dismissed.

AFFIRMED.

3