29 F.3d 1095 (6th Cir. 1994), 93-3111, General Elec. Co. v. G. Siempelkamp GmbH & Co.

Docket Nº:93-3111.
Citation:29 F.3d 1095
Party Name:GENERAL ELECTRIC COMPANY, Plaintiff-Appellant, v. G. SIEMPELKAMP GmbH & COMPANY, Defendant-Appellee.
Case Date:July 21, 1994
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1095

29 F.3d 1095 (6th Cir. 1994)

GENERAL ELECTRIC COMPANY, Plaintiff-Appellant,

v.

G. SIEMPELKAMP GmbH & COMPANY, Defendant-Appellee.

No. 93-3111.

United States Court of Appeals, Sixth Circuit

July 21, 1994

Argued May 2, 1994.

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Richard D. Wetzel, Jr. (argued and briefed), Larry H. James, Luis Alcalde, Charles E. Brown (briefed), Crabbe, Brown, Jones, Potts & Schmidt, Columbus, OH, Brian E. Hurley (briefed), Crabbe, Brown, Jones, Potts & Schmidt, Cincinnati, OH, for plaintiff-appellant.

John Cooper McDonald (argued and briefed), Keith W. Gizzi, Schottenstein, Zox & Dunn, Columbus, OH, for defendant-appellee.

Before: JONES and BATCHELDER, Circuit Judges; and GILMORE, Senior District Judge. [*]

NATHANIEL R. JONES, Circuit Judge.

Plaintiff-Appellant General Electric Co. ("GE") appeals the district court's dismissal of its tort and contract claims against Defendant-Appellee G. Siempelkamp GmbH & Co. ("Siempelkamp") due to a forum selection clause in the parties' contract stating that the German courts have jurisdiction over all disputes concerning the contract. 809 F.Supp. 1306. We affirm.

I

In April 1987, GE contacted an American subsidiary of Siempelkamp, a German manufacturer of heavy machinery, and expressed an interest in Siempelkamp's "Conti Roll" presses built for the production of industrial laminates. These presses, which are approximately

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230 feet long, 17 feet high, and 60 feet wide, were to be used at a Coshocton, Ohio, GE plant that manufactures copper-clad technical laminates for the computer circuit industry. After this contact, all negotiations took place between GE and Siempelkamp's German headquarters, with a GE manager named Anthony J. Carbone as the primary negotiator for GE. 1

On August 26, 1987, GE issued a standard-form purchase order for one press. On August 31, 1987, Siempelkamp issued an order confirmation for the press. At Siempelkamp's German headquarters two days later, Carbone and a Siempelkamp agent signed on the appropriate blanks under the word "accepted" of page 3 of the order confirmation, and Carbone initialled each of the other 59 pages of the document, which contained numerous substantive provisions. The order confirmation also contained a forum selection clause and a choice-of-law clause, which stated as follows:

Place of jurisdiction for all disputes arising in connection with the contract shall be at the principal place of business of the supplier. This shall also apply for claims in summary procedures on bills of exchange, promissory notes or cheques. The supplier is also entitled to file a suit at the principal place of business of the purchaser.

All matters under this contract and any disputes arising hereunder shall be exclusively governed by the law of the Federal Republic of Germany. The uniform laws on international sales (Hague Rules) shall not be applicable.

J.A. at 122.

On November 16, 1987, Siempelkamp sent GE a three-sentence letter acknowledging changes in the numbering systems GE uses for its purchase orders and accounts. That letter clearly stated that Siempelkamp believed the contract terms regarding the purchase of the presses could be found in the order confirmation: "[W]e have to point out that as the only contractual basis for the performance of the contract our order confirmation dated August 31, 1987, which was initialled and signed by both sides, remains valid." J.A. at 447. Although GE's purchasing manager apparently read and received the letter, for he made a notation to file it, there is no evidence that GE responded to this letter.

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