Operating Tech Elec, Inc. v. Generac Power Systems, Inc.

Filing

UNPUBLISHED OPINION FILED. [14-10412 Affirmed ] Judge: PEH , Judge: JES , Judge: JEG Mandate pull date is 01/29/2015 [14-10412]

Case: 14-10412

Document: 00512893928

Page: 1

Date Filed: 01/08/2015

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

No. 14-10412

FILED
January 8, 2015
Lyle W. Cayce
Clerk

OPERATING TECHNICAL ELECTRONICS, INCORPORATED,
Plaintiff–Appellee,
versus
GENERAC POWER SYSTEMS, INCORPORATED,
Defendant–Appellant.

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:12-CV-345

Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
This is an ordinary contract dispute governed by the Texas version of the

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
*

Case: 14-10412

Document: 00512893928

Page: 2

Date Filed: 01/08/2015

No. 14-10412
Uniform Commercial Code, brought to federal court via diversity jurisdiction.
The issue, broadly stated, is which actions during the negotiations constituted
the offer and acceptance that formed a binding contract.
We have reviewed the briefs, pertinent parts of the record, and the
applicable law and have heard the helpful arguments of counsel. There is no
error. The district court properly decided that the January 21, 2008, email
from the plaintiff was the initial offer, so those terms applied, and that offer
expressly limited acceptance to all of its terms. Defendant’s purchase order,
sent on February 1, served as an acceptance of those terms, which plaintiff
confirmed on February 8. We therefore need not make an Erie guess as to
whether Texas applies the “knockout rule” to such negotiations.
AFFIRMED.

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