Tajudin Jaralah v. Sodexo, Incorporated , 452 F. App'x 465 ( 2011 )


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  •      Case: 10-60666     Document: 00511626091          Page: 1    Date Filed: 10/07/2011
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    October 7, 2011
    No. 10-60666                           Lyle W. Cayce
    Summary Calendar                              Clerk
    TAJUDIN JARALLAH,
    Plaintiff-Appellant
    v.
    SODEXO, INCORPORATED; UNIVERSITY OF MISSISSIPPI MEDICAL
    CENTER; SCOTT MEESE; BONNIE BEARDSLEY; PATRICK MCGHEE;
    JULIE WILLIAMS; JIM MCKEOWN,
    Defendants-Appellees
    Appeal from the United States District Court
    for the Southern District of Mississippi
    (3:09-CV-180)
    Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
    PER CURIAM:*
    Plaintiff-Appellant Tajudin JarAllah appeals the district court’s order
    dismissing his case pursuant to a signed and executed settlement agreement and
    release. As JarAllah voluntarily settled the case and did not reserve a right to
    appeal the dismissal, we dismiss the appeal for want of jurisidiction.1
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    1
    JarAllah also challenges the district court’s order requiring him to post a supersedeas
    bond. A supersedeas bond is “[a]n appellant’s bond to stay execution on a judgment during the
    Case: 10-60666       Document: 00511626091         Page: 2     Date Filed: 10/07/2011
    No. 10-60666
    I.
    In February 2009, JarAllah, a citizen of Georgia, brought this action pro
    se in Mississippi state court challenging his termination by Defendant-Appellee
    Sodexo, Inc., (Sodexo), asserting various Mississippi employment discrimination,
    tort, and contract claims, as well as deprivation of due process. On March 25,
    2009, Sodexo, a Delaware corporation with its principal place of business in
    Maryland, removed the case to federal court, asserting both diversity and federal
    question jurisdiction.
    On April 6, 2009, JarAllah filed a motion to remand the case to state court,
    which asserted, in part, that his complaint brought claims arising only under
    Mississippi state law.        On December 14, 2009, the district court denied
    JarAllah’s motion to remand, concluding that diversity jurisdiction was satisfied
    because the Mississippi-resident defendants were not properly served in the
    case. The district court also determined that it was unclear whether federal
    question jurisdiction existed because it was difficult to tell whether the
    complaint, which referenced deprivations of due process but made no direct
    reference to any federal constitutional or statutory provision, raised a federal
    question.
    On December 22, 2009, the district court ordered JarAllah to file a more
    definite statement of his claims. In response, on January 28, 2010, JarAllah
    filed a bill of particulars which asserted, among other claims, retaliation,
    discrimination, and deprivation of due process in violation of 42 U.S.C. §§ 1981
    and 1983.
    The parties negotiated the settlement of the case in June 2010. As part
    of the settlement agreement, JarAllah agreed, in exchange for $50,000 and a
    pendency of the appeal.” Blacks Law Dictionary 202 (9th ed. 2009). As this appeal is
    dismissed for lack of jurisdiction, and as JarAllah never posted a supersedeas bond, the issue
    is moot.
    2
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    No. 10-60666
    neutral letter of reference, to release all claims relating to his employment with
    and termination from Sodexo and to not file any additional legal proceedings.
    On July 6, 2010, JarAllah traveled to Mississippi and the parties consummated
    the settlement agreement in the magistrate’s chambers. On the same day, the
    district court dismissed the case with prejudice, retaining jurisdiction only to
    enforce the settlement agreement.
    On August 5, 2010, JarAllah filed a Notice of Appeal of the district court’s
    order of dismissal.     JarAllah has not returned the consideration for the
    settlement agreement.
    II.
    JarAllah challenges the dismissal of this case on the ground that he did
    not knowingly and voluntarily execute the settlement agreement and release,
    but did so under duress. “Normally the release of federal claims is governed by
    federal law.” Williams v. Phillips Petroleum Co., 
    23 F.3d 930
    , 935 (5th Cir.
    1994). Pro se complaints are to be construed liberally. See Mayfield v. Tex. Dep’t
    of Criminal Justice, 
    529 F.3d 599
    , 604 (5th Cir. 2008). Applying this liberal
    construction to JarAllah’s pro se complaint, and taking into consideration his bill
    of particulars, it is evident that JarAllah has raised federal constitutional and
    statutory claims. Accordingly, federal law regarding the validity of settlement
    agreements and releases governs.
    “In determining whether a release was knowingly and voluntarily
    executed, this court has adopted a ‘totality of the circumstances’ approach.”
    Smith v. Amedisys Inc., 
    298 F.3d 434
    , 441 (5th Cir. 2002). “Once a party
    establishes that his opponent signed a release that addresses the claims at issue,
    received adequate consideration, and breached the release, the opponent has the
    burden of demonstrating that the release was invalid because of fraud, duress,
    material mistake, or some other defense.”        
    Williams, 23 F.3d at 935
    .         In
    3
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    determining whether a former employee has met this burden, we examine the
    following factors:
    (1) the plaintiff’s education and business experience, (2) the amount
    of time the plaintiff had possession of or access to the agreement
    before signing it, (3) the role of [the] plaintiff in deciding the terms
    of the agreement, (4) the clarity of the agreement, (5) whether the
    plaintiff was represented by or consulted with an attorney, and (6)
    whether consideration given in exchange for the waiver exceeds
    employee benefits to which the employee was already entitled by
    contract or law.
    
    Smith, 298 F.3d at 441
    (quoting O’Hare v. Global Natural Res., 
    898 F.2d 1015
    ,
    1017 (5th Cir. 1990)). Additionally, under federal law, “[e]ven if a release is
    tainted by misrepresentation or duress, it is ratified if the releasor retains the
    consideration after learning that the release is voidable.” 
    Williams, 23 F.3d at 937
    .2
    In the present case, it is clear that JarAllah has not met his burden of
    demonstrating that the settlement agreement is invalid. First, as JarAllah has
    retained the consideration for the release, he cannot now assert that the
    agreement was not voluntarily entered into.                  Additionally, JarAllah has
    competently litigated several cases pro se, and adeptly negotiated this clear and
    plain settlement agreement himself over a lengthy period of time. As part of the
    agreement, JarAllah acknowledged that he had been advised to consult with an
    attorney, that he had a reasonable opportunity to consider the agreement, and
    that he entered into the agreement freely and voluntarily. Accordingly, as
    settlement agreements are highly favored by the law and will be upheld
    whenever possible, JarAllah has not satisfied the difficult burden of showing
    that he did not voluntarily execute the agreement.
    2
    But see Bogy v. Ford Motor Co., 
    538 F.3d 352
    , 355 (5th Cir. 2008) (making Erie guess
    and holding that Mississippi law does not require a plaintiff to rescind proceeds of settlement
    agreement in order to pursue a damage claim for fraudulent inducement of settlement
    agreement).
    4
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    Furthermore, even assuming that JarAllah’s complaint raises only state
    claims, Mississippi law is likewise inhospitable to JarAllah’s challenge to the
    settlement agreement. “[Mississippi] law favors the settlement of disputes by
    agreement of the parties and, ordinarily, will enforce the Agreement which the
    parties have made, absent any fraud, mistake, or overreaching.” McManus v.
    Howard, 
    569 So. 2d 1213
    , 1215 (Miss. 1990) (citations omitted). Settlement
    agreements “are contracts, made by the parties, upon consideration acceptable
    to each of them, and the law will enforce them.” 
    Id. To constitute
    duress by threats the actor’s manifestation must be
    made for the purpose of coercing the other; must have for its object
    the securing of undue advantage with respect to the other; must be
    of such a character that it is adapted to overpower the will of the
    other and is reasonably adequate for the purpose; must in fact
    deprive the other to act to his detriment.
    Estate of Davis v. O’Neill, 
    42 So. 3d 520
    , 525 (Miss. 2010) (quoting Askew v.
    Askew, 
    699 So. 2d 515
    , 518 (Miss. 1997)).
    JarAllah has simply made no showing that his agreement was reached by
    duress. There is no indication that any party threatened or coerced him, or
    obtained any undue benefit. JarAllah’s only argument is that by dismissing the
    case upon consummation of the settlement agreement, rather than awaiting
    JarAllah’s voluntary dismissal pursuant to Federal Rule of Civil Procedure
    41(a)(1), the district court forced settlement upon him. We reject this argument
    for two reasons. First, the settlement agreement requires only that the case be
    dismissed, and does not specify a means of dismissal. Additionally, as the
    dismissal came after the consummation of the settlement agreement, it could not
    have coerced JarAllah to enter into the agreement.
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    III.
    Accordingly, as JarAllah voluntarily settled the entire action and did not
    reserve a right to appeal, we have no jurisdiction to hear this appeal. Dugas v.
    Trans Union Corp., 
    99 F.3d 724
    (5th Cir. 1996).
    APPEAL DISMISSED.
    6