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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

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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



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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).

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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.




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