                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                                                               F I L E D
                   IN THE UNITED STATES COURT OF APPEALS
                                                                               October 18, 2006
                            FOR THE FIFTH CIRCUIT
                                                                           Charles R. Fulbruge III
                              __________________________                           Clerk

                                     No. 06-30252
                                  Summary Calendar
                              __________________________


JOSEPH OLLIE DEVILLE; ET AL,
                                                                                 Plaintiffs,

JOSEPH OLLIE DEVILLE
                                                                      Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA, on behalf of United States
Department of Veterans Affairs; CHG COMPANIES INC.; ARTHUR
CARL PLAUTZ, JR, Contract Doctor,
                                                        Defendants-Appellees,

HUNTER & MORTON; JOHN E. MORTON,
                                                                   Intervenors-Appellees.

               ___________________________________________________

                     Appeal from the United States District Court
                        for the Western District of Louisiana
                                 (No. 1:04-CV-614)
               ___________________________________________________


Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
               *
PER CURIAM:




         *
        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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       Joseph Ollie Deville appeals the district court’s denial of his motion to set aside the

settlement of his medical malpractice suit and the district court’s grant of the defendants’

motion to enforce that settlement. Deville argues that he was coerced to settle. Finding no

merit in Deville’s argument, we affirm.

                             I. FACTS AND PROCEEDINGS

       In an attempt to resolve this Federal Tort Claims Act (“FTCA”) lawsuit stemming

from alleged malpractice visited upon Deville during treatment at a Department of

Veterans Affairs hospital, the parties employed a mediator. At the culmination of a day-

long mediation, Deville entered into a binding settlement with the defendants: the United

States, CGH Companies, and Dr. Carl Plautz. The district court then dismissed the lawsuit,

subject to reopening if the settlement was not consummated within sixty days. Apparently

deciding that the settlement was unfavorable, Deville, acting pro se, filed a motion in letter

form seeking to set aside the settlement. Deville argued that he was coerced into settling

through the efforts of his attorney, John Morton. In particular, Deville alleged that at

various times during the mediation Deville sought to leave but Morton physically

prevented him from doing so and verbally pressured him to settle. Deville also

complained that the mediation occurred soon after he underwent invasive knee surgery

and that he was thus in constant pain throughout the mediation. Deville argued that this

combination of events effectively coerced his consent to settle. After a response from the

United States, CGH Companies, and Plautz, the district court received testimony from




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some of the individuals present at the mediation. Morton testified that he did not block

Deville’s attempted exit from the mediation room and that Deville knowingly accepted the

terms of the settlement. The mediator, Bernard McLaughlin, denied that Deville was

physically intimidated, testified that he thought Deville understood the issues being

discussed, and testified that he remembered discussing with Deville that he did not have

to agree to settle and could leave at any time. McLaughlin further testified that Deville

never protested about knee pain interfering with his ability to participate in the mediation.

McLaughlin also remembered discussing the terms of the agreement with Deville.

       The district court found Morton and McLaughlin’s version of events credible and

declined to set aside the settlement. The court emphasized that Deville was free to leave

the mediation at any time and did not do so, found that events described by Deville were

“not supported by the testimony of any other party to the mediation,” and found that

Deville was a “savvy businessman” who entered into a compromise of a disputed claim

“with full knowledge of the consequences of that settlement.”

                              II. STANDARD OF REVIEW

       As the defendants correctly point out, the district court’s decision that Deville’s

settlement was enforceable involved factual determinations; these determinations are

reviewed for clear error. See Woodson v. Surgitek, Inc., 57 F.3d 1406, 1416 (5th Cir. 1995)

(affirming a district court’s denial of a motion to enforce a settlement as not “clearly



       1
       The district court heard live testimony from Deville and Morton. The mediator,
Bernard McLaughlin, testified by deposition.

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erroneous” after the district court found that the settlement discussion did not result in a

meeting of the minds); see also FED. R. CIV. P. 52(a) (“Findings of fact, whether based on

oral or documentary evidence, shall not be set aside unless clearly erroneous . . . .”). The

ultimate decision to grant a motion to enforce a settlement agreement is reviewed for abuse

of discretion. See Bell v. Schexnayder, 36 F.3d 447, 450 (5th Cir. 1994) (“[W]e do not believe

that the court abused its discretion in . . . enforcing the settlement agreement.”); see also

Re/Max Int’l, Inc. v. Realty One, Inc., 271 F.3d 633, 645 (6th Cir. 2001) (reviewing for abuse

of discretion); Hayes v. Nat’l Serv. Indus., 196 F.3d 1252, 1254 (11th Cir. 1999) (same).

                                     III. DISCUSSION

       The Fifth Circuit has not decided which law applies to govern the enforceability of

the settlement of FTCA cases: federal common law or the law of the state where the alleged

tort occurred, here, Louisiana. Another circuit has held that the law of the state where the

tort occurred applies to settlement disputes in FTCA cases. Reo v. United States Postal

Serv., 98 F.3d 73, 76 (3d Cir. 1996). This court has held in a non-FTCA case that a dispute

regarding the settlement of a claim arising under Title VII is governed by federal common

law. Fulgence v. J. Ray McDermott & Co., 662 F.2d 1207, 1209 n.2 (5th Cir. 1981) (citing

cases and noting that “[t]his conclusion accords with the law in other areas of federal

question jurisdiction” such as claims brought pursuant to the Federal Employers’ Liability

Act, federal antitrust laws, and federal maritime law); see also Gamewell Mfg., Inc. v.

HVAC Supply, Inc., 715 F.2d 112, 113–16 (4th Cir. 1983) (applying federal law to resolve

“settlement issues” raised in a patent infringement lawsuit).


                                              4
       We need not decide whether this court should adopt Reo or whether it should

extend Fulgence to settlements of claims brought pursuant to the FTCA, which is a federal

law remedy that relies on the substantive law of the state where the tort occurred. See
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Molzof v. United States, 502 U.S. 301, 305 (1992). Under Louisiana or federal law,

Deville’s argument has no merit. Deville contends, as he did to the district court, that the

settlement was arrived at by fraud and that this assertion is supported by his version of

events; as a corollary, Deville argues that Morton and McLaughlin’s version of events is

false. After reviewing the record and the briefs, we hold that the district court did not err

in its findings. The district court, when presented with two conflicting versions of events,

credited Morton and McLaughlin’s version. Deville has made no argument that convinces

us that the district court clearly erred in making this determination. See Perez v. United

States, 830 F.2d 54, 58–59 (5th Cir. 1987) (affirming a finding of comparative negligence by

the plaintiff when conflicting evidence was presented); see also Anderson v. City of

Bessemer City, 470 U.S. 564, 574 (1985) (“Where there are two permissible views of the

evidence, the factfinder’s choice between them cannot be clearly erroneous.”). In Morton



       2
       Louisiana law provides for rescission of a compromise agreement for fraud or
duress. See Hoover v. Boucvalt, 747 So.2d 1227, 1230 (La. Ct. App. 1999).
       3
       The federal law that governs whether a contract exists “uses the core principles of
the common law of contracts that are in force in most states.” Smith v. United States, 328
F.3d 760, 767 n.8 (5th Cir. 2003) (internal quotation and alteration omitted). These core
principles can be derived from the Restatements. See Gamewell Mfg., Inc. v. HVAC
Supply, Inc., 715 F.2d 112, 116 (4th Cir. 1983) (looking to RESTATEMENT (SECOND) OF
CONTRACTS to determine the “federal rule”). Under the common law, a contract is voidable
by the victim of duress. See RESTATEMENT (SECOND) OF CONTRACTS § 175 (1981).

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and McLaughlin’s version of events, Deville was not coerced to settle. The district court

did not abuse its discretion in granting the defendants’ motion to enforce the settlement

agreement.

      AFFIRMED.




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