### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-60666 Summary Calendar

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: * Plaintif f

- Appellant Tajudin JarAllah appeals the district court’s order dismissin g hi s c a s e p ur s u ant 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 U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Octob er 7, 20 11 Lyle W . Cayce Clerk

Pur sua nt to 5 T H C IR

. R. 47.5 , thecourthas det erm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. JarAll ah als o chall enges the dis tri ct cour t’s ord er requ iring him to pos t a sup ers ede as 1 bond

. A sup ers ede as bond is “[ a]n app ellant ’s bond to st ay execut ion on a judgm ent dur ing the Case: 10-60666 Document: 00511626091 Page: 1 Date Filed: 10/07/2011No. 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 S o de xo , I nc . , ( S o d e xo) , a s s ertin g various Mississippi employment di s cri min atio n , tort, and contract claims, as well as deprivat i o n o f d u e process. On March 25, 2009, Sodexo, a Delaware corporation with its principal place of business in Maryland, removed the case to federal court, asserting bo th dive r s ity 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 arisi n g o n ly under M i s s issippi state law. On December 14, 2009, the district court d e n i e d JarAllah’s motion to remand, concluding that diversity j urisdiction was satisfied because the Mississippi-resident defendants were n o t p roperly served in the

case. The district court also determined that it was unclear whethe r f ederal 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 feder a l c o n s titutional 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, i n e x c h a nge for $50,000 and a

pend ency of the a p p e a l .” Bla cks Law Di ctio nar y 202 (9t h ed. 2009)

. As this app eal is dis mi ss ed for lack of juris dic tio n, and as JarAll ah never pos ted a sup ers ede as bond , the iss ue is mo ot. 2 Case: 10-60666 Document: 00511626091 Page: 2 Date Filed: 10/07/2011No. 10-60666

neutral letter of reference, to release all claims relating to his employment with and termination from Sodexo and to not file any addition a l 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 dismiss a l

. J a rAllah has not returned the consideration for the settlement agreement. II. JarAllah challenges t h e dismissal of this case on the ground that he did not k n o w ingly 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 ( 5 th Cir. 1994). Pro se complaints are to be construed liberally. See Mayfield v. Tex. Dep’t of Criminal Justice , 5 29 F.3d 599, 604 (5th Cir. 2008). Applying this liberal construction to JarAllah’s p ro s e c o m p l aint, 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

exec u t e d , this court has adopted a ‘totality of the circumstances’ approach.” Smith v. Amedisys Inc. , 298 F.3d 434, 44 1 ( 5 t h C i r . 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 poss e s s i o n 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) w h e ther the plaintiff was represented by or consulted with an attorney, and (6) whether consideration given in exchange for the waiver exceeds employee benefi t s t o 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 f e deral 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 tha t J a rAl l a h has not met his burden of demonstrating that the settlement agreement is invalid. First, as JarAllah has retain e d t h e c o nsideration for the release, he cannot now assert that the agreement was not voluntarily e ntered 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 tha t h e e n t e red into the agreement freely and voluntarily. Accordingly, as settlement agreements are highly favored by the law and will b e u p held whenever possible , J a rAllah has not satisfied the difficult burden of showing that he did not voluntarily execute the agreement.

But see Bogy v. Ford Mo tor Co. , 538 F.3d 352, 355 (5t h Cir. 2008) (m ak ing Eri e gues s 2 and hold ing that Mis sis sip pi law doe s not requ ire a plai ntif f to res cind pr oce eds of se ttl em ent agree me nt in ord er to pur sue a d a m a g e clai m for fr audul ent indu cem ent of se ttl em ent agree me nt)

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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
p a r t i e s have made, absent any fraud, mistake, or overreaching.” McManus v. Ho w a r d , 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 m u st 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 char a c t e r that it is adapted to overpower the will of the other and is reasonably adequate for t h e 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 As k e w v . Askew , 699 So.2d 515, 518 (Miss. 199 7)). JarAllah has simply made no showing that his agreement was reached by duress. There is no indication that any par t y t h r e a t e n ed or coerced him, or obtained any undue benefit. JarAllah’s only argument is that by dismissing the

case up on consummation of the settlement agreement, rather than awaiting JarAllah’s voluntary dismissal pursuant to Federal Rule of Civil Procedu r e 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. Additi o n a l l y, as the dismissal came after the consummation of the s ettl e m e nt agreement, it could not have coerced JarAllah to enter into the agreement.

5 Case: 10-60666 Document: 00511626091 Page: 5 Date Filed: 10/07/2011No. 10-60666 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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