UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ SAMUEL TUCKER, Plaintiff - Appellant,

v. MERCY TISHOMINGO HOSPITAL CORPORATION, a domestic not for profit corporation, Defendant - Appellee. No. 16-6364 (D.C. No. 5:14- CV-00877-M) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , PHILLIPS , and McHUGH , Circuit Judges.

________________ _________________ Samuel Tucker appeals pro se the district court’s denial of his motion to vacate a settlement agreement that he executed with Mercy Tish omingo Hospital Corporation (“Mercy”). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. I. Tucker filed this action alleging that Mercy terminated his employment in violation of Title VII and the ADEA and also breached his employment contract. After

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 1, 2017 Elisabeth A. Shumaker Clerk of Court2 the district court granted summary judgm ent in favor of Mercy on Tucker’s discrimination claims, the parties participated in a mediation. Lyle Clemens served as the mediator, and Tucker and Merc y attended the mediation with their respective counsel, Tony Gould and Nathan Whatley. Consis tent with common mediation practice, the parties did not directly negotiate with each other; instead, Clemens positioned them in separate rooms and communicated their settlement offers back and forth. The mediation culminated in a written se ttlement agreement providing: “Plaintiff agrees to accept and defendant ag rees to pay the sum of [redact ed] as full settlement of all his claims in Case # CIV 14-877M. Plai ntiff will execute full release and dismissal [with] prejudice.” R. at 711. The agreemen t further stated that it was entered into “without coercion, fraud, duress, undue infl uence and mistake” and that the parties agreed “to sign all documents necessary to effect a full and final settleme nt of all claims.” R. at 711. After the parties notified the district court of their settlement, the court administratively closed the case “without prej udice to the rights of the parties to reopen the proceeding for good cause shown, for the en try of any stipulation or order, or for any other purpose required to obtain a final determ ination of the litigation.” R. at 642. The court’s order provided further that “[i]f the parties have not reopened this case within 30 days . . . for the purpose of dismissa l pursuant to the se ttlement compromise, Plaintiff’s action shall be deemed to be dismissed with prejudice.” R. at 642. Tucker moved to reopen the case, informing the court that the parties disputed the scope of the release he was required to exec ute under the settlement agreement. Tucker3 asserted that the settlement pertained only to his breach-o f-contract claim and that he retained his right to appeal the district court’s summary judgment ruling on his discrimination claims. Mercy contended that the settlement covered all of Tucker’s claims in the action. Tucker also moved to extend the peri od of administrative closure. At the same time, Gould moved to withdraw as Tucker’s counsel. The district court denied Tucker’s motion to re open the case but extended the administrative closure period for an additional 45 days. It informed the parties that, if they failed to resolve their dispute, they could return to the court within that time period to ask for in camera review of the settlement agreement. The court also permitted Gould to withdraw, and Tucker has subsequently proceeded pro se in this action. Before the extended administrative closur e period ended, Tucker moved to vacate the settlement agreement. Tucker’s prim ary complaint was the parties’ physical separation during the mediation, which prec luded him from negotiating directly with Whatley. He also contended that he si gned the agreement based on Gould’s fraud and undue influence—in particular, Gould’s failure to advise him that, per the terms of the settlement, Tucker would be waiv ing his right to appeal the di strict court’s adverse ruling on his discrimination claims. Mercy’s oppo sition to Tucker’s motion attached sworn declarations from Gould, Clemens, and Wh atley addressing the me diation process and the scope of the settlement. Mercy contende d that there was a meeting of the minds on the settlement terms and emphas ized that Tucker did not a ssert that either Mercy or Whatley had engaged in conduct constituting fraud or undue influence.4 The district court denied Tucker’s motion af ter an evidentiary hear ing. It credited Gould’s and Clemens’ sworn statements and the terms of the settlement agreement as evidencing the legitimacy of the mediation process and Tu cker’s awareness of the consequences of signing the agreement. It al so held that, under Oklahoma law, a contract cannot be rescinded based on a non-party’s fraudulent acts. See Okla. Stat. tit. 15, § 58. Additionally, the court found th at Gould did not a ssert undue influence, as defined in Okla. Stat. tit. 15, § 61. The district court concluded: “Therefore, the Court finds the [settlement] agreement executed by plaintiff and defendant shou ld be enforced.” R. at 831. It also denied Tucker’s motion to r econsider because he failed to demonstrate any appropriate basis for relief. Tucker filed a timely notice of appeal. II. “A trial court has the power to summarily enforce a settlement agreement entered into by the litigants wh ile the litigation is pending before it. We review the district court’s decision to enforce such an ag reement for an abuse of discretion.” Shoels v. Klebold , 375 F.3d 1054, 1060 (10t h Cir. 2004) (citation and internal quotation marks omitted). We will find an abuse of discretion “when the district court based its decision on an erroneous conclusion of law or where th ere is no rational basis in the evidence for the ruling.” Id. (internal quotation marks omitted); see also id. at 1056 (affirming order enforcing settlement agreement because appella nts provided “no reason to think that the district court’s factual findings were clearly erroneous”). Courts apply state contract law regarding the formation and construction of a purported settleme nt agreement. Id. at 1060.5 Tucker appears to raise two issues on appeal: (1) the mediation process was flawed and illegitimate, resulting in a failure to reach an agreement; and (2) Gould failed to advise him of the scope of his releas e of claims under the settlement agreement. Tucker first argues that the district court erred in refusing to vacate the settlement agreement because the mediation process di d not comply with the Oklahoma Dispute Resolution Act, Okla. Stat. tit. 12, §§ 1801-13. But he fails to show that the Dispute Resolution Act applies to the mediation of cl aims brought in federal court. That Act authorizes Oklahoma counties, municipalities, law schools, and agencies to establish mediation programs, providing for the admini stration and supervisi on of such programs by a state court administrator. See id. § 1803; see also Pentagon Acad., Inc. v. Indep. Sch. Dist. No. 1 of Tulsa Cty. , 82 P.3d 587, 589 (Okla. 2 003) (describing the purpose of the Act). Tucker nonetheless objects to the structur e of the mediation under which he was not permitted to negotiate dire ctly with Whatley. He main tains that this arrangement prevented the parties from reaching a valid ag reement. But the ev idence shows that the parties made settlement offers, which were communicated by Clemens, and that they ultimately signed a written settleme nt agreement. To the exte nt Tucker suggests that Whatley and Mercy were not actually presen t and participating in the mediation, Whatley’s declaration dem onstrates otherwise. See R. at 709. Ultimately, the district court found that Clemens’ approach to con ducting a mediation, which is not uncommon, did not preclude a meeting of the minds. Tucker fails to show that finding is clearly

erroneous.6 Finally, Tucker contends that Gould to ld him the settlement agreement did not apply to his discrimination cl aims and also assured Tucker that he would initiate an appeal of the district court’s ruling on t hose claims as soon as Tucker signed the agreement. Tucker maintain s that, had Gould advised him otherwise, he would have proceeded to trial on his breach-of-contract claim. However, Goul d and Clemens both stated in their declarations that Gould advi sed Tucker, and that Tu cker understood, that he would be releasing all of his claims ag ainst Mercy under the settlement agreement. See R. at 702-06, 708. Whatley stated this was also Mercy’s intent, see id. at 709-10, and the terms of the written settlement agreement ar e consistent with all three declarations, see id. at 711. Consequently, the district cour t’s finding that Tucker understood the scope of his release of claims under the settleme nt agreement is not clearly erroneous. III. Finding no abuse of discreti on, we affirm the district court’s denial of Tucker’s motion to vacate the parties’ settlement agreement.

Entered for the Court
Carolyn B. McHugh Circuit Judge