    15-1369
    Hughes v. Sprauve


                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

                  At a stated term of the United States Court of Appeals for the Second Circuit,
    held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
    New York, on the 26th day of August, two thousand sixteen.

    PRESENT:
                ROSEMARY S. POOLER,
                GERARD E. LYNCH,
                SUSAN L. CARNEY,
                      Circuit Judges.
    _____________________________________

    Marie Sette-Hughes, as Executrix of the
    Estate of Alvin A. Hughes,

                              Plaintiff-Appellee,

                        v.                                                      15-1369

    Daisy B. Sprauve,

                              Defendant-Appellant.

    _____________________________________

    FOR DEFENDANT-APPELLANT:                    Daisy B. Sprauve, pro se, Brooklyn, NY.

    FOR PLAINTIFF-APPELLEE:                     Eric Wertheim,Val Mandel, P.C., New York, NY.
       Appeal from a judgment of the United States District Court for the Eastern District of New

York (Cogan, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Daisy B. Sprauve, proceeding pro se, appeals from the district court’s entry of a

default judgment against her in the amount of $326,500 plus interest. We assume the parties=

familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

       Where, as here, a defendant directly appeals from the entry of a default judgment without

first moving in the district court to vacate or set aside the judgment, “we review not whether the

district court abused its discretion in declining to vacate the default judgment, but whether it

abused its discretion in granting a default judgment in the first instance.” City of New York v.

Mickalis Pawn Shop, LLC, 645 F.3d 114, 128 (2d Cir. 2011). In an appeal from a default

judgment, we may review both the interlocutory entry of default and the default judgment. Enron

Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993).

       The district court properly struck Sprauve’s answer from the record because it was filed by

her daughter, who, as a non-attorney, could not appear on Sprauve’s behalf, regardless of

Sprauve’s competency. See Berrios v. New York City Hous. Auth., 564 F.3d 130, 132 (2d Cir.

2009). Although the district court gave Sprauve 20 days to either file an answer or petition for

appointment of a guardian ad litem, she did neither. Her failure to take action placed her in default

and the clerk was required to enter a default notice. See Bricklayers and Allied Craftworkers

Local 2, Albany N.Y. Pension Fund v. Moulton Masonry & Constr., LLC, 779 F.3d 182, 186 (2d

Cir. 2015) (citing Fed. R. Civ. P. 55(c)).


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       Sprauve also challenges the district court’s entry of a default judgment. The district court

did not abuse its discretion in determining that Sprauve was liable, as a matter of law, for

breaching the parties’ prior settlement agreement. See id. at 187. Accepting the allegations in

the complaint as true, Hughes established that Sprauve breached the settlement agreement by

failing to perform as the agreement required. See Orlander v. Staples, Inc., 802 F.3d 289, 294 (2d

Cir. 2015) (“To state a claim for breach of contract under New York law, the complaint must

allege: (i) the formation of a contract between the parties; (ii) performance by the plaintiff; (iii)

failure of defendant to perform; and (iv) damages.” (internal quotation marks omitted)).

       “While a party’s default is deemed to constitute a concession of all well pleaded allegations

of liability, it is not considered an admission of damages.” Bricklayers and Allied Craftworkers,

779 F.3d at 189 (internal quotation marks and alterations omitted). To determine damages in the

default judgment context, a district court may conduct a hearing or rely on evidence provided by

the plaintiff. Id. Here, the district court relied on the appraisal of Sprauve’s property to

determine damages. This was not an abuse of discretion. See id.

       Sprauve’s argument that the district court lacked subject matter jurisdiction over the

default judgment is without merit: the parties were citizens of different states and the amount in

controversy was more than $300,000, well over the required $75,000. See 28 U.S.C. § 1332.

Additionally, her arguments about the merits of her first lawsuit are unrelated to the issues on

appeal and have no bearing on the propriety of the default judgment.

       Appellee argues that the district court erred by denying the motion to amend the default

judgment to include attorney’s fees. However, we may not consider this argument because it

seeks additional relief for appellee and appellee has not cross-appealed. See Pacific Capital


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Bank, N.A. v. Connecticut, 542 F.3d 341, 349 (2d Cir. 2008).

       We have considered all of Sprauve’s remaining arguments and find them to be without

merit. Accordingly, the judgment of the district court is hereby AFFIRMED.


                                            FOR THE COURT:
                                            Catherine O’Hagan Wolfe, Clerk




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