Sette-Hughes v. Sprauve

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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