UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

SUZANNE SHELL, 

 Plaintiff - Appellant, 

v. 

LEONARD HENDERSON 

(Deceased); BRENDA SWALLOW, 

 Defendants - Appellees. 

No. 14-1330 

(D.C. No. 1:09-CV-00309-MSKKMT) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before MATHESON, BACHARACH, and MORITZ, Circuit Judges. 

_________________________________ 

Ms. Suzanne Shell sued Mr. Leonard Henderson and Ms. Brenda 

Swallow for copyright infringement, unfair trade practices, 

misappropriation of trade secrets, and breach of contract. Neither Mr. 

Henderson nor Ms. Swallow appeared on the date set for trial. Thus, the 

district court declined to proceed with the trial. Instead, the court 

conducted a hearing under Fed. R. Civ. P. 55(b), which involves entry of 

default judgments. Based on this hearing, the court ruled that Ms. Shell 

 

*

 The Court has determined that oral argument would not materially 

aid our consideration of the appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. 

R. 34.1(G). Thus, we have decided the appeal based on the briefs. 

 Our order and judgment does not constitute binding precedent except 

under the doctrines of law of the case, res judicata, and collateral estoppel. 

FILED 

United States Court of Appeals

Tenth Circuit 

August 7, 2015

Elisabeth A. Shumaker 

Clerk of Court

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had shown copyright infringement by Mr. Henderson, but had not proven 

any claims against Ms. Swallow. The district court awarded statutory 

damages of $5,000 against Mr. Henderson. 

Ms. Shell then filed a motion to alter the judgment based on Federal 

Rule of Civil Procedure 59. The district court denied the motion, and Ms. 

Shell appealed the ruling. Shortly thereafter, Mr. Henderson died. Our 

appeal involves two issues: 

1. Should we substitute Mr. Henderson’s widow as an appellee 

even though we lack any information about her suitability as a 

personal representative under state law? We decline to do so. 

Without a proper party to substitute for Mr. Henderson, we 

dismiss this part of the appeal. 

2. Should the district court have granted Ms. Shell’s motion to 

alter the judgment for Ms. Swallow? On this issue, we conclude 

the court erred. It should have granted the motion because Ms. 

Shell had no advance notice regarding the scope of the Rule 

55(b) hearing. 

In light of these conclusions, we dismiss the appeal involving 

Mr. Henderson and reverse the denial of Ms. Shell’s motion to alter the 

judgment for Ms. Swallow. 

I. The Existence and Limits of Our Appellate Jurisdiction 

 Our jurisdiction is triggered by Ms. Shell’s notice of appeal. In that 

notice, Ms. Shell was required to designate the order or judgment that she 

was appealing. See Fed. R. App. P. 3(c)(1)(B) (“The notice of appeal must 

. . . designate the judgment, order, or part thereof being appealed.”). Ms. 

Shell’s notice of appeal identifies the subject of the appeal as the 

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July 2014 Opinion and Order Denying Motions for Reconsideration and 

Objections to Taxation of Costs. Accordingly, our review is limited to 

consideration of that order.1 See Navani v. Shahani, 496 F.3d 1121, 1133 

(10th Cir. 2007) (holding that our jurisdiction was limited to review of the 

two orders designated in the notice of appeal); Scrivner v. Sonat Expl. Co., 

242 F.3d 1288, 1290 n.1 (10th Cir. 2001) (holding that the appeal was 

limited to the fee order designated in the notice of appeal). 

II. The Appeal as to Mr. Henderson: The Effect of His Death 

 Mr. Henderson’s death triggered Federal Rule of Appellate Procedure 

43(a)(1), which states that when a party dies while an appeal is pending, 

“the decedent’s personal representative may be substituted as a party on 

motion filed with the circuit clerk by the representative or by any party.” 

 Ms. Shell acknowledges that no personal representative has been 

appointed for Mr. Henderson’s estate. When a personal representative has 

not been appointed, Rule 43(a)(1) allows the appellate court to “direct 

appropriate proceedings.” In this appeal, we must decide what further 

proceedings would be “appropriate.” 

 Ms. Shell argues that it would be appropriate to appoint Mr. 

Henderson’s widow as a personal representative for purposes of this 

appeal. This argument creates two issues: 

 

1

 The motion included discussion of costs awarded to Ms. Swallow. 

But in her appeal brief, Ms. Shell has not addressed any issues involving 

costs. 

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1. Do we have authority to appoint Mr. Henderson’s widow as a 

personal representative for purposes of this appeal? 

2. If we have that authority, should we exercise it? 

We need not decide the first issue because even if we have this authority, 

we would decline to exercise it here. 

 Rule 43(a)(1) authorizes substitution of a party’s “personal 

representative.” “The ‘personal representative’ to which Rule 43(a) refers 

will ordinarily be the executor or administrator of the deceased [party’s] 

estate.” Anderson v. Romero, 42 F.3d 1121, 1122-23 (7th Cir. 1994). But 

Mr. Henderson’s widow has not been appointed in state court as an 

executor or administrator. 

Even if we had the power to appoint Mr. Henderson’s widow, we 

would not exercise that power without information showing her suitability 

to represent the estate. To decide her suitability as a representative, we 

must examine state law. See Bennett v. Tucker, 827 F.2d 63, 68 (7th Cir. 

1987) (“Although the Advisory Committee did not define the words 

‘personal representative[]’ [for purposes of Federal Rule of Appellate 

Procedure 43(a),] we assume that this refers to an individual recognized by 

state law, such as an executor.”). 

The pertinent law is Oregon’s because Mr. Henderson’s estate is 

located in Oregon. Under Oregon law, the state court (not ours) is 

authorized to appoint a “qualified person” as a representative based on the 

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existence of a will and a statutory set of preferences. Or. Rev. Stat. 

§ 113.085(1). 

We have no information about the qualifications of Mr. Henderson’s 

widow or her competency. Without this information, we lack any basis to 

deem Mrs. Henderson a suitable representative of the estate under Oregon 

law. See Mallonee v. Fahey, 200 F.2d 918, 919 (9th Cir. 1952) (Douglas, 

C.J.) (stating that under Rule 43’s counterpart in the Federal Rules of Civil 

Procedure, substitution is limited to legal representatives of the estate 

upon a party’s death). 

 Because we have no one to represent Mr. Henderson’s interest, we 

have two choices. We can dismiss the appeal involving the claim against 

Mr. Henderson or allow Ms. Shell to prosecute this part of the appeal 

unopposed. We believe it is unfair to allow the appeal to proceed against 

Mr. Henderson. If he had lived, he would have had the opportunity to 

oppose Ms. Shell’s appeal. Mr. Henderson lost this opportunity with his 

death, and it would be inequitable to allow Ms. Shell to prosecute this 

appeal without anyone to defend Mr. Henderson’s interest. As a result, we 

dismiss the appeal as to Mr. Henderson. See Crowder v. Housing Auth. of 

Atlanta, 908 F.2d 843, 846 n.1 (11th Cir. 1990) (dismissing the appeal as 

to the deceased appellant); Gamble v. Thomas, 655 F.2d 568, 569 (5th Cir. 

1981) (dismissing the appeal after the appellant died and no one moved for 

substitution of parties). 

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III. The Appeal as to Ms. Swallow: The Absence of Notice 

This dismissal would not affect Ms. Shell’s appeal of the ruling on 

her motion to alter the judgment for Ms. Swallow. Here we conclude that 

Ms. Shell was deprived of her right to notice. 

 In this part of the appeal, we apply the abuse-of-discretion standard. 

Headwaters Res., Inc. v. Ill. Union Ins. Co., 770 F.3d 885, 899 (10th Cir. 

2014). Under this standard, we will reverse only if we have “a definite and 

firm conviction that the [district] court made a clear error of judgment or 

exceeded the bounds of permissible choice in the circumstances.” Id.

(internal quotation marks omitted). 

 After conducting the hearing on entry of a default judgment, the 

district court determined that Ms. Shell had not presented sufficient 

evidence to sustain her claims against Ms. Swallow. Our issue involves the 

adequacy of notice to Ms. Shell before the hearing. The district court 

thought Ms. Shell should have been prepared to present evidence at the 

default hearing because she would have been expected to be in trial. 

 In our view, the district court erred. Ms. Shell knew she had to 

present evidence to prevail in a trial. But when the court ordered a hearing 

under Rule 55(b), Ms. Shell was not in a trial and she could reasonably 

assume that her only obligation in that hearing was to prove damages. 

The district court could have broadened the hearing, for default 

judgments are not automatic once a defendant has defaulted. See Bixler v. 

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Foster, 596 F.3d 751, 762 (10th Cir. 2010) (“Once default is entered, it 

remains for the court to consider whether the unchallenged facts constitute 

a legitimate cause of action, since a party in default does not admit mere 

conclusions of law.” (internal quotation marks omitted)). Thus, in 

determining whether to enter a default judgment, the district court could 

have conducted a hearing to establish the truth of Ms. Shell’s allegations. 

Fed. R. Civ. P. 55(b)(2)(C). 

But to do so, the court needed to give Ms. Shell adequate prior 

notice. See Black v. Lane, 22 F.3d 1395, 1398 (7th Cir. 1994) (stating that 

it was improper to dismiss claims at a hearing on damages without 

providing notice that the court would consider the merits); Quirindongo 

Pacheco v. Rolon Morales, 953 F.2d 15, 16 (1st Cir. 1992) (per curiam) 

(stating that the court must make “its requirements known in advance to 

the plaintiff, so that he could understand the direction of the proceeding 

and marshall such evidence as might be available [to] him” (brackets and 

internal quotation marks omitted)). In our view, the court did not provide 

the required notice. 

At the pretrial conference, the district court made remarks indicating 

that the hearing would involve calculation of damages, not determination 

of liability. For example, the court indicated an intent to hold the 

defendants in default for not appearing at the final pretrial conference, but 

would allow them to show why they should not be held in default. The 

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court added that if the defendants failed to show adequate cause, a default 

would enter and Ms. Shell would need to present evidence on damages and 

the court would “evaluate whatever evidence [was] available to determine 

whether there [were] any claims [she could] prevail on.” 7/25/13 Tr. at 5. 

Later in the conference, the court added: 

And if it turns out that the defendants do not respond to the 

order to show cause, showing cause why a default should not be 

entered against them for failure to appear here today, this will 

be your opportunity to present evidence of any damages that 

you claim to have suffered on the claims that have been 

identified. We’ll use it as a Rule 55(b) hearing. 

Id. at 16. 

These remarks did not alert Ms. Shell to the need to present evidence 

to support her claims on the merits. In the absence of notice, the district 

court should not have expanded the hearing beyond the issue of damages. 

Accordingly, the district court abused its discretion in rejecting 

Ms. Shell’s argument for alteration of the judgment based on lack of 

notice. In these circumstances, we reverse with instructions to vacate the 

order denying the motion to alter the judgment for Ms. Swallow. 

On remand, the district court may choose to evaluate the claims 

against Ms. Swallow as though the hearing were a Rule 55(b) hearing 

limited to damages. In the alternative, with proper notice to Ms. Shell, the 

district court may expand the hearing and address the claims against 

Ms. Swallow on grounds other than damages. 

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IV. Conclusion 

We deny Ms. Shell’s motion to substitute and dismiss the appeal of 

the judgment as to Mr. Henderson. We also reverse the order denying Ms. 

Shell’s motion to alter the judgment for Ms. Swallow. The action is 

remanded for further proceedings on the claim against Ms. Swallow. 

 Entered for the Court 

 Robert E. Bacharach 

 Circuit Judge 

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