Default Is Unavailable When Rule 12(a)(3)’s 60-Day Clock Has Not Run From Service on the U.S. Attorney (and Timely Extensions Defeat Default)

1. Introduction

In Crowe v. Gee, No. 25-2118 (10th Cir. Sept. 1, 2026) (unpublished order and judgment), the Tenth Circuit affirmed the District of New Mexico’s (i) denial of pro se plaintiff John A. Crowe’s motion for default judgment and (ii) dismissal of his amended civil-rights complaint against three federal probation officers: Amy Gee, Eric Newton, and Ernesto Padilla.

The appeal largely turned on a procedural question: when does the time to respond run for federal officers sued in their individual capacity, and can a plaintiff obtain default when the officer defendants respond within the timeframe set by the Federal Rules (and any granted extension)?

A second, appellate-procedure issue also framed the outcome: Crowe’s briefing did not meaningfully challenge the dismissal order or denial of reconsideration, raising the question of abandonment/waiver on appeal.

2. Summary of the Opinion

  • The court held the district court did not abuse its discretion in denying default judgment because the response deadline was governed by Fed. R. Civ. P. 12(a)(3), which starts the 60-day response period from the later of service on the officer or service on the United States Attorney.
  • Crowe served the defendants on September 18, 2024, but did not serve the United States Attorney until November 4, 2024. Thus, the 60-day clock ran from November 4, making Crowe’s default request premature.
  • The district court permissibly granted defendants an extension under Fed. R. Civ. P. 6(b)(1), and the defendants filed a timely motion to dismiss, which qualifies as a responsive pleading.
  • The court rejected claims of unfairness or bias, reiterating that adverse rulings do not show judicial bias.
  • Because Crowe did not adequately brief challenges to dismissal and denial of reconsideration, those issues were treated as abandoned.

3. Analysis

A. Precedents Cited

The panel’s reasoning was anchored in prior Tenth Circuit authority on (i) pro se litigation standards, (ii) waiver/abandonment on appeal, (iii) default-judgment review standards, and (iv) extensions of time.

1) Pro se construction—but no advocacy

  • Luo v. Wang, 71 F.4th 1289, 1291 n.1 (10th Cir. 2023): The court liberally construes pro se filings but does not act as counsel. This framed the court’s approach: Crowe received liberal construction, but he still bore the burden to present coherent appellate arguments.
  • Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005): The court “repeatedly insisted” pro se litigants follow procedural rules. This reinforced that Crowe could not obtain special procedural dispensation in default practice.

2) Abandonment/waiver for inadequate briefing

  • Sawyers v. Norton, 962 F.3d 1270, 1286 (10th Cir. 2020): Issues not raised in the opening brief—or inadequately presented—are deemed abandoned/waived. The panel used this to dispose of Crowe’s non-default challenges (dismissal and reconsideration) without reaching their merits.

3) Standard of review for default judgment

  • Bixler v. Foster, 596 F.3d 751, 761 (10th Cir. 2010): Denial of default judgment is reviewed for abuse of discretion. This standard matters: even if an appellate court might have managed deadlines differently, it will affirm absent a “clear error of judgment.”
  • State ex rel. Kobach v. U.S. Dep't of Interior, 72 F.4th 1107, 1124 (10th Cir. 2023): The panel quoted the abuse-of-discretion formulation—no reversal without a “definite and firm conviction” of clear error or exceeded bounds of permissible choice—setting a high bar for Crowe’s challenge.
  • Bixler v. Foster, 596 F.3d 751, 762 (10th Cir. 2010): The panel relied on Bixler again for the proposition that adverse rulings do not, by themselves, establish judicial bias.

4) What counts as a responsive pleading

  • Marquez v. Cable One, Inc., 463 F.3d 1118, 1120 (10th Cir. 2006): Recognizes a motion to dismiss as a responsive pleading. This mattered because defendants responded by filing a motion to dismiss rather than an answer; that response defeats default.

5) Extensions of time are ordinarily granted when sought before the deadline

  • Rachel v. Troutt, 820 F.3d 390, 394 (10th Cir. 2016): District courts should normally grant extension requests made before the deadline absent bad faith or prejudice. This supported the district court’s decision to extend defendants’ response date.

B. Legal Reasoning

1) The controlling deadline: Rule 12(a)(3) and “whichever is later”

The core holding is a straightforward application of the Federal Rules: where a federal officer is sued in an individual capacity, the officer must respond within 60 days after service on the officer or service on the United States attorney—whichever is later. The panel emphasized that Crowe’s delay in serving the United States Attorney necessarily delayed the response deadline.

On the record, Crowe served the defendants (Sept. 18, 2024) but served the U.S. Attorney (Nov. 4, 2024) later, so the 60-day response period ran from Nov. 4. The panel treated Crowe’s default request (Nov. 22) as based on a miscalculated deadline.

2) No default where defendants respond within the operative time (including extensions)

Even assuming the initial 60-day period was nearing expiration, the defendants sought additional time and the district court granted it under Rule 6(b)(1). The defendants then filed a motion to dismiss by the extended deadline. Under Marquez v. Cable One, Inc., that motion qualifies as a responsive pleading—further foreclosing default.

3) Counsel’s appearance date is irrelevant to the response clock

Crowe argued default was warranted because defendants lacked counsel until December 2024. The panel rejected this as a non sequitur: the response deadline is determined by service mechanics under Rule 12(a)(3), not by when counsel appears.

4) Alleged “bias” based on the court’s correcting a rule citation

Crowe also pointed to defendants’ mistaken citation (Rule 12(a)(2) rather than Rule 12(a)(3)). The panel held that the district court’s citing and applying the correct rule is not “doing legal work” for a party; it is the court’s duty to apply governing law. Under Bixler v. Foster, adverse rulings (or correct rulings) do not show bias.

5) Appellate abandonment narrowed the appeal

Invoking Sawyers v. Norton, the panel treated Crowe’s failure to meaningfully challenge dismissal and the denial of reconsideration as abandonment. Practically, that left only the default issue, which was resolved via the rules governing service and response time.

C. Impact

  • Default practice in suits against federal employees: The opinion reinforces that plaintiffs must account for the special service and response-time regime when federal officers are sued individually. A plaintiff’s failure to complete service on the United States Attorney can make a default motion not only premature but categorically improper.
  • Extensions will usually be upheld: By relying on Rachel v. Troutt and applying the abuse-of-discretion standard, the opinion signals that timely extension requests—absent prejudice or bad faith—will rarely support reversal.
  • Appellate briefing discipline: The abandonment holding underscores that appellants must squarely brief each challenged order; otherwise, even potentially significant merits issues will not be reviewed.
  • Persuasive, not binding: Because the disposition is an unpublished “order and judgment,” it is not binding precedent (except under law of the case, res judicata, and collateral estoppel), but it provides a practical roadmap for timing disputes under Rules 4(i), 12(a)(3), and 6(b).

4. Complex Concepts Simplified

  • Default judgment: A judgment entered because the defendant failed to plead or otherwise defend on time. If the defendant’s deadline has not yet passed—or was validly extended—default is inappropriate.
  • Service of process: The formal delivery of the lawsuit. For certain defendants (including federal employees sued individually), service requirements are more involved and can affect response deadlines.
  • Fed. R. Civ. P. 4(i)(3): When suing a U.S. officer/employee in an individual capacity for acts connected to duties, the plaintiff must serve both the individual and the United States (including the U.S. Attorney).
  • Fed. R. Civ. P. 12(a)(3): Gives individual-capacity federal employees 60 days to respond, running from the later of service on the employee or the U.S. Attorney—protecting against premature defaults while the United States is being notified.
  • Fed. R. Civ. P. 6(b)(1): Allows courts to extend deadlines for “good cause,” particularly when the request is made before the deadline expires.
  • Responsive pleading: A filing that responds to the complaint. In this circuit, a motion to dismiss qualifies and prevents default.
  • Abuse of discretion: A deferential review standard; the appellate court will not reverse unless the trial court made a clear error of judgment outside permissible options.
  • Abandonment/waiver on appeal: If an appellant does not raise or adequately argue an issue in the opening brief, the appellate court treats it as forfeited.

5. Conclusion

Crowe v. Gee is a procedural decision with a clear rule-of-thumb: when federal officers are sued in their individual capacities, the response deadline tracks the later service date—often service on the U.S. Attorney—and timely extensions and motions to dismiss defeat default. The opinion also serves as a reminder that pro se status does not excuse compliance with procedural rules and that appellate courts will not reach issues that are not properly briefed.