Smocks v. United States of America The
4:22-cv-01028
| E.D. Tex. | Jul 28, 2023Background
- Plaintiff Troy Anthony Smocks sued the United States under the Federal Tort Claims Act related to his January 14, 2021 arrest, seeking $2,500,024,227.04 in damages.
- Complaint was served on the United States on December 9, 2022; the original response deadline was February 7, 2023.
- On February 2, 2023, the United States timely filed a motion for an extension to respond, citing pending agency litigation reports and DOJ Torts Branch approval to assert the discretionary-function exception.
- While that extension request was pending, Smocks filed requests for entry of default and a motion for a "nihil dicit" default judgment (Feb–Mar 2023).
- The Court granted the extension on March 7, 2023, extending the response deadline to March 9, 2023; the United States filed a timely Rule 12(b)(1) and 12(b)(6) motion to dismiss on March 9.
- Because the Clerk never entered default and the United States was not overdue under the extended schedule, the magistrate judge recommended denial of Smocks’ motion for default judgment and noted doubts about the availability of "nihil dicit" judgments in federal court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a default judgment should be entered against the United States | Smocks moved for a nihil dicit default judgment under Rule 55, arguing the US failed to respond | US had timely filed a motion for extension and then a timely Rule 12 motion; no entry of default by the Clerk | Denied: no entry of default exists, so default judgment is improper |
| Whether "judgment nihil dicit" (Texas common-law default) may be applied | Invokes Texas nihil dicit to obtain default judgment | Court: federal practice governed by Rule 55; nihil dicit rarely used and likely unavailable in federal court | Court doubted nihil dicit is appropriate and construed the motion under Rule 55(b)(2) |
| Whether the US extension request tolled any default and justified delay | Smocks sought clerk default while extension was pending | US relied on Rule 6/12 to seek extension for good cause; Court granted extension before original deadline expired | Granting the extension prevented default; US’s Rule 12 filing was timely under the extension |
Key Cases Cited
- N.Y. Life Ins. Co. v. Brown, 84 F.3d 137 (5th Cir. 1996) (default and entry-of-default principles under Rule 55)
- L.A. Pub. Ins. Adjusters, Inc. v. Nelson, 17 F.4th 521 (5th Cir. 2021) (Rule 6(b)(1) extensions when requested before deadline may be granted for any reason)
- In re Gober, 100 F.3d 1195 (5th Cir. 1996) (discussion of default contexts and effects)
- Thomas v. Arn, 474 U.S. 140 (U.S. 1985) (standard for de novo review of magistrate judge recommendations)
- Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415 (5th Cir. 1996) (procedural rules on objections to magistrate reports)