                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                         August 2, 2006
                             FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                          Clerk of Court



    M ILISA J. POLASKI,

              Plaintiff-Appellant,

    v.                                                     No. 05-1401
                                                    (D.C. No. 04-W M -9 (CBS))
    C OLO RA D O D EPA RTM EN T OF                          (D . Colo.)
    TR AN SPO RTA TIO N ,

              Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before TA CH A, Chief Judge, O’BRIEN, and M cCO NNELL, Circuit Judges.


         Plaintiff-appellant M ilisa J. Polaski, appearing pro se, appeals from the

district court’s dismissal of her suit asserting a claim under 42 U.S.C. § 1983

against the Colorado Department of Transportation (CDOT). W e have

jurisdiction under 28 U.S.C. § 1291.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      Appellant alleged in her complaint that she was injured on January 3, 2002,

when she slipped on an icy stairw ay leading to the public restrooms at the Vail

Pass Rest Area off Interstate 70 in Colorado. CDOT did not timely answer the

summons and complaint, and appellant filed a “M otion to Enter Default

Judgment.” The district court construed appellant’s motion as requesting the

entry of default, and granted it. CDOT moved under Fed. R. Civ. P. 55(c) to set

aside the default based on good cause, arguing that appellant failed to personally

serve CDOT, as required by law. CDOT also moved under Fed. R. Civ.

P. 12(b)(1) to dismiss the complaint for lack of subject matter jurisdiction. The

district court granted CDOT’s motion to set aside the default and referred

CDOT’s motion to dismiss to the magistrate judge.

      The magistrate judge recommended that the complaint be dismissed

because appellant failed to allege that CDOT personally participated in the

alleged dangerous condition at the rest area and because CDOT is entitled to

Eleventh Amendment immunity from suit. The magistrate judge further

recommended that it would be futile to allow appellant an opportunity to amend

her complaint because her claim was for gross negligence, which is not

cognizable under § 1983. The district court adopted the magistrate judge’s

recommendation and dismissed the case with prejudice.




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      Appellant argues on appeal that: (1) the district court abused its discretion

by refusing to enter judgment by default; and (2) the district court improperly

dismissed the suit for lack of subject matter jurisdiction.

      Fed. R. Civ. P. 55(c) provides that “[f]or good cause shown the court may

set aside an entry of default.” W e review the district court’s decision to grant

CDOT’s motion to set aside the entry of default for abuse of discretion. See

Stjernholm v. Peterson, 83 F.3d 347, 349 n.1 (10th Cir. 1996). “[T]he good cause

required by Fed. R. Civ. P. 55(c) for setting aside entry of default poses a lesser

standard for the defaulting party than the excusable neglect which must be show n

for relief from judgment under Fed. R. Civ. P. 60(b).” Dennis Garberg &

Assocs., Inc. v. Pack-Tech Int’l Corp., 115 F.3d 767, 775 n.6 (10th Cir. 1997).

Default judgments are disfavored by courts. Katszon Bros., Inc. v. United States

EPA , 839 F.2d 1396, 1399 (10th Cir. 1988). Appellant does not assert that she

personally served the complaint on CDOT. Further, a lack of subject matter

jurisdiction constitutes good cause for setting aside an entry of default. See

W illiams v. Life Sav. & Loan, 802 F.2d 1200, 1202-03 (10th Cir.1986)

(per curiam). W e hold that the district court did not abuse its discretion in setting

aside the entry of default.

      W e review de novo a dismissal for lack of jurisdiction. Bear v. Patton,

451 F.3d 639, 641 (10th Cir. 2006). Because appellant cannot overcome CDOT’s

Eleventh Amendment immunity or show that a claim for gross negligence is

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cognizable under § 1983, we affirm the dismissal of her suit. W e note, however,

that a dismissal for lack of subject matter jurisdiction must be without prejudice.

Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006). “[I]t is

our responsibility to correct an action by the district court that exceeds its

jurisdiction.” Id. Therefore, we vacate and remand for this limited purpose: for

the district court to modify its Order on Recommendation of M agistrate Judge to

reflect that its dismissal is without prejudice, and to enter a judgment to that

effect.

          CDOT’s motion to dismiss the appeal as untimely is denied. See Fed. R.

Civ. P. 58(b)(2)(B). W e AFFIRM the district court’s dismissal and VA CA TE

only the court’s reference to the dismissal being with prejudice. W e REM AND

only for the district court to amend its order and to enter a judgment to dismiss

the suit w ithout prejudice.

                                                      Entered for the Court



                                                      Deanell Reece Tacha
                                                      Chief Circuit Judge




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