                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                        December 19, 2005
                             FOR THE TENTH CIRCUIT
                                                                           Clerk of Court

    STUART T. GUTTMAN,

              Plaintiff-Appellant,

     v.                                                   No. 05-2180
                                                (D.C. No. CIV-05-360 JAP/LFG)
    HERBERT M. SILVERBERG;                                 (D. N.M.)
    WILLIAM F. LANG,

              Defendants-Appellees.




                             ORDER AND JUDGMENT *


Before BARRETT, PORFILIO, and BRORBY, Senior Circuit Judges.



          After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 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      This order and judgment is not binding precedent, except under the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.
      Plaintiff Stuart T. Guttman, appearing pro se, appeals from the district

court’s orders vacating a default judgment and dismissing his case for lack of

subject matter jurisdiction, failure to state a claim upon which relief can be

granted, and on the ground of absolute judicial immunity. We exercise

jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

      Guttman, a medical doctor, filed this suit against his former attorney,

Herbert M. Silverberg, and the Honorable William F. Lang, a New Mexico

District Court Judge in the Second Judicial District (Bernalillo County).

Silverberg represented Guttman in proceedings before the New Mexico Board of

Medical Examiners, and Judge Lang presided over a civil action in which

Guttman brought a claim of malpractice against Silverberg arising out of that

representation.

      In his federal complaint, Guttman asserts that he brings claims against both

defendants under 42 U.S.C. § 1983. He alleges Judge Lang was biased against

him when he denied a motion for access to medical records that Silverberg

allegedly had provided to the court ex parte in relation to a contempt hearing, and

when he denied a motion to recuse himself. He also complains that Silverberg

committed fraud and violated the New Mexico Unfair Trade Practices Act by

billing him for services not rendered or failing to provide services as advertised.




                                          -2-
      A copy of the complaint and summons was served on each defendant on

April 7, 2005. On April 27, Judge Lang’s attorney, Patricia J. Turner, entered an

appearance and, on May 3, filed a motion to dismiss on the grounds of absolute

judicial immunity and a failure to state a claim on which relief can be granted.

On the latter ground, Judge Lang argued that Guttman failed to allege any

constitutional injury arising from his alleged conduct or to request any relief

related to his alleged conduct.

      On May 4, 2005, Guttman filed a “Notice Of Default Judgment Per Rule

55” and an accompanying affidavit in which he sought the entry of default against

Silverberg and Turner. Neither document mentioned Judge Lang. On May 5, the

clerk of the court entered a default pursuant to Fed. R. Civ. P. 55(a) 1

against Silverberg only. Guttman never moved for entry of default judgment

against Silverberg and none was ever entered. On May 9, Silverberg filed two

motions, one requesting relief from the entry of default and one requesting

dismissal of the case. On June 7, the district court granted Judge Lang’s motion

to dismiss and both of Silverberg’s motions.


1
       Rule 55(a) reads: “When a party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise defend as provided by these rules
and that fact is made to appear by affidavit or otherwise, the clerk shall enter the
party’s default.” Fed. R. Civ. P. 55(a).   Guttman’s version of this rule, as set
forth on page three of his opening brief, erroneously adds the word “judgment”
after “default.” The entry of default and the entry of a judgment by default are
two separate procedures. Compare Fed. R. Civ. P. 55(a) with 55(b).

                                          -3-
      On appeal, Guttman argues that the district court should not have set aside

the entry of default against Silverberg. He also argues that the district court

should have entered default against Judge Lang and, ostensibly in the alternative,

that Judge Lang is not entitled to absolute judicial immunity because his acts were

nonjudicial.

      We review a decision regarding the entry of default for abuse of discretion.

Ashby v. McKenna , 331 F.3d 1148, 1151-52 (10th Cir. 2003).      We review de novo

the district court’s orders granting the defendants’ motions to dismiss under Fed.

R. Civ. P. 12(b)(1) & (6). Colo. Envtl. Coal. v. Wenker, 353 F.3d 1221, 1227

(10th Cir. 2004). Because Guttman appears pro se, we review his pleadings and

other papers liberally and hold them to a less stringent standard than those drafted

by attorneys. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon,

935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).

      An answer generally must be served twenty days after service of the

summons and complaint. Fed. R. Civ. P. 12(a)(1)(A). In lieu of an answer, a

motion permitted by Rule 12(b) may be served within the twenty-day period.        See

Fed. R. Civ. P. 12(a)(4)(A), (b). In this case, the twenty-day period ended on

April 27, 2005. If a party fails to answer or otherwise defend, a default may be

entered against the party. Fed. R. Civ. P. 55(a).




                                          -4-
      A court may set aside an entry of default for good cause shown. Fed. R.

Civ. P. 55(c). “[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 shown 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). Because “[a] judgment is void when a

court enters it lacking subject matter jurisdiction,” Williams v. Life Sav. & Loan,

802 F.2d 1200, 1202 (10th Cir. 1986), it follows that lack of subject matter

jurisdiction constitutes good cause to set aside an entry of default leading up to

the entry of a default judgment, see id. at 1203 (holding that, before entering a

default judgment, a court has “an affirmative duty to look into its jurisdiction

both over the subject matter and the parties”). See also Fed. R. Civ. P. 12(h)(3)

(providing that a court must dismiss an action whenever it appears that the court

lacks subject matter jurisdiction).

      To the extent Guttman’s claims against Silverberg are based on § 1983, we

conclude that the district court lacked subject matter jurisdiction under 28 U.S.C.

§ 1331. Guttman did not allege state action on the part of Silverberg in his

complaint, see Chapoose v. Hodel, 831 F.2d 931, 934-35 (10th Cir. 1987)

(affirming dismissal of § 1983 claim for lack of subject matter jurisdiction where

defendant was not a state actor), and he has not presented any argument in his


                                          -5-
appellate briefs on his issue. Guttman’s suggestion that default was appropriate

because Silverberg knew of this defense at the time his answer was due and failed

to assert it by that date is without merit. “[L]ack of jurisdiction cannot be waived

and jurisdiction cannot be conferred upon a federal court by consent, inaction or

stipulation.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.

1974).

         To the extent his claims against Silverberg solely involve questions of state

law, Guttman did not allege diversity of citizenship under 28 U.S.C. § 1332, and

we conclude that diversity is lacking. Although not explicitly stated, it is

apparent that the district court declined to exercise supplemental jurisdiction

pursuant to 28 U.S.C. § 1367(c)(3) in view of its dismissal of the § 1983 claim

against Silverberg as well as the dismissal of the § 1983 claim against Judge

Lang, which, we conclude below, was proper. Accordingly, the court did not

abuse its discretion in setting aside the entry of default for good cause based on

the lack of subject matter jurisdiction and did not err in granting Silverberg’s

motion to dismiss on the same ground.

         Guttman argues that the district court should have entered default against

Judge Lang because his attorney, Ms. Turner, entered her appearance on the date

an answer or defensive motion was due, April 27, but did not file a motion to

dismiss until May 3. We approach this issue by considering the factors a district


                                           -6-
court should take into account when determining whether to set aside an entry of

default, including “whether the default was willful, whether setting it aside would

prejudice the adversary, and whether a meritorious defense is presented.”

Dierschke v. O’Cheskey   (In re Dierschke), 975 F.2d 181, 183 (5th Cir. 1992)

(quotation omitted). A court need not consider all of the factors, and may

consider other factors as well. Id. at 183-84. However, even where there is a

meritorious defense and no prejudice to the adversary, “[w]illful failure alone

may constitute sufficient cause for the court to deny th[e] motion.” Id. at 184-85.

      The sequence of events shows that Judge Lang’s motion to dismiss was

filed before Guttman’s motion for entry of default and presented a meritorious

defense to the claim against Judge Lang. We are not persuaded by Guttman’s

argument that either Judge Lang or his attorney acted willfully in filing the

motion to dismiss after April 27 because we see no substantial advantage to Judge

Lang and no prejudice to Guttman in connection with the short delay. Under

these circumstances, we perceive no reversible error in the district court’s failure

to enter default against Judge Lang.

      We also conclude that the district court did not err in dismissing the claim

against Judge Lang based on absolute judicial immunity. “[G]enerally, a judge is

immune from a suit for money damages.”      Mireles v. Waco , 502 U.S. 9, 9 (1991).

The immunity extends to acts taken in a judge’s judicial capacity; it does not


                                         -7-
encompass nonjudicial actions or judicial actions taken in the absence of all

jurisdiction.   Id. at 11-12. “[W]hether an act by a judge is a ‘judicial’ one

relate[s] to the nature of the act itself,   i.e. , whether it is a function normally

performed by a judge, and to the expectations of the parties,        i.e. , whether they

dealt with the judge in his judicial capacity.”        Stump v. Sparkman , 435 U.S. 349,

362 (1978).

       Judge Lang’s rulings on Guttman’s motions were the normal functions of a

judge, and the parties were dealing with Judge Lang in his judicial capacity.

Whether or not Judge Lang accepted ex parte communications, was biased against

Guttman, or should have recused himself does not abrogate the immunity or

render his acts nonjudicial. See Mireles , 502 U.S. at 11 (“judicial immunity is not

overcome by allegations of bad faith or malice”);         Pierson v. Ray , 386 U.S. 547,

554 (1967) (“immunity applies even when the judge is accused of acting

maliciously and corruptly”),      overruled on other grounds by Harlow v. Fitzgerald       ,

467 U.S. 800 (1982) (qualified immunity).            Furthermore, Guttman has not alleged

that Judge Lang improperly took jurisdiction over his case.          Therefore, Judge

Lang is absolutely immune from Guttman’s suit to the extent he seeks damages.

       Although “a judge is not absolutely immune from . . . a suit for prospective

injunctive relief,”   Mireles , 502 U.S. at 10 n.1. , Guttman has not requested any

prospective injunctive relief. In his reply brief, he refers to a statement in his


                                               -8-
complaint that mentions injunctive relief without identifying its nature. It is

clear, however, that any injunctive relief that would address his complaints

pertains to past conduct (denying his motions) and is not prospective.

      Based on our conclusion that Judge Lang is entitled to absolute immunity,

we need not reach the district court’s alternate ground for dismissal under Rule

12(b)(6). Additionally, the allegations of errors by the magistrate judge, raised

for the first time in Guttman’s reply brief, are waived. See State Farm Fire &

Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994) (holding that the failure

to raise an issue in an opening brief waives that issue). Even if these issues were

not waived, we conclude Guttman’s arguments are without merit.

      The judgment of the district court is AFFIRMED. We treat Guttman’s

“Motion to Reconsider Acceptance of Summons” as a motion to supplement the

record on appeal and DENY it as moot because the summonses appear in the

record. We also DENY as moot his “Motion for Allowance of Utilization of

Appendix with Reply Brief” because the documents contained in

“Plaintiff/Appellant Reply Appendix” are either duplicative of documents

contained in the record or irrelevant to our disposition of this appeal.



                                                     Entered for the Court


                                                     John C. Porfilio

                                         -9-
       Circuit Judge




-10-
