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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 34179

DANIEL LEE EBY,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

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2009 Opinion No. 37

Filed: May 15, 2009

Stephen W. Kenyon, Clerk

Appeal from the District Court of the First Judicial District, State of Idaho, 

Kootenai County. Hon. John P. Luster, District Judge. 

Order denying motion to set aside order of dismissal, reversed.

Dennis A. Benjamin of Nevin, Benjamin, McKay & Bartlett, LLP, Boise, for 

appellant. 

Hon. Lawrence G. Wasden, Attorney General; Rebekah A. Cudé, Deputy 

Attorney General, Boise, for respondent. 

______________________________________________

LANSING, Chief Judge

This case presents a shameful saga of neglect and inattention by appointed attorneys who 

represented a petitioner for post-conviction relief. This neglect ultimately resulted in the 

dismissal of the case for inactivity and the denial of a motion to set aside the dismissal order. 

Because we conclude that the petitioner himself filed an adequate, timely motion for relief from 

the judgment of dismissal and that the record demonstrates that such relief should have been 

granted, we reverse the district court’s decision declining to set aside the dismissal order.

I.

BACKGROUND

Daniel Lee Eby was convicted of first degree murder, conspiracy to commit robbery, and 

attempted robbery. He appealed to this Court, and we affirmed the murder and conspiracy 

conviction but reversed the attempted robbery conviction because that offense merged into the 

murder conviction. See State v. Eby, 136 Idaho 534, 37 P.3d 625 (Ct. App. 2001). Eby then 
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filed a pro se petition for post-conviction relief on January 31, 2002, and moved for appointment 

of counsel to represent him in the post-conviction action. Thus began the more than five-year 

journey that Eby’s petition was to take through the district court. 

After receiving Eby’s petition, the district court appointed the Kootenai County Public 

Defender to represent him. A conflict public defender, referred to herein as Attorney 2, was 

appointed approximately two weeks later, on February 13, 2002, to replace the Kootenai County 

Public Defender. Over four months later, on June 27, 2002, Eby wrote a letter to the district 

court saying he had only spoken to Attorney 2 one time and that since then the attorney’s office 

had refused to accept Eby’s calls or to reply to his letters. The judge responded with a letter 

stating it understood that arrangements were being made to assign new counsel. New counsel, 

Attorney 3, took the case in late October of 2002. In the meantime, the district court had issued 

its first notice of intent to dismiss Eby’s petition for inactivity under Idaho Rule of Civil 

Procedure 40(c),

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but had also thereafter issued an order retaining the case because new counsel 

was being assigned. The State had also already filed a motion for summary dismissal.

On May 27, 2003, sixteen months after Eby had filed his petition and seven months after 

Attorney 3 had been assigned to the case, the district court issued its second I.R.C.P. 40(c) notice 

of intent to dismiss for inactivity.

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 It stated the action would be dismissed as of June 16, 2003 

unless Eby made a showing, by 10:00 a.m. on June 16, 2003, of adequate reason not to dismiss. 

Attorney 3 filed a response at 10:10 a.m. on June 16, 2003, requesting that the case be retained 

and proposing a timetable for his continued work on the case. Attorney 3 stated that he had read 

and taken notes on most of what he asserted were several thousand pages of reports and 

discovery, and 1,200 pages of transcripts from Eby’s criminal case. He also stated that he had 

met with witnesses and the petitioner multiple times. Attorney 3 stated that he had spent over 

 

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Idaho Rule of Civil Procedure 40(c) states in part:

In the absence of a showing of good cause for retention, any action . . . in 

which no action has been taken . . . for a period of six (6) months shall be 

dismissed. . . . At least 14 days prior to such dismissal, the clerk shall give 

notification of the pending dismissal to all attorneys of record, and to any party 

appearing on that party’s own behalf, in the action or proceeding subject to 

dismissal under this rule.

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The court had issued a similar notice on April 30, 2003, but apparently did not send it to 

the correct address for Attorney 3, so another such notice was issued on May 27, 2003. 
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eighty hours working on the case and that before he could prepare and file an amended petition,

he would need to interview several additional witnesses and complete his review of some of the 

trial materials. As part of his proposed timetable, Attorney 3 anticipated filing an amended 

petition by September 15, 2003. The district court thereupon issued an order retaining the case. 

However, by December 15, 2003--three months past Attorney 3’s self-designated deadline--

Attorney 3 still had not filed an amended petition. The district court therefore issued its third 

Rule 40(c) notice, listing January 2, 2004 at 10:30 a.m. as the new threatened dismissal point. 

Attorney 3 filed a response at 10:38 a.m. on January 2, 2004, saying the press of other cases had 

unexpectedly prevented him from following his earlier timetable but that he had nevertheless put 

in more than forty additional hours of work on Eby’s case. Attorney 3 also stated that he still 

had witnesses to interview, some of whom had been brought to his attention through further 

investigation. Attorney 3 therefore proposed a new timetable indicating that he would file an 

amended petition by March 15, 2004, and would be prepared for “trial setting” at that time. The 

district court once again retained the case.

By July 12, 2004, four months past Attorney 3’s revised deadline, he had not submitted

an amended petition. Thus, twenty-plus months, two Rule 40(c) notices, and two self-selected 

deadlines after having been assigned to the case, Attorney 3 still had not filed an amended 

petition. That day, the district court filed its fourth Rule 40(c) notice, the third since Attorney 3 

had been assigned to the case. It set a deadline of July 29, 2004 at 10:30 a.m. for a response. 

Attorney 3 filed his response on July 29, 2004 at 10:46 a.m. It stated that he had largely finished 

his investigation, research and analysis, and that he was prepared to file the amended petition 

shortly, with only follow-up interviews and the obtaining of signatures remaining to be done. He 

stated that his delay was due in part to his “entire computer network suffer[ing] a catastrophic 

failure due to a virus infection” which caused the loss of weeks of work despite his precautionary 

measures, and also that he had been immobilized for approximately three weeks in April by a 

back injury. Attorney 3 proposed October 4, 2004 as the newest target date for filing an 

amended petition but stated that the amended petition could be filed sooner if needed. The 

district court retained the case again.

Four months after Attorney 3’s third proposed due date of October 4, 2004, he still had 

not submitted the promised amended petition. The district court then issued its fifth Rule 40(c) 

notice on February 8, 2005, requiring a response by February 25, 2005 at 10:30 a.m. Attorney 3 
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filed his response at 10:44 a.m. on February 25, 2005. He asked, yet again, for more time. He 

stated that the amended petition was prepared and that he expected to have Eby sign the petition 

at noon on February 28, 2005. Attorney 3 stated he would either file the amended petition on or

before March 4, 2005 or file a sworn declaration explaining why it hadn’t been filed and why the 

case should nevertheless be retained. He did neither. On June 14, 2005, the district court 

dismissed Eby’s petition for post-conviction relief on the basis of inactivity. Although

Attorney 3 repeatedly asserted, in his varied pleas for patience, that Eby had viable claims for 

prosecutorial misconduct and ineffective assistance of counsel, Attorney 3 never filed an 

amended petition developing those claims in the nearly two years and eight months that he 

served as Eby’s counsel. 

But Eby’s litigation, and his experience with disgraceful legal representation, had not yet 

ended. There remained nearly two years of mishandling by lawyers still to come. 

On August 9, 2005, Eby wrote a letter to the district court clerk asking about the status of 

his petition and whether any dates or deadlines had been set in his case. Apparently, the court 

clerk responded by informing Eby that his petition had been dismissed two months earlier. Upon 

learning of the dismissal, Eby wrote to the district judge saying the clerk’s letter was his first 

notification of the dismissal and asking whether Attorney 3 had filed anything subsequent to the 

dismissal, such as a notice of appeal or a motion for rehearing. Out of an apparent abundance of 

caution, Eby attached to the letter his own “Notice for a Re-Hearing on Order of 

Dismissal/Retention State Post-Conviction,” as well as a “Notice of Appeal from Dismissal of 

Post-Conviction.” The letter, “notice for rehearing,” and appeal were received by the district 

court August 19, 2005. On September 6, 2005, the district court clerk received a letter from Eby 

saying he had been informed by a fellow inmate that his documents needed to be filed with the 

court clerk, not the judge, and that he also learned he could not yet file his notice of appeal. He 

therefore asked the clerk to disregard the appeal. At the same time Eby filed another “Notice for 

a Rehearing on order of Dismissal/Retention State Post-Conviction,” which was dated 

August 17, 2005, a “Brief in Support of Review” and an “Affidavit in Support for Motion for 

Rehearing.” On October 3, 2005, he filed a motion for appointment of new counsel to replace 

Attorney 3 and attached copies of multiple letters from Eby to Attorney 3 in which Eby had been 

asking Attorney 3 over a period from late 2003 to August of 2005 for updates on the case and for 
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a telephone number that worked, as the one Eby had been given to contact Attorney 3 appeared 

to be invalid. 

The Kootenai County Public Defender was again appointed to represent Eby in 

November of 2005, but was replaced by Attorney 5, another conflict public defender, on 

March 7, 2006. Between the appointment of the Kootenai County Public Defender and the 

appointment of Attorney 5, Eby wrote several letters to the district court asking who his attorney 

was and stating he had not been contacted by anyone. This included a letter received by the 

court on February 15, 2006, in which Eby expressed his concern “about possibly being penalized 

for missing a dead line [sic] due to the fact I’ve yet to be contacted by counsel,” and asking 

further, “Are there any dead lines [sic] I should be aware of?” 

When Attorney 5 was appointed in March 2006, it had been nearly nine months since the 

dismissal of Eby’s petition,

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but it appears that Attorney 5 did not realize that the petition had 

been dismissed until sometime in 2007. Instead, Attorney 5 apparently believed the petition was 

being held in abeyance, as that is what she communicated to Eby in a May 24, 2006 letter, and 

she apparently was not attentive to his July 26, 2006 reply pointing out that his petition was not 

in abeyance but had been dismissed approximately one year earlier.

On August 22, 2006, an amended petition was submitted by Attorney 5 and accepted for 

filing by the court clerk. The only claim asserted in this amended petition was a claim that Eby’s 

sentences violated the Eighth Amendment’s ban on cruel and unusual punishment. The amended 

petition was accompanied by an “affidavit,” that was more in the form of a communication from 

Eby to Attorney 5, indicating there was a dispute between Eby and Attorney 5 as to what issues 

should be raised in the amended petition. The affidavit stated, 

 

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This calculation is based on the March 7, 2006 notice of substitution of counsel filed with 

the district court stating that Attorney 5 was being substituted for an attorney in the Kootenai 

County Public Defender office. Attorney 5 stated at a later hearing that she had been appointed 

on November 17, 2005. Documents filed with the district court make no mention of Attorney 5 

being appointed on that date, however, and instead show that to be the date the Kootenai County 

Public Defender was appointed. We base our estimation of Attorney 5’s length of service on the 

documents filed with the district court, not the in-hearing statement of Attorney 5. 
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1. [Attorney 5], It is my understanding and belief that this Amended 

Petition for Post-Conviction Relief (Dated AUGUST 15 2006)4that you want me 

to get Notarized, Is so you can add that issue in with the issue’s that I filed with 

the court on (January 31 2002)

2. If that is not the case I would not have got the said Amended Petition 

(Dated August 15 2006) Notarized

. . . .

4. I want you to include all this stuff in my Post-Conviction.

This dispute is also reflected in correspondence between Eby and Attorney 5, including a letter 

dated August 22, 2006, in which Attorney 5 explained to Eby why she did not include his 

requested ineffective assistance of counsel claim in the amended petition that had been filed that 

day. There, she displayed a further lack of knowledge of both the procedural history of the case 

and the law, saying,

When you claim that your lawyer was ineffective, you are saying your 6th 

amendment right to effective assistance of counsel has been violated. As a 

plaintiff in a post conviction claim, you have the burden of showing by clear and 

convincing evidence that you would have been found not guilty if your lawyer(s) 

hadn’t screwed up.5 In your case (just like most defendants), you convicted 

yourself when you confessed. Your confession was admissible at trial.

For you to prevail on your ineffective assistance claims, you must show 

how you could have been found not guilty if the favorable evidence from the 

police or prosecutor would have been provided. . . .

. . . .

Unless you provide me with facts (not feelings or thoughts or accusations) 

that indicate there is some merit to your argument, I will not pursue the 

ineffective assistance of counsel claims. I did file your Affidavit, so the Court 

knows that is part of your claim. I saw nothing in your file to support your 

 

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Eby references the amended petition filed August 22, 2006, which is dated August 15, 

2006.

5 While we imply no view whatsoever on the viability of Eby’s claim, we do note that this 

is an incorrect statement of the law. The actual requirement is that a petitioner show a 

“reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different,” with a “reasonable probability” being one that is “sufficient to 

undermine confidence in the outcome.” Strickland v. Washington, 466 U.S. 668, 694 (1984) 

(emphasis added). A different outcome could include not only an acquittal but also conviction of 

a lesser included offense or receipt of a lesser sentence. 
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ineffective assistance of counsel claims (neither did [Attorney 3] who spent more 

than 80 hours on your case).6

The dispute continued, leading to an April 3, 2007 letter from Attorney 5 to Eby stating that she 

intended to move to withdraw from his case.

In the meantime, the State had objected to the amended petition on August 31, 2006 on 

the ground that the case had already been dismissed. The record does not disclose a response by 

Attorney 5 to that objection, though she did file a motion for summary disposition on the 

amended petition five months after the State filed its objection. The motion for summary 

disposition was followed by a supporting brief. Neither the motion nor the brief acknowledged 

either the State’s objection or the fact that the original petition had been dismissed twenty 

months earlier. 

It was to be two more months before Attorney 5 first recognized on the record that the 

case had long since been dismissed. On April 9, 2007, she finally filed a motion to set aside the 

Rule 40(c) dismissal order. She did not clearly cite any legal authority for her motion, though 

she did argue that an attorney’s failure to diligently pursue a claim, leading to the claim’s 

dismissal, would constitute ineffective assistance of counsel if the party was prejudiced by the 

dismissal. She also noted that because Eby would file an ineffective assistance claim against 

Attorney 3, “[j]udicial efficiency and economy constitute good cause and support setting aside 

the inactivity dismissal.” At a hearing on this motion and the motion for summary disposition, 

Attorney 5 again relied upon judicial efficiency and economy in her effort to get the dismissal set 

aside and then, in response to a question from the court, mentioned I.R.C.P. 60(b), which 

authorizes the court to grant relief from a judgment in certain circumstances. She said:

I don’t have my book with me, your honor, but I know that I had read case 

law in the I.R.C.P. 40(c) of the court that it’s appropriate to move to set aside the 

dismissal. I think that is pursuant to I.R.C.P. 60, which is motions [sic]. But I 

unfortunately did not bring my book with me.

The district court offered to let Attorney 5 borrow its copy of the Idaho Court Rules to examine 

I.R.C.P. 60, which she did. After familiarizing herself with this rule of civil procedure, 

Attorney 5 argued that though her motion to set aside the dismissal had been untimely, her 

 

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This may have been what Attorney 3 communicated to Attorney 5, but it is inconsistent 

with Attorney 3’s affidavits where he asserted an opinion that Eby had potentially viable claims 

of both prosecutorial misconduct and ineffective assistance of counsel.
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motion was really only duplicative of Eby’s earlier pro se “Notice for a Re-Hearing on Order of 

Dismissal/Retention State Post-Conviction” which, she argued, constituted a timely 

I.R.C.P. 60(b) motion.

The district court ultimately denied the motion for two reasons. First, the court stated its 

belief that under Castle v. Hays, 131 Idaho 373, 957 P.2d 351 (1998), relief from an 

I.R.C.P. 40(c) dismissal can be granted only through an I.R.C.P. 11(a)(2)(B) motion for 

reconsideration or a direct appeal, with respective limitation periods of fourteen days and fortytwo days from the dismissal order. Second, the court stated that even if a motion under 

Rule 60(b) were permissible and Eby’s motion timely under that rule, Eby had not shown a 

justification for relief under Rule 60(b). 

Eby now appeals to this Court, challenging the denial of his August 19, 2005 pro se 

“Notice for a Re-Hearing on Order of Dismissal/Retention State Post-Conviction,” which he 

characterizes as substantively a timely Rule 60(b) motion for relief from the June 14, 2005 order 

dismissing his petition and the follow-up motion filed by Attorney 5 in April 2007.

II.

ANALYSIS

Actions for post-conviction relief brought pursuant to I.C. § 19-4901, et seq., are civil in 

nature and, with limited exceptions, are governed by the Idaho Rules of Civil Procedure. Idaho 

Criminal Rule 57(b); Pizzuto v. State, 127 Idaho 469, 470, 903 P.3d 58, 59 (1995); Ross v. State, 

141 Idaho 670, 671, 115 P.3d 761, 762 (Ct. App. 2005) (applying I.R.C.P. 60(b) in a postconviction action); Vick v. State, 131 Idaho 121, 123, 952 P.2d 1257, 1259 (Ct. App. 1998); State 

v. LePage, 138 Idaho 803, 810, 69 P.3d 1064, 1071 (Ct. App. 2003). Idaho Rule of Civil 

Procedure 60(b) specifies permissible grounds for relief from a final judgment and time limits for 

a motion seeking such relief. It says in relevant part:

On motion and upon such terms as are just, the court may relieve a party or his 

legal representative from a final judgment, order, or proceeding for the following 

reasons: (1) mistake, inadvertence, surprise, or excusable neglect . . . or (6) any 

other reason justifying relief from the operation of the judgment. The motion 

shall be made within a reasonable time, and for reasons (1), (2), (3) and (6) not 

more than six (6) months after the judgment, order, or proceeding was entered or 

taken.
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I.R.C.P. 60(b).7 A litigant thus may file a motion under this rule to set aside a final judgment 

within a “reasonable time,” limited in some situations to six months, after entry of the judgment.

We therefore must determine whether Eby timely filed such a motion. We conclude that 

he did. Attorney 5’s motion on Eby’s behalf to set aside the dismissal was clearly untimely, 

since it was filed, for no appropriate reason, nearly two years after Eby’s petition had been 

dismissed. However, the “Notice for a Re-Hearing on Order of Dismissal/Retention State PostConviction” that Eby himself sent to the district judge in August 2005 and refiled with the 

district court clerk in September 2005 was timely under I.R.C.P. 60(b), since the time at which it 

was filed--shortly after Eby personally learned of the dismissal--was both reasonable and within 

six months of the dismissal order. Though Eby’s motion was inartful and did not cite to 

I.R.C.P. 60(b), it is clear that he was requesting the type of relief authorized by Rule 60(b)--relief 

from the judgment of dismissal. Eby’s motion was not acted upon, and it remained pending until 

Attorney 5 formalized this request by filing a follow-up motion to set aside the dismissal. 

Attorney 5 ultimately brought the court’s attention to Rule 60(b) as the authority for the 

requested action and argued that relief was warranted because the dismissal order resulted from 

the neglect of Attorney 3 who failed, again and again, to take the necessary steps to develop and 

present Eby’s post-conviction claims. 

We conclude that Attorney 5’s argument, which is amply supported by the record, makes 

a sufficient showing to justify relief from the dismissal order. This Court has noted that “failing 

to provide a post-conviction applicant with a meaningful opportunity to have his or her claims 

presented may be violative of due process.” Schwartz v. State, 145 Idaho 186, 189, 177 P.3d 400, 

403 (Ct. App. 2008) (citing Hernandez v. State, 133 Idaho 794, 799, 992 P.2d 789, 794 (Ct. App. 

1999)); Abbott v. State, 129 Idaho 381, 385, 924 P.2d 1225, 1229 (Ct. App. 1996); Mellinger v. 

State, 113 Idaho 31, 35, 740 P.2d 73, 77 (Ct. App. 1987) (Burnett, J., concurring)). If 

incompetent representation by appointed post-conviction counsel results in the loss of such a 

meaningful opportunity to present the post-conviction claims, the right to due process may be 

jeopardized. Schwartz, 145 Idaho at 189, 177 P.3d at 403. The Idaho courts have long held that 

deficient representation by counsel in an initial post-conviction proceeding, that causes a claim to 

 

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The version of I.R.C.P. 60(b) quoted here is the one that was in effect when Eby filed his 

“Notice of a Re-Hearing on Order of Dismissal/Retention State Post-Conviction” in 2005. 

I.R.C.P. 60(b) has been subsequently amended.
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be inadequately presented to the court, constitutes a “sufficient reason” to allow assertion of the 

same claim in a subsequent post-conviction petition pursuant to I.C. § 19-4908.8 Palmer v. 

Dermitt, 102 Idaho 591, 595-96, 635 P.2d 955, 959-60 (1981); Schwartz, 145 Idaho at 189, 177 

P.3d at 403; Griffin v. State, 142 Idaho 438, 441, 128 P.3d 975, 978 (Ct. App. 2006); Baker v. 

State, 142 Idaho 411, 420, 128 P.3d 948, 957 (Ct. App. 2005); Hernandez, 133 Idaho at 798-800, 

992 P.2d at 793-95; Wolfe v. State, 113 Idaho 337, 339, 743 P.2d 990, 992 (Ct. App. 1987). In 

our view, if an attorney’s neglect that caused the loss of an opportunity to present a postconviction claim justifies allowing a successive petition to be filed reasserting the same claim, it 

also justifies setting aside a dismissal order to reactivate the original post-conviction action 

pursuant to Rule 60(b). Here, Eby was subjected to neglectful appointed attorneys over the 

course of more than five years. Throughout this time he tried to stay abreast of the proceedings 

and push the attorneys along to the best of his ability as an incarcerated person with little 

knowledge of the law. The mishandling of Eby’s post-conviction action eventually resulted in 

its dismissal. We hold that these circumstances demonstrate “mistake, inadvertence, surprise, or 

excusable neglect” calling for relief under Rule 60(b)(1), see Idaho State Police ex rel. Russell v. 

Real Property Situated in County of Cassia, 144 Idaho 60, 62, 156 P.3d 561, 563 (2007), or 

“other reason justifying relief from the operation of the judgment” under I.R.C.P. 60(b)(6). 

The State argues, however, and the district court held, that I.R.C.P. 60(b) does not apply 

in an action that has been dismissed for inactivity under Rule 40(c). For this proposition the 

 

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Idaho Code § 19-4908 provides:

All grounds for relief available to an applicant under this act must be 

raised in his original, supplemental or amended application. Any ground finally 

adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in 

the proceeding that resulted in the conviction or sentence or in any other 

proceeding the applicant has taken to secure relief may not be the basis for a 

subsequent application, unless the court finds a ground for relief asserted which 

for sufficient reason was not asserted or was inadequately raised in the original, 

supplemental, or amended application.

We note that when Attorney 5 was appointed, rather than attempting to amend a petition that had 

long since been dismissed, she could have filed a second petition for post-conviction relief 

pursuant to this statute, predicated on the fact that Eby’s initial post-conviction claims were 

inadequately presented due to the neglect of Attorney 3. 
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State and the district court have relied upon Castle, 131 Idaho 373, 957 P.2d 351. Castle was a 

tort action that had at one point been dismissed for inactivity pursuant to I.R.C.P. 40(c) and was 

later reinstated before being dismissed again. As part of its analysis, the Idaho Supreme Court 

addressed the district court’s authority to reinstate the action after the Rule 40(c) dismissal:

It has long been recognized that a formal order dismissing an action is in 

effect a final judgment that puts an end to the suit. Relief from such an order is 

limited. A party who disagrees with such an order may, within fourteen days, 

seek reconsideration in the trial court under I.R.C.P. 11(a)(2)(B), or the party may 

file an appeal within forty-two days to obtain appellate review of the dismissal 

order as provided in Idaho Appellate Rule 11(a)(1). . . . Here, however, the 

plaintiff neither filed a motion for reconsideration within fourteen days after the 

dismissal was entered, nor did the plaintiff file a notice of appeal within forty-two 

days. The plaintiff instead filed a motion to reinstate the case well after the time 

had expired for seeking reconsideration or for invoking appellate review.

Castle, 131 Idaho at 374, 957 P.2d at 352 (citations omitted). The Court went on to conclude 

that because the plaintiff’s motion to reinstate the action was not timely, the district court had no 

authority to grant the motion. Id. 

We acknowledge that Castle can easily be read to hold that only two vehicles are 

available to seek relief from a Rule 40(c) dismissal--a motion under I.R.C.P. 11(a)(2)(B), or an 

appeal. We note, however, that the Castle opinion never mentions, considers, nor expressly 

rejects the alternative of a motion brought under I.R.C.P. 60(b). Because Castle does not address

the potential application of Rule 60(b), we will not interpret the opinion to abrogate that rule 

which, by its plain terms, authorizes motions to set aside any final judgment in any civil action.

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We therefore reverse the order denying Eby’s Rule 60(b) motion to set aside the 

dismissal, remand the case for further proceedings, and order that Eby be appointed new counsel 

on remand if he so requests.

Judge GUTIERREZ CONCURS.

Judge PERRY, DISSENTING

I respectfully dissent. The Supreme Court’s decision in Castle specifically limits the 

relief available in this instance. Although a harsh result in a situation such as Eby’s, whose 

neglectful attorneys provided virtually no assistance, I disagree with the majority that Castle

 

9 As a matter of clarification, we note that I.R.C.P. 11(a)(2)(B), referenced in Castle, 

appears on its face to apply only to motions for reconsideration of interlocutory orders and postjudgment orders, neither of which would seem to include an I.R.C.P. 40(c) order of dismissal.
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does not control the outcome here. The Supreme Court, upon review of this case, can overrule 

Castle and extend Rule 60(b) application to a Rule 40 dismissal if it so chooses.