Does a judgment of dismissal of a stockholder's derivative suit for failure to answer interrogatories bar a subsequent derivative suit based on the same cause of action?

We hold that, when notice of a proposed dismissal of a stockholder's derivative suit for failure to answer interrogatories is not given to nonparty stockholders, the judgment of dismissal does not bar an identical cause of action asserted by a different stockholder in a subsequent derivative suit. As previously indicated, the order and judgment dismissing the White action were not stated to be without prejudice and hence the effect of the dismissal normally would be to preclude the initiation of a suit based on the same cause of action. See Costello v. United States, supra, 365 U.S. at 286; Nasser v. Isthmian Lines, supra, 331 F.2d at 128. Accordingly, our decision in this case carves out an exception to the general principles of Rule 41(b) for derivative suits dismissed for failure to answer interrogatories.⁵ While we have been unable to find a case precisely in point,⁶ principles

[466 F.2d 257]

enunciated in analogous situations do lend support to our holding. In short, our decision today marks no new departure in the law.

[466 F.2d 257]