What is the proper procedure for a motion to dismiss for failure to comply with section 23 of the Corporations Act?

4 We do not believe that the directors' failure to act during the pendency of the instant suit necessarily indicates their hostility to intra-corporate remedies. Business reasons or legal strategy might caution directors not to take remedial action after a suit is brought. But see Goldberg v. Meridor, 81 F.R.D. 105, 109-10 (S.D.N.Y.1979).

1 Although it has been said that the "normal procedure" in considering a motion to dismiss for failure to comply with F.R.Civ.P. 23.1 "is to look solely to the allegations of the complaint", see, e.g., DePinto v. Provident Security Life Ins. Co., 323 F.2d 826, 830 (9 Cir.1963), cert. denied, 376 U.S. 950, 84 S.Ct. 969, 11 L.Ed.2d 970 (1964), that very case sanctioned reliance on evidence taken by the district court to support a showing of futility. In a case like this, where inspection of an affidavit, filed over a year before the decision of the motion, would have imposed no inconvenience or delay, the district court should have considered this before ordering dismissal since, at the very least, the affidavit shows what could be alleged in a still further amendment.