In Haddock v. Zimmerman, read online here, the Delaware Supreme Court addressed the following issues of importance to business litigation practitioners (and granted an unusual reversal of an interlocutory judgment of the Chancery Court):
(i) Unless clearly stated in the order, a dismissal "without prejudice" does not automatically allow one to file an amended complaint (See generally Chancery Court Rule 15aaa.);
(ii) A "dismissal without prejudice" is a final judgment for purposes of appeal (but not for purposes of res judicata);
(iii) If a new disinterested board of directors is installed after the original complaint is filed but before the amended complaint is filed, a determination of the issue of whether "demand is excused" under Chancery Court Rule 23.1 (and in light of DGCL Section 141(a)), is at least in part based on whether the counts of the complaint at issue are "validly in litigation" as that phrase is defined.
Here is the money quote:
"dismissal without prejudice and without explicit leave to amend operates as a final judgment. We approve the Court of Chancery’s rationale in Harris v. Carter, 582 A.2d 222 (Del. Ch. 1990).
We further hold that, for purposes of determining whether demand is required before filing an amended derivative complaint, the term “validly in litigation” means a proceeding that can or has survived a motion to dismiss. This latter holding requires us to reverse the interlocutory order of the Court of Chancery and to remand this matter for further proceedings in accordance with this opinion."