Before WATERMAN and KAUFMAN, Circuit Judges, and DIMOCK*fn* , District Judge.
This appeal raises the question whether the dismissal of appellant's complaint in an earlier action under Rule 37, F.R.Civ.P., for failure to answer interrogatories, operates as an adjudication upon the merits, and hence as a bar to identical causes of action asserted in a subsequent suit.
Allegedly injured in 1959 while working as a seaman aboard the defendant's vessel, plaintiff Nasser instituted an action in September, 1960, asserting claims against the defendant for negligence, unseaworthiness and maintenance and cure. In March, 1961, after defendant's answer had been filed and plaintiff's deposition had been taken, written interrogatories addressed to the plaintiff were served on his attorney pursuant to Rule 33, F.R.Civ.P. Although the Rule requires that answers be served within fifteen days after the interrogatories are submitted unless objection is taken*fn1 , plaintiff made no response whatsoever, and on April 14, the defendant accordingly moved to dismiss the complaint. This motion was returnable on April 26, but stipulations between the attorneys for the respective parties successively adjourned the return date to May 25, and, ultimately, to July 25, 1961.
Despite the fact that plaintiff's counsel had acquiesced in the postponements, neither Nasser nor his attorney appeared in court on July 25 to contest the motion to dismiss, and, accordingly, it was granted by default. On August 2, Judge Bryan signed a formal order dismissing the complaint. The judgment on this order was entered the following day, and conformed copies of the order and judgment were duly mailed to plaintiff's attorney on August 4. Significantly, Nasser never challenged the validity of this judgment of dismissal, until it was invoked by the defendant as a bar to the present suit.
In January of 1963, or approximately two and a half years after his original complaint was filed, Nasser commenced this action. Represented by a new attorney, the plaintiff sought to join claims growing out of a subsequent, unrelated accident with two causes of action identical to those previously dismissed by Judge Bryan. As might have been expected, the defendant promptly moved for summary judgment as to these two latter claims, on the ground that Judge Bryan's dismissal precluded any further litigation as to the matters involved in the earlier suit.
It was only at this point, when he was confronted with the likelihood that the prior judgment would be afforded res judicata effect, that Nasser moved before Judge Bryan to vacate the judgment and order of dismissal. Noting that the year had long since expired in which a party is permitted by Rule 60(b), F.R.Civ.P., to petition for relief from a judgment for "excusable neglect," and that plaintiff had, in any event, failed to demonstrate that his neglect had been "excusable," Judge Bryan denied the motion to vacate. Shortly thereafter, on grounds of res judicata, Judge Croake awarded summary judgment in this action on those claims which Judge Bryan had dismissed in the earlier suit. And it is this judgment, sustaining the plea of res judicata, which is now before us*fn2
On appeal, Nasser maintains that dismissals for failure to comply with pretrial orders should be sparingly granted, and that a failure to answer interrogatories should not bring forth such drastic sanctions in the absence of a finding that the refusal to respond was willful. See Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 78 S. Ct. 1087, 2 L. Ed. 2d 1255 (1958); Gill v. Stolow, 240 F.2d 669 (2d Cir. 1957); Waterman, An Appellate Judge's Approach When Reviewing District Court Sanctions Imposed for the Purpose of Insuring Compliance With Pretrial Orders, 29 F.R.D. 420 (1961). Applying this general rule to the present case, he insists that his conduct never amounted to the sort of deliberate defiance which would warrant the dismissal of a complaint.
While we may differ with the appellant as to specific applications, we are willing for present purposes to accept his basic proposition. In the words of Judge Clark, we believe that "a court has the responsibility to do justice between man and man; and general principles cannot justify denial of a party's fair day in court except upon a serious showing of willful default." Gill v. Stolow, supra, 240 F.2d at 670. But our adherence to this maxim cannot, as Nasser seems to believe, aid the appellant here. For, like Judge Croake, we believe that questions going to the propriety of Judge Bryan's dismissal, and the wilfulness of appellant's default in his prior action, are now foreclosed, and that the judgment below must therefore be affirmed.
In determining the effect to be afforded a Rule 37 dismissal, it is necessary that the precise provisions of the Rules be emphasized at the outset. And perhaps of even greater importance, it is essential that we recognize that the Rules were intended to embody a unitary concept of efficient and meaningful judicial procedure, and that no single Rule can consequently be considered in a vacuum. See Kaufman, Discovery - Its Philosophy and Application, Seminars for Newly Appointed United States District Judges 27 (1963).
By the terms of Rule 37(d), F.R.Civ.P., "[if] a party * * * fails to serve answers to interrogatories submitted under Rule 33, after proper service of such interrogatories, the court on motion and notice may * * * dismiss the action or proceeding or any part thereof * * *" Under Rule 41(b), F.R.Civ.P., as it existed at the time of Judge Bryan's dismissal, "[unless] the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue, operates as an adjudication upon the merits." (Emphasis supplied.) In dismissing Nasser's first action, Judge Bryan did not "otherwise specify." Since appellant has never contended that his previous action was dismissed "for lack of jurisdiction or for improper venue," Judge Bryan's failure to provide that the dismissal was to be without prejudice was an implicit indication that it was intended to be a dismissal under Rule 41(b) and therefore on the merits.
In so holding, we do not foreclose the possibility that the reference in Rule 41 (b) to "any dismissal not provided for in this rule" was not meant to be taken literally, and that certain types of dismissals were not intended to preclude subsequent actions. See Madden v. Perry, 264 F.2d 169 (7th Cir.), cert. denied, 360 U.S. 931, 79 S. Ct. 1450, 3 L. Ed. 2d 1544 (1959). Thus, in Costello v. United States, 365 U.S. 265, 81 S. Ct. 534, 5 L. Ed. 2d 551 (1961), the Supreme Court has indicated that the preclusive effect afforded dismissals by Rule 41(b) was intended to apply only to those situations in which a defendant must incur the inconvenience of preparing to meet the merits of the plaintiff's claims because there is no initial bar to the court's reaching the merits as there would be, for illustrative purposes, if there were a defect in pleadings or parties. See 2B Barron & Holtzoff, Federal Practice and Procedure § 921*fn3
But even upon such an interpretation, appellant seems barred. For in Costello, the Court made it more than clear that a dismissal such as that involved in the present case was to be subject to the provisions of Rule 41(b)."Thus," the Court observed, "a sua sponte dismissal by the Court for failure of the plaintiff to comply with an order of the Court" should be treated as a final and binding adjudication; "here too," the Court noted, "the defendant has been put to the trouble of preparing his defense because there was no initial bar to the Court's reaching the merits." 365 U.S. at 286-287, 81 S. Ct. at 545, 5 L. Ed. 2d 551. Even more significantly for present purposes, the Court cited as an example of such a dismissal United States v. Procter & Gamble Co., 356 U.S. 677, 78 S. Ct. 983, 2 L. Ed. 2d 1077 (1958), in which a civil action to enjoin alleged antitrust violations was dismissed upon the government's failure to obey a pretrial discovery order. And in Procter & Gamble, the Court had strongly suggested that a Rule 37 dismissal was an adjudication upon the merits. 356 U.S. at 680 n. 4, 78 S. Ct. at 985, 2 L. Ed. 2d 1077. See also Hubbard v. Baltimore & Ohio R.R. Co., 249 F.2d 886 (6th Cir. 1957); Mooney v. Central Motor Lines, Inc., 222 F.2d 569 (6th Cir. 1955).
We are thus constrained to hold that Judge Bryan's dismissal of Nasser's first complaint acted as a bar to the identical causes of action asserted here, and that questions relating to the propriety of that earlier dismissal which clearly could have been litigated in that action if raised in a proper and timely manner are now foreclosed. But even if this result were not required by ...