not contest the validity of the covenant in a suit on it because in a prior suit, involving the same covenant but between different owners, the validity of the covenant had been determined, and because the prior suit was in the nature of a representative action, binding all lot owners, whether parties or not. The Supreme Court held that preventing the owners involved only in the second suit from contesting the validity of the covenant was in violation of the due process clause of the Fourteenth Amendment, for the interests of those purportedly representing them in the prior suit where adverse to theirs and therefore they had not been adequately represented.
The plaintiff here, however, points out that the Supreme Court also stated that where the procedures adopted fairly insure the protection of interests of absent parties, it would not violate the Fourteenth Amendment to bind them by the judgment in a class action, even where the action was based solely on common questions of law or fact. Thus, the plaintiff argues it would not be a violation of due process for this court to reject the precedents concerning the binding effect of a judgment in a class action brought under Rule 23(a)(3) and to hold that a judgment in this suit would be decisive of the rights of all of the thousands of claimants for damages arising out of the South Amboy explosion. It urges that in view of this and in view of the tremendous benefits to be gained by a new interpretation of Federal Rule 23(a)(3), this court should pioneer in favor of such a holding.
I do not believe, however, that this case is one in which even a class action of the nature envisioned by the plaintiff would remedy the evils plaintiff cites. A number of persons and corporations deemed liable by many claimants have not been joined as defendants in this suit for a declaratory judgment. Some, such as Kilgore, are not doing business, or, if individuals, are not present in New Jersey and therefore cannot be joined. There are defendants before the New Jersey courts which are not defendants here, such as the Reading Railroad, a Pennsylvania corporation, the Central Railroad of New Jersey, a New Jersey corporation, and Hercules Powder Company, a Delaware corporation. Though the plaintiff herein does not consider these corporations liable, or in the case of Reading cannot join it because such a step would destroy this court's diversity jurisdiction, other claimants do consider them liable. Actions against them would have to proceed in the state courts, in which the material activities and roles of all other defendants would have to be proved. As a result, this court could not in any event even gather unto itself all the actions which are under way in New Jersey.
The Federal Rules of Civil Procedure and existing legislation do not provide a satisfactory solution of the problems presented by the legal controversies arising out of accidents such as the South Amboy explosion. They are controversies in which the common questions of law and fact should be tried in one action in which every individual and corporation accused of liability and the United States could be joined, in which all claimants could be represented and in which all the evidence could be presented. Such a result, however, cannot be achieved unless Congress modifies, in this unusual type of situation, the requirements of complete diversity of citizenship, allows service of summons outside of the district wherein the court hearing the case sits, and permits a federal court to enjoin all other suits arising out of the same occurrence.
The class action brought by the plaintiff here would not result in the benefits claimed, and for that reason, if for no other, I shall deny plaintiff's motion for a temporary injunction restraining all other pending actions arising out of the South Amboy explosion.
The cases of claimants against these defendants as well as others can be consolidated for trial and multiplicity of actions, at least in this court, can be avoided.
Having decided that all claims of those damaged in the explosion cannot, in effect, be consolidated here by means of a declaratory judgment in a class action, it would appear that no useful purpose can be served in proceeding with the present suit. Motions to dismiss, however, have not been made by parties other than the United States. Consequently, final disposition of this cause will await further action of the parties. As I have decided that the status of the United States is the same as that of the other defendants against whom liability may be asserted, its motion to dismiss will be held to be disposed of with similar motions of its co-defendants when made.
The plaintiff's motion for an injunction and the restraints sought therein will be denied. Let an order in conformity herewith be submitted.