to seek recovery. 5 C. Wright & A. Miller, Federal Practice & Procedure § 1283 at 373. For this reason it is not improper to assert some bases which specifically presume the ability to identify the wrongdoer, such as in a claim for breach of warranty, while simultaneously asserting bases for relief which include an element that plaintiff is unable to identify the tort feasor, which is the case under some collective liability theories. Hence, the inconsistency of such simultaneously asserted claims is not a basis upon which plaintiffs should be denied leave to amend their complaint to state such claims.
Moreover, the viability of the collective theories of liability under the law of the state of New Jersey is currently under consideration before the Supreme Court of the State of New Jersey. See Shackil v. Lederle Laboratories, 219 N.J. Super. 601, 530 A.2d 1287 (App. Div.), certif. granted, 109 N.J. 519, 520 (1987). As such, I will allow plaintiffs leave to amend their complaint to assert such claims at this time without deciding whether or not same are viable. The area of law is developing, and therefore this is not the propitious time to evaluate the merits of the claim. As the law becomes more definitive, the parties may bring an appropriate motion if they so desire at that time.
Finally, as defendants have not opposed any other aspects of plaintiffs' proposed amended complaint, I presume those aspects are unopposed and I shall grant plaintiffs leave to file same.
Before concluding I wish to point out that my decision to allow plaintiffs' leave to file an amended complaint in no way reflects an evaluation of the merits of any of their claims in this case. When confronted with any possible motions for summary judgment under Fed. R. Civ. P. 56, as well as the time of trial, plaintiffs would face the burdens of production and proof regarding the various elements of their claims. At these later stages, plaintiffs may or may not succeed in marshalling the evidence necessary to press its claim. I make this point merely to emphasize what I have not decided in the context of this motion.
Hence, for all of the above reasons, the motions of defendants United States Gypsum, W. R. Grace, Celotex, Keene, Asbestos-Spray and United States Mineral and National Gypsum to dismiss plaintiffs' CERCLA claim are hereby granted, plaintiffs' motion to strike defendants' affirmative defenses regarding the inapplicability of CERCLA to this case and motion for a declaratory judgment that CERCLA applies to this case are hereby denied, plaintiffs' motions to consolidate and to dismiss defendant Pfizer have been rendered moot, and plaintiffs' motion for leave to file an amended complaint is hereby granted.
The Court has filed an order in conformance with this opinion with the Clerk of the Court.
For the reasons set forth in the opinion of the Court filed this date;
It is on this 28th day of March, 1989;
ORDERED that the motions of defendants United States Gypsum, W. R. Grace, Celotex, Keene, Asbestospray, United States Mineral and National Gypsum to dismiss plaintiffs' claim under the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601-9675, are hereby granted.
IT IS FURTHER ORDERED that the cross motion of plaintiffs to strike defendants' affirmative defenses and for a declaratory judgment regarding the applicability of CERCLA are hereby denied.
IT IS FURTHER ORDERED that the motion of plaintiffs to consolidate the cases captioned Prudential Insurance Co. of America, et al. v. United States Gypsum Co. et al., No. 87-4227 and Prudential Insurance Co. of America v. National Gypsum Co., No. 87-4238, has been rendered moot.
IT IS FURTHER ORDERED that the motion of plaintiffs to dismiss their claims against defendant Pfizer, Inc. without prejudice has been rendered moot.
IT IS FURTHER ORDERED that the motion of plaintiffs for leave to file an amended complaint is hereby granted.