Prudential Ins. Co. of America v. US Gypsum
| Decision Date | 28 March 1989 |
| Docket Number | Civ. A. No. 87-4227,87-4238. |
| Citation | 711 F. Supp. 1244 |
| Court | U.S. District Court — District of New Jersey |
| Parties | The PRUDENTIAL INSURANCE COMPANY OF AMERICA; PIC Realty Corporation; 745 Property Investments, Plaintiffs, v. UNITED STATES GYPSUM; W.R. Grace & Company; The Celotex Corporation; United States Mineral Products; Keene Corporation; Pfizer, Inc.; Asbestospray Corporation; and "John Doe Companies," fictitious names for presently unidentified entities, Defendants. The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Plaintiff, v. NATIONAL GYPSUM COMPANY, Defendant. |
COPYRIGHT MATERIAL OMITTED
Edward A. Zunz, Jr., Riker, Danzig, Scherer, Hyland & Perretti, Morristown, N.J., for plaintiffs.
Dell M. Damsgaard, Morgan, Lewis & Bockius, Philadelphia, Pa., for U.S. Gypsum.
Thomas W. Polaski, O'Donnell, Kennedy, Vespole & Piechta, West Orange, N.J., for U.S. Mineral.
Stephen N. Dermer, Lowenstein, Sandler, Kohl, Fisher & Boylan, Roseland, N.J., for Keene Corp.
Edward P. Abbot, Irene Warshauer, Anderson, Russell, Kill & Olick, New York City, for Keene Corp.
Mary F. Platt, Montgomery, McCracken, Walker & Rhoads, Philadelphia, Pa., for Celotex.
Dennis R. Bartholomew, Hoyle, Morris & Kerr, Philadelphia, Pa., Robert L. Ritter, Cole, Schotz, Bernstein, Meisel & Forman, Hackensack, N.J., for Nat. Gypsum.
Donald S. MacLachlan, Connell, Foley & Geiser, Roseland, N.J., for W.R. Grace & Co.
Granville D. Magee, Magee & Graham, Wall Township, N.J., for Asbestospray Co.
This is an action for compensatory and punitive damages as well as declaratory relief against numerous corporate entities who have allegedly designed, manufactured or supplied asbestos-containing materials that had been used in the construction and maintenance of various buildings. This matter is presently before the court on various motions of defendants to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1), 12(b)(6) and 12(c), plaintiffs' cross motion to strike certain affirmative defenses and for declaratory judgment as well as plaintiffs' motions to amend the complaint, consolidate this action with a substantially similar matter and dismiss one of the defendants without prejudice.
The procedural history with respect to the substantive issues before me, as opposed to matters related to the legal representation of the litigants relate to two separately filed complaints. I shall review that history below.
On October 20, 1987, plaintiffs, Prudential Insurance Company of America ("Prudential"), a New Jersey corporation, PIC Realty Corporation ("PIC"), a Delaware corporation, and 745 Property Investments ("745 Property"), a voluntary trust association organized under the laws of Massachusetts, filed a ten count complaint for damages and declaratory relief from defendants, United States Gypsum Company, a Delaware corporation, W.R. Grace & Company, a Connecticut corporation, Celotex Corporation, a Delaware corporation, United States Mineral Products Co., a New Jersey corporation, Keene Corporation, a New York corporation, Pfizer Incorporated, a Delaware corporation, Asbestospray Corporation, a New York corporation, and John Doe Companies. The caption of that case is Prudential Insurance Co., et al. v. U.S. Gypsum, et al., No. 87-4227 (D.N.J. filed Oct. 20, 1988). As complete diversity between all of the plaintiffs and all of the defendants is lacking, this court presently has federal question jurisdiction over the complaint pursuant to 28 U.S.C. § 1331 as plaintiffs seek recovery pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, ("CERCLA") 42 U.S.C. § 9601, et seq. In addition, plaintiffs request that I exercise pendent jurisdiction over state law claims of strict liability, negligence, breach of expressed and implied warranties, fraud and misrepresentation, unfair and deceptive trade practices, civil conspiracy and restitution as well as the issuance of a declaratory judgment pursuant to 28 U.S.C. § 2201-02. Defendants Pfizer, Asbestospray, Celeotex, Keene and United States Mineral each have filed answers to the complaint.
On December 10, 1987, defendants U.S. Gypsum and W.R. Grace moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). On December 14, 1987, defendant Keene similarily moved to dismiss the complaint on the grounds set forth by U.S. Gypsum and W.R. Grace. On December 15, 1987, defendant Celotex moved to dismiss counts 1 and 10 for failure to state a claim and the state law claims for lack of subject matter jurisdiction. On December 18, 1987, defendant Asbestospray filed a motion for judgment on the pleadings pursuant to Rule 12(c) and to dismiss the state claims pursuant to Rule 12(b)(1) for the reasons set forth in the brief of U.S. Gypsum and W.R. Grace. On January 8 and 25, 1988, respectively, defendants Pfizer and U.S. Minerals also filed motions to dismiss on the grounds set forth by their co-defendants.
On November 21, 1988, plaintiffs filed a motion to strike defendants' affirmative defense regarding the applicability of CERCLA to this action and request that I issue an order declaring that section 9607 of CERCLA authorizes private parties to recover costs incurred in responding to the alleged hazard posed by asbestos in buildings.
Thereafter, on December 16, 1988, plaintiffs filed a motion for an order (1) consolidating this lawsuit with a separate suit pending before me (2) permitting plaintiffs to amend their complaint and (3) permitting plaintiffs to dismiss defendant Pfizer, Inc. without prejudice.
I note here that by order filed October 6, 1988, United States Magistrate Stanley R. Chesler consolidated this action with an action entitled Prudential Insurance Co. v. National Gypsum Co., No. 87-4238 (D.N.J. filed Oct. 21, 1988). In addition, by consent order filed January 24, 1989, plaintiffs agreed to voluntarily dismiss all claims against defendant Pfizer, without prejudice.
On October 21, 1987, plaintiffs, Prudential Insurance Company and PIC Realty Corp. filed a similar ten count complaint against National Gypsum Co., a Delaware corporation. The complaint predicates jurisdiction on the existence of a federal question involving recovery under CERCLA. Plaintiffs also seek relief under theories of strict liability, negligence, breach of express and implied warranties, fraud and misrepresentation, unfair and deceptive trade practices, civil conspiracy, restitution and for declaratory judgment. This action, captioned Prudential Insurance Co., et al. v. National Gypsum Co., No. 87-4238 (D.N.J. filed Oct. 21, 1987), was originally assigned to Judge Barry but has since been reassigned to me and consolidated with Civil Action No. 87-4227.
Prior to reassignment and consolidation, on December 10, 1987, National Gypsum filed a motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6).
On March 30, 1988, plaintiff Prudential filed its first amended complaint in the National Gypsum action in which it deleted the claims of PIC Realty. According to the amended complaint, plaintiff seeks relief under § 113 of the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. § 9613, and a declaratory judgment under the Declaratory Judgment Act, 28 U.S.C. § 2201-02, as well as relief under the common law theories of strict liability, negligence, breach of express and implied warranties, fraud and misrepresentation, unfair and deceptive trade practices, civil conspiracy and restitution.
On May 5, 1988, defendant National Gypsum filed its answer to the amended complaint. In its answer, defendant denies the presence of federal jurisdiction and specifically denies that CERCLA is applicable to any actions National Gypsum may have taken in the manufacture and distribution of asbestos-containing substances and that the sale of same does not constitute disposal under CERCLA. Defendant also asserts the affirmative defense that the complaint fails to state a claim upon which relief can be granted. These are the basis upon which defendant sought to dismiss the original complaint, and apparently the amended complaint as well.
Since all of the parties seek dismissal of the federal claims either pursuant to Fed. R.Civ.P. 12(b)(1), 12(b)(6), or 12(c), I must, in considering these motions to dismiss, accept as true the factual allegations of the complaint and construe them liberally, in a light most favorable to the plaintiffs. Gomez v. Toledo, 446 U.S. 635, 636 n. 3, 100 S.Ct. 1920, 1921 n. 3, 64 L.Ed.2d 572 (1980); Angelastro v. Prudential-Bache Securities Inc., 764 F.2d 939, 944 (3d Cir.1985); cert. denied, 474 U.S. 935, 106 S.Ct. 267, 88 L.Ed.2d 274 (1985); Jennings v. Shuman, 567 F.2d 1213, 1216 (3d Cir.1977); Mortensen v. First Federal Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977). I may dismiss the claims which are the subject of the motions if it "appears beyond doubt that the plaintiffs can prove no set of facts in support of their claims which would entitle them to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972).
As the court has declined to consider additional assertions of fact beyond those alleged in the complaint, I am bound by the prospective for reviewing Rule 12 motions and therefore, accepting all facts plead in the complaints as true, the factual scenario of which these cases arise is as follows: Prudential, PIC and 745 Realty have an ownership interest in a number of commercial office buildings, hotels and residential rental properties located in Arizona, Arkansas, California, Colorado, Florida, Georgia, Illinois, Louisana, Maryland, Minnesota, Missouri,...
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