COME NOW the Plaintiffs in the above-entitled cause and hereby move, pursuant to Federal Rule of Civil Procedure 15, for leave of this Court to file their "Amended and Substituted Complaint," attached here to as Exhibit "A," for each and all of the following grounds and reasons:

1. Plaintiffs filed today, against eight parties named additionally as defendants, a Complaint stating verbatim the allegations contained in the proposed Amended and Substituted Complaint. The claims against all defendants how joined arise out of common facts, transactions and occurrences and questions of law and fact common to all defendants will arise in this

action.

2. The proposed Amended and Substituted Complaint is intended to clarify the plaintiffs' allegations in their original pleading. Moving Defendants' Motion for Judgment on the Pleadings, filed June 17, 1977, asserts that jurisdictional or substitive defects exist in plaintiffs' original pleading. Plaintiffs believe that there are no jurisdictional or substitive defects

27-396 O-78-9

in their original Complaint, but the proposed Amended and

Substituted Complaint is intended to cure any such alleged defects.

Accordingly, it would be in the interests of justice to allow

plaintiffs leave to amend to better assure that this lawsuit is resolved on the merits.

3. The proposed Amended and Substituted Complaint conforms to the evidence adduced in discovery in M.D.L. No. 248.

4. The claims asserted in the proposed Amended and Substituted Complaint arise out of the same conduct, transactions and occurrences set forth in plaintiffs' original Complaint.

WHEREFORE, plaintiffs pray that this Court grant leave for the plaintiffs to file their proposed Amended and Substituted Complaint, attached hereto as Exhibit "A."

For each and every reason stated in plaintiffs' Motion, the Court should allow plaintiffs leave to amend their Complaint pursuant to Fed. Rule Civ. Pro. 15 (a). In Foman v. Clark, 371 U.S. 178 (1962), the Supreme Court has prescribed that leave to amend should be freely given.

"Rule 15(a) declares that leave to amend 'shall be
given freely when justice so requires;' this mandate
is to be heeded." Id. at 182.

"In the absence of any apparent or declared reason--
such as undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure de-
ficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance
of the amendment,
the leave sought should
Id. at 182.

be 'freely given.

The circuit courts have given a liberal reading to this mandate. Seals v. Quarterly Cty. Court of Madison Cty., 526 F.2d 216, 219 (6th Cir. 1975); Scott v. Eversole Mortuary, 522 F.2d 1110, 1116 (9th Cir. 1975); Gumer v. Shearson, Hammill & Co., 516 F.2d 283, 287 (2d Cir. 1975); Polin v. Dun & Bradstreet,

Inc.,

Inc.,

511 F.2d 875, 877 (10th Cir. 1975); Mc Indoo v. Burnett, The Fifth Circuit has

494 F.2d 1311, 1313 (8th Cir. 1974).

declared a similar policy.

policy in emphatic terms."

"[R]ule 15(a) declares an affirmative

Lone Star Motor Import, Inc. v.

Citroen Cars Corp., 288 F.2d 69, 75 (5th Cir. 1961).

Plaintiffs seek to amend their Complaint to cure any alleged jurisdictional defects and to plead with greater clarity their original claims. Amendments to cure alleged defects in subject matter jurisdiction are allowed routinely under Rule 15 (a). Burt v. Bd. of Trustees of Edgefield City Sch. Dist., 521 F.2d 1201, 1205 (4th Cir. 1975); Carson v. Allied News Co., 511 F.2d 22, 24 (7th Cir. 1975); and Kelly v. Kentucky Oak Mining Co., Inc., 491 F.2d 318, 320 (6th Cir. 1974). Similarly, amendments to more clearly amplify the original claim routinely are allowed under Rule 15 (a). Clay v. Martin, 509 F.2d 109, 113 (2nd Cir. 1975); Madison Fund, Inc. v. Charter Co., 406 F. Supp. 749, 752 (S.D.N.Y. 1975); Hester v. Hidden Valley Lakes, Inc., 404 F. Supp. 580, 582 (N.D. Miss. 1975); and Anspach v. Bestline Products, Inc., 382 F. Supp. 1083 (N.D. Cal. 1974).

Typical of cases allowing an amendment to amplify the original claim is Windham v. American Brands, Inc., 68 F.R.D. 641 (D.S.C. 1975), where the court stated:

"The proposed amendment does not change completely
the nature of the third cause of action. The new
allegations tend to narrow the claim by alleging
anti-trust violations in connection with the appor-
tionment of available inspectors [between two states].
The defendants will not be prejudiced by allowing
plaintiffs to amend." Id. at 645.

Amendment pursuant to Rule 15 (a) will not prejudice the defendants. None of the reasons for denying an amendment as articulated by the Supreme Court in Foman are present in the case at bar. Foman v. Davis, 371 U.S. at 182.

Plaintiffs' amendment relates back to the date of filing the original Complaint pursuant to Fed. Rule Civ. Pro. 15(c). Amendments which merely amplify the original pleadings involve the same conduct, transactions or occurrences set forth in

the original pleading.

Material Handling Industries, Inc.

v. Eaton Corp., 391 F. Supp. 977, 980 (E.D. Va. 1975); and Slack

v. Treadway Inn of Lake Harmony, Inc., 388 F. Supp. 15, 19 (M.D. Pa. 1974).