The opinion of the court was delivered by: Hon. Joseph H. Rodriguez
MEMORANDUM OPINION & ORDER
This matter comes before the Court on the motion of Defendant United States Army Corps of Engineers ("Army Corps") for summary judgment pursuant to Fed. R. Civ. P. 56(b) and on the motion of Plaintiff Shirley Williams ("Williams") to amend the complaint pursuant to Fed. R. Civ. P. 15(a) & (c)(3). Defendant Army Corps also filed a motion to strike from the record certifications in support of Plaintiff's opposition brief for non-compliance with 28 U.S.C. § 1746 and as inadmissible under Fed. R. Evid. 702. The Court heard oral argument on the motions on July 24, 2007 and the record of those proceedings is hereby incorporated into the Court's opinion. For the reasons set forth on the record that day, as well as those given below, the Court will grant Plaintiff's motion to amend, grant Army Corps' motion to strike under Fed. R. Evid. 702, dismiss the Army Corps' motion for summary judgment, but grant dismissal under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction, and dismiss Plaintiff's claim against Borough of National Park pursuant to 28 U.S.C. § 1367.
The United States Army Corps of Engineers is charged with developing and maintaining the United States' navigable waterways. (Olsen Declaration, Tab 1 at 3.)
Part of this operation entails the continuous dredging of the Delaware River, including the operation and maintenance of dredge disposal sites. (Id. at ¶ 2.) One of these sites is the National Park Contained Disposal Facility ("NPCDF") located in National Park, New Jersey. (Id. at ¶ 3.) The NPCDF is a 135-acre "single-cell" facility comprised of undeveloped property with contoured berms and dikes, sluices and sluice gates, and an open external drainage ditch abutting the north, east and south sides of the facility. (Id. at ¶ 3.) The Army Corps began using the NPCDF in 1961 as an opened, unconfined dredge disposal site. (Id.) In February 1971, the Army Corps acquired clear title to the NPCDF and thereafter began construction of the current dike and drainage ditch system configuration. (Id. at ¶ 6.) The dikes and outside berms at the NPCDF were modified again from 1985-1987, but no additional construction has occurred since then. (Id. at ¶ 7.)
When dredged material is pumped into a containment facility, it consists of 85% water and 15% solids. (Id. at ¶ 11.) Water is discharged from the dredge through a sluice gate system while the solid material is left to dry, usually requiring one to two years. (Id.) The NPCDF has not been used for active disposal of dredged material since 2001. (Id.)
Plaintiff Williams built her home outside the northeast corner of the NPCDF in 1976. (Williams Certif. at ¶ 6.) From that time until approximately 2003, Plaintiff had no problems with the Army Corps, nor any water infiltration in her home. (Compl. at ¶ 12.) However, in June of 2003, Plaintiff began to experience flooding in her basement, leading to damages in excess of $160,850. (Id. at ¶ 17; Compl. at ¶ 55.) Plaintiff has experienced ongoing flooding and moisture problems in her home since that time. (Compl. at ¶ 14.)
Williams attempted to determine the cause of the flooding through a number of channels including contacting the Army Corps, U.S. Representative Robert Andrews, then U.S. Senator Jon Corzine, and State Senator Sweeney. (Williams Certif. at ¶¶ 24-25; Compl. at ¶ 19.) Plaintiff also engaged the services of a civil engineer, Horace Albert Reeves ("Reeves"), to independently investigate the cause of the flooding. (Compl. at ¶ 30.) The Borough of National Park investigated the matter around July 2003 and determined that it was not the cause of the flooding. (Reeves Certif., Exhibit B at ¶ 2(k).) The Army Corps too investigated the matter and met with Williams on July 11, 2003 to inspect her home and the NPCDF. (Id. at ¶ 2(l).) After continued flooding, the Army Corps returned to the Williams home in August of 2003 and performed work in the drainage ditch behind her home. (Id. at ¶¶ 2(o)-2(p).)
When the flooding problem persisted, Plaintiff brought suit against the Army Corps and the Borough of National Park on February 22, 2006. Defendant Army Corps filed a motion for summary judgment on December 19, 2006. Plaintiff filed a motion to amend the Complaint on March 5, 2007. Four days later, Army Corps filed a motion to strike.
A. Rule 15(a) Motion to Amend
Rule 15(a) allows for leave to amend when "justice so requires." Subsection c of Rule 15 provides for relation back of amendments to the date of filing to prevent statute of limitation issues.*fn1 Rule 15(c) further provides that subsection(c)(3) is satisfied for purposes of substituting the United States as a defendant if delivery or mailing of process is made on, among others, the United States Attorney General.
Plaintiff initially filed the Complaint on February 21, 2006, against the Army Corps claiming jurisdiction under 28 U.S.C. § 1346(b),*fn2 the Federal Torts Claims Act ("FTCA"). (Compl. at ¶¶ 2, 4.) However, 28 U.S.C. § 2679(a) provides that § 1346(b) does not authorize suits against federal agencies in their own name.*fn3 As a matter of law, only the United States is a proper defendant under 28 U.S.C. § 1346. See Continental Ins. Co. of N.J. v. United States, 335 F. Supp. 2d 532, 535 (D.N.J. 2004). Accordingly, Plaintiff moved on March 6, 2007, to amend the Complaint to substitute the United States for the Army Corps as the proper defendant. The attorneys for the Army Corps opposed the motion asserting that Plaintiff failed to make a showing that the amendment was permissible under Rule 15(c)(3) and furthermore, that the amendment was barred by 28 U.S.C. § 2401(b).*fn4 (Army Corps Brief-March 9, 2007 at 1.)
Plaintiff's motion to amend will be granted in the interests of justice. Generally, "leave to amend must . . . be granted unless equitable considerations render it otherwise unjust." Arthur v. Maersk, Inc., 434 F.3d 196, 204 (3d Cir. 2006). Factors that would justify denying a motion to amend include: undue delay, bad faith, and futility. Id. The Third Circuit has held that "prejudice to the non-moving party is the touchstone for the denial of an amendment." Id. (citations omitted).
The record reflects that after filing the original Complaint, Plaintiff issued summons to the Army Corps, the United States Attorney, and the United States Attorney General on April 27, 2006. (Docket Entry at #2.) Plaintiff's action reasonably put the United States on notice that, but for a mistake in identifying the Army Corps as the defendant, it would have been sued. See Fed. R. Civ. P. 15(c)(3). Moreover, the additional language of Rule 15(c) expressly provides that notice to the United States Attorney General satisfies all of the amendment requirements of subsection (c)(3). See id. To disallow Plaintiff's amendment would be unnecessarily harsh and in discord with the Advisory Committee's intent for substituting the United States by amendment. See 12A Charles Alan Wright et. al., Fed. Prac. & Proc. App. C at 177 (2d ed. 2007) (holding denying relation back when substituting the United States where notice has been given "is to defeat unjustly the claimant's opportunity to prove his case"); see also Williams v. Army & Air Force Exchange Serv., 830 F.2d 27, 30 (3d Cir. 1987) (holding it is an "irrefutable presumption" that if the Attorney General receives notice within statutory period, no prejudice results to the United States in allowing amendment) (citing Edwards v. United States, 755 F.2d 1155, 1158 (5th Cir. 1985)) . Furthermore, Plaintiff has not engaged in any undue delay, bad faith, or taken futile action. Thus, Plaintiff's motion is granted and the United States is substituted as the Defendant in this matter; the Army Corps is hereby dismissed.*fn5
B. Army Corps' Motion to Strike
1) Motion to Strike under 28 U.S.C. § 1746
Defendant Army Corps' motion to strike Plaintiff's certifications for failure to comply with 28 U.S.C. § 1746 is denied. Section 1746 provides that unsworn declarations must be made under the penalty of perjury to be admissible in federal court.*fn6 Plaintiff's certifications were initially submitted with the following language: "I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are wilfully false, I am subject to punishment." (See, e.g., Williams Certif. at 4.) This statement comports with New Jersey Court Rule 1:4-4(b);*fn7 however, the failure of these statements to acknowledge the penalty of perjury would render them, if unmodified, inadmissible. See United States v. Branella, 972 F. Supp. 294, 300 (D.N.J. 1997) (holding affidavit failure to acknowledge perjury makes inadmissible for summary judgment consideration); Cooper v. Cape May County Bd. of Soc. Servs., 175 F. Supp. 2d 732, 742 n.6 (D.N.J. 2001).
Nevertheless, the Court will not grant Army Corps' motion to strike for failure to comport with 28 U.S.C. § 1746 . In response to Army Corps' motion, Plaintiff submitted amended certification statements that included the relevant perjury language. (Plaintiff's Reply Brief-April 5, 2007 at Exhibits A-C.) Army Corps' response to the amended submission was to merely respond to the irrelevance of the certifications, without objecting to the amendments in general. (Army Corps Reply Brief-April 10, 2007 at 2-6.) In general, "evidence should not be excluded on summary judgment on hypertechnical grounds." Fowle v. C&C Cola, 868 F.2d 59, 67 (3d Cir. 1989). Where the plaintiff has made an attempt to rectify a defect in pleadings, particularly when done before the district court, the amended pleadings should be allowed. See id. (holding circuit court would not consider supplemented pleadings where defendant raised objection in district court and plaintiff did nothing to correct the error). Likewise here, to disallow Plaintiff's amended certifications on technical grounds, particularly ...