Consequently, pursuant to Fed. R. Civ. P. 25(a)(1), Ms. Senyshyn is the proper party to be substituted in this action.
Fed. R. Civ. P. 25(a)(1) also mandates that the motion for substitution be served on persons who are not parties to the action in accordance with the requirements of Fed. R. Civ. P. 4. Since Ms. Senyshyn was not a party to this action, plaintiffs were required to comply with this rule. As noted above, Ms. Senyshyn contends that service on her was improper, and thus this Court has no personal jurisdiction over her.
Fed. R. Civ. P. 4(c)(2)(C) provides that "[a] summons and complaint may be served . . . (i) pursuant to the law of the State in which the district court" sits. Service is also permissible by the methods set forth in Fed. R. Civ. P. 4(d)(1). Plaintiffs attempted to serve Ms. Senyshyn two times. The first attempt was invalid since the affidavit of service indicated that the person served was not Ms. Senyshyn. Compare Senyshyn Aff. P 2 and Senyshyn Aff. Ex. 1. Consequently, personal service pursuant to either N.Y. Civ. Prac. L. & R. 308(1) or Fed. R. Civ. P. 4(d)(1) was not effectuated.
Plaintiffs argue that the initial service was nonetheless valid since the recipient of the papers was of suitable age and discretion. However, service in this manner did not comply with the requirements of either N.Y. Civ. Prac. L. & R. 308(2) or Fed. R. Civ. P. 4(d)(1). Specifically, N.Y. Civ. Prac. L. & R. 308(2) requires not only that the recipient be of suitable age and discretion but also that a copy of the summons be mailed "to the person to be served at his or her last known residence or . . . actual place of business." In this case, there was no such mailing. Service was also not effectuated pursuant to Fed. R. Civ. P. 4(d)(1) since no evidence indicates that the recipient was residing in Ms. Senyshyn's apartment. See Franklin America, Inc. v. Franklin Cast Prods., Inc., 94 F.R.D. 645, 647 (E.D. Mich. 1982) (Rule 4(d)(1) requires the recipient to live in the same place as the party to be served).
Plaintiffs second attempt at serving Ms. Senyshyn was valid pursuant to N.Y. Civ. Prac. L. & R. 308(4). This provision requires: one, that with due diligence service has been attempted and has been unsuccessful under N.Y. Civ. Prac. L. & R. 308(1) & (2); two, that the document (in this case, the notice of motion) be affixed to the door of "either the actual place of business, dwelling place or usual place of abode"; three, that the document be mailed to the individual's last known residence or actual place of business; four, that the affixing and mailing occur within twenty days of each other; and five, that proof of such service be filed within twenty days of the affixing or mailing, whichever is later. In the instant case, plaintiffs complied with all five requirements.
The plaintiffs' process server, with due diligence, attempted to initially comply N.Y. Civ. Prac. L. & R. 308(1) & (2). The process server attempted to personally serve Ms. Senyshyn four separate times. Feldman Aff. Moreover, the process server attempted service during non-business hours. Id. More than two attempts, including some that are during non-business hours constitutes due diligence. See State of N.Y. Higher Educ. Serv. Corp. v. Starr, 115 A.D.2d 828, 829, 495 N.Y.S.2d 786, 787 (3rd Dep't 1985) (three attempts at service constitutes due diligence); Cf. Barnes v. City of N.Y., 70 A.D.2d 580, 416 N.Y.S.2d 52, 54 (2d Dep't 1979), aff'd, 51 N.Y.2d 906, 434 N.Y.S.2d 991, 415 N.E.2d 979 (1980) (repeated attempts to serve only during business hours does not constitute due diligence).
Plaintiffs' process server also complied with the affixation and mailing requirements. Specifically, the process server's affidavit states that she posted the notice of motion on Ms. Senyshyn's door. Feldman Aff. This affidavit also indicates the process server mailed the notice of motion to Ms. Senyshyn at her address, and that such mailing occurred on the same day that the notice of motion was posted. Id. Finally, plaintiffs filed the proof of service within 20 days of the date the notice of motion was posted and filed. Since plaintiffs complied with all the requirements of N.Y. Civ. Prac. L. & R. 308(4), service upon Ms. Senyshyn was valid.
Ms. Senyshyn's final argument is that plaintiffs' cause of action against her husband did not survive his death. Her argument is not persuasive. Absent a specific directive, federal common law generally determines whether a federal statutory cause of action survives the death of a party. Smith v. No. 2 Galesburg Crown Fin. Corp., 615 F.2d 407, 413 (7th Cir. 1980) (citations omitted). Pursuant to federal common law, actions that are penal in nature do not survive the death of a party. Dolgow v. Anderson, 45 F.R.D. 470, 471 (E.D.N.Y. 1968). Conversely, actions that are remedial in nature generally do survive.
Khan v. Grotnes Metalforming Sys., Inc., 679 F. Supp. 751, 756-57 (N.D. Ill. 1988). It is well established that Congress intended ERISA to be remedial. See 29 U.S.C. § 1001(b) ("It is hereby declared to be the policy of this chapter to protect . . . the interests of participants in employee benefits plans."). See also Duchow v. New York State Teamsters Conference Pension & Retirement Fund, 691 F.2d 74, 78 (2d Cir. 1982), cert. denied, 461 U.S. 918, 77 L. Ed. 2d 289, 103 S. Ct. 1902 (1983); Khan, 679 F. Supp. at 756-57. Plaintiffs ERISA claim therefore survives the death of Mr. Senyshyn.
Plaintiffs motion to substitute Stella Senyshyn, as representative of the Estate of John Senyshyn, as a defendant in place of John Senyshyn is hereby granted. Plaintiffs shall file and serve an amended complaint with a caption that properly reflects this change.
Charles E. Stewart, Jr.
UNITED STATES DISTRICT JUDGE
Dated: New York, New York
December 13, 1993