NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

____________________________________

:

THE GUARDIAN LIFE INSURANCE :

COMPANY OF AMERICA, :

: Civil Action No. 11-3062 (FSH)

Plaintiff, :

:

v. :

:

CRYSTAL CLEAR INDUSTRIES, ET :

AL., : OPINION

:

Defendants. :

____________________________________:

I. INTRODUCTION

This matter comes before the Court on the motion of the plaintiff for leave to effectuate

service of process by publication. For the reasons set forth below, the motion for leave to

effectuate by publication is granted with modification to the relief sought.

II. BACKGROUND

The Guardian Life Insurance Company of America (“Guardian”) had issued a life

insurance policy to Carolyn Egerman (“decedent”), who passed in July 2009. (Compl. ¶¶ 10,

15–16, May 26, 2011, ECF No. 1.) According to the decendent’s application, the owners are

“Split $” as follows: defendant Crystal Clear Industries to the extent of its contributions, and the

decedent as to all else. (See id. ¶ 12.) Similarly, the application lists the primary beneficiaries as

Crystal Clear to the extent of its contributions, and the decedent’s husband as to the balance. 

(Id. ¶ 13.) As to contingent beneficiaries, the application listed the decedent’s estate and her

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children, among them Catherine Chairenza. (Id. ¶ 14.) At the time of the decedent’s passing, her

husband had already passed as well. (Id. ¶ 17.) Crystal Clear claims entitlement to receive all

the proceeds of the policy. (Id. ¶¶ 17, 20.) The contingent beneficiaries also claim entitlement to

receive all the proceeds of the policy. (Id. ¶ 23.)

On May 26, 2011, Guardian filed an interpleader action pursuant to 28 U.S.C. § 1335 in

the United States District Court, District of New Jersey, against Crystal Clear and the decedent’s

children. (Compl. ¶¶ 1–6, 25–26.) Summons were executed as to all the defendants except for

Catherine Chairenza. (See Executed Summons, ECF Nos. 7–9.) On August 18, 2011, the Court

directed Guardian to move the case by requesting default, or the Court would dismiss the action. 

(Order, Aug. 18, 2011, ECF No. 10.) Guardian requested default against the defendants who had

been served. (See Requests for Default, Aug. 26, 2011, ECF Nos. 11–13.) As to Ms. Chairenza,

Guardian submitted a letter detailing its unsuccessful efforts to locate and serve her. (Pl.’s

Letter, Sept. 7, 2011, ECF No. 14.) In its letter, Guardian also advised that it believed that it had

no choice but to subpoena Ms. Chairenza’s siblings to determine her current address. (Id. at 2.)

On February 3, 2012, Guardian moved to serve Ms. Chairenza by publication, pursuant to

Federal Rule of Civil Procedure 4(e)(1) and either New Jersey Court Rule 4:4-5 or Colorado 1

Rule of Civil Procedure 4(e). (Mot. for Service by Publication, Feb. 3, 2012, ECF No. 15.) 

Specifically, Guardian seeks to serve by publication by placing a legal notice once in the Castle

Rock Douglas County News Press and once in the Aurora Sentinel. (See Pl.’s Br. at 6, Feb. 3,

2012, ECF No. 15.) Guardian certifies its attempts to serve or contact Ms. Chairenza as follows:

 Guardian cites to New Jersey Court Rule 4:4-5(c) in its brief but that provision does not 1

technically exist anymore. Rule 4:4-5(c) has been amended and former subsection (c) is now

embodied in Rule 4:4-5(a)(3).

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1. On June 6, 2011, Guardian unsuccessfully attempted personal service at the

address on file for Ms. Chairenza, that is, 308 Deer Crossing, Castle Rock, CO

80104. (Pennacchio Certif. ¶ 3, Feb. 3, 2012, ECF No. 15.) Guardian’s process

server advised that Ms. Chairenza had moved two years earlier. (Id.)

2. At some undated time, Guardian unsuccessfully attempted to call Ms. Chairenza

at the phone number on file for her. (Id. ¶ 4.) The phone number corresponded to

the land-line of the Deer Crossing address. (Id.) Ms. Chairenza’s former motherin-law answered and stated that she did not have any contact information for Ms.

Chairenza. (Id.)

3. Guardian employed its special investigations unit, who conducted searches by

social media and Accurint, and located a person named Kathie Chairenza at 830

South Ironton Street, 45S, Aurora, CO 80012. (Id. ¶¶ 5–6.) On June 8, 2012,

Guardian unsuccessfully attempted personal service at this address but was unable

to access the location because it was a secured building. (Id. ¶ 7.)

4. On August 4, 2011, Guardian again unsuccessfully attempted personal service at

the South Ironton address. (Id.)

5. By an August 10, 2011 letter, Guardian mailed a waiver of personal service and

copy of the Complaint to the South Ironton address, but the correspondence was

returned with indications that Ms. Chairenza was not known at this address and

that the correspondence could not be forwarded. (Id. ¶ 8.)

6. On October 25, 2011, Guardian deposed Ms. Chairenza’s sister. (Id. ¶ 9.) She

testified that she had not spoken with Ms. Chairenza since an argument in

December 2010 and that she did not know where she worked, but provided her

last known phone number and address, namely, 505 Scott Boulevard, Castle

Rock, CO 80104. (Id. ¶¶ 10–14.) By an October 25, 2011 letter, Guardian mailed

a waiver of personal service and copy of the Complaint to the Scott Boulevard

address, but the correspondence was returned with indications that Ms. Chairenza

was not known at this address and that the correspondence could not be

forwarded. (Id. ¶ 16.)

7. On November 11, 2011, Guardian unsuccessfully attempted personal service at

the Scott Boulevard address. (Id. ¶ 15.) Guardian’s process server advised that

the address was an apartment complex, and Guardian had no specific unit number

for Ms. Chairenza. (Id.)

8. At some undated time, Guardian unsuccessfully attempted to call Ms. Chairenza

at the phone number provided at her sister’s deposition. (Id. ¶ 17.) Guardian was

advised that the number did not belong to Ms. Chairenza. (Id.)

9. Based on this same number, Guardian’s special investigations unit obtained an

address, namely, 4714 North Bearily Way, Castle Rock, CO 80109. (Id. ¶ 18.) 

On November 28, 2011, Guardian unsuccessfully attempted personal service at

the North Bearily Way address. (Id. ¶ 19.) Guardian’s process server advised that

the North Bearily Way address did not exist. (Id.)

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10. By a November 28, 2011 letter, Guardian mailed a waiver of personal service and

copy of the Complaint to the North Bearily Way address, but the correspondence

was returned with indications that Ms. Chairenza was not known at this address

and that the correspondence could not be forwarded. (Id. ¶ 20.)

On April 24, 2012, the Court directed that Guardian provide a supplemental letter

addressing the effect, if any, of 28 U.S.C. § 2361 on its motion for service by publication. 

(Order, Apr. 24, 2012, ECF No. 16.) On May 1, 2012, Guardian submitted a letter responsive to

the Court’s inquiry. (Pl.’s Letter, May 1, 2012, ECF No. 17.)

III. DISCUSSION

A. Fed. R. Civ. P. 4(e)

Federal Rule of Civil Procedure 4(e) states:

Unless federal law provides otherwise, an individual—other than a minor, an

incompetent person, or a person whose waiver has been filed—may be served in a

judicial district of the United States by:

(1) following state law for serving a summons in an action brought in

courts of general jurisdiction in the state where the district court is located

or where service is made; or

(2) doing any of the following:

(A) delivering a copy of the summons and of the complaint to the

individual personally;

(B) leaving a copy of each at the individual’s dwelling or usual

place of abode with someone of suitable age and discretion who

resides there; or

(C) delivering a copy of each to an agent authorized by

appointment or by law to receive service of process.

Fed. R. Civ. P. 4(e).

Before considering state law service of process under Rule 4(e)(1), the Court considers

whether other “federal law provides otherwise” and thereby limits the means of service. 

Specifically, the Court considers whether statutory interpleader’s process and procedure

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provision, 28 U.S.C. § 2361, constitutes federal law that supercedes the directions for service

under Rule 4(e). Compared to Rule 4(e), 28 U.S.C. § 2361 provides little direction as to the

manner of service. Section 2361 provides for nationwide service and states that “process . . .

shall be addressed to and served by the United States marshals for the respective districts where

the claimants reside or may be found.” 28 U.S.C. § 2361. Amendments to the Federal Rules of

Civil Procedure, however, have modified Section 2361 through the Rules Enabling Act. Under

this act, “Congress ordered that, in matters of ‘practice and procedure,’ . . . the Federal Rules

shall govern, and ‘[a]ll laws in conflict with such rules shall be of no further force or effect’ . . .

.” Henderson v. United States, 517 U.S. 654, 656 (1996) (citing 28 U.S.C. § 2072) (alterations in

Henderson). The Supreme Court has clarified that “in actions arising under federal law, . . . the

manner and timing of serving process are generally nonjurisdictional matters of ‘procedure’

controlled by the Federal Rules.” Henderson, 517 U.S. at 656. Moreover, as the Supreme Court

has recognized, “Rule 4 changes made operative in 1983 completed a shift in responsibility for

service from the United States marshals to the plaintiff.” Id. at 662; see also Fed. R. Civ. P. 4

advisory committee notes (1993 Amendments) (noting that the 1983 revisions relieved the U.S.

Marshals of the burden of serving process except in specific contexts, e.g., service on behalf of

the U.S. Government, service on parties proceeding in forma pauperis, or service on a party

proceeding as a seaman). Thus, the Rules Enabling Act and the 1983 Amendments to the

Federal Rules of Civil Procedure modified Section 2361 such that U.S. Marshals are no longer

required to serve process. See, e.g., McGuckin v. Metro. Life Ins. Co., Civ. No. 95-5584, 1996

WL 107406, at *2 (E.D. Pa. Mar. 4, 1996); see also Star Ins. Co. v. Cedar Valley Express, 273 F.

Supp. 2d 38, 42 n.4 (D.D.C. 2002) (noting that notwithstanding Section 2361, “it appears to be

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the practice of plaintiffs in interpleader actions to directly serve process on claimants, without

burdening the U.S. marshals”). But see Great W. Cas. Co. v. Fredrics, Civ. No. 10-267, 2010

WL 4818010, at *3 (W.D.N.C. Nov. 22, 2010) (ordering marshals to serve summons and

complaint pursuant to 28 U.S.C. § 2361).

Analogously, amendments to Rule 4 should now permit the full gamut of options for

serving process in statutory interpleader actions. First, Section 2361 is not specific as to the

particular manner of executing service — Section 2361 specifies who serves, not how — and

thus service consistent with Rule 4 should be available. See United Indus. Corp. v. Nuclear

Corp. of Am., 237 F. Supp. 971, 981 (D. Del. 1964) (noting that Section 2361 “makes no

provision for the type of action to be taken to effectuate service”). Second, the 1993

Amendments simplified manner of service by eliminating, consolidating, and rewriting various

subdivisions into revised subdivisions (e) and (f) to “provide[] for service on persons anywhere,

subject to constitutional and statutory constraints.” Fed. R. Civ. P. 4(e) advisory committee notes

(1993 Amendments) (“Service of the summons under this subdivision does not conclusively

establish the jurisdiction of the court over the person of the defendant.”). And as the Supreme

Court has noted “the core function of service is to supply notice of the pendency of a legal action,

in a manner and at a time that affords the defendant a fair opportunity to answer the complaint

and present defenses and objections.” Henderson, 517 U.S. at 672; see also id. at 671 (“Service

of process, we have come to understand, is properly regarded as a matter discrete from a court’s

jurisdiction to adjudicate a controversy of a particular kind[, subject matter jurisdiction], or

against a particular individual or entity[, personal jurisdiction].”) Also, access to subsection

(e)(1) does not abridge, enlarge, or modify any substantive right nor does it expand the Court’s

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jurisdiction, which is already national in scope under Section 2361. See id. at 664 (noting that

revised rules of civil procedure“[can]not abridge, enlarge or modify any substantive right”)

(quoting 28 U.S.C. § 2072(a)). This result is consistent with other decisions in this district

permitting service under state law for statutory interpleader actions. See, e.g., Am. Gen. Life Ins.

Co. v. Jae, Civ. No. 08-74, 2010 WL 3001198, at *2 (D.N.J. July 28, 2010); Prudential Ins. Co.

of Am. v. Bramlett, Civ. No. 08-119, 2010 WL 2696459, at *1 (D.N.J. July 6, 2010).

Accordingly, the Court considers state law to evaluate Guardian’s request to effect

service by publication.

B. New Jersey

Under New Jersey law, personal service is the primary method of effecting service. See

N.J. Ct. R. 4:4-4(a), 4:4-5(a). New Jersey Court Rules 4:4-3 and 4:4-4(a) prescribe the methods

of effecting personal service within the state. Substitute or constructive service, however, is

permitted when personal service within the state cannot be effected. See N.J. Ct. R. 4:4-4(b),

4:4-5. For in personam jurisdiction, New Jersey Court Rule 4:4-4(b) provides the methods of

substitute or constructive service, such as personal service outside the state, simultaneous

mailings by ordinary and certified (or registered) mail, and “as provided by court order,

consistent with due process of law.” N.J. Ct. R. 4:4-4(b)(1), (b)(3). For in rem and quasi in rem

jurisdiction, New Jersey Court Rule 4:4-5 provides the methods for personal, substitute, and

constructive service, such as service by publication. Regardless of the type of action, substitute

or constructive service requires a demonstration of due diligence that satisfies the requirements

specified in New Jersey Court Rule 4:4-5(b). See N.J. Ct. R. 4:4-5(a); 4:4-4 (b)(1) (crossreferencing Rule 4:4-5(b)); N.J. Ct. R. 4:4(b)(3) (noting that service by a court order consistent

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with due process is precluded “[i]f service can be made by any of the modes provided by this

rule”); see also Garrett v. Matisa, 394 N.J. Super. 468, 475–76 (Ch. Ct. 2007) (using affidavit

requirement in Rule 4:4-5 as model for unique notice issue).2

Diligence has no fixed standard. See Modan v. Modan, 327 N.J. Super. 44, 48 (App. Div.

2000). The diligence exercised and the alternative service requested must meet the constitutional

requirements of due process. Cf. O’Connor v. Abraham Altus, 67 N.J. 106, 126–127 (1975). 

Namely, the “elementary and fundamental requirement of due process” is that there be “notice

reasonably calculated, under all the circumstances, to apprise interested parties of the pendency

of the action and afford them an opportunity to present their objections.” O’Connor, 67 N.J. at

 Guardian argues that New Jersey Court Rule 4:4-5 authorizes service by publication. 2

By its terms, Rule 4:4-5 applies to actions in rem or quasi in rem and Guardian argues without

explanation that interpleader actions are one of these types of actions. The debate of whether

interpleader actions are in personam or in rem has persisted for nearly a century and appears to

be unresolved to this day. Cf. Wilson v. Canada Life Assurance Co., Civ. No. 08-1258, 2009

WL 532830, at *10 nn.11–12 (E.D. Pa. Mar. 3, 2009) (citing N.Y. Life Ins. Co. v. Dunlevy, 241

U.S. 518 (1916)). Compare Metro. Prop. & Cas. Ins. Co. v. Shan Trac Inc., 324 F.3d 20, 25 (1st

Cir. 2003) (stating that interpleader actions are in personam) with Horizon Bank & Trust Co. v.

Massachusetts, 391 F.3d 48, 52 (1st Cir. 2004) (stating that, notwithstanding Shan Trac, “this

sort of interpleader action should be considered in rem.”). But whether the Court resolves that

interpleader is in personam, in rem, or quasi in rem, the Court can access Guardian’s request for

relief, service by publication, either through Rule 4:4-5 or by court order pursuant to 4:4-4(b)(3). 

And as the Supreme Court has noted, the concerns of notice “do not depend upon a classification

for which the standards are so elusive and confused generally and which, being primarily for state

courts to define, may and do vary from state to state.” Mullane v. Cent. Hanover Bank & Trust

Co., 339 U.S. 306, 312 (1950); see also see also Mennonite Bd. of Missions v. Adams, 462 U.S.

791, 796 (1983) (“The decision in Mullane rejected one of the premises underlying this Court’s

previous decisions concerning the requirements of notice in judicial proceedings: that due

process rights may vary depending on whether actions are in rem or in personam.”); Shaffer v.

Heitner, 433 U.S. 186, 207 n.22 (1977) (“All proceedings, like all rights, are really against

persons. Whether they are proceedings or rights in rem depends on the number of persons

affected.”) (citation omitted). What ultimately matters is that the notice be “reasonably

calculated, under all the circumstances, to apprise interested parties of the pendency of the action

and afford them an opportunity to present their objections.” Mullane, 399 U.S. at 314.

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126 (quoting Mullane, 339 U.S. at 314); see also Dusenbery v. United States, 534 U.S. 161, 168

(2002) (“Since Mullane was decided, we have regularly turned to it when confronted with

questions regarding the adequacy of the method used to give notice.”). Accordingly, when

considering diligence, the Court conducts a fact-sensitive inquiry “measured by the qualitative

efforts of a specific plaintiff seeking to locate and serve a specific defendant.” Modan, 327 N.J.

Super. at 48 (internal citation and quotation marks omitted). Diligence requires that a plaintiff

follow up on information it possesses or can reasonably obtain, but it does not necessarily mean a

plaintiff take every conceivable action. Id. at 48–49 (collecting cases).

Service by publication, as requested here, “is hardly favored and is the method of service

that is least likely to give notice.” M & D Assocs. v. Mandara, 366 N.J. Super. 341, 353 (App.

Div. 2004) (citing Modan, 327 N.J. Super. at 48). “Chance alone brings to the attention of even a

local resident an advertisement in small type inserted in the back pages of a newspaper, and if he

makes his home outside the area of the newspaper’s normal circulation the odds that the

information will never reach him are large indeed.” Mullane, 339 U.S. at 315. Nevertheless, “in

the case of persons missing or unknown, employment of an indirect and even a probably futile

means of notification is all that the situation permits and creates no constitutional bar to a final

decree foreclosing their rights.” Id. at 317.

C. Analysis

Here, Guardian has demonstrated its diligence by actively searching for and following up

on the information it obtained regarding Ms. Chairenza. Initially, Guardian unsuccessfully

attempted personal service on Ms. Chairenza at the address in its files but discovered she had

moved two years earlier. (Pennacchio Certif. ¶ 3.) Guardian also unsuccessfully called Ms.

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Chairenza at the phone number in its files. (Id. ¶ 4.) Thereafter, Guardian conducted searches

for her current address, deposed one of her siblings, and unsuccessfully attempted service in

person and service by mail at each of the follow-up addresses. (Id. ¶¶ 5–20, Exs. B, C.) In all,

Guardian conducted social media and public record searches, deposed one of Ms. Chairenza’s

siblings, attempted personal service on Ms. Chairenza five times at four different addresses,

attempted to call her on both phone numbers that had been obtained, and attempted service by

mail three times at three different addresses. The record demonstrates that Guardian’s efforts

were exhaustive and that Guardian diligently followed up on each lead it acquired. Although

Guardian might not have taken every conceivable action, its conduct demonstrates that it

followed up on information it possessed or could have reasonably obtained, and that its efforts

will meet the constitutional requirements of due process. See Modan, 327 N.J. Super. at 48–49;

accord Mullane, 339 U.S. at 314–15.

Although Guardian has demonstrated its diligence in attempting to find and serve Ms.

Chairenza, the Court does not agree with the details of Guardian’s proposed service. Guardian

proposes placing a legal notice just once in the Castle Rock Douglas County News Press and just

once in the Aurora Sentinel; there would be no service by mail to any address. (See Pl.’s Br. at 3

6.) On the one hand, Guardian’s request has sense to it. Ms. Chairenza’s current address is

unknown and thus mailing copies to her in addition to publication, as normally required by New

Jersey Court Rule 4:4-5, will likely be futile. Also, whether Guardian publishes notice once or

many times, the chance that Ms. Chairenza will see it remains remote.

 The Castle Rock Douglas County News Press is the official legal publication for 3

Douglas County, Colorado, which includes Castle Rock. (See Pl.’s Br. at 6–7.) The Aurora

Sentinel is the local newspaper for Aurora, Colorado. (Id. at 7.)

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On the other hand, the Court wants to ensure that notice is reasonably calculated under

these circumstances to provide notice to Ms. Chairenza and to afford her an opportunity to be

heard. Accordingly, the Court will modify Guardian’s request in two regards. First, the Court’s

order will require service by mail. Consistent with New Jersey Court Rule 4:4-5, the Court will

require that Guardian mail Ms. Chairenza a copy of the complaint, by regular mail and certified

mail, to her last three known addresses (South Ironton address, Scott Boulevard address, and

North Bearily Way address). Second, the Court’s order will require more than one publication in

the proposed local news papers. Having consulted other rules concerning service by publication,

namely, Colorado Rule of Civil Procedure 4(g) and 28 U.S.C. § 1655, the Court will require that

publication occur in each of the designated newspapers once a week for six consecutive weeks.

Because the Court finds that service by publication is permissible under New Jersey law,

the Court need not consider service under Colorado law.

IV. CONCLUSION

For the reasons stated herein, the plaintiff’s motion for leave to effectuate substitute

service is granted as to service pursuant to New Jersey law. The plaintiff shall serve Catherine

Chairenza consistent with the requirements of N.J. Ct. R. 4:4-5, modified as follows: The

plaintiff shall serve Ms. Chairenza (1) by placing notice once a week for six consecutive weeks

in both the Castle Rock Douglas County News Press and the Aurora Sentinel; and (2) by regular

mail and certified mail at the following addresses: (a) 830 South Ironton Street, 45S, Aurora, CO

80012; (b) 505 Scott Boulevard, Castle Rock, CO 80104; (c) 4714 North Bearily Way, Castle

Rock, CO 80109.

The Court shall issued an order consistent with this opinion.

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s/Michael A. Hammer 

UNITED STATES MAGISTRATE JUDGE

Date: May 22, 2012

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