Case of the Day: McCarty v. Roos
Posted on December 28, 2012
The case of the day is McCarty v. Roos (D. Nev. 2012). It’s a bit off the beaten path. Robert Joseph McCarty was convicted of “quasi indecent assault” in Japan in 2003. When he returned to the United States, he was required to register as a sex offender under the Sex Offender Registration Notification Act. McCarthy argued that he had been denied due process in Japan, 1 and he sued several Nevada officials as well as John V. Roos, the US ambassador to Japan, and Joseph Koen, a US consular officer, in their individual and official capacities.
Roos and Koen moved to dismiss the claims asserted against them in their individual capacities on the grounds, among others, of insufficient service of process. At the time of service, Roos resided in Japan and Koen in Mexico. McCarthy had sought to serve both defendants by mail.
As for Japan, the court acknowledge that Japan had not objected to service by mail under Article 10(a) of the Hague Service Convention, but following Ninth Circuit precedent in Brockmeyer v. May, he held that Article 10 did not, of its own force, authorize service by mail. This is correct, but note that the law is different elsewhere, e.g., in the Second Circuit. Service by mail in such circumstances is permissible under FRCP 4(f)(2)(C)(ii), but only if the clerk addresses and sends the mail, and the form of mail used requires a signed receipt. 2 Incidentally, this is a case where service by mail in Japan might actually make sense. Ordinarily, service by mail is to be avoided if the judgment will have to be enforced in Japan, because even though Japan has not objected to service by mail under the Convention, its declarations indicate that it may be difficult to enforce a judgment in Japan based on such service. But here the defendant was the US ambassador, and presumably the judgment could be enforced against him in the United States.
As for Mexico, the judge noted that Mexico, unlike Japan, has objected to service by mail under the Convention. So the attempt at service by mail was simply impermissible.
The judge therefore granted Roos and Koen’s motion, but with leave to attempt service again.
- The relevant part of SORNA, 42 USC § 16911(5)(B), provides: “A foreign conviction is not a sex offense for the purposes of this subchapter if it was not obtained with sufficient safeguards for fundamental fairness and due process for the accused …“ ↩
- Note that there are some instances of courts showing leniency on this requirement, at least where the clerk refuses to mail the papers and returns them to the plaintiff for service. But that apparently wasn’t the case here. ↩