1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 5 GYORGY MATRAI, Individually and as Case No. 20-cv-05241-MMC Guardian Ad Litem for M.M. (a minor), 6 ORDER GRANTING DEFENDANT'S Plaintiff, MOTION TO DISMISS; DENYING 7 PLAINTIFF’S MOTION FOR ACCESS v. RIGHTS UNDER HAGUE 8 CONVENTION; DISMISSING JONI T. HIRAMOTO, et al., AMENDED COMPLAINT WITH 9 PREJUDICE Defendants. 10
11 Before the Court are the following motions: (1) defendant the Honorable Joni T. 12 Hiramoto’s (“Judge Hiramoto”) Motion to Dismiss, filed September 29, 2020, and (2) 13 plaintiff Gyorgy Matrai’s (“Matrai”) “Motion for Access Rights Under the Hague 14 Convention,” filed November 4, 2020. Matrai has filed opposition to Judge Hiramoto’s 15 motion, to which Judge Hiramoto has replied; Judge Hiramoto has filed opposition to 16 Matrai’s motion, to which Matrai has replied.1 17 Having considered the papers filed in support of and in opposition to the motions, 18 the Court rules as follows.2 19 BACKGROUND 20 In the instant action, Matrai, individually and as guardian ad litem for his minor son 21 M.M., seeks to challenge a “child abduction prevention order” (see Am. Compl. (“AC”) 22 ¶ 21) issued by Judge Hiramoto, a “Contra Costa County Superior Court Judge in the 23 Family Division” who is presiding over Matrai’s divorce proceedings (see id. ¶ 7). 24 Specifically, Matrai alleges that the child abduction prevention order requires him to “post 25 1 To date, the other named defendant, Michelle Gonzaga Uriarte (“Uriarte”), has 26 not appeared in the instant action. 27 2 By orders filed November 2, 2020, and December 1, 2020, the Court took the 1 a $5 million bond as a condition of being able to see his son under supervised visitation” 2 (see id. ¶ 3), and that such requirement has “effectively foreclosed any possibility that 3 [he] would see his son” (see id. ¶ 22). Matrai further alleges that he filed a “motion to set 4 aside” the order (see id. ¶ 3) and “will continue to be unable to visit his son if Judge 5 Hiramoto denies [his] motion and makes the bond requirement permanent” (see id. ¶ 3). 6 Based on the foregoing, Matrai filed his initial Complaint, in which he asserted two 7 Counts, titled, respectively, “Declaratory and Injunctive Relief Under 28 U.S.C. §§ 2201 8 and 2202” and “Injunctive Relief Under 42 U.S.C. § 1983.” 9 Thereafter, Matrai filed a Motion for Preliminary Injunction, seeking the same relief 10 as he sought in his initial Complaint, specifically, an order (1) declaring “any requirement 11 that [he] post a bond in the amount of $5 million—or any other amount that is so far 12 beyond his means to effectively preclude any visitation with his son in perpetuity—would 13 violate [his] and his son’s substantive due process rights under the Fourteenth 14 Amendment of the United States Constitution” and (2) “[e]njoining [Judge Hiramoto] from 15 imposing any such bond requirement upon [him]” in his divorce proceedings. (See Mot. 16 for Prelim. Inj. at 9:26-10:4; see also Compl., Prayer for Relief.) 17 By order filed August 26, 2020 (“August 26 Order”), the Court denied Matrai’s 18 Motion for Preliminary Injunction and ordered Matrai to show cause why the Court should 19 not abstain under the Younger doctrine and dismiss the instant action. 20 On September 9, 2020, Matrai filed both a Response to the August 26 Order and 21 an Amended Complaint (“AC”), wherein he reasserts Counts I and II, adds M.M’s mother, 22 Uriarte, as a defendant, and asserts as Count III a claim titled, “Injunctive Relief Under 23 the Hague Convention and 22 U.S.C. §§ 9001 et seq.” In support of the newly asserted 24 Count, Matrai alleges that, “[a]t the time the divorce was filed, [he] had a right to access 25 (visitation) with M.M. pursuant to [an] agreement with Ms. Uriarte, the Children’s Act of 26 1989 (U.K.)[,] and U.K. common law.” (See AC ¶ 39.) 27 On September 14, 2020, the Court, in light of Matrai’s filing of the AC and addition 1 LEGAL STANDARD 2 Dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure "can be 3 based on the lack of a cognizable legal theory or the absence of sufficient facts alleged 4 under a cognizable legal theory." See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 5 699 (9th Cir. 1990). Rule 8(a)(2), however, "requires only 'a short and plain statement of 6 the claim showing that the pleader is entitled to relief.'" See Bell Atlantic Corp. v. 7 Twombly, 550 U.S. 544, 555 (2007) (quoting Fed. R. Civ. P. 8(a)(2)). Consequently, "a 8 complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual 9 allegations." See id. Nonetheless, "a plaintiff's obligation to provide the grounds of his 10 entitlement to relief requires more than labels and conclusions, and a formulaic recitation 11 of the elements of a cause of action will not do." See id. (internal quotation, citation, and 12 alteration omitted). 13 In analyzing a motion to dismiss, a district court must accept as true all material 14 allegations in the complaint and construe them in the light most favorable to the 15 nonmoving party. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). "To 16 survive a motion to dismiss, a complaint must contain sufficient factual material, accepted 17 as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 18 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). "Factual allegations must be 19 enough to raise a right to relief above the speculative level[.]" Twombly, 550 U.S. at 555. 20 Courts "are not bound to accept as true a legal conclusion couched as a factual 21 allegation." See Iqbal, 556 U.S. at 678 (internal quotation and citation omitted). 22 DISCUSSION 23 A. Motion to Dismiss 24 In her Motion to Dismiss, Judge Hiramoto argues Counts I through III are subject 25 to dismissal. The Court considers each Count in turn. 26 1. Count I 27 In Count I, Matrai again seeks declaratory and injunctive relief pursuant to 28 1 U.S.C. §§ 2201 and 2202. 2 a. Younger Abstention 3 As noted, Count I was asserted in the initial Complaint, and the Court, by its 4 August 26 Order, found Younger abstention as to that complaint was appropriate and 5 ordered Matrai to show cause why the instant action should not be dismissed. 6 In Younger v. Harris, 401 U.S. 37 (1971), the Supreme Court “espouse[d] a strong 7 federal policy against federal-court interference with pending state judicial proceedings 8 absent extraordinary circumstances,” see Middlesex County Ethics Comm. v. Garden 9 State Bar Ass’n, 457 U.S. 423, 431 (1982), and, consistent therewith, Younger abstention 10 is appropriate in civil cases “when the state proceedings: (1) are ongoing, (2) are quasi- 11 criminal enforcement actions or involve a state’s interest in enforcing the orders and 12 judgments of its courts, (3) implicate an important state interest, and (4) allow litigants to 13 raise federal challenges,” see ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund, 754 14 F.3d 754, 759 (9th Cir. 2014). If those “threshold elements” are met, courts then consider 15 “whether the federal action would have the practical effect of enjoining the state 16 proceedings and whether an exception to Younger applies.” See id. 17 Here, although Matrai concedes the first threshold element is satisfied and does 18 not dispute the instant action would have the practical effect of enjoining the state 19 proceedings, he disagrees that the remaining threshold elements have been satisfied and 20 argues that the “irreparable loss exception” to Younger abstention applies. (See Opp. to 21 Mot. to Dismiss at 22:16-18.) The Court addresses the remaining three elements in turn. 22 (1) Second Threshold Element: State’s Interest in Enforcing Orders and Judgments of Its Courts 23 24 As to the second threshold element, the Court, in its August 26 Order, found that, 25 “[a]lthough the state proceedings Matrai challenges do not constitute a quasi-criminal 26 enforcement action, those proceedings do involve a state’s interest in enforcing the 27 orders and judgments of its courts.” (See August 26 Order at 3:15-18 (internal quotation 1 In opposition to Judge Hiramoto’s motion, Matrai fails to address this element, 2 and, consequently, fails to identify any reason for the Court to reconsider its prior finding 3 that the second element is satisfied. 4 To the extent Matrai, in his Response to the August 26 Order, addresses the 5 second element, the Court is not persuaded by his arguments therein. Specifically, in his 6 Response, Matrai contends the “bond order is not an order unique to the domestic 7 relations court’s ability to perform its judicial functions” because, according to Matrai, the 8 state court “has other tools at its disposal to prevent the abduction of [his] son.” (See 9 Resp. to August 26 Order at 9:22-24.) Whether a state court could have issued a 10 different order in place of the order being challenged is not, however, relevant to the 11 determination of whether the second threshold requirement is met. Rather, the relevant 12 inquiry is whether the challenged order “implicate[s] the process by which a state 13 compel[s] compliance with the judgments of its courts,” see Cook v. Harding, 879 F.3d 14 1035, 1041 (9th Cir. 2018) (internal quotation and citation omitted), and, as set forth in 15 the August 26 Order, the bond requirement is such an order (see August 26 Order at 16 3:15-4:16). Specifically, the “purpose of the bond requirement is . . . to enforce the family 17 court’s custodial orders, both by discouraging conduct inconsistent with those 18 determinations and, if necessary, providing a means for reestablishing compliance 19 therein.” (See id. at 3:23-4:2.)3 20 Accordingly, the Court finds the second threshold requirement is met. 21 // 22
23 3 To the extent Matrai contends a finding that this element is satisfied “directly contradict[s] the Ninth Circuit’s admonition about blanket Younger abstention whenever a 24 parallel domestic relations case is pending” (see Resp. to Order to Show Cause at 9:16- 19), the Court disagrees. Younger abstention as to parallel state domestic relations 25 proceedings is limited to challenges to orders issued for the purpose of “enforcing the orders and judgments of [the state’s] courts.” See Cook, 879 F.3d at 1040-41 (internal 26 quotation and citation omitted); see also Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 13-14 & n.12 (1987) (recognizing “State’s interest in protecting the authority of the judicial 27 system, so that its orders and judgments are not rendered nugatory” (internal quotation 1 (2) Third Threshold Element: Important State Interest 2 As to the third threshold element, the Court, in its August 26 Order, found the state 3 proceedings Matrai challenges implicate the states’ “undeniable interest in family law.” 4 (See August 26 Order at 4:17-21 (quoting Cook, 879 F.3d at 1040).) 5 Matrai, citing Sprint Communications, Inc. v. Jacobs, 571 U.S. 69 (2013) and 6 Cook, argues such interest cannot serve as the sole basis for abstention. As discussed 7 above, however, Matrai, in challenging the bond requirement, challenges the process by 8 which the state court compels compliance with its orders, and, consequently, the state’s 9 interest in family law does not, in this instance, serve as the sole reason for abstention. 10 Further, both Sprint and Cook are readily distinguishable on that basis, as neither case, 11 unlike the instant action, involved a challenge to an order issued “uniquely in furtherance 12 of the state courts’ ability to perform their judicial functions.” See Sprint, 571 U.S. at 78- 13 79 (finding state utility board decision, which plaintiff sought to challenge in both federal 14 and state courts, “did not touch on a state court’s ability to perform its judicial functions”); 15 see also Cook, 879 F.3d at 1040-41 (finding plaintiff’s state action, wherein plaintiff 16 challenged enforceability of surrogacy agreement and constitutionality of state law 17 governing such agreements, “is not within the category of cases that involve the State’s 18 interest in enforcing the orders and judgments of its orders” (internal quotation and 19 citation omitted)). 20 Accordingly, the Court finds the third threshold requirement is met. 21 (3) Fourth Threshold Element: Availability of Adequate State Forum to Raise Federal Challenges 22 23 As to the fourth threshold element, the Court, in its August 26 Order, found “Matrai 24 has an adequate opportunity to present his federal constitutional claims in the state 25 proceedings, including by appealing the superior court’s orders.” (See August 26 Order 26 at 4:28-5:2.) 27 In challenging that finding, Matrai contends “other cases within this district have 1 and are not equipped to rule on claims arising from constitutional due process 2 considerations.” (See Opp. to Mot. to Dismiss at 20:11-15 (internal quotation and citation 3 omitted)). 4 The cases on which Matrai relies in so arguing, however, are readily 5 distinguishable on their facts. In those cases, the plaintiff’s federal claims did not “reach 6 to the very heart” of the state court’s “core competency.” See Brown v. Alexander, No. 7 13-01451 SC, 2013 WL 6578774, at *6 (N.D. Cal. Dec. 13, 2013) (finding state family and 8 juvenile court proceedings “wholly unrelated to the core” of plaintiffs’ federal civil rights 9 case where plaintiff based federal claims on “facts arising long after the family dispute in 10 state court”) (internal quotation and citation omitted); Lahey v. Contra Costa Cnty. Dep't 11 of Children & Family Servs., No. C01-1075 MJJ, 2004 WL 2055716, at *1, *12 (N.D. Cal. 12 Sept. 2, 2004) (finding Younger abstention improper where plaintiff’s federal claims were 13 based on alleged conspiracy between Department of Children and Family Services and 14 plaintiff’s wife); see also LaShawn A. v. Kelly, 990 F.2d 1319, 1323 (D.C. Cir. 1993) 15 (finding proceedings in Family Division of state court not “an appropriate forum” where 16 plaintiffs brought “multi-faceted class-action challenge to the District of Columbia’s 17 administration of its entire foster-care system”). Here, by contrast, Matrai seeks to enjoin 18 enforcement of the state court’s bond requirement, which requirement falls squarely 19 within that court’s core competency. 20 Matrai next argues that he has not had “any opportunity to challenge the bond 21 order since it was first entered . . .[,] and the earliest the court will consider his challenge, 22 on constitutional grounds or otherwise, will be on January 25, 2021,” the date of the 23 hearing on his motion to set aside the bond requirement. (See Opp. to Mot. to Dismiss at 24 20:18-20.) As Judge Hiramoto points out, however, Matrai fails to demonstrate how he 25 has been prevented from raising in state court, including by appeal, a constitutional 26 challenge to the bond requirement. As noted in the August 26 Order, “only an 27 ‘opportunity to present . . . federal claims in the state proceedings’ is required” to satisfy 1 (1977))), and, indeed, such an opportunity is demonstrated by Matrai’s filing, in state 2 court, a motion to set aside the bond requirement. 3 Accordingly, the Court finds the fourth threshold requirement is met. 4 (4) Irreparable Harm Exception 5 As noted, Matrai contends the “irreparable loss exception to the Younger doctrine” 6 applies in the instant action, because, according to Matrai, he and his son “will suffer 7 irreparabl[e] injury so long as the bond order prevents them from seeing one another in 8 violation of their constitutionally protected right to substantive due process.” (See Opp. to 9 Mot. to Dismiss at 22:4-7, 22:16-18.) 10 The “irreparable harm exception” to Younger abstention “applies under 11 extraordinary circumstances where the danger of irreparable loss is both great and 12 immediate.” See Arevalo v. Hennessy, 882 F.3d 763, 766 (9th Cir. 2018) (internal 13 quotation and citation omitted). 14 Here, the cases to which Matrai cites in arguing the exception applies are readily 15 distinguishable. In two of those cases, the irreparable harm exception was not raised by 16 any party, see World Famous Drinking Emporium, Inc. v. City of Tempe, 820 F.2d 1079, 17 1082-83 (9th Cir. 1987) (mentioning “irreparable loss” exception solely in general 18 discussion of abstention law); Hernandez v. Sessions, 872 F.3d 976, 994 (9th Cir. 2017) 19 (addressing “likelihood of irreparable harm” solely in context of motion for preliminary 20 injunction), and, in the remaining case, the plaintiff therein asserted an irreparable loss of 21 a wholly different nature than the loss asserted in the instant action, see Arevalo, 882 22 F.3d at 766 (finding, “[d]eprivation of physical liberty by detention constitutes irreparable 23 harm”; noting “petitioner ha[d] been incarcerated for over six months without a 24 constitutionally adequate bail hearing”). In sum, Matrai has failed to cite any authority 25 holding the irreparable harm exception applies under circumstances similar to those in 26 the instant action. 27 Accordingly, the Court finds the irreparable harm exception is not applicable. 1 (5) Conclusion: Younger Abstention 2 For the reasons set forth above, the Court finds each of the elements of Younger 3 abstention is satisfied and that the irreparable harm exception to Younger abstention 4 does not apply. 5 Accordingly, Count I is subject to dismissal. 6 b. Anti-Injunction Act 7 Judge Hiramoto argues Count I is also barred pursuant to the Anti-Injunction Act, 8 which provides, “[a] court of the United States may not grant an injunction to stay 9 proceedings in a State court except as expressly authorized by Act of Congress, or 10 where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” See 11 28 U.S.C. § 2283. 12 In response, Matrai contends Count I “does not involve an injunction and, thus, 13 would fall outside the purview of the Anti-Injunction Act.” (See Opp. to Mot. to Dismiss at 14 12:14-15.) The Act, however, “applies to declaratory judgments if those judgments have 15 the same effect as an injunction.” See California v. Randtron, 284 F.3d 969, 975 (9th Cir. 16 2002). Here, as Judge Hiramoto points out, Matrai seeks, as a practical matter, to enjoin 17 the enforcement of the bond requirement (see AC ¶¶ 31-32 (requesting, as to Count I, “a 18 declaratory judgment that precludes . . . Judge Hiramoto from requiring [him] to post a 19 bond,” and, if such judgment is granted, “an order enjoining Judge Hiramoto from 20 continuing the $5 million bond or otherwise imposing a bond that will preclude [him] and 21 his son from seeing one another”)). 22 Accordingly, the Court finds Count I is subject to dismissal for the additional 23 reason that it is barred under the Anti-Injunction Act.4 24 2. Count II 25 In Count II, Matrai again seeks injunctive relief pursuant 42 U.S.C. § 1983. 26
27 4 In light of the foregoing findings, the Court does not consider herein Judge 1 a. Younger Abstention 2 As noted, Count II, like Count I, was asserted in the initial Complaint, and the 3 Court, by its August 26 Order, found Younger abstention was appropriate as to both 4 claims alleged therein. In response to the instant motion, Matrai raises as to Count II the 5 same arguments he makes as to Count I. 6 Accordingly, for the same reasons as set forth above with respect to Count I, the 7 Court finds abstention under Younger is appropriate as to Count II, and, consequently, 8 such claim likewise is subject to dismissal. 9 b. Failure to State a Claim 10 Judge Hiramoto argues Count II is subject to dismissal for the additional reason 11 that Matrai “cannot bring his § 1983 claim for injunctive relief against [her] pursuant to the 12 plain language of the statute.” (See Mot. to Dismiss at 11:13-14.) 13 Section 1983 creates a cause of action against any person who, acting “under 14 color of” state law, “subjects . . . any citizen of the United States or other person within 15 the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured 16 by the Constitution and laws.” See 42 U.S.C. § 1983. “[I]n any action brought against a 17 judicial officer for an act or omission taken in such officer's judicial capacity,” however, 18 Section 1983 expressly provides that “injunctive relief shall not be granted unless a 19 declaratory decree was violated or declaratory relief was unavailable.” See id. 20 Here, Matrai neither alleges nor argues that Judge Hiramoto issued the bond 21 requirement in violation of a declaratory decree or that declaratory relief was unavailable. 22 Accordingly, the Court finds Count II is subject to dismissal for the additional reason that 23 Matrai fails to state a claim for relief under 42 U.S.C. § 1983. See Marciano v. White, 24 431 F. App’x 611, 612 (9th Cir. 2011) (affirming dismissal of § 1983 claim for injunctive 25 relief against judicial officer; noting plaintiff “does not claim that a declaratory decree was 26 violated nor is there any indication that declaratory relief is unavailable”).5 27 1 3. Count III 2 In Count III, Matrai seeks an order allowing him to exercise his “rights to access” 3 M.M. “pursuant to the laws of the United Kingdom, The Hague Convention, and [the 4 International Child Abduction Remedies Act (“ICARA”),] 22 U.S.C. §§ 9001 et seq.” (See 5 AC, Prayer for Relief ¶ c.) 6 The Hague Convention is a multilateral international treaty whose signatories 7 “[d]esir[e] to protect children internationally from the harmful effects of their wrongful 8 removal or retention and to establish procedures to ensure their prompt return to the 9 State of their habitual residence, as well as to secure protection for rights of access.” 10 Oct. 25, 1980, preamble, 19 I.L.M. 1501, 1501. ICARA “implements the Hague 11 Convention in the United States” and “vests state and federal courts with concurrent 12 jurisdiction over claims under the Convention.” See Holder v. Holder, 305 F.3d 854, 860 13 (9th Cir. 2002). Under ICARA, “in the case of an action for arrangements for organizing 14 or securing the effective exercise of rights of access,” the petitioner must establish “by a 15 preponderance of the evidence . . . that the petitioner has such rights.” See 22 U.S.C. 16 § 9003(e)(1)(B). 17 Here, Matrai contends he is “entitled to petition this court to protect his right of 18 access under the Hague Convention” (see Opp. to Mot. to Dismiss at 9:22-23), and, in 19 support thereof, alleges (1) he “lived in the United Kingdom when his wife initiated the 20 divorce,” (2) “[a]t that time, the parties had already agreed that [he] would have rights of 21 visitation to his son,” and (3) “UK law gave [him] those visitation rights because of his 22 status as a parent.” (See id. at 9:18-20.) Specifically, as to “UK law,” Matrai, in alleging 23 he has “joint parental responsibility for M.M.” (see AC ¶ 41), relies on the United 24 Kingdom’s Children’s Act of 1989, under which “‘parental responsibility’ means all the 25 rights, duties, powers, responsibilities and authority which by law a parent of a child has 26 in relation to the child and his property” (see AC Ex. 2 (Children’s Act of 1989) § 3(1)). 27 1 As Judge Hiramoto points out, however, the relevant rights of access that are 2 enforceable under the Hague Convention and ICARA are those provided under the laws 3 of the child’s “habitual residence,” i.e., “where a child’s home was at the time of removal 4 or retention.” See Londono v. Gonzalez, 988 F. Supp. 2d 113, 125, 130 (D. Mass. 2013), 5 aff'd sub nom. Sanchez-Londono v. Gonzalez, 752 F.3d 533 (1st Cir. 2014). Matrai 6 appears to concede the point, and there is no dispute that M.M.’s habitual residence is in 7 California. (See Decl. of Elizabeth Francis ¶ 5 (stating, “[t]he English court would not 8 have jurisdiction because the child in question is not ‘habitually resident’ in England & 9 Wales and none of the other grounds for jurisdiction as set out in Council Regulation (EU) 10 2201/2003 or the 1996 Hague Convention apply”).) Consequently, Matrai fails to state a 11 cognizable claim under the Hague Convention and ICARA. 6 12 Accordingly, the Court finds Count III is subject to dismissal.7 8 13 4. Non-Moving Defendant Uriarte 14 The deficiencies identified above as to Counts I through III are equally applicable 15 to the non-moving defendant, Uriarte, and accordingly, the three Counts in the AC are 16 likewise subject to dismissal as asserted against said additional defendant. See Silverton 17
18 6 The Court notes there is a split among the circuits that have considered the question of whether federal courts have jurisdiction to resolve access claims under 19 ICARA. Compare Cantor v. Cohen, 442 F.3d 196, 200 (4th Cir. 2005) (finding, under ICARA, “the courts of the United States lack a substantive basis for the resolution of the 20 access claims”), with Ozaltin v. Ozaltin, 708 F.3d 355, 372 (2d Cir. 2013) (holding ICARA “unambiguously creates a federal right of action to secure the effective exercise of rights 21 of access protected under the Hague Convention”), and Taveras v. Taveraz, 477 F.3d 767, 777 n.7 (6th Cir. 2007) (noting ICARA “does provide for judicial remedies for non- 22 custodial parents, namely for rights of access claims”). The Court, however, need not resolve this issue herein because, even assuming federal courts have, under ICARA, 23 jurisdiction to resolve access claims, Matrai, for the reasons discussed above, has failed to state such a claim. 24 7 In light of this finding, the Court does not consider herein Judge Hiramoto’s 25 additional arguments in support of dismissal of Count III. 26 8 To the extent Matrai, in connection with his Reply in support of his Motion for Access Rights, requests the Court dismiss Judge Hiramoto as a defendant to Count III 27 (see Reply in Supp. of Mot. for Access Rights at 2:14-20), such request is DENIED as 1 v. Dep't of Treasury, 644 F.2d 1341, 1345 (9th Cir. 1981) (holding, where court grants 2 || motion to dismiss complaint as to one defendant, court may dismiss complaint against 3 || non-moving defendant “in a position similar to that of moving defendants’). 4 5. Conclusion 5 As set forth above, the Court will dismiss the three Counts asserted in the AC. 6 || Further, as to Counts | and II, given Matrai’s failure to cure the deficiencies previously 7 || identified by the Court and, as to Count IIIl, given the undisputed residence of M.M., such 8 || dismissal will be without leave to amend. 9 || B. Motion for Access Rights Under Hague Convention 10 In his “Motion for Access Rights Under the Hague Convention,” Matrai, for 11 essentially the same reasons he asserts in support of Count III, argues he “has rights of g 12 || access to his son under UK law” (see Mot. for Access Rights at 5:4) and, as with Count s 13 |) Ill, seeks to “enforce those access rights” under the Hague Convention and ICARA (see 14 || id. at 5:10.) 2 15 Accordingly, for the same reasons set forth as to dismissal of Count II|, Matrai’s a 16 || Motion for Access Rights will be denied. g 17 CONCLUSION S 18 For the reasons stated above: 19 1. Judge Hiramoto’s Motion to Dismiss is hereby GRANTED, and the instant 20 || action is hereby DISMISSED with prejudice. 21 2. Matrai’s Motion for Access Rights is hereby DENIED. 22 IT IS SO ORDERED. 23 24 || Dated: December 14, 2020 (ices lf hata MAXINE M. CHESNEY 25 United States District Judge 26 27 28