United States District Court, D. Delaware
David M. Powlen, Esquire and Kevin G. Collins, Esquire of Barnes & Thornburg LLP, Wilmington, Delaware. Counsel for Plaintiff. Of James R. Burdett, Esquire, Joseph D. Lewis, Esquire and Mark R. Owens, Esquire of Barnes & Thornburg LLP.
Robert W. Whetzel, Esquire and Todd A. Coomes, Esquire of Richards, Layton & Finger, PA, Wilmington, Delaware. Counsel for Defendants. Of Alan H. Fein, Esquire and Joshua Munn, Esquire of Stearns Weaver Miller Weisler Alhadeff & Sitterson, P.A.
Sue L. Robinson, District Judge.
On June 2, 2011, Keiko Ono Aoki (" Aoki" ) and Benihana of Tokyo, Inc. (" BOT," collectively " plaintiffs" ) filed a complaint against Benihana, Inc. (" BI" or " defendant" ) for defamation and injurious falsehood. (D.I. 1) Plaintiffs filed an amended complaint on July 11, 2011. (D.I. 9) BI moved to dismiss both counts pursuant to Federal Rule of Civil Procedure 12(b)(6) and to strike plaintiffs' prayer for relief, allegations and exhibits. (D.I. 16, 18)
On March 15, 2012, the court issued a memorandum opinion denying defendant's motion to strike, denying defendant's motion to dismiss as to the defamation count and granting defendant's motion to dismiss as to the injurious falsehood count. (D.I. 25) On December 17, 2012, defendant filed an answer to the amended complaint. (D.I. 14)
A scheduling order was entered on January 10, 2013, setting deadlines for discovery,
dispositive motions and conferences. (D.I. 43) On February 19, 2014, defendant filed a motion for summary judgment. (D.I. 50) The matter is fully briefed. (D.I. 51, 52, 55, 56, 57) The court has jurisdiction pursuant to 28 U.S.C. § 1332.
Rocky Aoki, the founder of the original Benihana restaurant and of plaintiff BOT, passed away on July 10, 2008. His wife, at the time, was plaintiff Aoki. By virtue of her powers as sole executor of Rocky Aoki's estate and sole trustee of the testamentary trust created in Rocky Aoki's will, plaintiff Aoki was elected Chief Executive Officer of BOT. BOT is the owner of a substantial shareholder interest in the common voting stock of defendant.
On December 3, 2010, BOT initiated a lawsuit against BI and Noodle Time, Inc. (" Delaware I litigation" ) arguing, inter alia, that defendants in that matter were in breach of contract and were infringing BOT's trademark rights in certain disputed countries.
On May 17, 2011, BI, Noodle Time and Benihana National Corporation  (collectively " Florida plaintiffs" ) initiated an action in the State of Florida (" Florida litigation" and " Florida complaint" ), against Aoki, BOT and Takanori Yoshimoto (" Yoshimoto," collectively " Florida defendants" ). In the Florida litigation, BI claimed " breach of contract, civil conspiracy, injury to business reputation, violations of the deceptive and unfair trade practices act, disparagement, tortious interference, and unfair competition" allegedly arising out of the Florida defendants' " deceptive, unfair and unlawful conduct relating to their disparagement of [Florida plaintiffs] in an attempt to dilute the value of [BI], discourage prospective purchasers from purchasing stock in [BI], and to deceive the public into ...