Judge Robinson denied plaintiffs’ motion to dismiss certain counterclaims where the facts relied on in plaintiffs’ motion were outside the pleadings and not subject to judicial notice. Ricoh Company Ltd. v. Oki Data Corporation, C.A. No. 09-694-SLR, Memo. Order (D. Del. Sept. 30, 2010). Specifically, plaintiffs’ motion relied on a license agreement between the parties, a notice letter and a confirmation which were all in Japanese and attached English translations. Id. at 2. The English translations of the notice letter and license agreement were produced by the defendants in unrelated litigation before the ITC pursuant to a protective order. Id. The Court found that “the license and notice letter do not come close to meeting the standard of F.R.E. 201(b)” and are not publicly available. Id. at 6-7. Furthermore, the Court found it was not plaintiffs’ claims that were based on the documents, but instead, their affirmative defense. Id. at 4, 7. The Court further found that: (1) even if it were proper to take judicial notice of the documents, it would be improper to take notice of the documents for the truth of the matter within them; (2) it is not clear whether the translation of the one document would even be admissible under American law; (3) the authenticity of the license and its translation were disputed; and (4) the court would need to consider an additional declaration to reach the conclusion proffered by plaintiffs. Id. at 7. The Court therefore, denied plaintiffs’ motion to dismiss certain counterclaims. Id.
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