SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

- 3889

- 18T1
KOREA TRADE INSURANCE CORPORATION , a/k/a K

- SURE as assignee of CK SYSTEMS, INC. and INDUSTRIAL BANK OF KOREA, YEOKGOK BRANCH, Plaintiff

- Appellant,

v. NUVICO INC., IN JIN CHOI , and JUNIE PARK, Defendants

- Respondents.

______________________________

Submitted April 27, 2020

– Decided June 11, 2020 Before Judges Messano and Ostrer. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L

- 5355

- 18. Kim & Bae, PC, attorneys for appellant (Andrew C. Miller, on the brief s ). Sung Jin Lee, attorney for respondents In Jin Choi and Junie Park

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not " constitute precedent or be binding upon any court ." A lthough it is posted on the internet , this opinion is binding only on the parties in the case and its use in other cases is limited

. R

. 1:36

- 3.2 A

- 3889

- 18T1

PER CURIAM Plaintiff Korea Trade Insurance Corporation (KTIC) , also known as K

SURE , appeals from the Law Division ' s April 4, 2019 order that dismissed plaintiff ' s amended complaint with prejudice

. 1 Plaintiff , " a governmental entity of the Republic of Korea which insures risks arising out of the import and export of goods [ , ] " alleged that it had reimbursed Korean

- bas ed exporter, CK Systems, Inc. (CK), and its negotiating bank, Industrial Bank of Korea, Yeokgok Branch, $480,390 after Nuvico, Inc., a New Jersey

- based insolvent corporation in which defendants , In Jin Choi and Junie Park , corporate officers , failed to pay for goods CK shipped to Nuvico on credit. CK and its bank executed a letter of assignment assigning their rights to plaintiff

. 2 Plaintiff asserted claims of breach of contract, fraud , and other causes of action against defendants.

1 Plaintiff's complaint states it is also known as "K

- SURE," which we adopt throughout this opinion, even though the record contains multiple references to other spellings with varying punctuation. The only exception is our reference to a New York busines s entity affiliated with plaintiff. There, we use the spelling and punctuation as specifically contained in the record.

2 Nuvico never appeared in the Law Division and has not participated in this appeal. We recite the facts alleged in plaintiff's am ended complaint. See, e.g. , Banco Popular N. Am. v. Gandi , 184 N.J. 161, 1 66 (2005) (holding that in considering a motion to dismiss for failure to state a claim, " courts must ' assume the facts as asserted by plaintiff are true and give [it] the benefit o f all inferences that may be drawn in [its] favor. '" (quoting Velantzas v. Colgate

- Palmolive Co. , 109 N.J. 189, 192 (1988) ) )

.3 A

- 3889

- 18T1

This complaint was the third one filed by plaintiff. In 2016, identifying itself only as KTIC, plaintiff filed a virtually identical complaint ( KTIC I )

. Defendants moved for summary judgment, asserting plaintiff lack ed standing because it was " not an assigne e of any claims " under the purported letter of assignment , which was in favor of K

- S URE , not KTIC

. The Law Division judge granted defendants ' motion. In a written opinion supporting the order, the judge relied on an unpublished order from the federal district court in the We stern District of Pennsylvania cited by defendants

. Ksure of N.Y. Corp. v. Raineater, LLC , No. 13

- 124E, 2015 U.S. Dist. LEXIS 3655 (W.D. Pa. Jan. 12, 2015). There, the federal district court dismissed a suit brought by K s ure of New York Corporat i on (K s ure N

. Y

. ) , wh en it tried to substitute its parent company, KTIC , as the real party in interest

. Id. at * 1. The district court judge reason ed that
Ksure N.Y. lacked standing , although the order dismissed the suit without prejudice to KTIC ' s " initiation of proceedings on its own behalf. " Id. at * 1

– 2. The Law Division judge reasoned that the federal district c ourt had

" determined that K [

- ] S URE and [KTIC] are two separate corporations. " D espite a certification from KTIC ' s " Deputy R epresentative " asserting that KTIC and K

SURE were one and the same , the judge concluded plaintiff ' s " claims that it is4 A

- 3889

- 18T1

the same entity as K [

- ] S URE are unsubstantiated by any competent evidence[,] " and " the undisputed facts reveal . . . [KTIC] is not an assignee or subrogee of the [underlying] agreement [

. ] " 3 Plaintiff moved for reconsideration, arguing t hat the judge had ignored evidence that K

- S URE and KTIC were the same entity. 4 Plaintiff supplied a copy of KTIC ' s articles of incorporation , which stated that KTIC was " [t]he full English name of K

- S[URE.] " Nevertheless, t he judge denied the motion. In a written statement of reasons, t he judge recognized that " [p]laintiff presented new evidence and information which may, in fact, support a cause of action against [d]efendants under a properly named entity. " Nevertheless, he reasoned that bec ause plaintiff ' s " new evidence " was not that which " could not have [been] provided on the first application, " and because the judge had sufficiently

3 The judge apparently credited defendants ' assertion that the letter of assignment was between " CK

. . . and a separate entity, K [

- ] SURE Corporation of New York

. . . . " In fact, the letter of assignment, which was in the record, was between CK and K

- SURE, not Ksure N.Y. Moreover, the letter of assignment provided that KTIC paid the assignors' insurance claim, and clearly stated that KTIC would be referred to throughout the balance of the letter of assignment as K

- SURE.

4 While it is unclear from the record at which point the confusion between K

SURE and Ksure N.Y. arose, the record shows that in response to defendants' request for documents, plaintiff first provided Ksure N.Y. 's articles of incorporation.5 A

- 3889

- 18T1

considered " [all] fact[s] previously submitted in the original motion[,] " plaintiff failed to meet its burd en justifying reconsideration

. The judge stated , " [n]othing in the court ' s decision is in any way intended to prohibit a refiling of the complaint identifying the proper entity or entities, as further identified on the record during oral argument. " The o rder denying reconsideration expressly provided plaintiff with an opportunity to refile another complaint

. As a result, plaintiff filed a second complaint under a different docket number ( KTIC II ), identifying itself as " Korea Trade Insurance Corporation a/k/a K

- S URE , as assignee of CK Systems, Inc. and Industrial Bank of Korea, Yeokgok Branch [

. ] " The complaint failed to include plaintiff ' s address , but it fully set forth with specificity the factual allegations underlying plaintiff ' s

causes o f action against defendants. Prior to filing an answer, defendants moved for a more definite statement,

see Rule 4:6

- 4(a), before a different judge than the judge assigned to KTIC I

. Defense counsel ' s certification supporting the motion posited the same claim s made during the KTIC I litigation, i

. e., that KTIC was actually Ksure N.Y. , the true assignee, and that the federal district court in Pennsylvania had already decided th e issue

. During oral argument, defense counsel contended a more definite statement was necessary so that defendants could " know who this6 A

- 3889

- 18T1

plaintiff is. " He cited confusion about documents plaintiff furnished in the KTIC
I litigation, and asked the judge to have " an officer or director of that company certify who this plaintiff is[.] " Repeating the statements made in the certification support ing the motion, counsel a sserted, " It doesn ' t matter who [plaintiff is] really, because as long at the trial court granted s ummary judgment against [it] in a prior action [ , ] that means the case can ' t be brought again by the plaintiff in the same court. " After considering oral argument, the judge granted defendant ' s motion for a more definite statement by order dated December 7 , 2018 (December 2018 order ). In her oral decision , the judge recognized that her predecessor has " left open the opportunity for plaintiff to file a new claim, " but she agreed defendants were entitled to " a more definite statement as to the true identity of the plaintiff [] in this litigation [

. ] " The December 2018 order required plaintiff to refile its complaint within ten days and " include an allegation identifying [ its ] legal name and

. . . address , " a certification by an "officer or director" i dentified by " full name, title, business address, and phone number " as to the veracity of plaintiff ' s

" legal name and address [ , ] " and document ation by the certifying director or officer as to the accuracy of the information

.7 A

- 3889

- 18T1

Plaintiff filed an amended complaint in January 2019 , more than ten days after entry of the December 2018 order, that included KTIC ' s assertion that it was also known as K

- SURE, its legal address, and, in a footnote, an assertion that K

- SURE shared offices in New York City w ith Ksure N.Y. Attached as exhibits to the amended complaint were a certification from plaintiff ' s

" Recoveries Team ' s Director [ , ] " claim ing that KTIC and K

- S URE we re the same entity with the same address , as well as an English translation of plaintiff ' s

a rticles of incorporation stating the same

. After first moving for and being granted an extension to file an answer , defendants instead moved to dismiss plaintiff ' s complaint with prejudice pursuant to Rule 4:6

- 2(e). Plaintiff filed opposition , including a certification by its " Team Leader of the Human Resources Team. " She certified as to the accuracy of the earlier certification filed in support of the amended complaint, writing it had been filed by " an officer of [plaintiff ] , employed as the Director of the Plaintiff [ ' ] s Recoveries Team. " The judge considered oral argument on defendants ' motion to dismiss and reserved decision. On April 4, 2019, she rendered an oral decis i on granting defendants ' motion to dismiss plaintiff ' s complaint with prejudice. She found plaintiff ' s certifications " misleading or . . . not credible [ , ] " concluding neither8 A

- 3889

- 18T1

one was from an officer of KTIC. Citing the two orders entered in KTIC I , and plaintiff ' s failure to appeal either, she reasoned that " all summary judgment decisions are made with prejudice and . . . res judicata bars the refiling of claims between the same parties in a later litigation where those claims were previously decided on the merits

. " T he judge noted that plaintiff asserted it was the same entity that filed KTIC I , thereby failing to satisfy the " window left open

. . . by [the first judge] for the refiling of a complaint [

. ] " The judge dismissed the amended complaint with prejudice " because plaintiff

. . . now [ had ] three attempts to file, name the proper party in its lawsuit . . . against . . . defendants and ha [d] not succeeded. " This appeal followed. Plaintiff contends the judge misapplied the standards governing a motion to dis miss pursuant to Rule 4:6

- 2(e) and erroneously gave preclusive effect to the summary judgment entered in KTIC I

. We agree and reverse

.

" A court considering a Rule 4:6

- 2(e) motion examines ' the legal sufficiency of the facts alleged on the face of the complaint, ' Printing Mart

Morristown v. Sharp Elecs. Corp. , 116 N.J. 739, 746 (1989), limiting its review
to ' the pleadings themselves, ' Roa v. Roa , 200 N.J. 555, 562 (2010). " Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, PC , 237
N.J. 91, 107 (2019). The Rule usually anticipates that if materials outside the9 A

- 3889

- 18T1

pleadings are considered, " th [ e ] motion becomes a motion for summary judgment, and the court applies the standard of Rule 4:46. " Ibid. (citing Roa , 200 N.J. at 562). Here, however, the judge ' s prior order requir ed plaintiff to not only file an amended complaint, but also supply certifications from corporate officers to support its identity and relationship to K

- S URE and aver as to the veracity of th e pleading. As per her order, plaintiff include d these certifications as exhibits to the amended complaint when filed

. See Myska v. N.J. Mfrs. Ins.
Co. , 440 N.J. Super. 458, 482 (App. Div. 2015) ( " [A] court may consider documents specifically referenced in the complaint ' without converting the motion [to dismiss for failure to state a claim] into one for summary judgment. ' " (quoting E. Dickerson & Son, Inc. v. Ernst & Young, LLP , 361 N.J. Super. 362, 365 n.1 (App. Div. 2003), aff ' d , 179 N.J. 500 (2004) ) )

.

" An appellate court reviews de novo the trial court ' s determination of the motion to dismiss

. . . . " Dimitrakopoulos , 237 N.J. at 108 (citing Stop & Shop Supermarket Co., v. Cty. of Bergen , 450 N.J. Super. 286, 290 (App. Div. 2017) )

.

" It owes no deference to the trial court ' s legal conclusions. " Ibid. (citing Rezem Family Assocs. v. Borough of Millstone , 423 N.J. Super. 103, 11 4 (App. Div

. 2011) ).10 A

- 3889

- 18T1

In assessing the dismissal of a complaint under Rule 4:6

- 2(e), we " search the complaint ' in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim [

. ] ' " Banco Popular , 184 N.J. at 165 (quoting Printing Mart

- Morristown , 116 N.J. at 746 )

. The motion " should be granted in ' only the rarest [of] instances. ' " Ibid. (alteration in original) (quoting Lieberman v. Port Auth. of N.Y. & N.J. , 132 N.J. 76, 79 (1993)). The amended complaint clearly stated an actionable claim against defendants , and t hey do not argue otherwise. Instead, as they did before the motion judge, defendants contend plaintiff was barred from proceeding under the amended complaint because it contained the same factual allegations made in KTIC I , which was brought by the same plaintiff and dismissed by the grant of summary judgment , a final order entered with prejudice. Defendants contend that the first judge ' s order denying reconsideration " [ n ] ever [ p ] rovided [ p ] laintiff with [ p ] ermission to [ c ] ommence another [ a ] ction against the [ s ] ame [ d ] efendants [

. ] " Lastly, defendants argue we should affirm because plaintiff fail ed to comply with the December 2018 order requiring it to file the amended complaint within ten days, along with certifications from an officer or director. We reject these arguments.11 A

- 3889

- 18T1

The judge in KTIC I granted summary judgment by concluding that plaintiff lacked standing because the assignment at issue was between CK and
K

- SURE. 5 In granting defendants ' motion to dismiss in KTIC II , the judge relied

o n two cases cited by defendants for the proposition that the grant of summary judgment was a final adjudication on the merits of the case, and, therefore, entitled to preclusive effect under the doctrine of res judicata

. See Velasquez v. Franz , 1 2 3 N.J. 498 , 507

– 08 (1991) ( holding that a federal court ' s dismissal of prior suit based on the defendant ' s lack of capacity to be sued barred subsequent suit on same claim in state court) ; Auster v. Kinoian , 153 N.J. S uper. 52, 56 (App. Div. 1977) ( noting that " the whole point of the summary judgment practice [ is] to enable a party in appropriate circumstances to obtain , on motion and without plenary trial , the final adjudication of an action, in full or in part, on its merits " ). However, these cases are read ily distinguishable, and reliance

5 On the motion record presented, it appears the judge in KTIC I was mistaken when he concluded that KTIC lacked standing. We cannot say for sure, since the appellate record does not include all of what was before the Law Division in KTIC I . Nevertheless, it would seem that although KTIC was the sole plaintiff named in the complaint in that case, there was sufficient evidence demonstrating KTIC and K

- SURE's identity of interest with respect to the letter of assignment. Plaintiff never appealed the summary judgment order or the denial of its motion for reconsideratio n, and we need not resolve whether the decision in KTIC I was correct or not. What matters is that the order granting summary judgment and the order denying reconsideration were premised on the legal conclusion that KTIC lacked standing to bring the suit.12 A

- 3889

- 18T1

upon them to preclu de plaintiff from proceeding on the amended complaint in
KTIC II because of res judicata represents a m isapprehen sion of our jurisprudenc e.

" F or a judicial decision to be accorded res judicata effect, it must be a valid and final adjudication on the mer its of the claim

. " Velasquez 123 N.J. at 506 (emphasis added) (citing Restatement (Second) of Judgments , § 27 (1982) )

.

" Standing is

. . . a threshold issue. It neither depends on nor determines the merits of a plaintiff ' s claim

. " Watkins v. Resorts Int ' l Hotel & Casino , 124 N.J. 398, 417 (1991) (citing Allen v. Wright , 468 U.S. 737, 750

– 51 (1984))

. " A dismissal for lack of standing, like one for lack of jurisdiction, amounts to a refusal by the court to resolve the matter. " Id. at 418. In Watkins , the Court explicitly distinguished its prior holding in Velasquez , noting that " a dismissal for lack of capacity to be sued, unlike a dismissal for lack of standing, constitutes a judgment ' on the merits. ' Standing [on the other han d , ] must be resolved before a court proceeds to determine the merits of a suit. " Ibid. (quoting Velasquez , 123 N.J. at 507

– 08 ). Our decision in Auster is entirely distinguishable because our holding there had nothing to do with standing

. Instead, we affirmed the trial court ' s grant of summary judgment because the plaintiff s w ere unable to point to any evidence13 A

- 3889

- 18T1

supporting their negligence claim. 153 N.J. Super. at 54

– 55. Judge Pressler, writing for our c ourt, nonetheless pointed out that it was error, albeit harmless , for the motion judge to grant s ummary judgment without prejudice , because that represented a " fundamental misconception of the nature and purpose of [summary judgment] practice. " Id. at 56. A summary judgment dismissing a complaint for lack of standing, however, is not entitled to preclusive effect because generally speaking , it is not , and was not in KTIC I , a final adjudication on the merits of the complaint

. Watkins , 124 N.J. at 417

– 18 ; accord Cherokee LCP Land, LLC v. City of Linden Planning Bd. , 234 N.J. 403, 423 (2018) ( " Standing is a ' threshold issue ' that

' neither depends on nor determines the merits of a plaintiff ' s claim. ' " (quoting Watkins , 124 N.J. at 417 ) ). 6
Defendant s cannot complain that plaintiff ' s failure to appeal the orders in
KTIC I compels us to affirm the order under review. Simply put, the order denying reconsideration offered plaintiff the opportunity to file another complaint. I mplicit in that order was r ecognition that despite being called

6 Denominating the order in KTIC I as one granting "summary judgment" does not accord it some talismanic equivalence to a final judgment on the merits. Indeed, we have recognized that the question of standing is cognizable when brought as a motion to d ismiss under Rule 4:6

- 2(e). In re Ass'n of Trial Lawyers of Am

. , 228 N.J. Super. 180 , 181

– 82 (App. Div. 1988).14 A

- 3889

- 18T1

" summary judgment, " the order for which the judge denied reconsideration , lacked finality as to the merits of plaintiff ' s allegations in KTIC I , and explicitly contemplated further litigation. See Grow Co. v. Cho ksh i , 403 N.J. Super. 443, 460

– 61 (App. Div. 2008) (criticizing dismissal without prejudice, and contemplation of potential future litigation between the parties , as a method to avoid in terlocutory appellate practice). Certainly, had defendants thought the resolution of KTIC I was a final adjudication on the merits of plaintiff ' s claim , they would have considered appealing the lifesaver of refiling the complaint thrown to plaintiff by th e judge in his order denying reconsideration. We also reject plaintiff ' s alleged failure to file the amended complaint within ten days of the December 2018 order, or its failure to supply a certification from one of its directors or officers, as independent bas e s to affirm dismissal of the amended complaint. Rule 4:6

- 4 (a) provides:

If a responsive pleading is to be made to a pleading which is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court not complied with withi n [ten] days after notice of the order or within such other time as the court fixes, the court may strike the pleading to which the motion was directed or make such order as it deems appropriate.15 A

- 3889

- 18T1

In rendering her oral decision, the judge did not consider t he lateness of the filing as significan t , although she did conclude that plaintiff had not furnished any certification s from a corporate office or director. She did not consider this failure as a basis to grant the motion to dismiss; rather, the judge cit ed this failure as support for her conclusion that the plaintiff in KTIC II was no different than the plaintiff in KTIC I , and the summary judgment in the earl ier litigation was an absolute bar to prosecution of the amended complaint by application of

res judicata. Defendants have provided no authority supporting the proposition that some technical failure to comply with an order entered pursuant to Rule 4:6

- 4(a), as occurred here, can independently justify dismissal of the complaint with prejudice. Motio ns for more definite statements are disfavored and should be granted only in extreme circumstances. See, e.g. , Voltube Corp. v. B. & C. Insulation Prod s. , Inc. , 20 N.J. Super. 250 , 255 (Ch. Div. 1951) (interpreting prior iteration of Rule as only authorizing relief "where the allegations . . . are so vague or ambiguous that a party cannot . . . frame a responsive pleading [ , ] " and "only in extreme cases

. " (citing Gorecki v. Goreck i , 1 N.J. Super. 471 (C h. Div. 1948)) )

. If an order entered under the Rule is not obeyed, the court may "strike a pleading to which the motion was directed or make such order as it16 A

- 3889

- 18T1

deems appropriate." R. 4:6

- 4(a). Our research reveals no authority for dismissal with prejudice upon a parties minor failure to comply with the ten

- day deadline under the Rule

. A fair reading of the amended complaint demonstrates compliance with

our court rules , and the pleading adequately stated causes of action. It specifically identified KTIC a nd K

- SURE, as well as the letter of assignment upon which plaintiff ' s ability to sue defendants was premised. It was error to dismiss the amended complaint under Rule 4:6

- 2(e), or by application of res judicata. Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.