                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although 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.




                                                        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 briefs).

                   Sung Jin Lee, attorney for respondents In Jin Choi and
                   Junie Park
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-based 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 business 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 amended complaint. See, e.g.,
Banco Popular N. Am. v. Gandi, 184 N.J. 161, 166 (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 of all inferences
that may be drawn in [its] favor.'" (quoting Velantzas v. Colgate-Palmolive Co.,
109 N.J. 189, 192 (1988))).
                                                                               A-3889-18T1
                                          2
      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 lacked standing

because it was "not an assignee of any claims" under the purported letter of

assignment, which was in favor of K-SURE, 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 Western 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 Ksure of New York

Corporation (Ksure N.Y.), when it tried to substitute its parent company, KTIC,

as the real party in interest. Id. at *1. The district court judge reasoned 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 court had

"determined that K[-]SURE and [KTIC] are two separate corporations." Despite

a certification from KTIC's "Deputy Representative" asserting that KTIC and K-

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


                                                                         A-3889-18T1
                                       3
the same entity as K[-]SURE 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 that the judge had ignored

evidence that K-SURE 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, the judge denied the motion. In a

written statement of reasons, the 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 because 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.
                                                                         A-3889-18T1
                                       4
considered "[all] fact[s] previously submitted in the original motion[,]" plaintiff

failed to meet its burden 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 order 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-SURE, 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 of 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 claims

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 the issue. During oral argument, defense counsel contended a more

definite statement was necessary so that defendants could "know who this


                                                                           A-3889-18T1
                                        5
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 supporting the motion, counsel asserted, "It doesn't matter who

[plaintiff is] really, because as long at the trial court granted summary 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" identified by "full

name, title, business address, and phone number" as to the veracity of plaintiff's

"legal name and address[,]" and documentation by the certifying director or

officer as to the accuracy of the information.




                                                                              A-3889-18T1
                                          6
      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 with Ksure N.Y. Attached as

exhibits to the amended complaint were a certification from plaintiff's

"Recoveries Team's Director[,]" claiming that KTIC and K-SURE were the same

entity with the same address, as well as an English translation of plaintiff's

articles 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 decision granting

defendants' motion to dismiss plaintiff's complaint with prejudice. She found

plaintiff's certifications "misleading or . . . not credible[,]" concluding neither


                                                                           A-3889-18T1
                                         7
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." The 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 dismiss 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 the


                                                                             A-3889-18T1
                                         8
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 required plaintiff to not

only file an amended complaint, but also supply certifications from corporate

officers to support its identity and relationship to K-SURE and aver as to the

veracity of the pleading. As per her order, plaintiff included 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, 114 (App. Div.

2011)).




                                                                           A-3889-18T1
                                        9
      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 they 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 failed 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.




                                                                         A-3889-18T1
                                      10
      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

on 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, 123 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. Super. 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 readily 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 reconsideration, 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.
                                                                           A-3889-18T1
                                       11
upon them to preclude plaintiff from proceeding on the amended complaint in

KTIC II because of res judicata represents a misapprehension of our

jurisprudence.

      "For a judicial decision to be accorded res judicata effect, it must be a

valid and final adjudication on the merits 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 hand,] 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 plaintiffs were unable to point to any evidence


                                                                             A-3889-18T1
                                        12
supporting their negligence claim. 153 N.J. Super. at 54–55. Judge Pressler,

writing for our court, nonetheless pointed out that it was error, albeit harmless ,

for the motion judge to grant summary 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

      Defendants 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. Implicit in that order was recognition 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 dismiss 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).
                                                                            A-3889-18T1
                                        13
"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. Chokshi, 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 interlocutory 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 the 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 bases 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 within [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.

                                                                             A-3889-18T1
                                        14
In rendering her oral decision, the judge did not consider the lateness of the

filing as significant, although she did conclude that plaintiff had not furnished

any certifications 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 earlier 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. Motions for more definite statements are disfavored and should be

granted only in extreme circumstances. See, e.g., Voltube Corp. v. B. & C.

Insulation Prods., 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. Gorecki, 1 N.J. Super. 471 (Ch.

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 it


                                                                            A-3889-18T1
                                        15
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 and 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.




                                                                        A-3889-18T1
                                      16
