RYU v. BANK OF HOPE

Filing 86

OPINION. Signed by Judge Kevin McNulty on 1/6/2021. (ld, )

Case 2:19-cv-18998-KM-JBC Document 86 Filed 01/06/21 Page 1 of 13 PageID: 4256

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
SUK JOON RYU, a/k/a JAMES S.
RYU,
Plaintiff,
v.

Civ. No. 19-18998 (KM) (JBC)
OPINION

BANK OF HOPE,
Defendant.
KEVIN MCNULTY, U.S.D.J.:
In a previous case, Bank of Hope alleged that former employee Suk Joon
“James” Ryu embezzled from the Bank. That case was voluntarily dismissed.
Now in this case, Ryu alleges that the embezzlement action was a malicious
use of process, among other things. The Bank moves for summary judgment on
that claim, Count 1 of the Complaint. (DE 33.) 1 For the following reasons, the
Bank’s motion is GRANTED.
1

Certain citations to the record are abbreviated as follows:
DE = docket entry
Compl. = Complaint (DE 1)

Bank Brf. = Brief in Support of the Bank’s Motion for Partial Summary
Judgment (DE 34)
Ryu Opp. = Brief in Opposition to the Bank’s Motion for Partial Summary
Judgment (DE 57)
Ryu Dep. = June 14, 2018 Deposition of James Ryu (DE 35-20)
FBI Rep. = Federal Bureau of Investigation February 20, 2014 Report (DE 35-4)
Pai Dep. = July 13, 2017 Deposition of Lisa Pai (DE 35-13)
Hamersky Rep. = February 25, 2014 Investigation Narrative prepared by Orest
Hamersky (DE 35-7)
Hamersky Dep. = February 15, 2018 Deposition of Orest Hamersky (DE 35-19)
Lee Dep. = October 13, 2016 Deposition of Bo Young Lee (DE 35-12)

Case 2:19-cv-18998-KM-JBC Document 86 Filed 01/06/21 Page 2 of 13 PageID: 4257

I.

BACKGROUND
A. Facts
The Embezzlement Scheme
Ryu was the Senior Vice President, Chief Compliance Officer, and Chief

Operating Officer of BankAsiana, Bank of Hope’s predecessor. (Ryu Dep. at
70:9–17.) Ryu supervised Miye “Karen” Chon, an Assistant Vice President and
Operations Officer in BankAsiana’s Fort Lee branch. (FBI Rep. at 5.) In October
2013, Wilshire Bank acquired BankAsiana, and Chon and Ryu were terminated
as part of the merger. (Ryu Dep. at 24:12–25:6.)
Shortly after the merger, in January 2014, Wilshire Bank found that
Chon was associated with irregular transactions. (Lee Dep. at 14:24–15:3;
Hamersky Rep. at 4.) When Wilshire Bank’s investigators contacted Chon
about the transactions, she confessed that she had been embezzling money
from BankAsiana for years. (Hamersky Rep. at 4.) She also stated that someone
else at BankAsiana was involved, but she would not name that person. (Lee
Dep. at 19:9–12.) The next day, investigators met with Chon again, she
confessed again, and this time alleged that Ryu, too, was involved in the
embezzlement. (Hamersky Rep. at 5.)
Wilshire Bank’s investigation revealed further facts which they regarded
as relevant to Ryu and his alleged involvement:
•

Chon explained that Ryu had discovered her embezzling and told her
that he would turn her in if she did not follow his instructions and give
him a portion. (Pai Dep. at 197:24–98:5.)

•

Investigators concluded that Chon could not have carried out such a
large, lengthy embezzlement scheme (which exceeded $1 million) without
help. (Id. at 33:17–34:8.)

•

During the embezzlement period, Ryu faced financial difficulties and had
substantial debt. (Hamersky Dep. at 50:6–53:7; Pai Dep. at 129:15–30:7.)

•

Ryu should have noticed Chon’s irregular transactions and was
responsible for reporting suspicious activity at BankAsiana to the United

2

Case 2:19-cv-18998-KM-JBC Document 86 Filed 01/06/21 Page 3 of 13 PageID: 4258

States Department of the Treasury but did not do so. (See Ryu Dep. at
231:22–32:18, 248:11–14; Hamersky Dep. at 52:24–53:7.)
•

Ryu failed to fill positions that would have had direct supervisory
authority over Chon, and that supervisory vacuum allowed Chon to
regularly make embezzling transactions. (Pai Dep. at 133:14–36:15.)

•

During the investigation, Ryu met with Chon multiple times. (Id. at
183:16–84:25.)
The Embezzlement Action
After gathering these facts, in March 2014, Wilshire Bank sued Ryu (plus

Chon and others) in this Court to recover for the alleged embezzlement. (DE
35-8 ¶ 1.) Discovery entailed more depositions of the parties and filled out
further details. (DE 34-1 ¶¶ 76–99.) Ryu moved for summary judgment on the
embezzlement-related claims against him, but Judge Linares denied summary
judgment, finding that Chon’s multiple depositions over the years had some
inconsistencies, so there were genuine issues of material fact. Bank of Hope v.
Chon, Civ. No. 14-1770, 2019 WL 1123659, at *3–4 (D.N.J. Mar. 12, 2019).
A few days after Judge Linares denied summary judgment, the Bank 2
moved for the Court’s permission to voluntarily dismiss its complaint with
prejudice. (DE 35-24 at 1.) The Bank explained that Ryu had commenced a
separate lawsuit in the United States District Court for the Southern District of
New York (Judge Jed S. Rakoff presiding) against the Bank’s parent company.
That lawsuit sought advancement of attorney fees incurred due to the
embezzlement action and a related government investigation, pursuant to an
indemnification clause in the merger agreement between Wilshire Bank and
BankAsiana. (Id. at 3.) Judge Rakoff had ordered an advancement of fees in
2018; since then, the Bank had advanced more than $1.3 million dollars to
Ryu’s attorney and would need to make further advances monthly. (Id. at 5–6.)
As a result, the Bank sought dismissal of the embezzlement action, stating that
After a series of mergers and acquisitions, the Bank of Hope succeeded Wilshire
Bank. (Compl. ¶ 27.)
2

3

Case 2:19-cv-18998-KM-JBC Document 86 Filed 01/06/21 Page 4 of 13 PageID: 4259

it did so only “to further mitigate its litigation costs.” (Id. at 6.) The Bank stated
that its dismissal request did not reflect “a changed view on the merits.” (Id. at
7.) Judge Linares granted the request for dismissal, with prejudice. (DE 35-25.)
B. Procedural History
In this separate action, Ryu sued the Bank, asserting claims under New
Jersey law for malicious use of process (Count 1) and breach of contract (Count
2) arising from the embezzlement action. (Compl. ¶¶ 1–23.) 3 The Bank moved
to dismiss Count 1 and submitted multiple exhibits in support. (DE 12.) Ryu
opposed consideration of those exhibits; in response, I notified the parties that
I would treat the motion as one for summary judgment and accept
supplemental papers. (DE 22.) Ryu moved for clarification of my order; I
reconsidered my order and adopted the more straightforward procedure of
denying the motion to dismiss and authorizing the Bank to file a targeted
motion for summary judgment on Count 1. (DE 24.) The Bank did so, and its
motion for summary judgment on Count 1 is now before the Court. (DE 33.)
II.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(a) provides that summary judgment

should be granted “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
See Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000). In
deciding a motion for summary judgment, a court must construe all facts and
inferences in the light most favorable to the nonmoving party. See Boyle v.
County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). The moving party bears
the burden of establishing that no genuine issue of material fact remains. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). “[W]ith respect to an
issue on which the nonmoving party bears the burden of proof . . . the burden
on the moving party may be discharged by ‘showing’—that is, pointing out to

The parties are diverse because the Bank is incorporated in and has its
principal place of business in California, while Ryu is a New Jersey citizen. (Compl.
¶¶ 24–25.) Ryu seeks more than $75,000 in damages. (Id. ¶ 28.)
3

4

Case 2:19-cv-18998-KM-JBC Document 86 Filed 01/06/21 Page 5 of 13 PageID: 4260

the district court—that there is an absence of evidence to support the
nonmoving party’s case.” Id. at 325.
Once the moving party has met that threshold burden, the non-moving
party “must do more than simply show that there is some metaphysical doubt
as to material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986). The opposing party must present actual evidence that creates
a genuine issue as to a material fact for trial. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986); see also Fed. R. Civ. P. 56(c) (setting forth types of
evidence on which nonmoving party must rely to support its assertion that
genuine issues of material fact exist).
III.

DISCUSSION
The issue before the Court is whether the Bank is entitled to summary

judgment on Ryu’s tort claim of malicious use of process. Malicious use of
process is part of a family of torts relating to the wrongful initiation or
maintenance of legal proceedings against another. LoBiondo v. Schwartz, 970
A.2d 1007, 1022 (N.J. 2009). Because of their potential to chill the people’s
resort to the courts, these torts “are treated with great caution.” Id.
Malicious use of process specifically addresses the wrongful
commencement of a civil case against another. Id. Such a claim has five
elements: that (1) a civil action instituted by this defendant against this
plaintiff, (2) motivated by malice, (3) with an absence of reasonable cause,
(4) terminated favorably to the plaintiff, and (5) caused a special grievance to
the plaintiff. Id. at 1022–23. The Bank argues that the third, fourth, and fifth
elements are not satisfied here. (Bank Brf. at 2.)
The sine qua non of this claim is element 3, the absence of reasonable
cause to institute the embezzlement action. I hold that the Bank is entitled to
summary judgment in its favor on Count 1, because there is no genuine issue
of material fact on that reasonable cause element.

5

Case 2:19-cv-18998-KM-JBC Document 86 Filed 01/06/21 Page 6 of 13 PageID: 4261

A. Reasonable Cause, Favorable Termination, Special Grievance:
Ripeness for Decision on Summary Judgment
Because this summary judgment motion comes relatively early in the
case (albeit after significant litigation elsewhere), the Court must consider the
procedural fairness of considering or granting it at this time. I conclude, in
short, that element 3, lack of reasonable cause, is now ripe for decision on
summary judgment. Elements 4 and 5, however, are not.
This matter originally came before the Court on the Bank’s motion to
dismiss Count 1 (malicious use of process) (DE 11), pursuant to Federal Rule
of Civil Procedure 12(b)(6). Ryu argued that the motion to dismiss improperly
relied on materials extrinsic to the Complaint. Most of those documents, Ryu
conceded, were actually referenced in his own Complaint. Thus, their
authenticity, as such, was uncontested. He complained, however, that the
Bank selectively quoted from them or used them for purposes exceeding the
proper bounds of a motion to dismiss. The former issue posed no barrier; if the
documents were quoted misleadingly, Ryu could correct that in his response. I
was more concerned with Ryu’s point that excessive reliance on the contents of
extrinsic documents, even if referenced in the Complaint, could divert the
Court from the Rule 12(b)(6) task of assessing the sufficiency of the
Complaint’s allegations.
I therefore entered an order deeming the motion to be one for summary
judgment, pursuant to Rule 12(d), and granting Ryu an opportunity to present
additional materials pertinent to the motion. Ryu then filed a motion for
clarification.
I granted reconsideration. To ensure an orderly procedure, I revised my
approach. I vacated my Rule 12(d) order and authorized the Bank to file a
separate motion for summary judgment under Rule 56. Any such motion, I
wrote, should focus on the element or elements of the tort that may be resolved
without the need for resolution of questions of a party’s mental state or other
issues of fact that might require further discovery or trial. My order specifically

6

Case 2:19-cv-18998-KM-JBC Document 86 Filed 01/06/21 Page 7 of 13 PageID: 4262

directed Ryu to address, under Rule 56(d), the need for more discovery before
issues raised by the Bank could be decided:
As in any summary judgment motion, the plaintiff may argue that,
in the current posture, necessary facts are not yet available to him.
See Fed. R. Civ. P. 56(d). As to that issue, the court will not accept
generalities. The plaintiff will be required to give specifics as to
what more is required concerning particular elements of the tort.
Some elements are more fact-bound than others, and there have
already been two related federal-court litigations between these
parties.
(DE 24 at 3–4.)
The Bank then filed the current summary judgment motion, in which it
asserts that Ryu has failed to raise a genuine issue of fact as to elements 3, 4,
and 5 of malicious use of process. As part of his opposition, Ryu did file a Rule
56(d) statement. (DE 51.) I therefore consider, not only whether the summary
judgment standard is met, but whether the motion is premature: i.e., whether
in fairness, Ryu, the nonmovant, should be afforded an additional opportunity
to obtain in discovery “facts essential to justify its opposition.” See Fed. R. Civ.
P. 56(d). I find that element 3, lack of reasonable cause, is now ripe for decision
on summary judgment. I agree with Ryu, however, that further discovery would
likely be required to poise elements 4 and 5 (favorable termination and special
grievance) for decision.
As for element 3, lack of reasonable cause, my order cited some peculiar
features of the tort of malicious use of process. Documents could be relevant to
certain elements of that tort, I wrote, irrespective of the truth of their contents.
Assuming that, as here, their authenticity is undisputed, such documents may
be sufficient to establish, for example, that the Bank had certain information in
its possession when it filed the embezzlement action. If such information
surmounts the relatively low substantive threshold of reasonable cause, then
the summary judgment record on that element may be sufficient.
As to element 4 (favorable termination), the picture is cloudier. The
sparse case law suggests that voluntary withdrawal of an action may constitute
7

Case 2:19-cv-18998-KM-JBC Document 86 Filed 01/06/21 Page 8 of 13 PageID: 4263

a favorable termination, but that it will depend on the surrounding
circumstances. See Mayflower Indus. v. Thor Corp., 83 A.2d 246, 257 (N.J.
Super. Ct. Ch. Div. 1951), aff’d, 89 A.2d 242 (Mem.) (N.J. 1952) (per curiam); 4
Restatement (Second) of Torts § 674 cmt. j (Am. Law Inst. 1977); Seibel v.
Mittlesteadt, 161 P.3d 527, 531 (Cal. 1986) (applying the Restatement and
defining “favorable” to mean that the dismissal “reflect[s] the merits of the
action and the plaintiff’s innocence of the misconduct alleged in the lawsuit”
(citation omitted)). That substantive standard might require the Court to
determine whether the Bank’s stated reasons for withdrawing the action were
its true reasons. 5
As to element 5, a “special grievance” means something more than “the
mere cost of defending against litigation.” LoBiondo, 970 A.2d at 1026. Rather,
there must be some “interference with one’s liberty or property.” Id. (citation
omitted). “[T]he loss of one’s ability to practice his or her profession, with a
resultant loss of income” qualifies. Turner v. Wong, 832 A.2d 340, 350 (N.J.
Super. Ct. App. Div. 2003). Likewise, “[w]here the malicious lawsuit actually

Although Mayflower is a trial court opinion, the New Jersey Supreme Court
affirmed for the reasons given by the trial court, 89 A.2d 242 (Mem.), so I will consider
Mayflower. See Houbigant, Inc. v. Fed. Ins. Co., 374 F.3d 192, 199 n.9 (3d Cir. 2004)
(New Jersey trial court decisions not entitled to any “deference” but are considered “to
the extent that the quality of its analysis convinces us that the New Jersey Supreme
Court would decide the issue similarly”).
4

The Bank notes that a minority of states hold that a voluntary dismissal is
categorically not a favorable termination; so under this approach, I would not need to
probe the Bank’s reasons for dismissal. (Bank Brf. at 32 n.7 (collecting cases from
Colorado, Ohio, Texas, and Tennessee).) Federal courts, however, usually presume
that a state court will follow the majority view on an undecided issue. E.g., Bobo v.
Tenn. Valley Auth., 855 F.3d 1294, 1304 (11th Cir. 2017); First Am. Bank v. First Am.
Transp. Title Ins. Co., 759 F.3d 427, 433 (5th Cir. 2014); see Small v. United States,
333 F.2d 702, 704 (3d Cir. 1964). Indeed, in Paul v. National Education Association, a
New Jersey court, affirmed by the Appellate Division, followed the Restatement view on
reasonable cause, instead of the minority view. 459 A.2d 1213, 1216 (N.J. Super. Ct.
L. Div. 1983), aff’d, 480 A.2d 213 (N.J. Super. Ct. App. Div. 1984). While applying the
minority approach would mean that I could more easily decide element 4 on summary
judgment, it is not likely that New Jersey would follow that approach.
5

8

Case 2:19-cv-18998-KM-JBC Document 86 Filed 01/06/21 Page 9 of 13 PageID: 4264

puts the targeted defendant out of business for a period of time, this
constitutes a ‘special grievance.’” Giri v. Rutgers Cas. Ins. Co., 641 A.2d 1112,
1116–17 (N.J. Super. Ct. App. Div. 1994). Whatever the harm, though, the
malicious lawsuit must be the direct cause. Venuto v. Carella, Byrne, Bain,
Gilfillan, Cecchi & Stewart P.C., 11 F.3d 385, 390 (3d Cir. 1993). This element,
then, might require resolution of factual issues as to, e.g., the effect of the
embezzlement action on Ryu’s career.
As to the fourth and fifth elements, then, more discovery might be
required before their resolution, whether on summary judgment or at trial,
would be procedurally appropriate.
B. Reasonable Cause: Analysis
Turning to the element that can be decided now, a malicious use of
process claim requires that the Bank instituted the embezzlement action
without reasonable cause. 6 LoBiondo, 970 A.2d at 1022. To determine whether
there was reasonable cause, I ask, from the viewpoint of “the reasonable
prudent person,” whether the Bank had “a reasonable belief that there was a
good or sound chance of establishing the claim to the satisfaction of the court
or the jury.” Id. at 1024. “[T]he instigator of a law suit may rely on facts
reasonably believed to be true and concerning which it might reasonably be
expected that subsequent pretrial discovery would be supportive.” Westhoff v.
Kerr S.S. Co., 530 A.2d 352, 355 (N.J. Super. Ct. App. Div. 1987). A finding of
reasonable cause will be denied when a case is knowingly brought “based on
false allegations or false testimony.” Paul v. Nat’l Educ. Ass’n, 459 A.2d 1213,

Courts have used the term “probable cause” to describe this element, but the
concept is distinct from that of probable cause in criminal law. See LoBiondo, 970 A.2d
at 1022. In the civil tort context, courts have sometimes maintained the distinction by
using the term “reasonable cause” instead, and I will do so as well. E.g., Fidelity
Eatontown, LLC v. Excellency Enter., LLC, Civ. No. 16-3899, 2017 WL 2691417, at *8
(D.N.J. June 22, 2017).
6

9

Case 2:19-cv-18998-KM-JBC Document 86 Filed 01/06/21 Page 10 of 13 PageID: 4265

1216 (N.J. Super. Ct. L. Div. 1983), aff’d, 480 A.2d 213 (N.J. Super. Ct. App.
Div. 1984). 7
That narrow issue—unlike others, see supra—is ripe for decision on
summary judgment. It does not require resolution of factual issues as to
whether Ryu actually participated in any embezzlement. On the contrary, it
depends only on the quantum of evidence that the Bank had in its possession
when it initiated the embezzlement action. As to that issue, there is no genuine
issue of fact; it requires only that the Court apply the reasonable cause
standard to the evidence the Bank had at the time.
At the time the Bank commenced the embezzlement action, it had facts
in its possession sufficient to support a reasonable belief that a civil action
based on the alleged embezzlement would be successful. 8 I start with the
elements of embezzlement, a form of conversion in which money comes
State trial court opinions do not bind other state courts, and therefore do not
bind federal courts predicting state law in a diversity case. See King v. Order of United
Commercial Travelers of Am., 333 U.S. 153, 160–62 (1948). However, the trial court in
Paul was affirmed summarily by the Appellate Division “substantially for the reasons
expressed” by the trial court. 480 A.2d at 215. Because I give “due regard” to decisions
of the Appellate Division, In re Remicade (Direct Purchaser) Antitrust Litig., 938 F.3d
515, 525 n.8 (3d Cir. 2019) (citation omitted), I will consider the trial court opinion in
Paul, as incorporated and endorsed by the Appellate Division, when applying New
Jersey law.
7

I will focus on the facts in the Bank’s possession at the time it filed the
embezzlement action because the focus of a malicious use of process claim is whether
the defendant had reasonable cause to bring the suit. See LoBiondo, 970 A.2d at 1024.
True, a malicious use of process claim has been recognized when a complainant
maintains a suit after it becomes clear that there is no reasonable cause. See
Restatement (Second) of Torts § 674 cmt. c. Indeed, Ryu argues that the depositions
taken in the embezzlement action were inconsistent, so the Bank should have dropped
the case. (Ryu Opp. at 24–25.) But that argument and a claim for malicious
continuation of process is foreclosed for the reasons in Judge Linares’ summary
judgment opinion. There, Judge Linares persuasively explained why Ryu was not
entitled to judgment as a matter of law on the Bank’s embezzlement action and how
the testimony of various witnesses could support the Bank’s position. Bank of Hope,
2019 WL 1123659, at *3–4. Given those reasons, I cannot say that reasonable cause
was so lacking that the Bank should have dropped the suit despite a federal judge’s
ruling that the issues could go to trial.
8

10

Case 2:19-cv-18998-KM-JBC Document 86 Filed 01/06/21 Page 11 of 13 PageID: 4266

unlawfully into the hands of person as a result of that person’s breach of a
trust relationship. State v. Hubbs, 175 A.2d 443, 447 (N.J. Super. Ct. App. Div.
1961); see Bullock v. BankChampaign, N.A., 569 U.S. 267, 275 (2013).
“[C]onversion is the intentional exercise of dominion and control over chattel
that seriously interferes with the right of another to control that chattel.”
Meisels v. Fox Rothschild LLP, 222 A.3d 649, 661 (N.J. 2020) (citation omitted).
Chattel subject to a conversion claim may include identified sums of money.
Austar Int’l Ltd. v. AustarPharma LLC, 425 F. Supp. 3d 336, 357 (D.N.J. 2019)
(citations omitted).
Multiple facts about Ryu’s involvement with Chon supported a
conversion claim. First and foremost, Chon implicated Ryu in the
embezzlement scheme. (Hamersky Rep. at 4–5; Pai Dep. at 197:24–98:5.)
Specifically, an investigators’ report from January 2014 recorded that “[Chon]
alleged that sometimes she delivered the stolen cash to [Ryu] and at other
times he came to the East Fort Lee Branch to pick up the cash.” (Hamersky
Rep. at 5; see also DE 35-3 at 3.) That statement speaks directly to a
conversion claim; Chon alleged firsthand knowledge that money unlawfully
came into Ryu’s hands.
Other facts revealed by the investigation were consistent with Ryu’s
facilitation of Chon’s embezzlement. Given his position at the Bank, he had the
means to discover and conceal such a scheme. (See Ryu Dep. at 231:22–32:18,
248:11–14.) What is more, he failed to report any irregular transactions or to
fill positions that could have supervised Chon. (Hamersky Dep. at 52:24–53;
Pai Dep. at 133:14–36:15.) Finally, he had a motive to embezzle because he
was in financial difficulty. (Hamersky Dep. at 50:6–53:7; Pai Dep. at 129:15–
30:7.) These facts, in combination with Chon’s interviews, meet the relatively
low standard of a reasonable belief that the Bank had a sound chance of
proving conversion by a preponderance of the evidence or, at least, that
discovery would reveal further facts to support the claim.

11

Case 2:19-cv-18998-KM-JBC Document 86 Filed 01/06/21 Page 12 of 13 PageID: 4267

In response, Ryu argues that I must assess reasonable cause based on
the totality of the circumstances, including the existence of exculpatory
evidence that should have negated any belief by the Bank that it could prevail.
(Ryu Opp. at 3.) As Ryu sees it, the Bank lacked reasonable cause because its
only “direct evidence” was Chon’s implicating statement, but Chon, as a
confessed embezzler, was not credible. (Id. at 7–9.) Without further
investigation or corroborating evidence, Ryu reasons, it was tortious to
commence a civil lawsuit. (Id.)
Ryu overstates the significance of these facts under the fairly forgiving
reasonable cause standard. To be sure, Chon declined to identify her
accomplice at the first interview, but she identified the accomplice as Ryu at
the second. That delay, as well as Chon’s status as an embezzler, might provide
fodder for cross-examination. But it falls far short of knowledge on the Bank’s
part that Chon was lying. Cf. Paul, 459 A.2d at 1216 (citing examples from the
case law of evidence known by the plaintiff to be fabricated for purposes of the
lawsuit, and an accusation of arson brought by the actual arsonist). 9
Ryu also missteps legally by relying exclusively on malicious prosecution
cases and the criminal-law-based standard for probable cause. New Jersey
courts have explained that “[o]bviously less in the way of grounds for belief will
be required to justify a reasonable [person] in bringing a civil rather than a
criminal suit.” Westhoff, 530 A.2d at 355 (quoting Prosser and Keeton, The Law
of Torts § 120 at 843 (5th ed. 1984)). So the cited malicious prosecution case
law is not directly relevant. 10

Chon later wavered or became evasive in depositions, which perhaps further
devalued her testimony, but that occurred well after the Bank had initiated the
embezzlement action.

9

Even the more rigorous criminal-law standard of probable cause “does not
require a complainant to evaluate the totality of circumstances both inculpatory and
exculpatory, as a trier of fact guided by a reasonable doubt standard.” Trabal v. Wells
Fargo Armored Serv. Corp., 269 F.3d 243, 251 (3d Cir. 2001) (alteration and citation
omitted) (applying New Jersey law).

10

12

Case 2:19-cv-18998-KM-JBC Document 86 Filed 01/06/21 Page 13 of 13 PageID: 4268

As explained above, the Bank possessed reasonable grounds for its
belief. While Ryu questions Chon’s credibility and the thoroughness of the
investigation, the bottom line is that Chon implicated Ryu and that other facts
were consistent with Ryu’s involvement. The Bank and its representatives were
not present for the alleged interactions between Chon and Ryu; even if Chon’s
representations were false, the Bank had no firsthand basis to know that. It did
gather evidence tending to corroborate Chon. It was not unreasonable for the
Bank to add Ryu as a defendant in the embezzlement action so that its
allegations could be tested in court.
The Bank has therefore carried its burden on element 3 of malicious use
of process; the plaintiff has failed to raise a genuine issue of fact as to the
Bank’s lack of reasonable cause. Because all the elements are required, that
deficiency requires summary judgment in the Bank’s favor on Count 1.
IV.

CONCLUSION
For the reasons set forth above, the motion for summary judgment on

Count 1 is granted.
A separate order will issue.
Dated: January 6, 2021
/s/ Kevin McNulty
___________________________________
Hon. Kevin McNulty
United States District Judge

13