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Thanh v. Ngo

United States District Court, D. Maryland

May 8, 2015

HOAI THANH Plaintiff.
HIEN T. NGO Defendant.


PETER J. MESSITTE, District Judge.

Hoai Thanh ("Thanh") has sued Hien T. Ngo ("Ngo") for (1) false light invasion of privacy, (2) defamation, and (3) malicious prosecution. Ngo has filed a Motion for Summary Judgment as to all counts, which Thanh opposes. Although the Court previously granted Ngo's Motion for Summary Judgment with respect to the malicious prosecution claim, Thanh filed a Motion to Alter or Amend the Court's Judgment dismissing that claim, which the Court denied by marginal order. Thanh filed two Motions for Spoliation Sanctions against Ngo, which the Court also denied by marginal order.

For the reasons that follow, the Court REAFFIRMS its rulings as to Thanh's malicious prosecution claim and his motions for spoliation sanctions. It GRANTS Ngo's Motion for Summary Judgment, ECF No. 93, as to all of Thanh's remaining claims and ENTERS final judgment in favor of Ngo and against Thanh.


This case is the latest battle in a protracted war of litigation between Thanh and Ngo.[1]

The present strife began in October 2008, when Thanh sued Ngo, Ngo's brother Hung Ngoc Ngo, Vietnamese Public Radio, Inc. ("VPR"), and the Committee for Religious Freedom in Vietnam, Inc. ("CRFV") in the Circuit Court for Montgomery County. Ngo then filed a bankruptcy action in this District, which stayed all pending claims as to her, following which Thanh filed his claim against Ngo in the bankruptcy proceeding, was granted a lift-stay, and pursued his action in this Court.

In his Complaint, ECF No. 10, Thanh alleges that on her radio show on VPR, Ngo solicited money for various charitable causes purportedly intended to help individuals in Vietnam. Although Ngo claimed that almost all of the money raised actually went to such causes, according to Thanh's Complaint, Ngo and others in fact diverted most of the funds they solicited for their own use. Thanh, who ran a local Vietnamese-language newspaper, Dai Chung, in Montgomery County, Maryland, published accusations against Ngo to that effect in his paper.

According to the Complaint, Ngo responded by attacking Thanh on multiple fronts- defaming him, casting him in a false light, intimidating him, filing "baseless" lawsuits against him, and stirring up threats of violence against him within the Vietnamese-American community in twenty-two states. In her VPR broadcasts, says Thanh, Ngo and/or her allies have variously branded Thanh a "communist, " a con artist, and a crook. During one broadcast, the speaker (not identified as Ngo) supposedly claimed that there was a communist flag in Thanh's newspaper, Dai Chung. Compl. ¶ 38, ECF No. 10.[2] During another broadcast, letters were allegedly read aloud to the effect that Thanh had swindled several Vietnamese small business owners. Compl. ¶ 71, ECF No. 10. Thanh further claims that Ngo and her allies maliciously filed baseless defamation suits against him.

As a result of Ngo's "tortious conspiracy, " Thanh avers that his newspaper lost readership and advertisers and that his auto businesses in Maryland and Virginia suffered financially. Thanh also reports having received threats, including finding a skeleton at the front door of his auto business. He seeks compensatory and punitive damages and injunctive relief.

Thanh bases his claims against Ngo on three state law causes of action: I) false light invasion of privacy; II) defamation; and III) malicious prosecution. He also seeks a declaration by the Court that Ngo not be able to discharge in bankruptcy any damages that might be awarded to him in this case.


Thanh filed his Complaint against Ngo in the United States Bankruptcy Court for the District of Maryland on March 25, 2011. ECF No. 1-4, at 5. Following the lift-stay, this Court withdrew the case from the Bankruptcy Court on October 7, 2011. ECF No. 8. Since then, the case has crept along at a snail's pace, always accompanied by a constant drip of acrimony. In late 2013, the Court imposed a deadline for the filing of dispositive motions. Within that timeline, Ngo filed a Motion for Summary Judgment, and Thanh subsequently filed a Motion to Amend his Complaint.

In January 2014, the Court held a hearing on both Motions, most of which concerned statute of limitations issues. The Court granted Ngo's Motion for Summary Judgment as to several claims based on limitations grounds, leaving only a few claims in the case, which will be discussed presently. Despite the unfortunate miasma created by the pleadings, it became clear to the Court that the major issues in the case would be i) whether Thanh in fact had any evidence that Ngo was the actual speaker of the allegedly defamatory broadcasts and/or ii) whether Thanh had any evidence that Ngo directed others to make such statements in those broadcasts. The Court reminded counsel for Thanh that, as Plaintiff, it was his burden to adduce evidence from which a trier of fact could find that Ngo was the speaker of the statements or was otherwise in some way responsible for them. Accordingly, the Court deferred ruling on Ngo's Motion for Summary Judgment with respect to any and all publications that did not otherwise go out on limitations grounds. See ECF No. 105, at 1. On May 28, 2014, after additional submissions by counsel, the Court heard renewed argument on Ngo's Motion for Summary Judgment, and eventually granted summary judgment in favor of Ngo with respect to Thanh's malicious prosecution claim. ECF No. 121. The balance of the hearing dealt with the interrelated claims of defamation and false light invasion of privacy, which are the principal subject of the present Opinion.


The Court begins with Thanh's Motion to Alter or Amend the Court's grant of Summary Judgment with respect to his malicious prosecution claim. ECF No. 126. The Court granted Ngo summary judgment on the malicious prosecution claim via an oral ruling on the record, ECF No. 121, and on March 30, 2015, by marginal order, denied the Motion to Alter or Amend the Judgment. ECF No. 145.

To re-visit the elements of Thanh's "malicious prosecution" claim:

"Despite the similarity in language, [a]buse of process, malicious use of process, and malicious prosecution are essentially different and independent torts.'" One Thousand Fleet Ltd. P'ship v. Guerriero, 346 Md. 29, 36 (1997) (citing R. Gilbert & P. Gilbert, Maryland Tort Law Handbook § 5.3, at 54 (1992)). In Maryland, the term "malicious use of process" means malicious prosecution of a civil claim. Id. "Malicious prosecution" in Maryland applies to criminal charges, but otherwise shares the same elements as malicious use of process. Id. Since Thanh seeks redress for a civil claim against him, the Court construes his malicious prosecution claim as more properly a claim for malicious use of process.

The cause of action for malicious use of process has five elements, all of which must coexist to maintain the action. First, a prior civil proceeding must have been instituted by the defendant. Second, the proceeding must have been instituted without probable cause. Third, the prior civil proceeding must have been instituted by the defendant with malice, which in the context of malicious use of process means that the party instituting proceedings was actuated by an improper motive. As a matter of proof, malice may be inferred from a lack of probable cause. Fourth, the proceedings must have terminated in favor of the plaintiff. Finally, the plaintiff must establish that damages were inflicted upon the plaintiff by arrest or imprisonment, by seizure of property, or other special injury which would not necessarily result in all suits prosecuted to recover for a like cause of action. See Guerriero, 346 Md. at 37.

Involuntary dismissal of the original suit, as on a motion for summary judgment, does not ipso facto constitute evidence of want of probable cause in a subsequent malicious use of process suit. To show lack of probable cause, the plaintiff must also show that the defendant did not have a reasonable belief in the plaintiff's liability. See Guerriero, 346 Md. at 37.

Accordingly, while the granting of summary judgment on the merits unquestionably represents a termination favorable to the party subsequently suing for malicious use of process, see Sierra Club Found. v. Graham, 72 Cal.App.4th 1135, 1149 (1999), mere proof of a favorable termination does not automatically equate with lack of probable cause or the presence of malice. As the California Supreme Court held in Sheldon Appel Co. v. Albert & Oliker, a case involving malicious prosecution of a civil action, [3]

the probable cause element calls on the trial court to make an objective determination of the "reasonableness" of the defendant's conduct, i.e., to determine whether, on the basis of the facts known to the defendant, the institution of the prior action was legally tenable. The resolution of that question of law calls for the application of an objective standard to the facts on which the defendant acted.

47 Cal.3d 863, 878 (1989).

The California Supreme Court goes on to say that the test for probable cause in malicious prosecution cases is "whether any reasonable attorney would have thought the claim tenable." See id. at 886. This test reflects the important public policy of avoiding the chilling of novel or debatable legal claims. Lack of probable cause cannot be found where reasonable minds could differ as to the tenability of the original claim. The Court finds Maryland law to be in accord. See, e.g., Guerriero, 346 Md. at 37 (defining probable cause for purposes of malicious use of process as a reasonable ground for belief in the existence of such state of facts as would warrant institution of the suit or proceeding complained of).

It is true that Ngo played an active role in suing Thanh for defamation.[4] But the jugular question is whether Ngo's grounds for suing Thanh for defamation were "legally untenable" or that she pursued the case with an improper motive. Thanh has adduced no evidence to either effect.

The gist of Ngo's defamation action was that Thanh had defamed her by writing in his newspaper that she was inappropriately converting monies that she had solicited for charitable purposes to her personal use.

Given the parties' long history of mutual animosity, it was certainly fairly debatable that Thanh had acted recklessly and even possibly with malice when his newspaper essentially characterized Ngo's radio solicitations as corrupt. In other words, embracing the test as articulated by the California Supreme Court, it was "legally tenable" for Ngo to file her defamation suit against Thanh, even if Judge Woodward of the Montgomery County Circuit Court ultimately held on summary judgment that a jury could not conclude by clear and convincing evidence that Thanh had acted with malice vis-à-vis Ngo. For these reasons, as well as for the reasons stated on the record at the May 28, 2014 hearing, the Court granted summary judgment to Ngo with respect to Thanh's malicious prosecution claim (again, which is more properly styled a claim for "malicious use of process"). ECF No. 121.

To be sure, in his Motion to Alter or Amend the Court's grant of summary judgment on his malicious use of process claim here, ECF No. 126, and in a subsequent Reply memorandum, ECF No. 128, Thanh advanced two arguments. First, he argued that Havilah Real Prop. Servs., LLC v. Early, a recent decision of the Maryland Court of Special Appeals, contains a rule of law that this Court failed to heed in its earlier oral ruling. He says that, per Havilah, the dismissal of Ngo's original suit against him based on his motion for summary judgment, establishes a rebuttable presumption for purposes of his present malicious use of process claim: i.e., Ngo must be presumed to have lacked probable cause and to have acted with actual malice in bringing the defamation suit against him. See Pl's Br., ECF No. 126-1, at 4 (citing 216 Md.App. 613 (2014)). Thanh submits that Ngo has failed to rebut this presumption in the present case.

The Court does not read Havilah to stand for the propositions Thanh floats, and finds no Maryland law that otherwise supports them. Havilah held that the denial of a motion for summary judgment establishes a rebuttable presumption that there was probable cause to sue, thus barring a subsequent malicious use of process suit. See 216 Md.App. at 632. This does not mean that the converse is necessarily true; e.g., that the grant of a motion for summary judgment establishes a rebuttable presumption that there was not probable cause to sue. As just noted, the proper test for lack of probable cause for the Court (not the jury) to consider is whether Ngo's defamation suit was legally tenable. And, as the Court has just concluded, it was.

Thanh also argues that the actual malice standard articulated in New York Times v. Sullivan and its progeny "means that from the outset the plaintiffs [... ] were required to know that they could show actual malice before filing suit." See Pl.'s Reply Br., ECF No. 138, at 9. Thanh argues that Judge Woodward, in granting Thanh's motion for summary judgment against Ngo, established that in her previous suit against Thanh for defamation Ngo "had absolutely no reasonable basis to believe that they could show malice on the part of the plaintiff." See id.

Thanh cites no caselaw for this proposition and Judge Woodward held no such thing. He held only that there was insufficient evidence for a jury to conclude by clear and convincing evidence that there was actual malice on the part of Thanh. See Def.'s Ex. 1, ECF No. 137-1, at 14-15. Judge Woodward did not find, as Thanh would have it, that Ngo "had absolutely no reasonable basis to believe that [she] could show malice on the part of [Thanh], " let alone that Ngo in fact had no such reasonable basis before she filed suit.

Thanh has not established a genuine issue of material fact that Ngo lacked probable cause or acted with malice in suing him for defamation. Accordingly, the Court reaffirms its earlier oral ruling of summary judgment in favor of Ngo on Thanh's malicious prosecution claim, ECF No. 121, and re-affirms its marginal order denying Thanh's Motion to Alter or Amend the Court's Judgment as to that cause of action.


The Court turns to the remaining aspects of Ngo's Motion for Summary Judgment.


"The court shall grant summary judgment 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." Federal Rule of Civil Procedure 56(a). A genuine dispute is one where the evidence is such that "a reasonable jury could return a verdict for the nonmoving party." Dulaney v. Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir. 2012). A material fact is one "that might affect the outcome of the suit under governing law." Erwin v. United States, 591 F.3d 313, 320 (4th Cir. 2010) ( citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When assessing a motion for summary judgment, the court views the record in the light most favorable to the nonmoving party and draws all reasonable inferences in his or her favor. Dulaney, 673 F.3d at 330. A nonmoving party may not, however, defeat summary judgment by making assertions lacking sufficient factual support or by relying on a mere "scintilla of evidence." Am. Arms Int'l v. Herbert, 563 F.3d 78, 82 (4th Cir. 2009). A party opposing a properly supported motion for summary judgment bears the burden of establishing a genuine issue of material fact on each essential element of its case. Anderson, 477 U.S. at 248-49; Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The party opposing summary judgment "may not rest upon the mere allegations or denials of [his] pleadings, ' but rather must set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003).


Ngo argues for summary judgment as to some of the allegedly defamatory radio broadcasts because they have never been properly pleaded or are time-barred under applicable statute of limitations. The Court agrees.

Every alleged defamatory statement constitutes a separate instance of defamation, which a plaintiff must specifically allege. Gainsburg v. Steben & Co., 838 F.Supp.2d 339, 344 (D. Md. 2011) (citing English Boiler & Tube, Inc. v. W.C. Rouse & Son, Inc., 172 F.3d 862 (4th Cir. 1999), aff'd, 519 F.App'x 199 (4th Cir. 2013)). The applicable limitations period for a defamation claim is one year. Md. Code, Cts. & Jud. Proc. Art., § 5-105. The Maryland Court of Special Appeals has held that the applicable limitations period for a false light claim is three years. See Allen v. Bethlehem Steel Corp., 76 Md.App. 642, 649 (1988) (construing Md. Code Ann., Cts. & Jud. Proc. § 5-101).

Thanh's Complaint alleges that on September 2, 2004, Ngo broadcast several defamatory statements-essentially suggesting that Thanh had defrauded various Vietnamese American business people. ECF No. 10 ¶ 37. The Complaint alleges that Ngo repeated this September 2, 2004 broadcast:

• "[O]n or about December 23, 2004[.]" ECF No. 10 ¶ 68.
• "[D]uring the Christmas holiday seasons of 2004 and 2005[.]" ECF No. 10 ¶ 68.
• "[O]n or around December 23, 2005[.]" ECF No. 10 ¶ 37
• "[A]gain several times in January of 2006." ECF No. 10 ¶ 54.
• "[E]ven in the beginning of 2006." ECF No. 10 ¶ 68.
• "[A]gain several times after Christmas in the year 2006[.]" ...

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