Hon. Judge Patrick J. Arre - Bajardi v. Pincus

7/21/2019 Hon. Judge Patrick J. Arre - Bajardi v. Pincus

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SUPERIOR COURT OF NEW JERSEYLAW DIVISION, CIVIL PARTHUDSON COUNTY DOCKET NO. L-3723-12

LANE BAJARDI & KIMBERLY )CARDINAL BAJARDI )

)Plaintiffs, )

) TRANSCRIPTv. )

) OFNANCY PINCUS, et al., )

) TRIAL DECISIONDefendants. )

Place: Hudson County Courthouse Administration Building 595 Newark Avenue

Jersey City, NJ 07306

Date: February 10, 2015

BEFORE:

THE HONORABLE PATRICK J. ARRE, J.S.C.

TRANSCRIPT ORDERED BY:

KERRY B. FLOWERS, ESQ. (Flowers & OBrien, L.L.C.)

APPEARANCES:

JONATHAN Z. COHEN, ESQ. (I. Mark Cohen Law Group) Attorney for Plaintiff Lane Bajardi

STEPHEN R. KATZMAN, ESQ. (Methfessel & Werbel) Attorney for Defendant Nancy Pincus

ALEXANDER W. BOOTH, ESQ. (Brownstein, Booth & Associates,P.C.) Attorney for Defendant Roman Brice

KERRY B. FLOWERS, ESQ. (Flowers & OBrien, L.L.C.) Attorney for Defendant Mark Heyer

Transcriber, Lauren LeisterKaren English Transcription Svc.P.O. Box 1276Island Heights, NJ 08732(732) 255-1247 - Fax (732) 255-1366

Electronically Sound RecordedRecorded by: Carol Tarencz


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Decision by The Court 29

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COURT CLERK: Okay, Judge, were on the1

record.2THE COURT: Okay. Thank you.3

All right. This is the continuation of4Bajardi versus Pincus, et al., HUD 3723-12.5

Appearances, please.6MR. COHEN: Your Honor, Jonathan Cohen for7

plaintiff Lane Bajardi.8THE COURT: Good morning.9MR. COHEN: Good morning.10MR. KATZMAN: Good morning, Your Honor.11

Stephen Katzman from Methfessel & Werbel representing12defendant Nancy Pincus.13

THE COURT: Good morning.14MR. KATZMAN: Good morning.15MR. BOOTH: Good morning, Judge. Alex Booth16

for Roman Brice.17MR. FLOWERS: Kerry Flowers for defendant18

Mark Heyer.19THE COURT: Good morning.20Okay, Counsel, I received the briefs,21

including Mr. Cohens brief this morning. Anything22further?23

UNKNOWN MALE SPEAKER: No, Your Honor.24MR. COHEN: No, Your Honor.25


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1 UNKNOWN MALE SPEAKER: No, Judge.2 THE COURT: Okay. Thank you. All right.3 This is defendants motion for judgment at the close of4 the plaintiffs case pursuant to Rule 4:40-1. The5 Court has received briefs from plaintiff, defendant6 Pincus and defendant Heyer and considered oral7 arguments from all the parties.8 This case arises out of alleged defamatory

9 statements made by defendants Pincus, Brice and Heyer10 via publication on various blog posts regarding11 plaintiffs involvement with the Hoboken political12 landscape. The matter began as a disagreement or13 discussion of local political views that has evolved14 into an adversarial situation among Hobokens reform15 candidates and Hobokens formal political faction,16 called the Russo faction in this trial.17 Plaintiff contends that defendants posted18 false and disparaging comments about him on various19 websites, including Hobokenpatch.com,20 grafixavenger.blogspot.com, Galloway.patch.com and21 NJ.com, among others during the time period June 8,

22 2011 through July 2012.23 Plaintiff Lane Bajardi is a broadcast24 journalist employed by CBS radio, owned and operated by25 1010 WINS in New York City. Mr. Bajardi is an active

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participant in Hobokens political community and has1

been allegedly linked to Beth Masons mayoral campaigns2and to formal Hoboken Mayor Peter Cammarano. Bajardi3had a presence at city council meetings from 20064through 2011.5

Defendant Pincus alleges that he made6anonymous internet posts under the pseudonym names7Prosbus and Vinvan. Various e-mails produced at8trial indicate that Lane Bajardi was actively involved9in promoting Beth Masons political career during the10relevant time period. Bajardi denies receiving payment11but categorizes his extensive involvement as a12volunteer.13

Defendant Nancy Pincus was appointed to the14Hoboken Zoning Board and became involved in politics in152008 when she began attending board of education16

meetings and has been actively involved in the so-17called reform movement. Pincus also started a blog18regarding the Hoboken political scene known as Grafix19

Avenger or G.A.20Defendant Roman Brice is alleged to be the21

editor of Hudson Mile Square View and posts under the22internet pseudonym Hoboken Horse. Defendant Mark23Heyer is a blogger whose presence on the Internet is24identified by the pseudonyms Jack Stop (phonetic) and25


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1 This Means War.2 Plaintiff has provided testimony from various3 witnesses, which will be discussed later. The thrust4 of the allegations include defendants statements that5 Bajardi was a paid political operative among others for6 Beth Mason and may be involved in a criminal7 conspiracy. Mr. Bajardi filed his complaint on July8 26, 2012 against defendants alleging defamation,

9 defamation per se, tortuous interference with business10 relations, intentional infliction of emotional distress11 and intentional interference with prospective economic12 relations.13 On September 5th, 2014, the Honorable Judge14 Christine Vanek considered defendants summary judgment15 motions and dismissed plaintiffs complaint with the16 exception of paragraphs 31, 35, 56, 81, 87, 103 and17 110. Those claims survived summary judgment, were for18 defamation, defamation per se regarding defendants use19 of the words paid political operative to describe Mr.20 Bajardi. The Court found that these words could have a21 defamatory meaning if proved to be false and subject to

22 plaintiffs proofs.23 Trial began on January 28th, 2015. After24 opening statements, defendants collectively moved for a25 non-suit or dismissal after openings. The motion was

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denied and plaintiff was permitted to present his1

proofs. On February 5th, plaintiff concluded2presenting his case. Now, defendants collectively move3for dismissal under Rule 4:40-1. Im sorry. February49th, rather, plaintiff concluded his proofs.5

Plaintiff has provided his own testimony as6well as testimony from his wife, also from Beth Mason,7former Hoboken Mayor Peter Cammarano, political8participant Timothy Occhipinti, Anthony Petrosino,9Patrick Ricciardi, and defendants Nancy Pincus, Roman10Brice and Mark Heyer. In addition, various e-mails and11blog posts have been entered into evidence and12considered by the Court.13

Defendants moved for dismissal per Rule 4:40-141, providing that either party may move for a judgment15at the close of the evidence offered by the opponent.16Defendants argue that plaintiff has failed to set forth17sufficient evidence to support a prima facie case of18defamation or a finding of actual malice or actual19damages and argue that plaintiffs case must,20therefore, be dismissed.21

Its standard that the Court must accept as22true all of the evidence which supports the position of23the party defending against the motion and must accord24that party the benefit of all legitimate inferences25


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1 which can be deducted therefrom. Granting the motion2 is warranted if reasonable minds could not differ. The3 Court may not weigh the credibility of witnesses and4 the motion should be denied in instances where a5 question of credibility as to material fact has been6 raised, per Rena, Inc. v. Brien, 310 N.J. Super. 3047 (App. Div. 1998) and Alves v. Rosenberg, 400 N.J.8 Super. 553 (App. Div. 2008).

9 The same standard governs review of a trial10 judges refusal to grant a motion for dismissal at the11 close of plaintiffs case as is used for judgment not12 withstanding the verdict under Rule 4:40-2b, which in13 pertinent part reads:14 Could the evidence together with legitimate15 inferences which can be drawn therefrom sustain a16 judgment in favor of the party opposing the motion,17 neither the trial judge nor the Appellate court is18 concerned with the weight or nature or extent of19 evidence but must accept as true all the evidence20 supporting the party opposing the motion and accord him21 the benefit of all favorable inferences. Polyard v.

22 Terry, 160 N.J. Super. 497 (App. Div. 1978).23 As to defamation:24 The First Amendment does not embrace the25 trite wallflower politeness of the cliche that if you

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cant say anything nice, dont say anything at all.1

Ward v. Zelikovsky, 136 N.J. 516 (1994) quoting law of2defamation 609.3

No matter how obnoxious, insulting or4tasteless some words may be, without establishing the5proper legal elements, those words are simply a part of6life for which the law of defamation affords no7remedy.8

Here, the issue presented is whether9plaintiff has presented enough evidence to support a10defamatory interpretation of the words paid political11operative and other variations thereof.12

A statement is defamatory if it is false,13communicated to a third person, tends to lower the14subjects reputation in the estimation of the community15or to deter third persons from associating with him.16Lynch v. N.J. Education Association, 161 N.J. at 15217citing the Restatement of Tort (2d) 558.18

Whether the meaning of a statement is19susceptible of a defamatory meaning is a question of20law for the Court and requires consideration of three21factors: content, verifiability and context. Ward v.22Zelikovsky, 136 N.J. 516 (1994).23

A statements context must be judged not by24its literal meaning but by its objective meaning to a25


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1 reasonable person of ordinary intelligence. McLaughlin2 v. Rosanio, Bailets & Talamo, 331 N.J. Super. 303.3 Mere insults and rhetorical hyperbole, while4 they may be offensive, are not defamatory. A5 statements verifiability refers to whether it can be6 proved true or false but, obviously, does not apply to7 insults absent a well-settled meaning and to statements8 of opinion. Wilson v. Grant, 136 N.J. Super. 128.

9 The Courts analysis must focus upon the10 fair and natural meaning that will be given to his11 statements by reasonable persons of ordinary12 intelligence. DeAngelis, 180 N.J. at 14, quoting13 Ward, 136 N.J. at 529 and Romaine v. Kallinger, 10914 N.J. 282).15 In that regard, while the use of epithets,16 insults, name-calling, profanity and hyperbole may be17 hurtful to the listener and are to be discouraged, such18 comments are not actionable. In cases where the19 statement is capable of being assigned more than one20 meaning, one of which is defamatory and another not,21 the question of whether its content is defamatory is

22 one that must be resolved by the trier of fact.23 Romaine v. Kallinger, as cited above.24 The fair comment privilege also provides a25 defense to a libel or slander action when the words in

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question are fair comment on a matter of public1

interest or concern. Senna v. Florimont, 196 N.J.2469.3

The doctrine extends to virtually all4matters of legitimate public interest and goes beyond5matters of opinion to statements of fact. Vassallo v.6Bell, 221 N.J. Super. 347.7

However, the fair comment privilege is8qualified. See Dairy Stores, Inc. v. Sentinel9Publications, 104 N.J. 125 and Vassallo, 221 N.J.10Super. at 372.11

It only applies if the statement is: (1)12based on facts truly stated; (2) does not contain13imputations of corrupt or dishonorable motives on the14person whose conduct or work is criticized; and (3) is15the honest expression of a writers real opinion.16Plus, the plaintiff may overcome the fair comment17privilege by establishing that the publisher knew the18statement to be false or acted in a reckless disregard19of its truth or falsity, that is with actual malice.20See Petersen v. Meggitt, 407 N.J. Super. 63.21

The analysis is a fact-intensive focusing on22whether the activity concerns public interest if the23statement is true and if it was made with actual24

malice. Plaintiff must establish actual malice in25


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1 order to prevail on his claim for defamation if he is a2 limited public figure or the alleged defamation3 involves a public controversy. Barasch v. Soho4 Weekly, 208 N.J. Super. 163 (App. Div. 1986).5 It is well established that the Court,6 rather than the jury, must make this determination.7 Public figures who have thrust themselves to the8 forefront of a particular public controversy usually

9 enjoy greater access to the channels of effective10 communication and, thus, can more justly be burdened11 with the actual malice standard. Sisler v. Gannett,12 104 N.J. at 264 and Gertz v. Robert Welch, at 418 U.S.13 323.14 Limited public figures are those who have15 thrust themselves into the vortex of a public issue or16 have engaged the publics attention in an attempt to17 influence its outcome. When it considered the public18 controversy prong, the Court must consider whether the19 alleged defamation involves a public controversy and20 the nature and extent the plaintiffs involvement in21 that controversy. Berkery v. Kinney, 397 N.J. Super.

22 222.23 A public controversy is defined as a real24 dispute, the outcome of which affects the general25 public or some segment of it and the content, form and

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context as revealed by the whole record must be1

considered. Once a person becomes a public figure in2connection with a particular controversy, that person3remains a public figure thereafter for purposes of4later commentary or treatment of that controversy.5

The contentious factionalism present in6Hoboken politics constitutes a sufficiently particular7controversy to which an individual may have a8connection, making that individual a limited purpose9public figure per Berkery.10

The Court finds that Bajardi has been heavily11involved in the factional discord; that he has made12efforts to inject his talents into the furtherance of13one side over the other; has presented himself at14various public gatherings in connection with one of the15factions; has actively and publicly advocated for this16faction; has communicated with public officials on17

matters involving Hoboken politics and can generally be18considered involved in that particular controversy.19

As a result, even though plaintiff claims to20have withdrawn from civic involvement as of a certain21date, he remains a public figure thereafter for22purposes of later commentary or treatment of that23controversy. Furthermore, aside from plaintiffs24status as a limited public figure, the issue of Hoboken25


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1 political factionalism is one of public concern and is,2 therefore, offered the highest possible constitutional3 protection. W.J.A. v. D.A., 210 N.J. 229 (2012). G.D.4 v. Kenny, 205 N.J. 275 (2011) and Rocci v. Ecole5 Secondaire MacDonald-Cartier, 165 N.J. at 149 (2000).6 It is a real dispute in that the outcome of7 every election and political adversarial process has8 the potential to lead to some change in the City of

9 Hoboken and, thus, ongoing battles between these10 factions has a profound effect on the community.11 Citing Berkery at page 227.12 New Jersey has a particularly high regard13 for the protection of speech, as our state Supreme14 Court has found that the New Jersey Constitution15 offered protections more sweeping in scope than the16 language of the First Amendment, has supported broader17 free speech rights than its federal counterpart.18 Sisler v. Gannett Company, 104 N.J. 256.19 Indeed, our Supreme Court and our20 legislature have stressed the vigor with which New21 Jersey fosters and nurtures speech on matters of

22 political concern. Political speech lies at the core23 of our constitutional free protections. Mazdabrook24 Commons Homeowners v. Khan, 210 N.J. 482.25 It is with this high regard for the value of

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free speech and public discourse that Bajardi is found1

to be a limited public figure and the issue of2discussions to be a matter of public concern.3

When a public figure is the plaintiff in a4defamation case, the plaintiff must establish actual5

malice by clear and convincing evidence. New York6Times v. Sullivan, 376 U.S. 254 (1964) and Curtis7Publishing Co. v. Butts, 388 U.S. 130 (1967), DeAngelis8v. Hill, 180 N.J. 1 (2004).9

Reinforcing the constraints of the actual10malice test is a necessity that actual malice be found11by the Court as a matter of law. Harte-Hanks12Communications v. Connaughton, 491 U.S. 657.13

Supporting the actual malice standard is a14profound national commitment to the principle that15debate on public issues should be uninhibited, robust16and wide-open, and that it may well include vehement,17caustic and sometimes unpleasantly sharp attack on18government or public officials. New York Times v.19Sullivan, 276 U.S. at 270.20

Defamation law principles must achieve a21proper balance between protecting reputation and22protecting free speech. Rocci v. Ecole Secondaire,23165 N.J. 149. Ward v. Zelikovsky, 136 N.J. 516.24

In that regard, speech on matters of public25


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1 concern is at the heart of First Amendment protection.2 Rocci at page 149.3 Our courts have noted that readers recognize4 statements by one side in the political contest are5 often exaggerated, emotional and even misleading.6 Milkovich v. Lorain Journal, 497 U.S. 1 (1990).7 To satisfy the actual malice standard, a8 plaintiff must establish by clear and convincing

9 evidence that the defendant published the statement10 with knowledge that it was false or with reckless11 disregard of whether it was false. DeAngelis, 18012 N.J. at 16 to 17.13 In order to demonstrate reckless disregard,14 the plaintiff must show that the statements were15 published with a high degree of awareness of their16 probable falsity or with serious doubt as to the truth17 of publication. This standard is a subjective one.18 Negligent publishing does not satisfy the actual malice19 test. Lynch, 161 N.J. at 165.20 Even a publishers hostility or ill will is21 not dispositive of malice. DeAngelis at 16.

22 Spite, hostility, hatred or the deliberate23 intent to harm demonstrate possible motives for making24 a statement but do not demonstrate publication for a25 reckless disregard for truth. Citing Lynch at 166.

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Examples of reckless publication include1

instances where the publishers fabricate the story,2publishes one that is wholly unbelievable or relies on3an informant of dubious veracity or purposely avoids4the truth. Lynch at 165, 166.5

From one perspective, the actual malice test6puts a premium on ignorance and encourages the7irresponsible publisher not to inquire about the truth8of the material. Citing Lynch at 165 quoting St.9

Amant v. Thompson, 390 U.S. at 727.10However, mere failure to investigate all11

sources does not prove actual malice. Lynch citing12Costello v. Ocean County Observer, 136 N.J. 594.13

A publishers reliance on previously-14published material is also not evidence of actual15

malice, especially when there is no reason to doubt16accuracy of sources used. However, this Court17recognizes that a plaintiff is entitled to prove the18defendants state of mind through circumstantial19evidence. Harte-Hanks Communications v. Connaughton,20491 U.S. 657.21

Where testimony has proved that a newspaper22purposely avoided the truth when it published the story23based on the allegations of a single source without24verifying claims of another key source, and that it25


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1 intentionally ignored plaintiffs denials, actual2 malice has been found.3 The case here is distinguishable because4 plaintiff has presented no proof that there was an5 available dispositive source to defendant. There is no6 evidence that defendants were aware of plaintiffs7 denial, the statements were purposely disregarded,8 contrary evidence that was placed in their lap, as was

9 the case in Harte-Hanks. Rather, the evidence10 indicates that plaintiff was politically involved, and11 there was significant evidence to support the truth of12 defendants statements.13 To impose penalties without a clear showing14 of actual malice would offend the principles of free15 speech and active political discourse that stand at the16 cornerstone of the American foundational freedoms. The17 Court will not allow defendants to be castigated and18 penalized for exercising their right to engage in the19 political process, absent a clear and convincing20 showing that they knew what they posted was false or21 that they posted those things with reckless disregard

22 of whether they were false.23 The allegations in paragraph 31 concern a24 handful of statements within a five-page article25 discussing changes that have occurred in Hoboken since

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the beginning of an FBI investigation of the then1

mayors stolen e-mails published on September 13th,22011.3

Paragraph 35 alleges that Pincus posted the4following statement: Lane Bajardi is back, still5fighting for the corrupt and the machine for his Beth6Mason paycheck. Yawn. Same old, same old.7

At the summary judgment stage, the Court8found that the statement in paragraph 31 and the9statement in paragraph 35 that Lane Bajardi is still10fighting for the corrupt and the machine for his Beth11Mason paycheck, could have a defamatory meaning if12proven to be false. In part, the Court supported this13conclusion with Bajardis statement that his supervisor14informed him that any political activity using his name15or anonymously would be cause for his immediate16termination.17

The Court further found that to the extent18that a statement Bajardi was politically involved and19paid by Beth Mason is false, that a jury could20potentially find that those particular statements21lowered reputation if the appropriate proofs were22submitted.23

At the conclusion of plaintiffs evidence, it24is unequivocally clear that plaintiff has not submitted25


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1 any proofs to establish that it had a negative affect2 on his job as a journalist or that it was made with3 actual malice. E-mails, video recordings, articles and4 testimony have established that plaintiff was an active5 political participant and was a supporter of Beth6 Mason. Plaintiff often attended council meetings and7 advocated for Beth Mason and her agenda. Plaintiff8 offered his advice on press releases and political

9 strategy to Mason and was the recipient of many e-mails10 regarding the status of her campaign.11 Plaintiff points to Beth Masons elect12 reports as evidence that Bajardi was not paid.13 Plaintiff attempts to rely upon the absence of his14 being listed on these forms as evidence that he was not15 paid for his political involvement, although, plaintiff16 recognizes that this is not dispositive of the issue.17 Plaintiff argues that based on these reports, defendant18 could have known that Bajardi was not paid, and that19 their statements were false. Plaintiff has not20 presented any other indication to the contrary.21 Further, there is no evidence that Bajardis

22 position as a radio broadcast journalist has been23 affected or prejudiced to any degree. Neither24 testimony nor documentation from plaintiffs employer25 has been submitted to support any finding that a

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negative impact on plaintiffs job has occurred or ever1

existed. In fact, it is undisputed that plaintiff2continues to work for CBS.3

There are no facts from which to support a4finding that Ms. Pincus acted with actual malice5authoring and publishing the statements in paragraph 316and 35. Plaintiff argues a finding of actual malice is7supported by the fact that Ms. Pincus was aware of8contrary opinions on the subject and did not contact9Mr. Bajardi or anyone from Beth Masons campaign to10confirm or deny these allegations before including them11in her blog. At the heart of the argument is the12suggestion that Ms. Pincus should have investigated13

more sources before publication. However, the mere14failure to investigate all sources does not prove15actual malice. See Lynch at page 172 citing Costello.16

A publishers reliance on previously17published material is not evidence of actual malice,18especially when there is no reason to doubt the19accuracy of the sources. Ms. Pincus testified that she20

would not reveal her sources for this information, but21she had reason to believe that what she was told was22true, that Mr. Bajardi was being paid for political23services.24

Plaintiff also argues that through other blog25


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1 posts and articles not of issue, he has established Ms.2 Pincus hostility and hatred for Mr. Bajardi and3 demonstrated that her motive to post defamatory4 statements were this hatred. Plaintiff has presented5 previous blog posts and political cartoons that were6 dismissed on summary judgment, because they were7 considered unactionable, satire, political discourse,8 fair comment and/or mere insults.

9 However, insofar as these cartoons may10 establish Ms. Pincus dislike for Mr. Bajardi, they11 will be insufficient to establish that she published12 the statements in paragraph 31 and 35 with knowledge of13 falsity or reckless disregard of truth. A publishers14 hostility or ill will is not a dispositive factor of15 malice. See DeAngelis at page 16 to 17.16 Spite, hostility, hatred may demonstrate a17 possible motive for making a statement but do not18 demonstrate publication with reckless disregard for19 truth. The plaintiff must establish by clear and20 convincing evidence that Pincus knew his - her21 statements were false or that she was reckless in

22 disregarding their falsity.23 Complaint paragraph 56 alleges that Ms.24 Pincus article of January 25, 2012 included defamatory25 statements regarding the alleged corruption of

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Hobokens former Construction Code Officer Al Arezzo.1

At summary judgment, the Court found all the statements2in 56, except the statement political operative Lane3Bajardi were not actionable. Plaintiff has failed to4demonstrate defendants actual malice in making this5statement.6

Complaint paragraph 81 includes allegations7of defamation regarding Mark Heyer, otherwise8identified online as Jack Stop and/or This Means9War, and his statement that Mr. Bajardi is a paid10political operative. Again, Mr. Bajardi must11demonstrate actual malice and has failed to do so here.12

Paragraph 87 of the complaint includes an13allegation that Ms. Pincus statement that Bajardi has14

worked for years on the campaigns of a wealthy local15councilwoman named Beth Mason is defamatory. At16summary judgment, the Court found that should the17plaintiff prove that the statement is false, it may18have a defamatory meaning.19

The Court also found that the statement that20Mr. Bajardi had been questioned by the FBI implies he21

was part of a criminal conspiracy to steal the mayors22e-mails and traffic confidential information, and could23be defamatory to the extent they are not true and24should be defended at trial. However, plaintiff25


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1 admitted to assisting Beth Mason, albeit as a volunteer2 for some time. There is no evidence - there was also3 evidence of stolen e-mails subject of the FBI4 investigation which were present on Mr. Bajardis e-5 mail account. Plaintiff asserts he was not questioned6 by the FBI. Defendant argues that there was a7 reasonable basis to believe these statements were true8 and that, in part, that they may well be. Plaintiff

9 has failed to establish that these statements were10 wholly false and has not provided clear and convincing11 evidence that they were made with actual malice.12 Paragraph 103 of the complaint involves13 allegation involving a blog published on March 16th,14 2012. The blog comments on Mr. Bajardis relationship15 with Peter Cammarano, posing a comment directly from16 Prosbus defending the Cammarano/Bajardi association.17 Defendants blog goes on to question whether Bajardi is18 Cammaranos pitchman in the corruption, and that19 Bajardi and his wife are now associated with Al Arezzo.20 The blog also included a time line of Cammaranos21 corruption and when Bajardi publicly spoke in favor of

22 Cammarano and finally Cammaranos arrest. It also23 identified Mr. Bajardi as an employee of 1010 WINS and24 possibly violating the terms of his employment.25 Again, at summary judgment, the Court found

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that most of the article was posed as a question to1

spur discussion or was true and not defamatory.2However, the Court found that the statement which3implied that Mr. Bajardi, by way of being Prosbus,4has violated the rules of his employer by supporting5former Mayor Cammarano, was potentially capable of6defamatory meaning considering plaintiffs position as7a journalist depended on plaintiffs proofs at trial.8

As noted previously, no evidence has been9presented here that Mr. Bajardis position as a radio10broadcast journalist has been affected. Neither11testimony nor documentation from plaintiffs employer12has been submitted to support any finding that a13negative impact on plaintiffs job or reputation as a14broadcast journalist has occurred or ever existed. And15it remains undisputed that Mr. Bajardi continues to16

work for his employer.17Paragraph 110 includes an allegation that the18

words paid political operative Lane Bajardi from19defendant Brice and Heyer are defamatory. Again,20plaintiff must show actual malice on the part of the21defendants. And the Court finds that based upon the22testimony adduced, he has failed to do so, or any23evidence from which a jury could reasonably find so.24

Defendants argue plaintiff has not adduced25


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1 any evidence that he suffered reputational or2 professional injury because of defendants statements,3 nor has he offered any proof of pecuniary loss.4 Defendants argue plaintiff has not produced any person5 to testify about the consequences of the allegedly6 defamatory statements on plaintiffs career or7 reputation.8 Plaintiff contends hes entitled to presume

9 damages. Plaintiff should offer some concrete proof10 that his reputation has been injured, an existing11 relationship has been seriously disputed or testimony12 of third parties as to diminished reputation. See13 Sisler at 104 N.J. 281.14 In Sisler, the Court found that evidence15 supported an award of special damages because plaintiff16 had offered concrete proof that his reputation had been17 injured through six reputation witnesses other than his18 own testimony. Awards based on plaintiffs testimony19 alone or on inferred damages would have been20 insufficient. Furthermore, although injury to21 reputation defies exact measurement, courts have

22 recognized that it is a concept amenable to expert23 testimony. See Sisler at 104 N.J. 281.24 In Rocci v. Ecole Secondaire, 165 N.J. 149,25 our state Supreme Court addressed damages in the

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context of an alleged defamatory remark involving a1

private citizen, but that touched on matters of public2concern. With that context, the Court expressly held3that a plaintiff asserting a defamation claim cannot4rely on the doctrine of presumed damages absent a5finding that defendant published a statement with6knowledge that it was false or with reckless disregard7for its truth.8

The Court first found that plaintiff alleged9insufficient facts to support a finding of actual10

malice and concluded that societys interest in the11content of defendants statement mandated that12plaintiff proffer proof of reputational or pecuniary13harm. Due to the absence of these proofs, the Court14upheld the dismissal of plaintiffs case.15

The plaintiff submits that Rocci is not16directly on point due to its involvement of a private17figure and not a limited figure - a limited public18figure, rather, like Mr. Bajardi. Defendants contend19that speech involving a limited public figure is20offered an even higher degree of protection than in21Rocci. What is clear is that Rocci sought to22effectuate a balance between private reputational23interest and free speech relating to matters of public24concern. See Jobes v. Evangelista, 369 N.J. Super 384.25


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1 As a limited public figure, Bajardi has2 involved himself in a public controversy and become the3 subject of political commentary in Hoboken. Because4 political speech lies at the core of our constitutional5 free speech protections, the balance between6 reputational interests and free speech is a less7 delicate one than that presented in Rocci. Mazdabrook8 Commons Homeowners Association v. Khan, 210 N.J. 482.

9 See also Lynch v. New Jersey Education Association, 16110 N.J. 152.11 Involving a public figure in matters of12 public concern and finding there was no evidence from13 which a jury could infer actual malice in order to14 award presumed damages. The plaintiff in Rocci had15 failed to provide any evidence of harm beyond her own16 embarrassment. Plaintiff did not incur any expenses,17 nor did she miss any work, and suffered no form of18 discipline and presented no proof that she missed any19 time or was prejudiced in any way from work.20 Like Rocci, this Court does not diminish the21 sense of embarrassment asserted by the plaintiff, but

22 only recognizes that plaintiff should not be able to23 recover for embarrassment alone. When speech touches24 on a matter of public concern and a limited public25 figure is involved, a plaintiff will not be entitled to

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presume damages absent clear and convincing evidence of1

actual malice. W.J.A. v. D.A., 210 N.J. 229 citing2Rocci and Senna v. Florimont, 196 N.J. 469.3

In light of the foregoing reasons, it is4evident that reasonable minds could not differ that5plaintiffs evidence, even with all reasonable6inferences and without consideration to the weight,7

worth, nature or extent of the evidence, is simply8insufficient to support a finding of actual malice or9reputational injury. And, therefore, the plaintiffs10complaint is dismissed. Thank you, counsel.11

UNKNOWN MALE SPEAKER: Thank you, Your Honor.12UNKNOWN MALE SPEAKER: Thank you, Your Honor.13UNKNOWN MALE SPEAKER: Judge, do you want us14

here when you bring the jury out or you want us to just15-16

THE COURT: Im sorry. If you want a seat at17the table, I could indicate the case has been resolved.18

UNKNOWN MALE SPEAKER: Okay.19THE COURT: Ill tell - and Ill thank them.20

If you want to stay here when I thank the jury, thats21your - you know, we can do that.22

UNKNOWN MALE SPEAKER: Whatever you -23THE COURT: Well, either you all stay or -24UNKNOWN MALE SPEAKER: Why dont we stay.25


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1 THE COURT: All right. Fine.2 MR. FLOWERS: One housekeeping detail: in3 the order of dismissal, would you set forth a time4 frame in which we can file a motion under -5 THE COURT: The normal time frames apply.6 MR. FLOWERS: Okay. Thank you, Your Honor.7 THE COURT: I dont have to set them forth.8 MR. FLOWERS: Okay. Thank you.

9 THE COURT: Theyre in the rule book.10 MR. FLOWERS: Thank you, Your Honor.11 THE COURT: Okay. Well take a ten minute12 break, then Ill bring the jury out because I want to13 address them and thank them. So, Ill be back at14 11:10.15 (Off the record - On the record.)16 COURT CLERK: Jurors approaching. Jury is17 present, Your Honor.18 THE COURT: Thank you.19 Please be seated, ladies and gentlemen.20 Okay. Ladies and gentlemen, I apologize for keeping21 you in there longer than I anticipated, but at this

22 point, Im going to indicate to you that the case has23 been resolved. So, your services, at this point, are24 no longer needed, but I wanted to bring you in this25 morning, and I wanted to bring you out here and thank

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you publicly for your service as jurors. The fact that1

you did not get the case in no way diminishes your2service.3

In the beginning of the case, I told you that4you would be the judges of the facts, and I am the5judge of the law. This case was dismissed because, as6a matter of law, the Court found that the plaintiff did7not meet his burden of proof that would enable him to8place the case in your hands for your consideration.9

But, again, the fact that you show up, that10you take part in the selection process, and you came11here over a period of two weeks and listened to the12testimony and afforded the parties their rights under13our Constitution to a jury trial, which I believe is a14sacred right in this country is, nonetheless, you know,15noteworthy. And this case, as you know, was about16defamation and names, and at this point, I want to17indicate to you and call you or give you a title of18citizen, which I think is one of the highest and most19complimentary names you can be given. So, you should20hold your heads up, you know, high.21

And to quote our president, you know, we may22do different jobs and wear different uniforms and hold23different views than the person beside us, but as24

Americans, we all share the same proud title. We are25


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1 citizens. And thats a word that doesnt just describe2 our nationality or our legal status, it describes the3 way were made. It describes what we believe. It4 captures the enduring idea that this country only works5 when we accept certain obligations like jury duty to6 one another and to future generations and that our7 rights are wrapped up in the rights of others and that8 well into the third century as a nation, it remains our

9 task as citizens to protect and observe our rights.10 So, again, I want to thank you on behalf of the parties11 and the Court. Once again, if you need any12 certificates, you can get them downstairs. So, thank13 you.14 UNIDENTIFIED MALE SPEAKER: Thank you very15 much.16 UNIDENTIFIED MALE SPEAKER: Thank you.17 (Jury dismissed.)18 THE COURT: Okay, Counsel, anything for the19 record?20 MR. COHEN: Nothing, Your Honor.21 UNKNOWN MALE SPEAKER: Thank you.

22 THE COURT: Okay. Thank you.23 UNKNOWN MALE SPEAKER: Thank you, Judge.24 (Proceedings concluded.)25 * * * * * * * *

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1

C E R T I F I C A T I O N23

I, Lauren Leister, the assigned transcriber,4do hereby certify the foregoing transcript of5proceedings on electronic recording dated 2/10/15,6electronic recording time from 10:24:17 to 11:14:38, is7prepared in full compliance with the current Transcript8Format for Judicial Proceedings and is a true and9accurate compressed transcript of the proceedings as10recorded.11

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/S/ Lauren Leister #65114SIGNATURE AOC NUMBER15

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Karen English Trans. Svc. February 28, 201518AGENCY DATE19

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Hon. Judge Patrick J. Arre - Bajardi v. Pincus

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