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SUPERIOR COURT OF NEW JERSEY

LAW DIVISION, CIVIL PART


HUDSON COUNTY DOCKET NO. L-3723-12
LANE BAJARDI & KIMBERLY
CARDINAL BAJARDI
Plaintiffs,
v.
NANCY PINCUS, et al.,
Defendants.

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TRANSCRIPT
OF
TRIAL DECISION

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 Leister


Karen English Transcription Svc.
P.O. Box 1276
Island Heights, NJ 08732
(732) 255-1247 - Fax (732) 255-1366
Electronically Sound Recorded
Recorded by: Carol Tarencz

2
I N D E X
PAGE
Decision by The Court

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COURT CLERK:

Okay, Judge, were on the

record.
THE COURT: Okay. Thank you.
All right. This is the continuation of
Bajardi versus Pincus, et al., HUD 3723-12.
Appearances, please.
MR. COHEN: Your Honor, Jonathan Cohen for
plaintiff Lane Bajardi.
THE COURT: Good morning.
MR. COHEN: Good morning.
MR. KATZMAN: Good morning, Your Honor.
Stephen Katzman from Methfessel & Werbel representing
defendant Nancy Pincus.
THE COURT: Good morning.
MR. KATZMAN: Good morning.
MR. BOOTH: Good morning, Judge. Alex Booth
for Roman Brice.
MR. FLOWERS: Kerry Flowers for defendant
Mark Heyer.
THE COURT: Good morning.
Okay, Counsel, I received the briefs,
including Mr. Cohens brief this morning. Anything
further?
UNKNOWN MALE SPEAKER: No, Your Honor.
MR. COHEN: No, Your Honor.

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UNKNOWN MALE SPEAKER: No, Judge.


THE COURT: Okay. Thank you. All right.
This is defendants motion for judgment at the close of
the plaintiffs case pursuant to Rule 4:40-1. The
Court has received briefs from plaintiff, defendant
Pincus and defendant Heyer and considered oral
arguments from all the parties.
This case arises out of alleged defamatory
statements made by defendants Pincus, Brice and Heyer
via publication on various blog posts regarding
plaintiffs involvement with the Hoboken political
landscape. The matter began as a disagreement or
discussion of local political views that has evolved
into an adversarial situation among Hobokens reform
candidates and Hobokens formal political faction,
called the Russo faction in this trial.
Plaintiff contends that defendants posted
false and disparaging comments about him on various
websites, including Hobokenpatch.com,
grafixavenger.blogspot.com, Galloway.patch.com and
NJ.com, among others during the time period June 8,
2011 through July 2012.
Plaintiff Lane Bajardi is a broadcast
journalist employed by CBS radio, owned and operated by
1010 WINS in New York City. Mr. Bajardi is an active

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participant in Hobokens political community and has


been allegedly linked to Beth Masons mayoral campaigns
and to formal Hoboken Mayor Peter Cammarano. Bajardi
had a presence at city council meetings from 2006
through 2011.
Defendant Pincus alleges that he made
anonymous internet posts under the pseudonym names
Prosbus and Vinvan. Various e-mails produced at
trial indicate that Lane Bajardi was actively involved
in promoting Beth Masons political career during the
relevant time period. Bajardi denies receiving payment
but categorizes his extensive involvement as a
volunteer.
Defendant Nancy Pincus was appointed to the
Hoboken Zoning Board and became involved in politics in
2008 when she began attending board of education
meetings and has been actively involved in the socalled reform movement. Pincus also started a blog
regarding the Hoboken political scene known as Grafix
Avenger or G.A.
Defendant Roman Brice is alleged to be the
editor of Hudson Mile Square View and posts under the
internet pseudonym Hoboken Horse. Defendant Mark
Heyer is a blogger whose presence on the Internet is
identified by the pseudonyms Jack Stop (phonetic) and

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This Means War.


Plaintiff has provided testimony from various
witnesses, which will be discussed later. The thrust
of the allegations include defendants statements that
Bajardi was a paid political operative among others for
Beth Mason and may be involved in a criminal
conspiracy. Mr. Bajardi filed his complaint on July
26, 2012 against defendants alleging defamation,
defamation per se, tortuous interference with business
relations, intentional infliction of emotional distress
and intentional interference with prospective economic
relations.
On September 5th, 2014, the Honorable Judge
Christine Vanek considered defendants summary judgment
motions and dismissed plaintiffs complaint with the
exception of paragraphs 31, 35, 56, 81, 87, 103 and
110. Those claims survived summary judgment, were for
defamation, defamation per se regarding defendants use
of the words paid political operative to describe Mr.
Bajardi. The Court found that these words could have a
defamatory meaning if proved to be false and subject to
plaintiffs proofs.
Trial began on January 28th, 2015. After
opening statements, defendants collectively moved for a
non-suit or dismissal after openings. The motion was

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denied and plaintiff was permitted to present his


proofs. On February 5th, plaintiff concluded
presenting his case. Now, defendants collectively move
for dismissal under Rule 4:40-1. Im sorry. February
9th, rather, plaintiff concluded his proofs.
Plaintiff has provided his own testimony as
well as testimony from his wife, also from Beth Mason,
former Hoboken Mayor Peter Cammarano, political
participant Timothy Occhipinti, Anthony Petrosino,
Patrick Ricciardi, and defendants Nancy Pincus, Roman
Brice and Mark Heyer. In addition, various e-mails and
blog posts have been entered into evidence and
considered by the Court.
Defendants moved for dismissal per Rule 4:401, providing that either party may move for a judgment
at the close of the evidence offered by the opponent.
Defendants argue that plaintiff has failed to set forth
sufficient evidence to support a prima facie case of
defamation or a finding of actual malice or actual
damages and argue that plaintiffs case must,
therefore, be dismissed.
Its standard that the Court must accept as
true all of the evidence which supports the position of
the party defending against the motion and must accord
that party the benefit of all legitimate inferences

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which can be deducted therefrom. Granting the motion


is warranted if reasonable minds could not differ. The
Court may not weigh the credibility of witnesses and
the motion should be denied in instances where a
question of credibility as to material fact has been
raised, per Rena, Inc. v. Brien, 310 N.J. Super. 304
(App. Div. 1998) and Alves v. Rosenberg, 400 N.J.
Super. 553 (App. Div. 2008).
The same standard governs review of a trial
judges refusal to grant a motion for dismissal at the
close of plaintiffs case as is used for judgment not
withstanding the verdict under Rule 4:40-2b, which in
pertinent part reads:
Could the evidence together with legitimate
inferences which can be drawn therefrom sustain a
judgment in favor of the party opposing the motion,
neither the trial judge nor the Appellate court is
concerned with the weight or nature or extent of
evidence but must accept as true all the evidence
supporting the party opposing the motion and accord him
the benefit of all favorable inferences. Polyard v.
Terry, 160 N.J. Super. 497 (App. Div. 1978).
As to defamation:
The First Amendment does not embrace the
trite wallflower politeness of the cliche that if you

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cant say anything nice, dont say anything at all.


Ward v. Zelikovsky, 136 N.J. 516 (1994) quoting law of
defamation 609.
No matter how obnoxious, insulting or
tasteless some words may be, without establishing the
proper legal elements, those words are simply a part of
life for which the law of defamation affords no
remedy.
Here, the issue presented is whether
plaintiff has presented enough evidence to support a
defamatory interpretation of the words paid political
operative and other variations thereof.
A statement is defamatory if it is false,
communicated to a third person, tends to lower the
subjects reputation in the estimation of the community
or to deter third persons from associating with him.
Lynch v. N.J. Education Association, 161 N.J. at 152
citing the Restatement of Tort (2d) 558.
Whether the meaning of a statement is
susceptible of a defamatory meaning is a question of
law for the Court and requires consideration of three
factors: content, verifiability and context. Ward v.
Zelikovsky, 136 N.J. 516 (1994).
A statements context must be judged not by
its literal meaning but by its objective meaning to a

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reasonable person of ordinary intelligence. McLaughlin
v. Rosanio, Bailets & Talamo, 331 N.J. Super. 303.
Mere insults and rhetorical hyperbole, while
they may be offensive, are not defamatory. A
statements verifiability refers to whether it can be
proved true or false but, obviously, does not apply to
insults absent a well-settled meaning and to statements
of opinion. Wilson v. Grant, 136 N.J. Super. 128.
The Courts analysis must focus upon the
fair and natural meaning that will be given to his
statements by reasonable persons of ordinary
intelligence. DeAngelis, 180 N.J. at 14, quoting
Ward, 136 N.J. at 529 and Romaine v. Kallinger, 109
N.J. 282).
In that regard, while the use of epithets,
insults, name-calling, profanity and hyperbole may be
hurtful to the listener and are to be discouraged, such
comments are not actionable. In cases where the
statement is capable of being assigned more than one
meaning, one of which is defamatory and another not,
the question of whether its content is defamatory is
one that must be resolved by the trier of fact.
Romaine v. Kallinger, as cited above.
The fair comment privilege also provides a
defense to a libel or slander action when the words in

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question are fair comment on a matter of public


interest or concern. Senna v. Florimont, 196 N.J.
469.
The doctrine extends to virtually all
matters of legitimate public interest and goes beyond
matters of opinion to statements of fact. Vassallo v.
Bell, 221 N.J. Super. 347.
However, the fair comment privilege is
qualified. See Dairy Stores, Inc. v. Sentinel
Publications, 104 N.J. 125 and Vassallo, 221 N.J.
Super. at 372.
It only applies if the statement is: (1)
based on facts truly stated; (2) does not contain
imputations of corrupt or dishonorable motives on the
person whose conduct or work is criticized; and (3) is
the honest expression of a writers real opinion.
Plus, the plaintiff may overcome the fair comment
privilege by establishing that the publisher knew the
statement to be false or acted in a reckless disregard
of its truth or falsity, that is with actual malice.
See Petersen v. Meggitt, 407 N.J. Super. 63.
The analysis is a fact-intensive focusing on
whether the activity concerns public interest if the
statement is true and if it was made with actual
malice. Plaintiff must establish actual malice in

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order to prevail on his claim for defamation if he is a
limited public figure or the alleged defamation
involves a public controversy. Barasch v. Soho
Weekly, 208 N.J. Super. 163 (App. Div. 1986).
It is well established that the Court,
rather than the jury, must make this determination.
Public figures who have thrust themselves to the
forefront of a particular public controversy usually
enjoy greater access to the channels of effective
communication and, thus, can more justly be burdened
with the actual malice standard. Sisler v. Gannett,
104 N.J. at 264 and Gertz v. Robert Welch, at 418 U.S.
323.
Limited public figures are those who have
thrust themselves into the vortex of a public issue or
have engaged the publics attention in an attempt to
influence its outcome. When it considered the public
controversy prong, the Court must consider whether the
alleged defamation involves a public controversy and
the nature and extent the plaintiffs involvement in
that controversy. Berkery v. Kinney, 397 N.J. Super.
222.
A public controversy is defined as a real
dispute, the outcome of which affects the general
public or some segment of it and the content, form and

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context as revealed by the whole record must be


considered. Once a person becomes a public figure in
connection with a particular controversy, that person
remains a public figure thereafter for purposes of
later commentary or treatment of that controversy.
The contentious factionalism present in
Hoboken politics constitutes a sufficiently particular
controversy to which an individual may have a
connection, making that individual a limited purpose
public figure per Berkery.
The Court finds that Bajardi has been heavily
involved in the factional discord; that he has made
efforts to inject his talents into the furtherance of
one side over the other; has presented himself at
various public gatherings in connection with one of the
factions; has actively and publicly advocated for this
faction; has communicated with public officials on
matters involving Hoboken politics and can generally be
considered involved in that particular controversy.
As a result, even though plaintiff claims to
have withdrawn from civic involvement as of a certain
date, he remains a public figure thereafter for
purposes of later commentary or treatment of that
controversy. Furthermore, aside from plaintiffs
status as a limited public figure, the issue of Hoboken

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political factionalism is one of public concern and is,
therefore, offered the highest possible constitutional
protection. W.J.A. v. D.A., 210 N.J. 229 (2012). G.D.
v. Kenny, 205 N.J. 275 (2011) and Rocci v. Ecole
Secondaire MacDonald-Cartier, 165 N.J. at 149 (2000).
It is a real dispute in that the outcome of
every election and political adversarial process has
the potential to lead to some change in the City of
Hoboken and, thus, ongoing battles between these
factions has a profound effect on the community.
Citing Berkery at page 227.
New Jersey has a particularly high regard
for the protection of speech, as our state Supreme
Court has found that the New Jersey Constitution
offered protections more sweeping in scope than the
language of the First Amendment, has supported broader
free speech rights than its federal counterpart.
Sisler v. Gannett Company, 104 N.J. 256.
Indeed, our Supreme Court and our
legislature have stressed the vigor with which New
Jersey fosters and nurtures speech on matters of
political concern. Political speech lies at the core
of our constitutional free protections. Mazdabrook
Commons Homeowners v. Khan, 210 N.J. 482.
It is with this high regard for the value of

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free speech and public discourse that Bajardi is found
to be a limited public figure and the issue of
discussions to be a matter of public concern.
When a public figure is the plaintiff in a
defamation case, the plaintiff must establish actual
malice by clear and convincing evidence. New York
Times v. Sullivan, 376 U.S. 254 (1964) and Curtis
Publishing Co. v. Butts, 388 U.S. 130 (1967), DeAngelis
v. Hill, 180 N.J. 1 (2004).
Reinforcing the constraints of the actual
malice test is a necessity that actual malice be found
by the Court as a matter of law. Harte-Hanks
Communications v. Connaughton, 491 U.S. 657.
Supporting the actual malice standard is a
profound national commitment to the principle that
debate on public issues should be uninhibited, robust
and wide-open, and that it may well include vehement,
caustic and sometimes unpleasantly sharp attack on
government or public officials. New York Times v.
Sullivan, 276 U.S. at 270.
Defamation law principles must achieve a
proper balance between protecting reputation and
protecting free speech. Rocci v. Ecole Secondaire,
165 N.J. 149. Ward v. Zelikovsky, 136 N.J. 516.
In that regard, speech on matters of public

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concern is at the heart of First Amendment protection.
Rocci at page 149.
Our courts have noted that readers recognize
statements by one side in the political contest are
often exaggerated, emotional and even misleading.
Milkovich v. Lorain Journal, 497 U.S. 1 (1990).
To satisfy the actual malice standard, a
plaintiff must establish by clear and convincing
evidence that the defendant published the statement
with knowledge that it was false or with reckless
disregard of whether it was false. DeAngelis, 180
N.J. at 16 to 17.
In order to demonstrate reckless disregard,
the plaintiff must show that the statements were
published with a high degree of awareness of their
probable falsity or with serious doubt as to the truth
of publication. This standard is a subjective one.
Negligent publishing does not satisfy the actual malice
test. Lynch, 161 N.J. at 165.
Even a publishers hostility or ill will is
not dispositive of malice. DeAngelis at 16.
Spite, hostility, hatred or the deliberate
intent to harm demonstrate possible motives for making
a statement but do not demonstrate publication for a
reckless disregard for truth. Citing Lynch at 166.

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Examples of reckless publication include


instances where the publishers fabricate the story,
publishes one that is wholly unbelievable or relies on
an informant of dubious veracity or purposely avoids
the truth. Lynch at 165, 166.
From one perspective, the actual malice test
puts a premium on ignorance and encourages the
irresponsible publisher not to inquire about the truth
of the material. Citing Lynch at 165 quoting St.
Amant v. Thompson, 390 U.S. at 727.
However, mere failure to investigate all
sources does not prove actual malice. Lynch citing
Costello v. Ocean County Observer, 136 N.J. 594.
A publishers reliance on previouslypublished material is also not evidence of actual
malice, especially when there is no reason to doubt
accuracy of sources used. However, this Court
recognizes that a plaintiff is entitled to prove the
defendants state of mind through circumstantial
evidence. Harte-Hanks Communications v. Connaughton,
491 U.S. 657.
Where testimony has proved that a newspaper
purposely avoided the truth when it published the story
based on the allegations of a single source without
verifying claims of another key source, and that it

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intentionally ignored plaintiffs denials, actual


malice has been found.
The case here is distinguishable because
plaintiff has presented no proof that there was an
available dispositive source to defendant. There is no
evidence that defendants were aware of plaintiffs
denial, the statements were purposely disregarded,
contrary evidence that was placed in their lap, as was
the case in Harte-Hanks. Rather, the evidence
indicates that plaintiff was politically involved, and
there was significant evidence to support the truth of
defendants statements.
To impose penalties without a clear showing
of actual malice would offend the principles of free
speech and active political discourse that stand at the
cornerstone of the American foundational freedoms. The
Court will not allow defendants to be castigated and
penalized for exercising their right to engage in the
political process, absent a clear and convincing
showing that they knew what they posted was false or
that they posted those things with reckless disregard
of whether they were false.
The allegations in paragraph 31 concern a
handful of statements within a five-page article
discussing changes that have occurred in Hoboken since

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the beginning of an FBI investigation of the then


mayors stolen e-mails published on September 13th,
2011.
Paragraph 35 alleges that Pincus posted the
following statement: Lane Bajardi is back, still
fighting for the corrupt and the machine for his Beth
Mason paycheck. Yawn. Same old, same old.
At the summary judgment stage, the Court
found that the statement in paragraph 31 and the
statement in paragraph 35 that Lane Bajardi is still
fighting for the corrupt and the machine for his Beth
Mason paycheck, could have a defamatory meaning if
proven to be false. In part, the Court supported this
conclusion with Bajardis statement that his supervisor
informed him that any political activity using his name
or anonymously would be cause for his immediate
termination.
The Court further found that to the extent
that a statement Bajardi was politically involved and
paid by Beth Mason is false, that a jury could
potentially find that those particular statements
lowered reputation if the appropriate proofs were
submitted.
At the conclusion of plaintiffs evidence, it
is unequivocally clear that plaintiff has not submitted

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any proofs to establish that it had a negative affect


on his job as a journalist or that it was made with
actual malice. E-mails, video recordings, articles and
testimony have established that plaintiff was an active
political participant and was a supporter of Beth
Mason. Plaintiff often attended council meetings and
advocated for Beth Mason and her agenda. Plaintiff
offered his advice on press releases and political
strategy to Mason and was the recipient of many e-mails
regarding the status of her campaign.
Plaintiff points to Beth Masons elect
reports as evidence that Bajardi was not paid.
Plaintiff attempts to rely upon the absence of his
being listed on these forms as evidence that he was not
paid for his political involvement, although, plaintiff
recognizes that this is not dispositive of the issue.
Plaintiff argues that based on these reports, defendant
could have known that Bajardi was not paid, and that
their statements were false. Plaintiff has not
presented any other indication to the contrary.
Further, there is no evidence that Bajardis
position as a radio broadcast journalist has been
affected or prejudiced to any degree. Neither
testimony nor documentation from plaintiffs employer
has been submitted to support any finding that a

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negative impact on plaintiffs job has occurred or ever
existed. In fact, it is undisputed that plaintiff
continues to work for CBS.
There are no facts from which to support a
finding that Ms. Pincus acted with actual malice
authoring and publishing the statements in paragraph 31
and 35. Plaintiff argues a finding of actual malice is
supported by the fact that Ms. Pincus was aware of
contrary opinions on the subject and did not contact
Mr. Bajardi or anyone from Beth Masons campaign to
confirm or deny these allegations before including them
in her blog. At the heart of the argument is the
suggestion that Ms. Pincus should have investigated
more sources before publication. However, the mere
failure to investigate all sources does not prove
actual malice. See Lynch at page 172 citing Costello.
A publishers reliance on previously
published material is not evidence of actual malice,
especially when there is no reason to doubt the
accuracy of the sources. Ms. Pincus testified that she
would not reveal her sources for this information, but
she had reason to believe that what she was told was
true, that Mr. Bajardi was being paid for political
services.
Plaintiff also argues that through other blog

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posts and articles not of issue, he has established Ms.
Pincus hostility and hatred for Mr. Bajardi and
demonstrated that her motive to post defamatory
statements were this hatred. Plaintiff has presented
previous blog posts and political cartoons that were
dismissed on summary judgment, because they were
considered unactionable, satire, political discourse,
fair comment and/or mere insults.
However, insofar as these cartoons may
establish Ms. Pincus dislike for Mr. Bajardi, they
will be insufficient to establish that she published
the statements in paragraph 31 and 35 with knowledge of
falsity or reckless disregard of truth. A publishers
hostility or ill will is not a dispositive factor of
malice. See DeAngelis at page 16 to 17.
Spite, hostility, hatred may demonstrate a
possible motive for making a statement but do not
demonstrate publication with reckless disregard for
truth. The plaintiff must establish by clear and
convincing evidence that Pincus knew his - her
statements were false or that she was reckless in
disregarding their falsity.
Complaint paragraph 56 alleges that Ms.
Pincus article of January 25, 2012 included defamatory
statements regarding the alleged corruption of

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Hobokens former Construction Code Officer Al Arezzo.


At summary judgment, the Court found all the statements
in 56, except the statement political operative Lane
Bajardi were not actionable. Plaintiff has failed to
demonstrate defendants actual malice in making this
statement.
Complaint paragraph 81 includes allegations
of defamation regarding Mark Heyer, otherwise
identified online as Jack Stop and/or This Means
War, and his statement that Mr. Bajardi is a paid
political operative. Again, Mr. Bajardi must
demonstrate actual malice and has failed to do so here.
Paragraph 87 of the complaint includes an
allegation that Ms. Pincus statement that Bajardi has
worked for years on the campaigns of a wealthy local
councilwoman named Beth Mason is defamatory. At
summary judgment, the Court found that should the
plaintiff prove that the statement is false, it may
have a defamatory meaning.
The Court also found that the statement that
Mr. Bajardi had been questioned by the FBI implies he
was part of a criminal conspiracy to steal the mayors
e-mails and traffic confidential information, and could
be defamatory to the extent they are not true and
should be defended at trial. However, plaintiff

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admitted to assisting Beth Mason, albeit as a volunteer
for some time. There is no evidence - there was also
evidence of stolen e-mails subject of the FBI
investigation which were present on Mr. Bajardis email account. Plaintiff asserts he was not questioned
by the FBI. Defendant argues that there was a
reasonable basis to believe these statements were true
and that, in part, that they may well be. Plaintiff
has failed to establish that these statements were
wholly false and has not provided clear and convincing
evidence that they were made with actual malice.
Paragraph 103 of the complaint involves
allegation involving a blog published on March 16th,
2012. The blog comments on Mr. Bajardis relationship
with Peter Cammarano, posing a comment directly from
Prosbus defending the Cammarano/Bajardi association.
Defendants blog goes on to question whether Bajardi is
Cammaranos pitchman in the corruption, and that
Bajardi and his wife are now associated with Al Arezzo.
The blog also included a time line of Cammaranos
corruption and when Bajardi publicly spoke in favor of
Cammarano and finally Cammaranos arrest. It also
identified Mr. Bajardi as an employee of 1010 WINS and
possibly violating the terms of his employment.
Again, at summary judgment, the Court found

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that most of the article was posed as a question to


spur discussion or was true and not defamatory.
However, the Court found that the statement which
implied that Mr. Bajardi, by way of being Prosbus,
has violated the rules of his employer by supporting
former Mayor Cammarano, was potentially capable of
defamatory meaning considering plaintiffs position as
a journalist depended on plaintiffs proofs at trial.
As noted previously, no evidence has been
presented here that Mr. Bajardis position as a radio
broadcast journalist has been affected. Neither
testimony nor documentation from plaintiffs employer
has been submitted to support any finding that a
negative impact on plaintiffs job or reputation as a
broadcast journalist has occurred or ever existed. And
it remains undisputed that Mr. Bajardi continues to
work for his employer.
Paragraph 110 includes an allegation that the
words paid political operative Lane Bajardi from
defendant Brice and Heyer are defamatory. Again,
plaintiff must show actual malice on the part of the
defendants. And the Court finds that based upon the
testimony adduced, he has failed to do so, or any
evidence from which a jury could reasonably find so.
Defendants argue plaintiff has not adduced

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any evidence that he suffered reputational or


professional injury because of defendants statements,
nor has he offered any proof of pecuniary loss.
Defendants argue plaintiff has not produced any person
to testify about the consequences of the allegedly
defamatory statements on plaintiffs career or
reputation.
Plaintiff contends hes entitled to presume
damages. Plaintiff should offer some concrete proof
that his reputation has been injured, an existing
relationship has been seriously disputed or testimony
of third parties as to diminished reputation. See
Sisler at 104 N.J. 281.
In Sisler, the Court found that evidence
supported an award of special damages because plaintiff
had offered concrete proof that his reputation had been
injured through six reputation witnesses other than his
own testimony. Awards based on plaintiffs testimony
alone or on inferred damages would have been
insufficient. Furthermore, although injury to
reputation defies exact measurement, courts have
recognized that it is a concept amenable to expert
testimony. See Sisler at 104 N.J. 281.
In Rocci v. Ecole Secondaire, 165 N.J. 149,
our state Supreme Court addressed damages in the

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context of an alleged defamatory remark involving a


private citizen, but that touched on matters of public
concern. With that context, the Court expressly held
that a plaintiff asserting a defamation claim cannot
rely on the doctrine of presumed damages absent a
finding that defendant published a statement with
knowledge that it was false or with reckless disregard
for its truth.
The Court first found that plaintiff alleged
insufficient facts to support a finding of actual
malice and concluded that societys interest in the
content of defendants statement mandated that
plaintiff proffer proof of reputational or pecuniary
harm. Due to the absence of these proofs, the Court
upheld the dismissal of plaintiffs case.
The plaintiff submits that Rocci is not
directly on point due to its involvement of a private
figure and not a limited figure - a limited public
figure, rather, like Mr. Bajardi. Defendants contend
that speech involving a limited public figure is
offered an even higher degree of protection than in
Rocci. What is clear is that Rocci sought to
effectuate a balance between private reputational
interest and free speech relating to matters of public
concern. See Jobes v. Evangelista, 369 N.J. Super 384.

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As a limited public figure, Bajardi has


involved himself in a public controversy and become the
subject of political commentary in Hoboken. Because
political speech lies at the core of our constitutional
free speech protections, the balance between
reputational interests and free speech is a less
delicate one than that presented in Rocci. Mazdabrook
Commons Homeowners Association v. Khan, 210 N.J. 482.
See also Lynch v. New Jersey Education Association, 161
N.J. 152.
Involving a public figure in matters of
public concern and finding there was no evidence from
which a jury could infer actual malice in order to
award presumed damages. The plaintiff in Rocci had
failed to provide any evidence of harm beyond her own
embarrassment. Plaintiff did not incur any expenses,
nor did she miss any work, and suffered no form of
discipline and presented no proof that she missed any
time or was prejudiced in any way from work.
Like Rocci, this Court does not diminish the
sense of embarrassment asserted by the plaintiff, but
only recognizes that plaintiff should not be able to
recover for embarrassment alone. When speech touches
on a matter of public concern and a limited public
figure is involved, a plaintiff will not be entitled to

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presume damages absent clear and convincing evidence of
actual malice. W.J.A. v. D.A., 210 N.J. 229 citing
Rocci and Senna v. Florimont, 196 N.J. 469.
In light of the foregoing reasons, it is
evident that reasonable minds could not differ that
plaintiffs evidence, even with all reasonable
inferences and without consideration to the weight,
worth, nature or extent of the evidence, is simply
insufficient to support a finding of actual malice or
reputational injury. And, therefore, the plaintiffs
complaint is dismissed. Thank you, counsel.
UNKNOWN MALE SPEAKER: Thank you, Your Honor.
UNKNOWN MALE SPEAKER: Thank you, Your Honor.
UNKNOWN MALE SPEAKER: Judge, do you want us
here when you bring the jury out or you want us to just
THE COURT: Im sorry. If you want a seat at
the table, I could indicate the case has been resolved.
UNKNOWN MALE SPEAKER: Okay.
THE COURT: Ill tell - and Ill thank them.
If you want to stay here when I thank the jury, thats
your - you know, we can do that.
UNKNOWN MALE SPEAKER: Whatever you THE COURT: Well, either you all stay or UNKNOWN MALE SPEAKER: Why dont we stay.

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THE COURT: All right. Fine.


MR. FLOWERS:
One housekeeping detail: in
the order of dismissal, would you set forth a time
frame in which we can file a motion under THE COURT: The normal time frames apply.
MR. FLOWERS:
Okay. Thank you, Your Honor.
THE COURT: I dont have to set them forth.
MR. FLOWERS:
Okay. Thank you.
THE COURT: Theyre in the rule book.
MR. FLOWERS:
Thank you, Your Honor.
THE COURT: Okay. Well take a ten minute
break, then Ill bring the jury out because I want to
address them and thank them. So, Ill be back at
11:10.
(Off the record - On the record.)
COURT CLERK: Jurors approaching. Jury is
present, Your Honor.
THE COURT: Thank you.
Please be seated, ladies and gentlemen.
Okay. Ladies and gentlemen, I apologize for keeping
you in there longer than I anticipated, but at this
point, Im going to indicate to you that the case has
been resolved. So, your services, at this point, are
no longer needed, but I wanted to bring you in this
morning, and I wanted to bring you out here and thank

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you publicly for your service as jurors. The fact that
you did not get the case in no way diminishes your
service.
In the beginning of the case, I told you that
you would be the judges of the facts, and I am the
judge of the law. This case was dismissed because, as
a matter of law, the Court found that the plaintiff did
not meet his burden of proof that would enable him to
place the case in your hands for your consideration.
But, again, the fact that you show up, that
you take part in the selection process, and you came
here over a period of two weeks and listened to the
testimony and afforded the parties their rights under
our Constitution to a jury trial, which I believe is a
sacred right in this country is, nonetheless, you know,
noteworthy. And this case, as you know, was about
defamation and names, and at this point, I want to
indicate to you and call you or give you a title of
citizen, which I think is one of the highest and most
complimentary names you can be given. So, you should
hold your heads up, you know, high.
And to quote our president, you know, we may
do different jobs and wear different uniforms and hold
different views than the person beside us, but as
Americans, we all share the same proud title. We are

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citizens. And thats a word that doesnt just describe
our nationality or our legal status, it describes the
way were made. It describes what we believe. It
captures the enduring idea that this country only works
when we accept certain obligations like jury duty to
one another and to future generations and that our
rights are wrapped up in the rights of others and that
well into the third century as a nation, it remains our
task as citizens to protect and observe our rights.
So, again, I want to thank you on behalf of the parties
and the Court. Once again, if you need any
certificates, you can get them downstairs. So, thank
you.
UNIDENTIFIED MALE SPEAKER: Thank you very
much.
UNIDENTIFIED MALE SPEAKER: Thank you.
(Jury dismissed.)
THE COURT: Okay, Counsel, anything for the
record?
MR. COHEN: Nothing, Your Honor.
UNKNOWN MALE SPEAKER: Thank you.
THE COURT: Okay. Thank you.
UNKNOWN MALE SPEAKER: Thank you, Judge.
(Proceedings concluded.)
* * * * * * * *

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C E R T I F I C A T I O N
I, Lauren Leister, the assigned transcriber,
do hereby certify the foregoing transcript of
proceedings on electronic recording dated 2/10/15,
electronic recording time from 10:24:17 to 11:14:38, is
prepared in full compliance with the current Transcript
Format for Judicial Proceedings and is a true and
accurate compressed transcript of the proceedings as
recorded.
/S/ Lauren Leister
SIGNATURE

#651
AOC NUMBER

Karen English Trans. Svc.


AGENCY

February 28, 2015


DATE

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