PRELIMINARY

STATEMENT

This litigation is a lower court-designated SLAPP-suit filed

by Plaintiffs Lane Bajardi and Kimberly Cardinal Bajardi in the

form of a defamation claim against the political speech of

Hoboken residents. Roman Brice, a named defendant is the

editor of The Hudson Mile Square View or MSV, a Hoboken

website focused on Hoboken government, politics and

corruption. Mr. Brice’s website began in the summer of 2009

after convicted felon and former Mayor Peter Cammarano’s

arrest by the FBI for taking bribes.

Lane Bajardi and Kimberly Cardinal Bajardi are hardcore

political operatives who worked as kitchen cabinet advisors to

former Hoboken councilwoman Beth Mason seeking to advance

her political career. As seen, Mr. Bajardi enumerated he viewed

Mr. Brice and other Hoboken commenters on local websites as

adversaries in their support in what is described as the Hoboken

Reform Movement. Mayor Dawn Zimmer twice defeated mayoral

challenger Beth Mason. Former councilwoman Beth Mason

became a fixture and funds to present the opposition, what Mr.

Brice and other local reporters termed Hoboken’s “Old Guard.”

Plaintiffs on June 26, 2012 filed a 170-paragraph

Complaint against Mr. Brice and other Hoboken bloggers alleging

a shotgun list of defamation, defamation per se and various tort

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claims. On December 12, 2014 after summary judgment two

comments by Mr. Brice referencing Plaintiff Lane Bajardi were

set for trial, a 1:4-8 “safe harbor” letter specifically detailed why

the case against him was a SLAPP-suit and must be withdrawn.

At trial, not a shred of proof was offered showing Mr. Brice

adversely impacted Mr. Bajardi under NJ law. The case against

Defendant failed to demonstrate an iota of actual malice.

In a discovery email, Plaintiff Kimberly Cardinal Bajardi

emailed Councilwoman Beth Mason on March 12, 2010 about Mr.

Brice and his interview questions inside Hoboken City Council

chambers surrounded by the public and other local reporters

writing, “Let me know if you want to pursue more aggressive

tactics than just walking past him.” Beth Mason’s replied, “I do.”

Pa646 Just over two years later, Plaintiffs’ SLAPP-suit was filed

in Hudson Superior Court. Mr. Brice had never met or spoken to

Kimberly Cardinal Bajardi.

Plaintiffs intentionally used their litigation to harass and

chill Mr. Brice’s speech. This SLAPP-suit is a parting-shot

against Hoboken residents after failed years-long political

operations. As revealed in litigation, Lane Bajardi was also a

ghostwriter from at least 2007 into the summer of 2011 for

political content on local website Hoboken411. The FBI was

invited in late spring of 2011 to investigate electronic

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communications massively stolen from the Mayor’s office.

Shortly thereafter, he went to ground and ceased his years long

political operative activities. The mayor’s stolen emails were

later discovered in Lane Bajardi’s email account and presented

at trial. Da55-60a; Da61-74a (Appendix, Defendant Pincus)

While Mr. Brice’s website with over 5,000 posts and

millions of views in seven years has never seen any defamation

allegation in the Plaintiff’s Complaint, their counsel Jonathan Z.

Cohen repeatedly tried to insert it into the litigation applying

excessive motion practice with the intent of harassing and

interfering with Mr. Brice’s political speech.

After a post-trial hearing, Hudson Superior Court granted

motions for frivolous litigation sanctions, ordering both

plaintiffs and their attorneys to pay varying amounts to

defendants for attorney’s fees and costs. Mr. Brice was awarded

$22,687. Plaintiffs did not challenge the reasonableness of the

fees sought.

Plaintiffs complain of defendants’ collective alleged

criminal cited defamation but can’t demonstrate Mr. Brice did

anything of the sort. Like the phantom allegation in paragraph

117 in Plaintiff’s Complaint against him, it doesn’t exist.

Based on the reasons herein, it is respectfully asked the

Court affirm the lower Court’s rulings in all respects.

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 PROCEDURAL HISTORY

Defendant adopts Plaintiffs’ and Defendants’ Procedural

History but wishes to add the following:

On March 25, 2011 Mr. Brice submitted a motion to

dismiss for three defamation allegation claims by Plaintiffs.

Pa253 The Honorable Judge Lawrence M. Maron dismissed the

allegation in Paragraph 117 of the Plaintiffs’ Complaint. Pa284

Noting the claim of alleged defamation against Mr. Brice

the judge wrote of Plaintiffs, “they did not provide the actual

statements which are alleged to be defamatory.” Subsequently,

the paragraph was dismissed without prejudice. Two other

statements on Lane Bajardi survived, one stating “support for

the corrupt and the Machine for his Beth Mason paycheck” and

the other calling him a “paid political operative” of Beth Mason.

Pa31-54 1

On August 5 t h , 2014 Mr. Brice submitted a motion for

summary judgment. Pa611 On September 11, 2104 the Court

dismissed all tort claims against Mr. Brice permitting two

comments to trial to determine if they were written with actual

malice. Pa31-54 The Court did not do a merit based evaluation

instead determining actual malice was a state of mind, not

1
A similar senior advisor to the spring 2009 Beth Mason campaign, Tom Bertoli offered in his
January 2014 deposition his belief the Plaintiffs were like him paid and held expectation of further
compensation of employment in a Mayor Mason administration. Pa350 11, Pa363 63-64

4
granting dismissal on summary judgement. At issue was Mr.

Brice’s alleged failure to investigate Plaintiff Lane Bajardi, if the

two statements were made with actual malice.

On December 9, 2015, a supplementary Motion for

Summary Judgment was filed by Defendant. Pa1429 The motion

was denied and the two comments continued to trial. Pa1430

At trial, on February 9, 2015 after Plaintiffs rested, a

motion by counsel for defendants moved for a 440-1. The Court

granted the Defendants’ request on February 10, 2015. Pa75

On July 8, 2016, the Court ruled on a motion by Defendant

Brice for sanctions and fees against Plaintiffs for $22,687. Pa81

All Plaintiffs’ counsel were sanctioned.

Additionally, back on January 2014, Mr. Brice submitted

approximately 11-day late responses to Plaintiffs’ Requests for

Admissions. The requests were served by Plaintiffs’ counsel

Jonathan Z. Cohen on Christmas Day in 2013. Mr. Brice neither

intended nor desired his answers be deemed affirmative. The

service occurred on the national holiday when many are away at

end of year celebrations.

Following a motion by Defendant Pincus before trial in

January 2015 to have her responses admitted nunc pro tunc as

timely by the Court, Mr. Brice followed offering a similar motion.

On January 9 t h , 2015, the Court granted his request. Pa66 That

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motion as in the case of Defendant Pincus’ earlier was opposed

by Plaintiffs’ counsel Jonathan Z. Cohen.

At the trial’s conclusion on February 10 t h , 2015 the Hon.

Judge Patrick J. Arre wrote of Plaintiffs lacking any evidence of

actual malice against Defendant Pincus. Quoting counsel for

Plaintiffs’ opposition to Ms. Pincus’ motion, he wrote:

If this Court permits Ms. Pincus to now “deny” Request

Nos. 14-21, Mr. Bajardi will face great difficulty in finding
substitute evidence to prove these matters. These
admissions are powerful evidence of Ms. Pincus’ fault in
publishing the defamatory statements about Mr. Bajardi.
Mr. Bajardi is not aware of other evidence showing that
Ms. Pincus “made no efforts to investigate” whether her
defamatory statements were true before making them.

Da24 Pa109

As a result, no actual malice was produced regarding

Defendant Pincus or any other defendant. Plaintiff’s belated

effort mid-trial to switch from an original punitive claim of

$2,000,000 to presumed damages failed as allegedly Mr. Brice’s

comments impugning his reputation as a journalist. Of this,

Plaintiff Lane Bajardi offered nothing. This proved true against

all Defendants.

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 STATEMENT OF FACTS

Defendant Roman Brice adopts the Statement of Facts in

the merit briefs of Defendants Mark Heyer and Nancy Pincus

adding:

Plaintiff Lane Bajardi is an overnight newsreader for 1010

WINS AM radio. 8T20-2-7 Both he and his wife, Kimberly

Cardinal Bajardi are politically active and connected political

operatives to former Hoboken Councilwoman Beth Mason.

Together, they acted in numerous operative roles working on

her campaigns as senior echelon kitchen cabinet senior advisors

and remote political operative endeavors. One such endeavor

involved digging up opposition research of believed adversaries

and Hoboken residents, collecting online employment/ home

information or at City Hall using OPRA requests. Another major

political operative function involved deploying the use of online

pseudonyms on Hoboken websites to exert political influence

affecting Hoboken voters as assigned by the Mason campaign as

part of their “duties.” Those efforts continued year-round.

Plaintiffs’ political operative examples for Beth Mason are

lengthy inclusive of their years long unemployment. Some are

highlighted in Defendant Pincus’ merit brief offering but not

limited to Plaintiffs’ writing portions of Beth Mason’s mayoral

platform, press releases, letters, strategy, acting as kitchen

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cabinet campaign strategists/political operatives. (Examples:

Da27, 9T42:6-47:4, Da28-29a, 9T47:14-48:8, Da34-35a, 9T48:9-

50:14, etc.)

Plaintiffs’ litigious appetite is self-evident going back

years. Around 2006 at a Hoboken Historical Museum auction,

former Hoboken Councilman Anthony Soares, associated with

the Reform Movement recounted being cornered by Mr. Bajardi.

In his deposition affirming his affidavit, he testified the Plaintiff

telling him, “Beth and I are going to own your condo.” Pa639 At

his July 18, 2014 deposition, Lane Bajardi was asked how many

times he had asked for legal “assistance” of Beth Mason and her

husband, Richard Mason to sue would be defendants. “I don’t

have an exact estimate” and “I don’t have an approximate

number,” he replied several times declining an answer. Pa402

Plaintiffs held no damages other than the loss of political

influence in election outcomes in Hoboken. They possessed no

evidence of harm whatsoever other than the political control

they wished to exert in Hoboken and stifle political opposition

to Beth Mason. The litigation well into its fifth year is part and

parcel of Plaintiffs’ continued efforts to harass and interfere

with Defendant’s political speech.

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 LEGAL ARGUMENT

Defendant Roman Brice adopts the merit brief legal arguments

of Defendants Mark Heyer and Nancy Pincus adding:

Point One

DUE TO THE UNDERPINNINGS OF THIS CASE DIRECTLY

CHALLENGING POLITICAL SPEECH HOLDING THE HIGHEST
RUNG OF PROTECTIONS IN NEW JERSEY, THE COURTS MUST
SHOW STAUNCH VIGILENCE IN UPHOLDING THESE RIGHTS
UNDER THE NEW JERSEY CONSTITUTION.
At its essence, this litigation far and away is a case of

abusing the Court to harass and interfere with Defendant’s

political speech for illegitimate political objectives and seeking

advantage in Hoboken political factionalism. New Jersey holds

political speech in the highest regard finding the State

Constitution offers 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

Co., 104 N.J. 256, 271 (1986).

Article 1 of the New Jersey State Constitution states:

“Every person may speak, write and publish his sentiments

on all subject, being responsible for the abuse of that right. No

law shall be passed to restrain or abridge the liberty of speech

or of the press.” N.J. Constitution, article 1, paragraph 6.

That guarantee is one of the broadest in the nation, see

Mazdabrook, supra 210 N.J. at 492 (citing Green Party v. Hartz

9
Mountain, Inc. 164 N.J. 127, 145 (2000)), and it affords greater

protection than the First Amendment, see Coalition, supra, 138

N.J. at 352. See also: Twin Rivers, supra, 192 N.J. at 356.

Notable to resident rights, the State of NJ enshrines

further protections under the reporter’s privilege or Shield Law.

Mr. Brice, as an independent investigative reporter embraced his

rights under that statute in his deposition where he was further

harassed by Plaintiffs’ counsel Jonathan Z. Cohen. Defendant

was asked to identify and give up a list of names of readers on

his email list connected to his website. As Defendant’s website,

the Hudson Mile Square View never saw any defamation

allegation, the clear intent was to harass and interfere with his

political speech. Pa2216 123-124

Without surrendering the reporter’s privilege upheld

dozens of times when he appeared as a witness in an unrelated

2013 Hoboken voter fraud case, Mr. Brice did state Defendant

Nancy Pincus was not a subscriber of his email group.

Nevertheless, the following month after his deposition and long

after the discovery period had ended, Plaintiffs’ counsel

Jonathan Z. Cohen would demand an email alleged between Mr.

Brice and Ms. Pincus containing a story written to his email list

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titled, “If Truman gave them hell in Hoboken.” The subsequent

Plaintiffs’ motion was denied by the Court. Pa56 2

Point Two

JUDGE PATRICK J. ARRE DID NOT ERR IN GRANTING

DEFENDANTS’ MOTIONS FOR SANCTIONS. PLAINTIFFS’
COMPLAINT WAS ALWAYS FRIVOLOUS AND THE COURT
ACTED PROPERLY IN ITS DISCRETION Pa79-1161
Judge Arre acted properly in issuing sanctions for this

frivolous litigation. Defendant Brice complied with all

requirements under R. 1:4-8, sending by email and certified mail

a detailed “safe harbor” letter explaining why the Complaint was

always frivolous. By intent, the Plaintiffs’ Complaint was

frivolous and filed for the purpose of harassing Defendant Brice

and chilling his constitutional rights to political speech. By

extension, the core frivolous action and direct interference to

his website, the Hudson Mile Square View was an intended

byproduct of the SLAPP-suit.

Case record shows the Plaintiffs falsely stated proofs of

reputational harm existed. This as the Court noted was within

their “purview to assess” when they brought the case to counsel.

Pa81-116 Plaintiffs did not as they claim rely on the advice of

counsel. This clearly differentiates this litigation from

2
Defendant adopts the entirety of the facts contained in the briefs of Defendant Mark Heyer and
Defendant Nancy Pincus. References are noted herein.

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McKeown-Brank, 132 N.J. 546 (1993), relied upon by Plaintiff.

Pb23-24.

Surviving summary judgment in a defamation matter as

here on what proved to be non-existent proofs is not a high bar,

especially when stated proofs are claimed and at trial, never

provided. Plaintiff Lane Bajardi saw two Defendant comments of

his 170-paragraph Complaint survive to trial due to his counsel

telling the Court there would be adequate proofs provided

connected to his employment and reputational harm. No such

proofs were ever served in discovery nor presented at trial. This

SLAPP-suit is thus not comparable to United Hearts v. Zahabian,

407 N.J. Super 379 (App. Div), cert. denied, 200 N.J. 367 (2009)

Pb22-23

Judge Arre properly dismissed the Complaint when

Plaintiffs rested due to the utter lack of proof at trial. Plaintiff

Lane Bajardi was required to prove actual malice by clear and

convincing evidence. He failed to satisfy the legal standard

instead offering none. Plaintiff had every opportunity to present

proofs and witnesses in a two and half year litigation and six-

day trial. Not a single material witness was presented connected

to his employer. In failing to do so, a consistent pattern is seen

from Defendant’s April 11, 2014 motion to dismiss with Plaintiff

claiming professional conflict due to Defendant’s comments. No

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such proof followed the motion to dismiss, the summary

judgment or at trial. The Court was subjected to what was

described appropriately by Judge Arre on July 8, 2015 as

Plaintiffs’ actions to “perpetrate and perpetuate a SLAPP-suit

disguised as a defamation case….” Pa104

“Rather, Plaintiffs acted in bad faith and continually

pursued claims with no basis in fact, while
misrepresenting the facts to their counsel and to the
Court. Plaintiffs’ conduct throughout this case at minimum
demonstrates bad faith, and approaches a fraud upon the
Court.”
Pa113

Central to this the calamitous litigation inflicted on

Defendants, in his July 16, 2014 deposition, Lane Bajardi was

questioned about his supervisor at 1010 WINS and pointedly

asked, “Has Mr. Mevorach told you that he reads Hoboken Patch,

MSV (the Hudson Mile Square View) or (Grafix) Avenger? Mr.

Bajardi’s telling one-word answer: “No.” Pa398 Defendant’s two

comments on Hoboken Patch were never defamatory.

Plaintiffs had no basis to claim damages due to defendant’s

two comments on a Hoboken Patch political blog but did so to

inflict vengeance using this litigation to harass and chill his

speech and pursue claims they could not prove.

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 A. DEFENDANT FULLY SATISFIED REQUIREMENTS OF
R. 1:4-8 Pa1431
Judge Arre did not err in granting frivolous litigation

sanctions. To the procedure, Defendant Brice met the

requirements, principally sending a detailed “safe harbor” letter

explaining why the Complaint against him was frivolous. As a

point of fact, the Plaintiffs’ Complaint was always frivolous and

filed with the intent of harassing Defendant and his well-read

website covering Hoboken government for the expressed

purpose of chilling his constitutionally protected free speech.

From inception through trial, the case record reveals Plaintiffs

falsely claimed proofs of reputational harm existed where none

were ever provided. 3

Under R. 1:4-8 Defendant must “provide written notice and

demand setting forth with specificity the basis for defendant’s

belief that plaintiff’s claim was frivolous.” Pb24-25 Plaintiffs

claims defendants inclusive of Mr. Brice do not satisfy the

requirements of R. 1:4-8. This is simply inaccurate.

After the summary judgment decision in September 2014

more than two years into the litigation, Plaintiffs provided no

proofs supporting their damage claims. In Defendant’s December

12, 2014 safe harbor letter to Plaintiffs’ counsel Jonathan Z.

Cohen, the facts were specifically detailed to Plaintiffs:

3
Defendant safe harbor letter appendix: Ba1-4

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 “Even as the court has dismissed one plaintiff and most of
the remaining allegations of the other, this litigation and
the cost in time and resources has continued. There’s no
basis for it as the political operation has failed and the
claims as filed in July 2012 are frivolous. The obvious fact
your clients have not and cannot show a single, coherent
proof of damages is further evidence this litigation is
improper, was failed in bad faith and is a SLAPP.”
Pa1433

Defendant Brice’s point on Plaintiffs lack of damages accurately

addressed in specificity foreshadowed the demise of the

Plaintiff’s entire Complaint at trial. At no time were any

required proofs rendered in any capacity, not at the inception of

the litigation nor through trial. As Defendant continued in the

safe harbor letter:

“The intent of this lawsuit was to chill speech and ensure

that the more than a dozen defendants and other residents
of Hoboken hesitate before daring to criticize
Councilwoman Beth Mason and her allies in the Russo
faction. So too, the admonition issued as Beth Mason said
herself in an October 2011 email when ordering her
political operative soldiers online to collect political
comments in Hoboken. In so doing, she approved the order
for the initiation of the SLAPP by Lane Bajardi and James
Barracato who she collectively referred to as “member of
our.”
Pa1433

Further Defendant bluntly informed Plaintiffs’ counsel Jonathan

Z. Cohen they held no legitimate claim against him invalidating
the two alleged defamatory statements:

“This lawsuit is clearly frivolous, initiated in bad faith for
improper purposes. Your clients have no legal claim
against Roman Brice.”
Pa1434

15
 Plaintiffs mistakenly claim Defendants did not show all

aspects of the Court’s eventual determination. This however is

not the standard. Mr. Brice submitted his safe harbor letter after

the Court rendered most of Plaintiff Lane Bajardi’s inert,

excising all tort claims and deeming him a public figure who

must satisfy the malice standard. Defendant’s safe harbor letter

met the specificity requirements. The properly served letter

consisted of almost four single-spaced pages, outlining detailed

background information, highlighting the material false

statements in the Complaint, discussed the frivolity of the two

counts and explicitly set forth why the purpose of the Plaintiffs’

were improper. The letter clearly cited to controlling law on the

first page of the letter. 1431a The same letter further pointed

out on the same page failure to withdraw the complaint within

28 days would see an application for sanctions made. 1433a

Citing the plaintiffs’ own email, they were quoted having worked

to “covering [Mason’s] flank” at Hoboken City Council meetings.

Pa1433a

In addition, the safe harbor letter detailed the actual

announcement of the lawsuit itself – by then Councilwoman Beth

Mason in a live Hoboken City Council meeting. On July 11, 2012,

Mr. Brice made one of his infrequent appearances during the

public portion and spoke to several issues concluding with a

16
follow-up to his earlier written requests to Beth Mason on

making public required tax information on her Mason Civic

League. He further inquired why political operatives were on the

payroll. Councilwoman Beth Mason’s immediate response was to

announce this civil litigation. “Mr. Brice,” she said is on “the

verge of some legal action.” The Plaintiffs’ Complaint was filed

exactly 15 days later. Pa1433

Both R. 1:4-8 and N.J.S.A. 2A:15-59.1 outline the process

and requirements for seeking and obtaining sanctions.

Defendant here, as all defendants met the requirements in their

specific safe harbor letter. 4

The December 12, 2014 letter meets the strict compliance

under R. 1:4-8 and N.J.S.A. 2A:15-50.1(b) as outlined in State v.

Franklin Sav. Account No. 2067, 389 N.J. Super. 272, 281 (App.

Div. 2006), Ferolito v. Park Hill Ass’n, Inc. 408 N.J. Super. 401,

409, App. Div.

Judge Arre correctly stated Defendant was not required to

“divine ultimate issues and the very cause of dismissal.” Pa93

Divining a later ruling on the malice standard was not as

Plaintiffs claim required. Defendant Brice explained in

specificity why the litigation was a SLAPP and met all the stated

requirements under N.J. law. Pa1431-1434.

4
Further illustration is cited in the Defendant Pincus brief, Dpb14-19.

17
 B. PLAINTIFFS’ COMPLAINT WAS BORNE OF BAD FAITH
INTENDING TO CHILL DEFENDANT’S SPEECH LACKING
ANY PROOF AS TO REPUTATIONAL OR PECUNIARY
DAMAGES PA97-116A
Plaintiff’s Complaint was not filed in good faith. The intended

purpose was always to harass defendants and to interfere with

the protected speech of Mr. Brice, other Defendants and

Hoboken residents commenting on local websites. This occurred

with Plaintiffs’ full knowledge they held no proof of reputational

harm or pecuniary damages. The Court agreed, properly holding

why these conditions were prevailing and ordering sanctions.

Pa97-116a

The Court upon outlining and seeing the conditions met for

sanctions explained why Plaintiffs argument under United

Hearts, supra, 407 N.J. Super. At 394. The cases were

fundamentally different. In United Hearts, the Appellate Division

found that “[a] pleading cannot be deemed frivolous as a whole

nor can an attorney be deemed to have litigated as a whole nor

can an attorney be deemed to have litigated a matter in bad faith

where… the trial court denies a summary judgment on at least

one count in the complaint and allows the matter to proceed to

trial.” 407 N.J. Super. At 394.

On July 8, 2015 Judge Arre addressed the relevant

components writing:

18
 “The opposing parties essentially argue that an attorney may
include multiple frivolous claims in a complaint, and if one
survives summary judgment based on misrepresentations to
the court as to outstanding discovery, than the attorney and
the clients are shielded from sanctions and attorney’s fees.”
Defendants argue the opposing parties… United Hearts is
distinctly different from this case in numerous critical ways.
Here Plaintiffs filed a 170 paragraph Complaint. The entirety
of Kimberly Cardinal Bajardi’s claims were dismissed at the
summary judgment stage, and all of both Plaintiff’s tort
claims were dismissed. The opposing parties argue that
because two motion Judges denied summary judgment on one
count of Plaintiffs’ Complaint and allowed it to proceed to
trial this Court cannot find that any part of the Complaint was
frivolous for purposes of sanctions. The remaining claims in
Plaintiffs’ Complaint were for defamation and defamation per
se. These claims only narrowly survived Judge Vanek’s and
Judge Maron’s summary judgment rulings based on
representations by Plaintiff’s counsel, Gibson and Cohen, that
discovery would lead to evidence demonstrating Mr. Bajardi’s
damages and the Defendant’s actual malice.

In addition, the Court then states, “… no evidence of this [a]

warning or damage was ever produced.”

In essence, the court demonstrated this litigation survived

from the motion to dismiss and summary judgment stage due to

the misrepresentations of Plaintiffs to produce promised

evidence. Unlike United Hearts where a single claim was

withdrawn negating a trial, Plaintiffs’ plowed forward with no

evidence whatsoever even with ample opportunity to do so at

trial. The Court properly found the Plaintiffs had the ability to

19
assess alleged damages, ones they would never produce to their

counsel or the Court. 5

Further illustration of this frivolous litigation is highlighted

by Judge Arre demonstrating Plaintiffs were not passive actors

but clearly motivated for political purposes to harass and inflict

malicious injury.

In this case, the heart of Plaintiffs’ claims were economic and reputational
damage. Plaintiffs’ here did not simply rely on advice of counsel when
bringing their claims. This is not a case where the attorney evaluated a
basis for a claim in the law. Rather, it is a situation where the clients
represented to the attorney that they suffered reputational and pecuniary
damage- something that is particularly within their own purview to
assess. Plaintiffs represented to their counsel that damages existed as a
result of the alleged defamatory conduct. No proof of damages was ever
presented. Allegations regarding intentional infliction of emotional
distress, tortious interference, and defamation from eleven anonymous
screen names went completely unsupported and were dismissed.
Plaintiffs’ tort claims rested on Defendants allegedly “damaging Plaintiffs’
reputations,” no evidence of which was ever presented. Additionally,
Plaintiffs were not forthcoming as to the extent of their political
involvement both on the internet and in person. Gibson’s response to
Plumb’s Rule 1:4-8 letter confirms as much. Plaintiffs remained publicly
and actively involved in Hoboken’s political discourse. For example,
[Lane] Bajardi presented himself at various public gatherings advocating
for the political position of Councilwoman Mason, and remained deeply
involved controversies, specifically the ones that were the subject of
Defendants alleged defamatory statements. Not only were the Bajardis
acting as limited public figures, but the issues upon which they predicated
their claims were matters of public concern. Therefore, the Court finds
the Bajardis’ claims were frivolous, were pursued in bad faith, and with
the purpose of harassment, delay, and malicious injury, in violation of
N.J.S.A. § 2A: 15-59.1.

Pa112-113a

5
See Defendant Pincus Dpb19-25

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 In turn, Plaintiffs were not passive actors led by or reliant

on counsel but highly motivated political partisans pushing their

litigation to a trial while lacking any evidence to support their

claims. They took as many Hoboken residents as far along in this

frivolous litigation as they could as part of their motivation to

inflict injury on what they viewed as political opposition. They

could not produce any evidence of actual malice by Defendant

Brice because none existed and thusly, could not be shown at

any time in the litigation or at trial.

As seen, Judge Arre did not err in holding Plaintiffs’

personally responsible and issuing sanctions and attorney’s fees.

C. PLAINTIFFS’ COMPLAINT SURVIVED MOTION TO

DISMISS AND SUMMARY JUDGEMENT DUE TO PROOFS
PROMISED BUT NEVER PROVIDED AND WAS ALWAYS
KNOWINGLY FRIVOLOUS PA101
Plaintiff’s Complaint survived Defendant dismissal for one

reason: promised proofs never submitted. Plaintiff’s reliance on

United Hearts, supra, that surviving defendant motions meant

their underlying claims were always legitimate is ill-conceived,

propped up by hearsay and misrepresentations to the Court. 6

Defendant was denied dismissal from the case largely on

unsubstantiated grounds that harm would be shown by Plaintiff

6
See the exchange between Judge Maron and Plaintiffs’ former counsel Whitney Gibson,
Defendant Pincus brief: Dpb31.

21
Lane Bajardi in his employment and as a journalist. No such

proofs however were ever forthcoming. Judge Vanek concluded

the statement by Defendant Brice [paragraph 35] would satisfy

this requirement “if the appropriate proofs are submitted.” Pa32

As a result, Plaintiff Lane Bajardi always knew he lacked the

appropriate proofs as he submitted none; not in the summary

judgment and not in the six-day trial.

United Hearts, supra is easily differentiated from this case. Of

the Plaintiffs’ 170-paragraph Complaint, all of one (Kimberly

Cardinal Bajardi’s) were dismissed in summary judgment, and

all of Plaintiffs’ tort claims. Pa23-54 Plaintiffs’ Complaint

launched allegations against multiple defendants with a long list

of allegations on separate occurrences and legal theories. In

United Hearts however, the claims were based on one action, not

a common legal theory and were not derived in each other. This

litigation is more aligned to Partington v Panariello, supra. In

that case the trial court granted partial summary judgement on

seven of the eight claims, distinct from the one outstanding

count.

Plaintiffs elected to make only generic conclusions to

“reputational damage” without ever producing anything

resembling evidence in the litigation or at trial. Pa133-167a

Judge Arre highlighted Plaintiffs “did not simply rely on their

22
attorney’s review of the documentation and interpretation of the

law when pursuing their claim to collect on a judgment.” Pa104

Plaintiffs as a matter of course submitted nothing by way of

actual malice, reputational harm or pecuniary harm. In so doing,

Plaintiffs managed to stave off summary judgment and see

Defendants inflicted with unnecessary costs in the hundreds of

thousands of dollars in attorney’s fees and costs. Pa105a

To highlight a more complete view, Lane Bajardi remained a

limited public figure, a designation he very likely anticipated as

he certified seeking out double digits in attorneys but could not

find one in New Jersey to take his case. Bajardi remained a

limited public figure on the issue of political factionalism in

Hoboken even after his claimed withdrawal from politics.

“[O]nce 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. Berkery v. Kinner, 397 N.J. Super 222, 228 (App.

Div. 2007).

Plaintiff Lane Bajardi only survived to trial against Defendant

Brice because he misrepresented he would submit evidence of

reputational and/or occupational harm. At trial, Bajardi would

produce no proof of any kind. Pa32 1T:26:6-27:24.

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 D. JUDGE ARRE ACTED PROPERLY UNDER CORRECT
DISCRETION IN ORDERING PLAINTIFFS TO PERSONALLY
PAY FOR THIS FRIVOLOUS LITIGATION PA111-116A
Judge Arre did not abuse his discretion in ordering Plaintiffs

to personally pay frivolous litigation sanctions as indicated

earlier. Under his examination, observation and discretion he

acted appropriately. 7

The New Jersey courts permit latitude for judges to

properly act, as here, where frivolous litigation is perpetuated.

Judge Arre properly showed Plaintiffs manipulated counsel and

the Court to perpetuate a SLAPP-suit to chill defendants’ free

speech critical of Plaintiffs, their certified multiple personalities

online and Hoboken Old Guard allies. Their asserting that

attorneys representing them believed they were entitled to

“monetary compensation for their damaged reputations” is

purely historical revisionism. Pb36. At trial, Plaintiff counsel

only then belatedly admitted they were in position to seek

nominal damages. 12T82:17-25. 8

Lacking any definitive proofs to establish defamation

against Defendant, Plaintiffs simply kicked the can down the

road as far as they could for as long as they could. Without

evidential ability to tie-in Defendant’s two comments to his

employment or reputational harm or pecuniary damages, the

7
See Enright v. Lubow, 215 N.J. Super. 306, 313-14 (App Div.), certify. denied, 108 N.J. Super.
193 (1987)
8
The exchange between Jonathan Z. Cohen and the Court is illustrated at Dpb35-36

24
case against him and other Defendants collapsed upon itself. The

veil once lifted from the Plaintiffs’ Complaint showed

demonstrably their true nature and intent: to perpetuate a

SLAPP-suit and hinder Defendants’ First Amendment rights. See

Lobiondo v. Schwartz, 323 N.J. Super. 391, 424 (App. Div. 1999)

showing this violation constitutes a “special grievance” as it

sought to shut down online political speech of Defendants. This

was pointedly what Plaintiffs’ sought and believed beneficial to

themselves, Beth Mason and Hoboken Old Guard allies.

Point Three

JUDGE VANEK DID NOT ERR IN GRANTING PARTIAL SUMMARY

JUDGMENT TO DEFENDANT PA22-54
Judge Vanek did not err in granting partial summary

judgment to Defendant. Plaintiffs as they falsely apply a blanket

application of alleged defamatory criminality to statements and

Defendants, similarly attempt a narrative that the screen name

“prosbus” is a misidentification at the heart of the litigation.

Defendant Brice merely inferred such a screen name to Lane

Bajardi but not any specific action other than his one comment.

Defendant as part of a larger satiric comment on a resulting

criminal trial of a Mason political operative referred to multiple

screen names all sharing support for the Hoboken Old Guard

25
faction. Pa53 In paragraph 110 of the Complaint, Defendant

commented on Hoboken Patch.

“The Judge described the testimony of Matt Calicchio as

“garbage.” No matter what Beth Mason’s other paid political
operative Lane (prosbus/Madison Monroe/et al) Bajardi has to
say about his fellow Mason paid political operative Matt
Calicchio, the judge’s comments speak for themselves even if the
prosecutor lacked the evidence for a conviction.”
The portion of the statement paid political operative went

ahead to trial, nothing further. As Judge Vanek detailed in such

usage by Defendant Pincus, “[a] reasonable person

reading…would conclude… opinion since it is obvious to the

reader that the use of an internet pseudonym cannot be

established as true or false unless the author admits to using the

name.” Pa42 That Defendant construed the possible usage of

Lane Bajardi to a host of screen names generally as inferred

proved correct. 9 Thus the Defendant’s comment relating a larger

comment about Lane Bajardi and his alleged varied use of screen

names is not only true but substantially true. These screen

names shared a common aspect: consistent support for the

Hoboken Old Guard faction and by extension Councilwoman Beth

Mason and a hypercritical antagonism toward the Hoboken

Reform Movement and Mayor Dawn Zimmer. As such, the

indirect reference to Lane Bajardi and the screen name prosbus

9
In his July 2014 deposition, Lane Bajardi admitted to using four screen names seen in his emails
under his own blog posts on Hoboken411 alone. Additional names were further identified but
Defendants never conclusively identified all of them. Pa404

26
are derivatively consistent with one another but are not

susceptible to a defamatory meaning. Pa22-54a.

As a general rule, a statement is defamatory if it is false,

communicated to a third person, and tends to lower the subject

in the estimation of the community or to deter third persons

from associating with him. Lynch v New Jersey Educ. Ass’n, 161

N.J. 152, 164-65 (1999). As seen here, this was never

demonstrated and not with actual malice as required. Plaintiff

Lane Bajardi failed at every turn to demonstrate any evidence

whatsoever against Defendant Brice other than dragging his two

comments on Hoboken Patch into this almost five-year frivolous

litigation. The comments could never be found defamatory as

they were political speech directly connected to public issues of

public concern.

There were a multitude of comments on Hoboken Patch by

screen name prosbus. The comments often mirrored another

screen name “curious gal.” Both screen names were commenting

frequently taking numerous positions in favor of the Hoboken

Old Guard and former Councilwoman Beth Mason and against

Hoboken Reform. Thus, Defendant repeatedly stated in his

deposition there was only a “possibility” Plaintiff commented

under the screen name. 2194a More importantly, an attempt to

27
revive this litigation under false light as another cause of action

is inoperable. 10

Judge Vanek also wrote of the tie-in requirement if

Plaintiff Lane Bajardi could show “as a journalist and

purportedly has the obligation to remain neutral and uninvolved

in politics in order to remain credible to the community that he

reports to.” Pa32 This as seen, Lane Bajardi failed completely to

do. In dismissing Plaintiffs’ tort claims against all Defendants,

Judge Vanek acted properly as here again, there was no evidence

whatsoever to support the allegations.

A. PLAINTIFFS’ CLAIMS FOR DEFAMATION PER SE ARE

INADEQUATE UNDER NJ LAW FOR ISSUES OF PUBLIC
INTERESTS PA22-54A
Plaintiffs claim for defamation per se fails as under NJ law

it’s not available in matters involving public concern/interest. 11

As here, the issue of Hoboken’s raucous political factionalism of

which Lane Bajardi was a key player thereby eliminates the

claim. The applicable case is Rocci v. Ecole Secondaire

MacDonald-Cartier, 165 N.J. 149, 160

The issue in Rocci was viability of presumed damages

when the public interest is implicated in a defamation case. That

10
See Dpb44 why Plaintiffs’ attempt to restart a new cause of action is inoperable.
11
For the fully outlined legal proposition of Rocci, see Dpb44-48.

28
instance as here involve issues of the public interest, that one

involving schools and in this litigation, political operative

compensation. Both are valid. In Hoboken, the past and present

issue of Beth Mason funding the Old Guard factionalism vs. the

Reform Movement is central to the political schism operating in

earnest over the past decade and especially prevalent since 2009

when Plaintiffs’ operated at their height as Mason political

operatives.

With Hoboken’s bitter political factionalism running non-

stop and Plaintiffs participating in a daily war behind the public

microphone and anonymously online in the Hoboken

blogosphere, the mounting questions on how the public interest

is impacted was part of the swirling tornado sweeping the Mile

Square City, City Hall and the entirety of Hoboken. Commenting

was especially heavy on Hoboken Patch and Defendant’s website

but the former saw incomprehensible back and forth public

interest arguments running hundreds of comments long on

occasion over weeks. Mr. Brice’s one comment on Hoboken Patch

appeared within dozens and another statement appeared

hundreds deep, well over 600 deep in the back and forth

political commenting on a multitude of topics beyond the

original blog post of the freeholder election. Pa855

29
 As the alleged defamatory statements are directly centered

to the public interest, so too the higher standard Plaintiffs were

required to be met. Here, the requirement to prove reputational

or pecuniary harm and actual malice by clear and convincing

evidence is mandatory. Plaintiffs utterly failed to produce any

such proofs and nothing as to actual malice.

B. LANE BAJARDI IS A LIMITED PUBLIC FIGURE, AND FOR

PURPOSES OF THIS LITIGATION MUST PROVE ACTUAL
MALICE WHICH HE UTTERLY FAILED TO DO AT TRIAL
Both Judge Vanek and Judge Arre correctly determined

Lane Bajardi is a limited-purpose public figure. As a result, Lane

Bajardi was required to prove actual malice by a preponderance

of clear and convincing evidence at trial, which he completely

failed to do.

The question of determining if someone is a public figure

is a question of law for the Court. Hill v. Evening News, Co. 314

N.J. Super. 545 (App. Div. 1998); Barash v. Soho Weekly News,

Inc., 208 N.J. Super. “Once a person becomes a public figure in

connection with a controversy, that person remains a public

figure thereafter for purposes of later commentary or treatment

for that controversy.”

It’s not questionable that Lane Bajardi is a limited-

purpose public figure because he placed himself as a self-

declared “soldier” for Beth Mason and her Old Guard allies into

30
scores of issues of public concern within the Hoboken political

divide. Plaintiffs continue to this day to misrepresent his status

in Hoboken politics positing Lane Bajardi as a private citizen

who held interests to only issues and was an infrequent

community volunteer to Beth Mason’s campaigns and her final

council re-election campaign in May 2011. This legal position

contrasts in the face of the enormous efforts Lane Bajardi spent

seeking to advance her political career “covering” her “flank”

over years. Lane Bajardi was central to an ongoing “public

controversy,” the tenet elevating him to public figure status. The

massive record of this case is replete with Lane Bajardi working

at all hours, especially through his years of unemployment to

see Beth Mason and her Old Guard allies prevail over Mayor

Dawn Zimmer and her budding reform oriented alliance. Unlike

Defendant who has on occasion criticized and publicly taken

issue with the mayor on various public issues, Lane Bajardi toed

the line for Beth Mason no matter how strained her political

situation. Dpb Da27-54a; Da75-78a

Mr. Bajardi remained a limited-purpose public figure on

the issue of political factionalism due to his visible political

appearances in scores of City Council meetings aired on local

television, his daily and weekly ghostwriting articles on

Hoboken411 where he held sway over political content for years

31
and his online commenting and letter endorsements which are

legion among numerous political activities.

Judge Vanek correctly viewed this mountain of evidence,

most in Lane Bajardi’s own voice and name (videos and emails)

and his role in this “particular controversy:” Hoboken

factionalized-polemic politics. That Lane Bajardi pointedly and

voluntarily was a willing participant presenting himself as same

to the Hoboken public. 12 Therefore, Lane Bajardi remained a

public figure for all his major contributions to Beth Mason, her

Old Guard allies and his direct role in the public controversy of

political factionalism in Hoboken politics. The issue is clearly

specific to a public interest controversy and the Court correctly

determined same. Pa47-49. Plaintiffs attempt to argue a more

limited role is somehow more encompassing on determinations

to public figure status while Lane Bajardi inserted himself into

multiple issues for political objectives on almost every single

matter of public concern before Hoboken for years. This is

plainly nonsensical and an unreliable methodology for the

Court’s determination.

As such, Judge Arre did not err in correctly upholding Lane

Bajardi’s public figure status requiring him to demonstrate

12
Extensive examples and a further delineated outline of Lane Bajardi’s public figure status is
seen in Dpb49-53.

32
actual malice. Judge Arre benefitted from being witness to

numerous trial exhibits of Lane Bajardi in Hoboken City Council

meeting videos and self-authored emails where the Plaintiff

himself delved into excruciating details on scores of Hoboken

issues and factionalism in the controversy of local politics. To

wit, Lane Bajardi is a limited public figure, and is required to

prove actual malice. 13T11:22-32:23

Point Four

JUDGE ARRE DID NOT ERR IN RULING THAT LANE BAJARDI

WAS REQUIRED TO PROVIDE PROOF OF DAMAGES TO
REPUTATION 13T3:1-32:23
Judge Arre did not err in ruling that Lane Bajardi was

required to provide proof of reputational harm or pecuniary

damages. Plaintiff’s standing as a limited-purpose public figure

on the issue of political factionalism in Hoboken’s ongoing battle

of the Old Guard vs. Reform is a matter of public interest. This is

borne out by Rocci, as discussed herein and more fully in

Defendant Pincus’ brief. See Dpb44-48.

Lane Bajardi was required to prove reputational harm or

pecuniary damages by clear and convincing evidence. It’s a

clear-cut standard but Plaintiffs do not remotely try to argue

was satisfied.

33
 Point Five

AS LANE BAJARDI IS A LIMITED PUBLIC FIGURE REQUIRED TO

SHOW DEFENDANT’S STATEMENTS WERE MADE WITH
ACTUAL MALICE, ALLEGED FAILURE TO INVESTIGATE ALL
SOURCES DOES NOT SATISFY THE ACTUAL MALICE STANDARD
As a declared limited-purpose public figure by the Court,

Lane Bajardi needed to prove his claims against Defendant with

clear and convincing evidence. While injecting himself into every

conceivable Hoboken issue with clear factionalism, Plaintiff

finds himself with a burden he has not remotely met.

Simultaneously, it is Plaintiff who elevated himself to the

standard as he “voluntarily injects himself… into a particular

public controversy.” Gertz v. Welch, 418 U.S. 323, 342 (1974).

Plaintiff clearly injected himself seeking to aid Beth Mason’s

political career and as he himself described “covering” her

“flank.” In so doing, after years of his public participation

behind the microphone at council meetings, online ghostwriting

political stories for Hoboken411 and all manner of political

operative activities online and off for Beth Mason; it may be

more difficult to identify an issue in the Hoboken factionalist

divide Lane Bajardi did not assert himself - and loudly.

As Judge Arre described, the political factionalism in

Hoboken is a “real dispute” and as here, one Lane Bajardi acted

as master of ceremonies. In the run-up to this litigation, Plaintiff

far and away elevated himself to the Court’s essential definition

34
of a public figure. Further complicating the Plaintiffs position,

Defendant’s remarks were central to enflaming the controversy

at hand, bearing then the separate and distinct requirement of

proving actual malice. The higher standard for issues of public

concern elevates the defamation claims further, “a strict and

high burden of proof to establish actionable defamation.” Sisler,

104 N.J. at 275, 516 A.2d 1083. Further, when Plaintiff belatedly

pursued defamation per se, he was required to show Defendant’s

statements tie-in to his employment. Again, Plaintiff failed to

provide anything in the way of proofs or effectively impacted in

his job in any respect.

Plaintiffs raise the allegation Mr. Brice did not investigate

Mr. Bajardi in making two alleged defamatory statements. This

in actuality is not the case and was referenced in his August

2014 sur reply but not detailed to the specificity provided in his

deposition the prior month. Mr. Brice in his years long reporting

capacity in Hoboken had literally interviewed and spoken to

scores of elected officials, city and county officials, the public

and other reporters on the Hoboken beat on the topic of Mr.

Bajardi’s looming presence in public and behind the scenes

political activities. At his deposition, Mr. Brice offered detailed

35
findings to the questions circling Mr. Bajardi’s involvement in

Hoboken’s factionalist divide in his investigative reporting. 13

“Beth Mason, as I said previously, is known for splashing

money around everywhere. I’ve spoken to almost every
single person in Hoboken politics. I’ve spoken to people
outside of Hoboken who extensively cover Hoboken
politics. Everybody is under the belief that most of the
people that have been affiliated with Mason at some time
or another, if they’re a political operative for her, they
assume that they’re being paid.”
Pa2210

In the same deposition Mr. Brice further stated,

“…his [Bajardi] role as a senior advisor to the Beth Mason

campaign is well known. It’s well known to all the political
writers in the area. Those political writers all assume that
Beth Mason – from my conversations with them, they
assume that somebody of Lane’s skill and the amount of
time and attention that he’s given to all these aspects of
Hoboken politics for Beth Mason, that he’s paid. No. Is
there something wrong for a political operative to be paid?
Absolutely not.
Pa2211

That Defendant did no formal investigation on Lane Bajardi is of

no consequence. He spoke to everyone in the context of his work

as a citizen journalist reaching his conclusions through his

regular investigative reporting. As Plaintiffs allege lack of

investigation by Mr. Brice to all sources, this too is not the legal

standard. 14

Plaintiffs rely on an incorrect standard in the face of the

actual evidence Mr. Brice obtained reasoned conclusions based

13
The July 17, 2014 deposition is one of two Mr. Brice provided with the other in August.
14
See case citations Lynch and Costello, (Defendant Heyer brief) Dhb41

36
on investigative reporting in Hoboken and Hudson County. In so

doing, the burden on Plaintiffs was to show actual malice with

required clear and convincing evidence against Defendant.

Plaintiff Lane Bajardi only survived a motion to dismiss

and summary judgment of Defendant based on his false

representations there was evidence of his two statements

affecting his employment and reputation as a journalist. No such

proofs were ever presented in an obvious effort to drag Mr.

Brice with other Defendants through this years-long litigation.

CONCLUSION

Based on the foregoing, it is respectfully asked that the

Court affirm the lower court’s ruling in all respects.

Respectfully submitted,

Attorneys for Roman Brice

By:

Alexander W. Booth, Esq.

December 27, 2016

37