lane bajardi and kim cardinal bajardi litigation- pincus' motion for summary judgment

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Michael K. Plumb, Esq. Carter Ledyard & Milburn, LLP 2 Wall St. New York, NY 10005 (212) 732-3200 Email: [email protected] Attorneys for Defendant Nancy Pincus ----------------------------------------------------------------x LANE BAJARDI and KIMBERLY CARDINAL BAJARDI, Plaintiffs, v. NANCY PINCUS and ROMAN BRICE and JOHN DOES 1-10, Defendants.

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SUPERIOR COURT OF NEW JERSEY HUDSON COUNTY LAW DIVISION Index No. L-3723-12 Civil Action

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MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT NANCY PINCUS’ MOTION FOR SUMMARY JUDGMENT

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TABLE OF CONTENTS

Page(s)

INTRODUCTION ...........................................................................................................................1

BACKGROUND AND FACTS ......................................................................................................4

A. Plaintiffs’ Early Work as Councilwoman Mason’s Political Operatives (2005-2007) .......5

B. Plaintiffs Worked as Political Operatives and Anonymously Wrote on Behalf of Councilwoman Mason in the 2009 Mayoral Election .........................................................9

C. Lane Bajardi Endorsed Mayor Cammarano and Publicly Defended Corruption the Day Before the FBI Arrested Cammarano for Accepting Bribes ..............................................13

D. Ms. Pincus Became Involved in Hoboken Politics, Commented on a Board of Education Decision to Decline Federal Funds and First Encountered Lane Bajardi .........14

E. Lane Bajardi Worked to Get Out the Vote in Councilman Occhipinti’s Potentially Criminal November 2010 Election Campaign ...................................................................17

F. Ms. Pincus Blogged About Voting Irregularities in the Occhipinti Election and Again Encountered Lane Bajardi..................................................................................................18

G. Councilwoman Mason’s Attempts to Obtain E-Mails Addressed to the Two Named Defendants and 10 Other Individuals Prompted an FBI Investigation into Stolen E-Mails ..................................................................................................................................20

H. Lane Bajardi Filed a Criminal Complaint In Response to Satire Published by Ms. Pincus, Further Publicizing a Long Running Public Dispute ............................................22

I. For Years Lane Bajardi Spoke at City Council Meetings to Promote Councilwoman Mason’s Political Career ....................................................................................................24

J. Internet Commenters Using Pseudonyms “prosbus” and “Curious Gal” Promoted Beth Mason and Criticized Nancy Pincus in the Same Manner as Plaintiffs Had Done Previously and the Comments Otherwise Appear to be Authored by the Plaintiffs ..........27

ARGUMENT .................................................................................................................................32

I SUMMARY JUDGMENT IS THE PREFERRED METHOD FOR DISPOSING OF DEFAMATION LAWSUITS ............................................................................................32

II PLAINTIFFS MUST ESTABLISH ACTUAL MALICE TO RECOVER DAMAGES BECAUSE THEY ARE PUBLIC FIGURES AND THE COMPLAINED OF STATEMENTS ADDRESS ISSUES OF PUBLIC INTEREST .......................................34

A. The “Actual Malice” Standard ...............................................................................34 B. Plaintiffs Are Public Figures in Hoboken Politics .................................................36

1. Plaintiffs have voluntarily participated in Hoboken politics with a purpose of influencing outcomes ...................................................................36

2. Plaintiffs Have Had Significant Exposure in the Press ..................................44

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3. Plaintiffs Have Access to the Press and Can Otherwise Counteract False Statements .............................................................................................45

4. Plaintiffs’ Past Conduct has Engendered Legitimate Public Response .........47

C. Lane Bajardi is a General Purpose Public Figure Subject to the Actual Malice Standard .................................................................................................................48

D. The Fair Comment Actual Malice Standard Applies to Statements Addressing Plaintiffs’ Roles as Political Operatives and Other Matters of Public Interest ......49

III STATUTE OF LIMITATIONS ................................................................................................51

IV THE COMPLAINED OF STATEMENTS ARE NOT DEFAMATORY ...............................52

A. The Content of the Complained of Statements Makes Them Non-Defamatory ....53

1. Statements that Are Not “Of and Concerning” Plaintiffs Are Not Actionable ......................................................................................................53

2. True Statements Are Not Actionable .............................................................53

3. Statements Not Susceptible of a Defamatory Meaning Are Non-Actionable ......................................................................................................56

B. Opinions and Similar Statements Are Unverifiable and Non-Defamatory ...........57

1. Opinion Is Non-Actionable Privileged Speech ..............................................57

2. Rhetoric and Hyperbole Are Non-Actionable Speech ...................................60

3. Insults Are Not Actionable Defamation.........................................................61

C. The Context of the Complained of Statements Makes Them Non-Defamatory ....62

D. Analysis of Each Complained of Statement is Necessary to Dispose of or “Pare Down” Defamation Complaints at the Earliest Possible Stage of Litigation ................................................................................................................65 1. Complaint Paragraph 28 ................................................................................65

2. Complaint Paragraph 31 ................................................................................68






8. Complaint Paragraphs 59, 62, 65, 71 and 74 .................................................84


10. Complaint Paragraphs 84 and 87 ...................................................................92

11. Complaint Paragraphs 99 and 100 .................................................................96

12. Complaint Paragraph 103 ..............................................................................98

13. Complaint Paragraph 118 ............................................................................100

14. Complaint Paragraph 121 ............................................................................103

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V THE COMPLAINED OF STATEMENTS DO NOT STATE CLAIMS FOR INTENTIONAL TORTS .................................................................................................107

A. The Complaint Does Not State A Cause of Action for Intentional Infliction of Emotional Distress ...............................................................................................108

B. The Complaint Does Not State A Cause of Action For Intentional Economic Torts .....................................................................................................................110

CONCLUSION ............................................................................................................................112

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TABLE OF AUTHORITIES

Page(s) CASES

Buckley v. Trenton Sav. Fund Soc'y., 111 N.J. 355 (1988) ...............................................................................................................108

Casamasino v. City of Jersey City, 304 N.J. Super. 226 (1997), rev’d on other grounds, 158 N.J. 333 (1999) ...........57, 60, 71, 75

Churchill v. State, 378 N.J. Super. 471 (App. Div. 2005) .....................................................................................51

Cibenko v. Worth Publishers, Inc., 510 F. Supp. 761 (D.N.J. 2006) .............................................................................59, 60, 61, 76

Dairy Stores, Inc. v. Sentinel Publ’g Co., 104 N.J. 125 (1986) ...........................................................................................................35, 49

DeAngelis v. Hill, 180 N.J. 1 (2004) ............................................................................................................. passim

Decker v. The Princeton Packet, 116 N.J. 418 (1989) ...............................................................................................................107

Dijkstra v. Westerink, 168 N.J. Super 128 (App. Div. 1979) ......................................................................................53

Ditzel v. Univ. of Medicine and Dentistry of New Jersey, 962 F.Supp. 595 (1997) .....................................................................................................53, 68

Durando v. The Nutley Sun, 209 N.J. 235 (2012) .................................................................................................................33

Edelman v. Croonquist, No. 09-1938, 2010 WL 1816180 (D.N.J. 2010) ....................................................58, 59, 61, 78

Ferraro v. Bell Atlantic Co., 2 F.Supp.2d 577 (D.N.J. 1998) ..............................................................................................110

G.D. v. Kenny, 205 N.J. 275 (2011) ......................................................................................................... passim

Griffin v. Tops Appliance City, Inc., 337 N.J. Super. 15 (App. Div. 2001) .....................................................................................108

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Hagaman v. Angel, No. ATL-L-2408-03, 2005 WL 1390360 (N.J. Super. 2005) ............................................61, 62

Higgins v. Pascack Valley Hosp., 158 N.J. 404 (1999) .................................................................................................................57

Hume v. Bayer, 178 N.J. Super. 310 (N.J. Super. 1981) .........................................................................108, 109

Hustler Mag. v. Falwell, 485 U.S. 46 (1988) .............................................................................................................64, 66

Ingraham v. Ortho-McNeil Pharmaceutical, 422 N.J. Super. 12 (App. Div. 2011) .....................................................................................109

Karnell v. Campbell, 206 N.J. Super. 81 (App. Div. 1985) .......................................................................................63

Lawrence v. Bauer Pub. & Printing Ltd., 89 N.J. 451 (1982) .............................................................................................................33, 36

LoBiondo v. Schwartz, 323 N.J. Super 391 (1999) .....................................................................................................107

Lynch v. New Jersey Educ. Ass’n, 161 N.J. 152 (1999) ......................................................................................................... passim

MacKay v. CSK Publishing Co., Inc., 300 N.J. Super. 599 (App. Div. 1997) .....................................................................................52

Maressa v. New Jersey Monthly, 89 N.J. 176 (1982) .......................................................................................................32, 35, 65

McLaughlin v. Rosania, Bailets & Talamo, Inc., 331 N.J. Super. 303 (App. Div. 2000) .........................................................................52, 63, 89

Miele v. Rosenblum, 254 N.J. Super. 8 (App. Div. 1991) .........................................................................................73

New York Times Co. v. United States, 403 U.S. 713 (1971) .........................................................................................................74, 106

Obendorfer v. Gitano Group, Inc., 838 F.Supp. 950 (D.N.J. 1993) ..............................................................................................110

Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739 (1989) .........................................................................................................52, 111

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Rocci v. Ecole Secondaire Macdonald-Cartier, 165 N.J. 149 (2000) .................................................................................................................50

Romaine v. Kallinger, 109 N.J. 282 (1988) ...............................................................................................56, 89, 91, 96

Rossi v. CBS Corp., No. L-1135-07, 2012 WL 2529357 (App. Div. 2012) .............................................................49

Salek v. Passaic Collegiate School, 255 N.J. Super. 355 (App. Div. 1992) ...............................................................................63, 66

Sisler v. Gannett Co., 104 N.J. 256 (1986) ...........................................................................................................35, 49

Snyder v. Phelps, 131 S.Ct. 1207 (2011) ..............................................................................................................58

Stevens v. Tillman, 855 F.2d 394 (7th Cir. 1988) ...................................................................................................58

Taylor v. Metzger, 152 N.J. 490 (1998) ...............................................................................................................108

Turner v. Wong, 363 N.J. Super. 186 (App. Div. 2003) ...................................................................................110

Van Englen v. Broadcast News Networks, Inc., Nos. CIV 96-2503, CIV 96-2583, 1997 WL 406267 (D.N.J. 1997) .............................................................................49, 59, 71, 75

Vassallo v. Bell, 221 N.J. Super. 347 (1987) ................................................................................................36, 49

W.J.A. v. D.A., 210 N.J. 229 (2012) ...........................................................................................................34, 52

Ward v. Zelikovsky, 136 N.J. 516 (1994) ...............................................................................................52, 56, 59, 61

Wilson v. Grant, 297 N.J. Super. 128 (App. Div. 1996) ...................................................................35, 62, 64, 88

STATUTES

18 U.S.C. 1001 ...............................................................................................................................77

47 U.S.C. § 230 ..............................................................................................................................97

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N.J.S.A. 2A:14-3 ............................................................................................................................51

U.S. CONST. amend. I ............................................................................................................ passim

OTHER AUTHORITIES

Blacks Legal Dictionary, 9th Ed. ...................................................................................................54

Merriam Webster On-Line Dictionary ...........................................................................................54

Websters Unabridged Dictionary, 2d Ed. ......................................................................................54

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Defendant Nancy Pincus, by her undersigned attorneys, hereby submits this

Memorandum of Law, along with the accompanying Certification of Michael Plumb, dated

January 2, 2013 (the “Plumb Cert.”), Affidavit of Michael Lenz, dated Oct. 8, 2012 (the “Lenz

Aff.”), Affidavit of Jake Stuiver, dated Oct. 18, 2012 (the “Stuiver Aff.”), Affidavit of Theresa

Minutillo, dated Oct. 9, 2012 (the “Minutillo Aff.”), Affidavit of Scott M. Siegel (undated) (the

Siegel Aff.”), Affidavit of Tony Soares, dated Dec. 27, 2012 (the “Soares Aff.”) and Affidavit of

Nancy Pincus, dated January 2, 2013 (the “Pincus Aff.”), in support of Ms. Pincus’ Motion for

Summary Judgment dated January 7, 2013.

INTRODUCTION

Plaintiffs have alleged that Ms. Pincus made 22 statements (the “Statements”) that have

defamed and otherwise injured them. The Statements are not actionable defamation because

each is (1) time barred, (2) true, (3) substantially true, (4) opinion, (5) not of-and-concerning

Plaintiffs, (6) non-defamatory, (7) satire, (8) rhetoric, and/or (9) hyperbole. The broad context of

the Statements is a long-running public dispute between the Plaintiffs and Ms. Pincus concerning

their respective roles in Hoboken politics. The linguistic context of the Statements is

opinionated and largely anonymous internet blogs. Ms. Pincus published most of the Statements

in her partisan political blog supporting Hoboken’s Mayor and Board of Education, and critical

of the Mayor’s primary political antagonist, Hoboken City Councilwoman Beth Mason, and Ms.

Mason’s political operatives – the Plaintiffs. One statement was within a single e-mail from Ms.

Pincus to 1010WINS. The remainder of Statements were published in the comment sections of

other blogs amidst heated exchanges between anonymous commenters addressing local political

issues. Reasonable readers understand that statements made in such contexts are opinion.

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As demonstrated at length herein, Plaintiffs are two of Councilwoman Mason’s political

operatives who voluntarily engaged in politics, relish public controversy, and have for years

engendered legitimate public interest in their political roles, thereby implicating the actual malice

standard for their defamation claims. E-mails authored by the Plaintiffs, the Plaintiffs’ public

statements, press reports, and other supporting documents attached to the accompanying

certification and affidavits demonstrate that Plaintiffs cannot establish the Statements which

assert facts, if any, were published with knowledge of their falsity – a requirement for public

figures like Plaintiffs to establish a defamation claim. Evidently aware of their insurmountable

burden of proof, and in a striking series of misrepresentations to this Court, in the Complaint the

Plaintiffs have repeatedly denied their roles as two of Hoboken’s most divisive and well-known

political operatives.

In addition to their defamation claims, Plaintiffs seek recovery for (1) intentional

infliction of emotional distress, (2) interference with prospective economic advantage, and (3)

interference with contract, all of which are based exclusively on the allegedly defamatory

statements. Plaintiffs may not recover damages for speech that is not actionable defamation and

may not end-run the statute of limitations or the actual malice requirements of their defamation

suit with additional tort claims sounding exclusively in defamation. Furthermore, Plaintiffs have

failed to state a cause of action for their economic tort claims by failing to identify a contract that

was breached, an economic advantage that was foregone, or an injury. Likewise, Plaintiffs have

failed to state a cause of action for their intentional infliction of emotional distress claims

because they have not identified either an outrageous act or an injury, two essential elements of

any such claim.

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Summary judgment is appropriate for disposing of defamation claims concerning

political issues at the earliest possible phase of litigation, because defamation lawsuits chill

speech and impose tremendous costs on defendants for exercising their First Amendment rights.

As is amply demonstrated in this brief, Plaintiffs have worked for years to advance the political

career of Councilwoman Mason. This lawsuit has already chilled speech in Hoboken during the

run-up to the November 2012 Board of Education election and is clearly intended to silence Ms.

Mason’s critics as her presumed 2013 mayoral campaign approaches.

The Complaint was also filed to abuse discovery, another improper purpose. For several

months in 2011, Ms. Mason led a City Council investigation seeking e-mails from the Mayor’s

offices addressed to the two named defendants and ten other individuals. At the same time, the

Mayor’s office reported to the FBI that it believed its e-mails were being stolen. After the FBI

raided City Hall and discovered e-mail theft from the Mayor and her staffers (discussed below),

the City Council closed Ms. Mason’s investigation. Now, Ms. Mason’s chief political

operatives, with her publicly acknowledged coordination,1 have instituted this frivolous

defamation lawsuit against the two named defendants and ten other individuals to abuse civil

litigation discovery to acquire the e-mails Ms. Mason could not obtain through her City Council

investigation. Plaintiffs have declined to withdraw their suit after being notified that it is

frivolous and filed for improper purposes.

The Statements are political, the Plaintiffs are political operatives, and the purpose of the

lawsuit is to silence opposing political voices and abuse discovery for political purposes.

Summary judgment at the earliest stage of litigation is the appropriate method for disposing of

this case and moving Hoboken’s political debates out of the courtroom and back to City Council

1 See Plumb Cert. Exh. A(14) (video of Councilwoman Mason threatening Defendant Brice at a City Council meeting with this lawsuit well before it was filed).

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meetings and blogs, where politicians and their operatives can win voters and City Council

majorities by adopting better ideas and more convincing arguments, rather than by silencing their

opponents with frivolous lawsuits.

BACKGROUND AND FACTS

The Plaintiffs and Ms. Pincus have a long history of antagonism stemming from their

divergent political beliefs and alliances. Ms. Pincus supports Hoboken’s reform candidates

(“Reform”) who seek to remove corrupt politicians from office and strengthen Hoboken’s public

schools. Plaintiffs are loyal and tireless political operatives for City Councilwoman and twice

failed mayoral candidate Beth Mason, a political aspirant with ever-shifting political allegiances

but currently aligned with the Mayor’s opposition. Both the Plaintiffs and Ms. Pincus are active

participants in Hoboken’s political community.

Hoboken politics, and its two bitterly divided camps, have been subject to recent

upheavals that require a brief introductory explanation.2 Bloggers typically refer to the “Old

Guard” or “Russo Faction” as the entrenched political interests that have, in the past, aligned

with Hoboken’s corrupt Mayors and the members of the Board of Education they support.

Corruption had been rampant in Hoboken under the Russo Faction. For example, in 2004 former

Mayor Anthony Russo admitted to extortion and mail fraud, and was sentenced to 33 months in

jail and ordered to pay over $330,000 in restitution. In 2009, Russo Faction appointee and

Hoboken Parking Director John Correa was indicted for conspiring to steal $600,000 from city

parking meters between June 2005 and April 2008. Also in 2009, Russo Faction Mayor

Cammarano was arrested and sentenced to prison for selling zoning variances for $25,000 in

2 All of Hoboken’s elected officials are Democrats, resulting in the unique monikers assigned to the various factions.

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cash. The current City Council Russo Faction members include Beth Mason, Tim Occhipinti,

Michael Russo (Anthony Russo’s son), and Theresa Castellano (Anthony Russo’s niece).3

Between 2006 and 2009, the Russo Faction lost the Mayor’s office, the majority of the

City Council and the majority of the Board of Education. Ms. Mason started her political career

aligned with Reform but before or during the 2009 Mayoral contests between Mason and Mayor

Zimmer, Mason had secretly re-aligned herself with the Russo Faction. An FBI surveillance tape

revealed Michael Russo explaining to an informant that in exchange for his support in her

mayoral candidacy, Mason had agreed to allow Russo to choose the Mayor’s three at-large City

Councilmen, giving Russo a veto-proof City Council majority and “total control” of Hoboken.

Plaintiffs’ work as Ms. Mason’s closest political operatives as she shifted allegiances from

Reform to the Russo Faction alienated a large segment of Hoboken’s political community. Long

before Nancy Pincus took an interest in politics, Plaintiffs were roundly criticized in Hoboken’s

political blogs for their political tactics employed in support of Councilwoman Mason.

A. Plaintiffs’ Early Work as Councilwoman Mason’s Political Operatives (2005-2007)

Going back to as early as 2004, Plaintiffs worked as political operatives in Hoboken.4 In

2005, they supported City Councilwoman Carol Marsh’s mayoral campaign against incumbent

Mayor Roberts. Plaintiffs attended political meetings, sought to help prepare Marsh for media

appearances, and made public appearances urging voters to support Marsh.5 At the same time,

an anonymous internet commenter using the moniker Red Haven provided in depth political

3 Evidence that this group constitutes the Russo Faction is discussed below. In short, Occhipinti’s election in 2010 gave the Russo Faction five City Councilmen, including the four above, who immediately voted to replace the President of the City Council with Ms. Mason based on their newly held majority. See Plumb Cert. Exh. X, Hudson Reporter, Ray Smith (Dec. 5, 2010) (“New council majority plans to pick new prez”). 4 Pincus Aff. Exh. 67 (Soares Aff. ¶ 2) (“I met Lane Bajardi sometime in 2004 when he was appointed by Mayor Roberts to a City Committee to stop a high-rise development behind his home. Lane Bajardi and his wife also were active workers on my 2005 re-election and served as advisors for debate prep, based on their professional knowledge and TV experience.”); Pincus Aff. Exh. 63 (Minutillo Aff. ¶ 1) (“I first met Kim Cardinal in approx.. 2005, she and her husband Lane Bajardi were in the inner circle of reform politics.”) 5 Pincus Aff, Exh. 64 (Lenz Aff. ¶¶ 11- 12).

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analysis of the Hoboken mayoral race using rhetoric and tone that matched Kim Cardinal’s

argument style, leading some to believe that Cardinal was Red Haven.6 After the failed Marsh

mayoral campaign, Plaintiffs stayed active in the Reform movement and helped to elect Reform

candidate Theresa Minutillo to the Hoboken Board of Education in April 2006.7 Even then, six

years ago, Plaintiffs were monitoring online comments and threatening to sue individuals who

were critical of their work as Beth Mason’s operatives.8

In October 2006, Ricky Mason (Beth Mason’s exceedingly wealthy husband) created the

Political Action Committee “Vote Hoboken.”9 Both Plaintiffs attended the first public Vote

Hoboken meeting, along with 75-100 Reform supporters. Lane Bajardi spoke at length on his

vision of future electoral success and demonstrating his undeniable ability to control a message

and a room.10 The clear purpose and effect of Vote Hoboken and its substantial financial

resources was to split the Reform effort to push Carol Marsh out of her 2nd Ward City Council

seat and clear the way for Beth Mason’s 2009 run for Mayor. With the Plaintiffs’ assistance, the

plan worked perfectly, and Reform effectively split between support for either Carol Marsh or

Beth Mason.11

In 2007, Kim Cardinal took an active role in the Board of Education election. The only

Reform member of the Board of Education at that time, Theresa Minutillo, personally reached

out to Ms. Mason and Kim Cardinal for their support because they had been with Reform for

“the long haul.”12 At the October 2006 “Kids First 2007” meeting, Kim Cardinal was tasked

6 Id. at ¶¶ 14-15; see also Pincus Aff. ¶ 4. 7 Id. at ¶ 16. 8 Pincus Aff. Exh. 67 (Soares Aff. ¶ 3). 9 The ELEC report is attached as Exh. UU to the Plumb Cert. 10 Pincus Aff. Exh. 64 (Lenz. Aff. ¶ 20). 11 Id. at ¶ 21. 12 Pincus Aff. Exh. 6.

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with cleaning up the list of potential candidates who sent their bios to her for revisions.13 In

January, Theresa Minutillo, the only sitting Reform/Kids First member of the Board of

Education, repeatedly e-mailed Kim Cardinal and Beth Mason requesting their participation.14

Kim Cardinal’s vocal participation at the Kids First 2007 meetings made it clear to Mike

Lenz (another political operative and former City Councilman) that she actually intended to sow

discord to keep Kids First from reaching consensus on a ticket. In response, Lenz scheduled a

meeting without the Plaintiffs, at which Kids First named four candidates (three of whom would

eventually win the election).15

Outraged at Lenz’s decision to exclude her, Kim Cardinal summoned several Reform

operatives to Beth Mason’s house where she vented her rage and then threatened to withdraw

Vote Hoboken’s support from the Kids First campaign.16 Despite Vote Hoboken’s sitting out the

campaign, the Kids First candidates continued to perform well. Days before the election, Lane

Bajardi contacted Kids First and offered Vote Hoboken’s support conditioned on the final effort

being conducted under his direction. Theresa Minutillo responded directly to Lane Bajardi to

thank him for Vote Hoboken’s endorsement stating: “Lane,… Thank You so much for your

endorsement. We very much look forward to working collaboratively with Vote Hoboken for

the success that we both expect to achieve on April 17th.”17 Lane Bajardi eventually coordinated

the get out the vote effort by Vote Hoboken’s paid workers, a group from Brooklyn under the

direction of Mussa Moore.18

13 Pincus Aff. Exh. 3. 14 Pincus Aff. Exh. 6, 11. 15 Pincus Aff. Exh. 64 (Lenz Aff. ¶ 24). 16 Id. 17 Pincus Aff. Exh. 15. 18 Pincus Aff. Exh. 64 (Lenz Aff. ¶ 25).

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Plaintiffs also participated as political operatives in the May 2007 City Council

campaign. They remained active in the Vote Hoboken PAC, supporting Beth Mason and two

other candidates in exchange for substantial financial demands. As Vote Hoboken’s financial

demands increased, the two other candidates severed ties, leaving Vote Hoboken representing

only Beth Mason. Lane Bajardi was zealously protective of this role.19

One pointed e-mail exchange during the 2007 election season illustrates the rift in the

Reform movement, verifies Mike Lenz’s depiction of Kim Cardinal’s role in the rift, verifies that

Lane and Kim were making political decisions for Ms. Mason, and illustrates the venomous tone

Lane and Kim bring to Hoboken politics while supporting Beth Mason. In April 2007, Kim

Cardinal sent an e-mail to Tony Soares (a former City Councilman who is active in Hoboken

politics), copying Beth and Ricky Mason, among others.20 Kim Cardinal wrote: “Dear Tony,

Please stop with your lies and hate-filled messages… Please stop taking everyone’s energy away

from helping their campaigns. Please, just stop.”

Tony Soares responded by stating that Kim Cardinal had been “trying to [politically]

assault me for months” and that “I haven’t quit anybody’s campaign or threatened anybody

either. Your small group and its actions are what divided this reform community. A community

that was strong in its unity, until you and a few others decided Russo was the power in this

town.”21

Lane Bajardi responded to the Soares e-mail with an all-bold, page long e-mail which

accused Soares of “anonymously posting for months that we (including Beth) have been ‘in

19 For example, when Mike Lenz wrote a letter to the editor of the Hudson Reporter endorsing the Reform candidates, including Beth Mason, Lane called Lenz to threaten a lawsuit unless he retracted his endorsement of Beth Mason. Pincus Aff. Exh. 64 (Lenz Aff. ¶¶ 27 – 29); see also Pincus Aff. Exh. 19 (“If Lenz really cared about Beth’s opinion of the letter he submitted, he would have sent it to her BEFORE sending it to the paper, not the other way around.”) 20 Pincus Aff. Exh. 19. 21 Id.

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league with the Russos’ with a ‘Secret Deal.’ It was your way of acting out… because you were

not party to our decision.” He then engaged in name-calling, a Bajardi tactic familiar to City

Council attendees, calling Soares a “novelty act” and a “poisonous human being who destroys

everything he touches” trying to “smear and sabotage” the Bajardis and Beth Mason. Despite his

earlier denial of a secret deal with the Russos (later confirmed by FBI surveillance tapes), Lane

Bajardi closed the e-mail by stating that he was tired of “lies and smears” but if “anybody on this

email list wants the truth, you know where to find me, and I would appreciate it if you would

contact me, Kim, Beth, or whomever else they are smearing before swallowing their words as the

gospel truth.”22 By 2007, Plaintiffs were being criticized online for their divisive politics,

denying their divisive tactics, and misconstruing legitimate criticism as “lies and smear,” i.e.

defamation.

B. Plaintiffs Worked as Political Operatives and Anonymously Wrote on Behalf of Councilwoman Mason in the 2009 Mayoral Election

The Plaintiffs worked at the highest levels of a Councilwoman Mason’s mayoral

campaign in 2009.23 As detailed in the Pincus Affidavit24 and explained briefly below, Plaintiffs

not only worked on a near daily basis for the Mason Mayoral campaign but planned top level

strategy, wrote Beth Mason’s platform, planned at least 26 political events, took primary

responsibility for the campaign’s internet strategy and communications meetings, provided

statements and articles to the press, anonymously posted comments on the internet, encouraged

others to anonymously post comments on the internet, wrote the final drafts of the Mason

campaign literature, and were subsequently severely criticized for their tone and tactics. Again,

22 Id. 23 Pincus Aff. Exh. 65 (Stuiver Aff. ¶ 1) (“I … served as the volunteer campaign manager for Beth Mason’s mayoral bid in spring 2009. During that time, I worked very closely with Lane Bajardi, Kim Cardinal and other senior political operatives in the Mason organization.”) 24 See generally Pincus Aff. Exh. 21 – 46 (e-mails sent or received by Plaintiffs concerning their work during Mason’s spring 2009 mayoral campaign).

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all of the work and criticism predated Ms. Pincus’ blog. A few examples of Plaintiffs’ work on

the Mason campaign illustrate their roles as Beth Mason’s operatives and writers.

• On March 26, Lane Bajardi sent an e-mail to unknown recipients whom he described only as

“Masonistas” to “protect their online identities” and encouraged the recipients to

anonymously post comments on Hoboken 411 [a Mason friendly blog] to criticize Dawn

Zimmer.25

• On April 16, Ricky Mason (Beth Mason’s husband) sent a rough draft of Beth Mason’s

response to a campaign questionnaire to Lane Bajardi and another individual “to give it the

final review… [i]n addition to changes in any of the sections, I call your attention to section

1… if there is any way for you guys to look at this tonight and make whatever changes are

appropriate… that would be great.”26 The e-mail (along with many others) confirms that

Lane Bajardi writes the final draft of Mason campaign literature.

• On April 16, Lane Bajardi wrote a long e-mail in which he admitted his role as an

anonymous internet commenter supporting Ms. Mason and confirmed his personal

involvement in the long-term planning for Ms. Mason’s political career (i.e., a political

operative). Lane Bajardi wrote:

So after all this talking, this is Beth’s position on the Board of Ed race? It is going to play like what it is: a pathetic dodge… The bottom line is this: If the plan we had in place originally had been set in motion it would have been a home run. Instead you have given Lenz and Zimmer exactly what they want… It will be seen as Beth being political to “serve her new bosses.” Another sign that Beth has “sold out” and abandoned her interest in having the best people guiding the education of our children.

And you know who gets the blame for all these poor decisions? I do, and Kim does. We are being slandered on the internet because people stupidly think we are the ones advising Beth to make these calls. Better have some bloggers ready to defend this because I am sitting this one out… It just confirms their narrative:

25 Pincus Aff. Exh. 24. 26 Pincus Aff. Exh. 30 (The exhibit is a chain of e-mails. Ricky Mason’s e-mail begins on page 4.)

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“Beth doesn’t care about reform anymore. Beth will become Mayor by any means necessary, including abandoning what she claims to stand for.

(emphasis added).27

• On April 23, Ms. Mason’s campaign manager asked Plaintiffs to “clean up” a campaign e-

mail, again confirming that they write the final draft of Mason’s campaign literature. Lane

Bajardi responded for Plaintiffs and declined to help because he was too busy anonymously

writing statements on behalf of others for the Mason campaign and feeding those statements

to his press contacts at the Hudson Reporter (Tim Carroll) and Hoboken 411. The e-mail

states:

Sadly, we cannot. We are both still in our pajamas and still dealing with the fallout from the Maxwell’s story, among other pressing campaign issues. Just finalized a statement from Raul that is going to Tim Carroll, and working another angle as well before Hoboken411 updates the story with new info tonight after 5pm… I cannot commit to taking on another project right now.28

• On April 29, Plaintiffs received an e-mail with the subject line “Anti Zimmer Flyers” asking

whether the Mason campaign would be commenting on anonymous midnight flyers

distributed throughout Hoboken attacking Dawn Zimmer. Specifically, he asked

Do you know about this? Apparently there was some major deal last night and ___ is convinced that Musa’s guys did the leafleting, so Beth is responsible… Sounds like cops were called, Lane came out… Dawn was taking pictures, 3:00 a.m. craziness. I told Brian I couldn’t imagine Beth would campaign like this and that folks like Cammarano would love to get the two of them going after each other… Are you aware of it?

Lane Bajardi, who had directed Mussa Moore and his paid employees in their paid get out of

the vote efforts on behalf of Vote Hoboken PAC in 2007 and had been on the street at 3 a.m.

during the “major deal,” sent a terse and immediate response, stating:

27 Pincus Aff. Exh. 30 (Lane Bajardi’s e-mail starts on the bottom of page 2). 28 Pincus Aff. Exh. 34.

12 7107708.3

This is not a conversation that should take place via e-mail. Please take it off line. Thanks.29

• On May 3, 2009, Lane Bajardi wrote a critical e-mail employing his familiar tactics including

name-calling and suggesting that someone had threatened his child, even though no such

threat was made. In the e-mail, he admits that Plaintiffs have been working for Ms. Mason

since 2005 as part of a long term strategy to get her elected Mayor, that they are the most

effective members of Ms. Mason’s political team, that Bajardi’s City Council appearances

(see below) are made to protect Beth Mason’s political career, and that, in response to

missteps by the campaign, Plaintiffs had been exposed to a “slander-laden shitstorm” on

Hoboken’s political blogs which they “have endured for Beth.” The e-mail was written

months before Nancy Pincus even started a blog. Specifically, Lane Bajardi wrote:

Before you start threatening to forcibly remove women and infants who don’t tow your party line from the headquarters you’d better get some things straight…

Kimberly, Sara and I have been working for Beth for a lot longer than just the last few weeks. The often MIA professional team you are defending has dropped the ball at every step of the way while Sara, Kim and I have gotten things done…

Go look at the slander-laden shitstorm that Kim and I have been the victims of on NJ.com, HobokenNow, RealHoboken, HobokenRevolt and HobokenJournal. Your incident at Maxwell’s was a blip on the radar compared to what we have endured for Beth. We’ve been attacked and threatened by name for over a year and it continues today…

[W]e’ve been at City Council meetings fighting the good fight and covering Beth’s flank for years. While you were off at Camp Wellstone we were working to get Beth elected to the 2nd Ward seat in the first place so she could be in this position today…

Without Sara, Kim and I there would be NO effort to reach the yuppie voters that “The Team” has so callously left behind in favor of their all-out push for Old Hoboken votes…

Don’t tell me that stupid midnight fliers claiming Tony Soares will be the new Schools Superintendent under Dawn are going to do it, because they won’t…

29 Pincus Aff. Exh. 38.

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-- Lane

(italics, enlarged font, bold font, colored font and other emphasis omitted).30

• On August 14, 2009, Lane Bajardi sent an e-mail to Ms. Mason in response to a Hudson

Reporter story about Mayor Zimmer, in which the Mason campaign manager described

Mason’s campaign as “dysfunctional.” Lane Bajardi wrote:

Kim and I have taken heaploads of abuse from the Zimmerists who have smeared us as THE people who made the decisions that ultimately doomed your campaign. I’ve heard back from several in the Zimmer camp that certain people from the Mason camp that went to Dawn’s side in the runoff routinely blamed those of us who didn’t for the mistakes made in the campaign.

Through all that – much of the attacks on us BY NAME being done publicly in the blogs – we’ve said nothing publicly to defend ourselves because we thought the microscope on the inner workings of your campaign would damage people’s opinion of you as someone who could lead an organization…31

Plaintiffs’ active role in Hoboken’s 2006, 2007 and 2009 political campaigns alienated

them to many participants in Hoboken politics. The e-mails discussed above, and others attached

to the Pincus Affidavit, demonstrate that Plaintiffs were blogging anonymously in support of

Beth Mason (“better have some bloggers ready… because I am sitting this one out”), had been

already recognized online (“BY NAME”) despite their desire to anonymously participate in blog

discussions (“sent under cover to several Masonistas to protect their online identities”) and were

being roundly criticized (“slander laden shit-storm”) for their political statements and tactics.

C. Lane Bajardi Endorsed Mayor Cammarano and Publicly Defended Corruption the Day Before the FBI Arrested Cammarano for Accepting Bribes

After Beth Mason lost the Mayoral election, Dawn Zimmer (Reform) and Peter

Cammarano (Russo Faction) competed in a June 2009 run-off. During the run-off, the Hudson

Reporter published Lane Bajardi’s letter to the editor on June 7, 2009, endorsing Cammarano

30 Pincus Aff. Exh. 44. 31 Pincus Aff. Exh. 47.

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because “Peter [Cammarano] was the only candidate to reach out for [Bajardi’s] support and

counsel after the May election.”32

Mr. Cammarano won the election and became mayor on July 1, 2009. Lane Bajardi

publicly celebrated the victory alongside Cammarano.33 The Reform-majority City Council

promptly voted to transfer authority to appoint Zoning Board of Adjustments (“ZBA”) members

away from the new mayor to the City Council. On July 22, 2009, Lane Bajardi spoke at a City

Council meeting arguing against the transfer of authority, stating that the vote was “sour grapes”

and “a needless attempt to remove power from the Mayor’s office… it’s been drafted based on

assumptions and innuendo -- I see your internet clowns are here Councilwoman Zimmer -- it’s

been drafted based on assumptions and innuendo that have no basis in fact.”34 Six days prior to

Mr. Bajardi making those statements to the City Council, Mayor Cammarano had sold two future

zoning variances to an FBI informant35 for $25,000.36 The FBI arrested Cammarano the day

after Lane Bajardi made his statements to the City Council defending the Russo Faction Mayor /

felon.37 Cammarano resigned thirty days after taking office and was eventually sentenced to

federal prison.38

D. Ms. Pincus Became Involved in Hoboken Politics, Commented on a Board of Education Decision to Decline Federal Funds and First Encountered Lane Bajardi

In 2008, Ms. Pincus started attending Board of Education meetings because her daughter

had entered kindergarten in the public school. Two parents she knew decided to run for the

32 Plumb Cert. Exh. RR. 33 See Plumb Cert. Exh. QQ (A picture of Bajardi and Cammarano celebrating Cammarano’s victory.) 34 See Plumb Cert. Exh. A(1) (video of Bajardi defending Cammarano). 35 As part of the sweeping FBI “Bid Rig” investigation that jailed Mayor Cammarano, the FBI also recorded Councilman Michael Russo explaining to a wired informant that in exchange for his support, Ms. Mason had agreed to allow him to pick her three at-large City Council members so that, if Beth Mason won, Russo would have “total control” over the city. Plumb Cert. Exh. OO (Relevant pages of Russo / Dwek transcript). 36 Plumb Cert. Exh. NN (Criminal Complaint filed against Peter Cammarano). 37 See Plumb Cert. Exh. WW. 38 See Id.

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Board of Education on the Reform supported Kids First ticket. Ms. Pincus offered to create

graphics for their 2009 campaign fliers and she also volunteered time towards the campaigns of

Maureen Sullivan, Ruth McAllister and Theresa Minutillo. The Kids First slate won the April

2009 election and Reform thereby gained a majority of the Board of Education.39

In December 2009, Ms. Pincus, who has a degree in architecture, was unanimously

appointed by the City Council to the Hoboken ZBA and she was sworn into a four-year term on

January 1, 2010.40 She started her Grafix Avenger blog in March 2010, primarily posting

opinion and satire, through a pro-Reform political lens, addressing the upcoming April 2010

Board of Education election. (Since then, the blog has primarily addressed corruption within the

Russo Faction and the political tactics employed by Councilwoman Mason. The site includes a

permanent picture of Beth Mason with a Pinocchio nose captioned “Recall Beth Mason.”) One

incident shows the scope of Plaintiffs’ political involvement and their technique of responding to

Ms. Pincus’ criticism of the Russo Faction by criticizing and intimidating her in public and on

the internet.

In early April 2010, during a Hoboken Board of Education campaign, Ms. Pincus

published an article intensely critical of the Kids First opposition’s campaign promise to refuse a

federal grant that would have provided laptops to public school students in the 7th and 8th grades

who did not have computers at home. Ms. Pincus’ article was published below a satirical image

entitled “Turds in a Punchbowl” featuring a public domain image, described in the title, with the

photoshopped addition of faces of the Russo Faction’s candidates.

Lane Bajardi’s reaction to the image was public fury. He brought a stack of color copies

of the punchbowl image to the April 7, 2010 City Council meeting and handed out copies to the

39 Pincus Aff. ¶ 3. 40 Pincus Aff. ¶¶ 9-10.

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press.41 During the televised public comment portion of the meeting, Bajardi passed out color

copies of the image to the City Council members and then made a long speech about the

“stomach turning” image published by Ms. Pincus, describing her as a zoning board member

appointed by Mayor Zimmer.42

On April 12, 2010 Defendant Roman Brice photographed the audience at a Board of

Education forum. According to press reports, Lane Bajardi, one of several individuals in

attendance, responded by assaulting Mr. Brice (shoving him in the chest), knocking him down,

and then taking his camera.43

The day after he physically attacked Mr. Brice, Lane Bajardi brought another stack of

color copies of the now controversial image to the April 13, 2010 Board of Education meeting.

During the public comment period he distributed the images to the Board Members and again

started orating an attack against Ms. Pincus. The Board President had no interest in the blog

illustration. As Mr. Bajardi became increasingly antagonistic, shouting over Board Members

and the Board’s Attorney, the Board Attorney advised that the Board President should call the

police to have Mr. Bajardi escorted out of the meeting. Faced with the prospect of police

intervention, Mr. Bajardi abruptly left the podium.44

A week after he had assaulted Mr. Brice, on April 20, 2010, the Hoboken police arrested

Lane Bajardi and charged him with robbery.45 His bizarre, week-long outburst publicly initiated

a dispute between the Plaintiffs and Ms. Pincus that started with Mr. Bajardi’s City Council

appearance on April 7, 2010 and continues today.

41 Pincus Aff. ¶¶ 20-22. 42 Plumb Cert. Exh. A(3) (video of Lane Bajardi’s April 7, 2010 presentation to the City Council); Pincus Aff. ¶ 22. 43 See Plumb Cert. Exh. P, Q. 44 A video of Lane Bajardi’s Board of Education performance is attached as Exh. A(4) to the Plumb Cert. See also Plumb Cert. Exh. T (“Drama at the School Board Meeting”); Pincus Aff. ¶¶ 24, 25. 45 See Plumb Cert. Exh. P, Q.

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E. Lane Bajardi Worked to Get Out the Vote in Councilman Occhipinti’s Potentially Criminal November 2010 Election Campaign

After Ms. Mason lost two mayoral campaigns to another Reform candidate, and after the

FBI released tapes of Michael Russo detailing Ms. Mason’s secret allegiance to the Russo

Faction, Ms. Mason publicly allied herself exclusively with the Russo Faction. When the 4th

Ward seat election came up in November 2010, Ms. Mason donated $13,400 to the Russo

Faction candidate, Tim Occhipinti.46

In that election, the Russo Faction managed to win an inordinate number of votes by

mail. In fact, Occhipinti received 399 vote by mail ballots and the incumbent, Mike Lenz

received only 43 (an additional 99 vote by mail ballots were not counted). Incredibly, in an

election where only 2,076 votes were counted, the Occhipinti campaign employed 575 campaign

staffers, most of whom were paid $40. The timely Election Law Enforcement Commission

(“ELEC”) reports (which detail political spending) showed a nearly perfect correlation (79/80)

between Occhipinti’s one-time $40 payments to “Admin: Personnel” and vote by mail ballots.47

A civil complaint was filed in response to Occhipinti’s apparent vote-buying scheme.48

In affidavits attached to the complaint, three residents of the 4th Ward swore that they were each

offered $40 by the Occhipinti campaign as an incentive to vote absentee. One individual swore

that in exchange for $40 he delivered an unsealed vote-by-mail ballot to an Occhipinti campaign

worker.49 On election night, Ms. Pincus witnessed and later reported that Lane Bajardi was

working for the Occhipinti campaign.50

46 Plumb Cert. Exh. VV. 47 Id.; see also ; Plumb Cert. Exh. WW; Pincus Aff. ¶ 26. 48 Plumb Cert. Exh. WW (Complaint filed by Friends of Michael Lenz for City Council v. Hudson Country Board of Elections). 49 Id. 50 Pincus Aff. Exh. 59.

18 7107708.3

F. Ms. Pincus Blogged About Voting Irregularities in the Occhipinti Election and Again Encountered Lane Bajardi

Councilman Occhipinti’s November 2010 4th Ward election gave the Russo Faction a

majority in the City Council, allowing Ms. Mason to become City Council President.51

On November 3, 2010, the day after the election, Ms. Pincus posted a lengthy article

addressing questionable tactics used by Tim Occhipinti’s volunteers and employees. First, she

noted that many campaign employees were paid $40 and that those individuals also voted by

mail. She also pointed out that Public Safety Director Angel Alicea had abandoned his position

monitoring the polls at the same time a large group of Occhipinti volunteers physically blocked

access to the polls and intimidated voters trying to access the polls. She also reported that

machine voting at the 4-4 voting center was highly skewed towards Occhipinti, sufficiently to tip

the election. Finally, she noted that Ms. Mason’s alliance with the Russo Faction had derailed

Reform’s progress in Hoboken.52

Within the blog article described above, Ms. Pincus published an image of Ms. Mason

wearing a necklace featuring the face of Occhipinti, over text that read “Triumph des Shillens.”

The blog explained that by shilling53 for Occhipinti, Ms. Mason had triumphed in her effort to

become City Council President. Cinephiles might recognize that the image thematically recalls

posters promoting “Triumph des Willens,” a 1934 Nazi propaganda film, though the image did

not otherwise include Nazi references.54 As with the image illustrating Ms. Pincus’ disgust with

the Board of Education candidates’ promises to decline a federal grant, Lane Bajardi’s response

to the vote-buying illustration was startling in its intensity and scope.

51 See Plumb Cert. Exh. N. 52 Pincus Aff. Exh. 59. 53 A shill is “one who makes a sales pitch or serves as a promoter” or “one who acts as a decoy (as for a pitchman or gambler).” To shill is “to act as a spokesperson or promoter.” Merriam-Websters Online dictionary. 54 Pincus Aff. ¶ 28.

19 7107708.3

Bajardi appeared at the November 15, 2010 City Council meeting with an easel and

poster board providing a side-by-side comparison of the Triumph des Shillens image and a

Triumph des Willens movie poster. At that appearance, Bajardi linked Pincus to Mayor Zimmer

and asked to have Ms. Pincus removed from the ZBA.55 Councilwoman Mason also presented

the illustration to the N.J. Anti-Defamation League in hopes of garnering a response. Two days

later Councilwoman Mason also secured a “condemnation” letter from her close personal friend

and financial supporter Larry Stempler in the name of the National Jewish Democratic Council

(“NJDC”).56

On November 17, 2010, Bajardi carried copies of the letter condemning Ms. Pincus

published that day on the NJDC web site to a meeting of the Hudson County Board of

Elections.57 Bajardi showed off the letter, bragging that he would use it to “destroy” Ms.

Pincus.58 Bajardi’s City Council presentation and the NJDC letter he was shopping to the media

were both covered by other local media.59

The incidents in the following months demonstrate the political nature of Plaintiffs’

attacks and the coordinated effort from the Plaintiffs’ Russo Faction to intimidate and otherwise

antagonize Ms. Pincus. A few days after Bajardi’s City Council presentation, stickers started

appearing in Hoboken that said “Google Nancy Pincus.”60 The day before the May 2011 City

Council election, hundreds of midnight flyers were anonymously distributed to front doors,

mailboxes and car windshields throughout Ms. Pincus’ neighborhood highlighting the ‘Triumph

55 A video of his appearance is attached to as Exh. A(6) to the Plumb Cert.; see also Plumb Cert. Exh. V. 56 See Hoboken blogger apologizes for Nazi graphic, 'condemned' by National Jewish Democratic Council, Jersey Journal (Nov. 18, 2010) available at http://www.nj.com/hobokennow/index.ssf/2010/11/hoboken_blogger_apologizes_for.html 57 Pincus Aff. Exh. 62 (Siegel Aff.) (according to the Siegel Affidavit, Lane Bajardi wrote the letter published by Beth Mason’s friends at the NJDC). 58 Id. 59 See Plumb Cert. Exh. V (“Did blogger cross line with Nazi parody?”); Plumb Cert. Exh. JJ (“Did Hoboken Zoning Board member’s Nazi-parody blog post go too far?”) 60 Pincus Aff. ¶ 30.

20 7107708.3

des Shillens’ and punchbowl images.61 The clear message from Plaintiffs’ City Council

performance to the citywide distribution of stickers and flyers, was that criticism of the Russo

Faction, including criticism of potentially criminal election night tactics or promises to deprive

public school children free computers, would result in a massive, coordinated, and personal

public response from the Russo Faction, all initiated by Lane Bajardi.

G. Councilwoman Mason’s Attempts to Obtain E-Mails Addressed to the Two Named Defendants and 10 Other Individuals Prompted an FBI Investigation into Stolen E-Mails

In April 2011, Beth Mason and Michael Russo drafted a resolution seeking access to all

e-mails from the accounts of two City Hall staffers under the pretext of “a full investigation into

an apparent abuse of tax dollars.”62 Ms. Mason later stated that the investigation was necessary

because the City’s website had become too politicized.63 In response to cost estimates to review

e-mails for privileged communications, Russo and Mason drafted and passed a revised resolution

seeking all e-mails between the two City Hall staffers and the two named defendants in this case

and 10 other e-mail addresses.64 The out-of-the-blue call for an investigation into the e-mails of

two City Hall staffers raised questions within the Mayor’s office concerning how Councilwoman

Mason could possibly know the content of the e-mails she sought to publicize.65 On May 19,

2011, the City Hall Information Technology (“IT”) offices were padlocked and the City Council

61 Pincus Aff. ¶ 31. 62 Plumb Cert. Exh. AAA. 63 See Mason Wants Mayor’s Staffers E-Mails to Press, Hoboken Patch, Claire Moses (May 16, 2011) (In the article, Ms. Mason explains that the website is political because it includes a transcript of an FBI surveillance wherein Michael Russo explained to an FBI informant that, in exchange for his support, Ms. Mason had promised that Russo could hand pick her three at-large City Council members.) (available at http://hoboken.patch.com/articles/mason-wants-mayors-staffers-e-mails-to-local-press). 64 Plumb Cert. Exh. YY. The resolution passed on June 2, 2011, over objections from Corporate Counsel that it could “taint the FBI investigation.” See Mason’s Resolution Asking for Emails Passes, Hoboken Patch, Claire Moses (June 2, 2011) (available at http://hoboken.patch.com/articles/masons-resolution-asking-for-emails-passes). 65 See FBI Raid at City Hall Tied to IT Office Investigation: Corporation Counsel confirms that Zimmer Administration asked FBI to investigate, Hoboken Patch, Claire Moses and John Celock (May 26, 2011) (available at http://hoboken.patch.com/articles/fbi-raid-at-city-hall-tied-to-it-office-investigation).

21 7107708.3

held a private session addressing reports of a federal investigation into “compromised security in

the electronic communications within the City.”66

On May 26, 2011, the FBI raided City Hall.67 Federal agents removed computers from

the IT office and the City suspended two IT employees.68 FBI agents told the Mayor that “no

more information should be provided to the council or it could compromise the investigation.”69

In response, Mason, who hoped to continue her investigation, admitted that she had been in

discussions with the FBI agents conducting the investigation: she said, “I spoke to the

investigators” but refused to reveal any further details about the conversation.70

Lane Bajardi spoke at the July 1, 2011 City Council meeting, espousing his conspiracy

theory that a “phantom IT team” had arrived at City Hall to delete the e-mails that Mason and

Russo had been demanding.71 That same week, Ms. Mason and the Russo Faction lost their

majority in the City Council, ending Ms. Mason’s six months as City Council President. The

new majority closed the City’s e-mail investigation on July 5, 2011, without Ms. Mason

receiving the e-mails she sought from City Hall staffers to the two named defendants in this case

and 10 other individuals.72

The FBI investigation continued, and on November 7, 2011, the FBI filed a criminal

complaint against a City Hall IT staffer, Patrick Ricciardi, in connection with the stolen e-

66 Id. 67 Id. 68 See Mason Calls Meeting for Briefing on FBI Investigation, Hoboken Patch, Claire Moses (June 13, 2011) (describing the raid and Beth Mason’s “fairly obnoxious” call for more information) (available at http://hoboken.patch.com/articles/mason-calls-meeting-for-briefing-on-fbi-investigation). 69 Id. 70 To Meet or Not to Meet, That is the Question, Hoboken Patch, Claire Moses (June 14, 2011) (available at http://hoboken.patch.com/articles/to-meet-or-not-to-meet-that-is-the-question). 71 Plumb Cert. Exh. A(11) (video of Bajardi’s City Council appearance). 72 Investigation Called by Mason Ends After Council Vote: The New Majority voted on a resolution stating “lack of factual information” for an investigation into two city employees, Hoboken Patch, Claire Moses (July 5, 2011) (available at http://hoboken.patch.com/articles/investigation-called-by-mason-ends-after-council-vote).

22 7107708.3

mails.73 The Ricciardi complaint states that the FBI became involved in April 2011 when the

Mayor’s office became suspicious that its e-mails were being leaked to outside parties.

According to the complaint, the FBI investigation revealed that Ricciardi had been stealing e-

mails since “early 2010” and forwarding them to three individuals, a City municipal officer, a

former City municipal officer and a third individual.74 (Note that Ms. Mason started requesting

e-mails in April 2011 and sought e-mails dating back to the beginning of the thefts in January

2010.) Ricciardi had been the City Information Systems specialist since 1992, serving under

three Russo Faction Mayors.75 The criminal complaint stated that “many of the elected and

appointed officials in the City retain strong ties to the previous administration” including

“several members of the City Council, as well as high-ranking employees of different City

municipal agencies, such as the Public Safety Department… .”76 The FBI cited “postings of

articles and comments on City-related issues to different weblogs, or ‘blogs’” as “[e]vidence of

[the] schism in the City.”77 The Hudson Reporter stated that “some believed that council

members Beth Mason, Tim Occhipinti, Michal Russo and Theresa Castellano – all Zimmer

opponents – were involved in the incident, they have all denied wrongdoing.”78

H. Lane Bajardi Filed a Criminal Complaint In Response to Satire Published by Ms. Pincus, Further Publicizing a Long Running Public Dispute

On August 15, 2011, Ms. Pincus published the fourth of nine satirical pen-pal style letters

to the FBI concerning its investigation into stolen City Hall e-mails.79 That letter made a joke of

73 The FBI’s Criminal complaint is attached to the Plumb Cert. as Exh. XX. 74 Id. at 7. The Mason and Russo resolution called for the release of e-mails dating back to “January 2010.” 75 Id. at 3 (“RICCIARDI… had been employed by the City since in or around 1992… hired under a previous political administration”). 76 Id. at 4. 77 Id. 78 Hoboken City Council minority members deny involvement in suspended IT officer’s alleged hacking of city officialss’ emails, The Jersey Journal (published on nj.com), Summer Dawn Hortillosa (Nov. 11, 2011) (available at http://www.nj.com/hobokennow/index.ssf/2011/11/hoboken_city_council_minority.html). 79 Pincus Aff. Exh. 60.

23 7107708.3

the notion that the FBI was taking too long to make further arrests in the stolen e-mail

investigation and that Ms. Pincus would apply to join the FBI to accelerate the investigation.

Most of the letter is absurd nonsense, as are each of the three prior letters. For example, she

states that in her imagined role as an FBI agent executing judicially approved arrest warrants, she

would “shoot the door knob” of anyone who did not answer the door quickly and “apply the

Vulcan Death Grip” to anyone who resisted her arrests.80

According to the Hudson Reporter, Beth Mason, Tim Occhipinti, and Lane Bajardi filed a

criminal complaint against Ms. Pincus for writing the satirical letter.81 In response, the Hoboken

Police went to Ms. Pincus’ home and subjected her to an hour-long interrogation before

determining that no threat had been made against the complainants.82

While the previous administration’s holdovers on the Hoboken Police Department

evidently saw the joke as an opportunity to chill speech concerning their office’s receipt of stolen

e-mails from the Mayor’s office, Ms. Mason and her newest political ally, Councilman

Occhipinti, saw the joke as a political opportunity. Occhipinti proposed a resolution to remove

Ms. Pincus from the ZBA “for cause” based on her publication of the joke.83 Ms. Pincus’

received a Rice Notice from the City Clerk in response to the resolution, a procedural safeguard

which allows a government employee to avoid public debate regarding employment matters, and

Ms. Pincus elected to avoid public debate. Despite the Rice notice, Councilwoman Mason made

a four minute scene at a City Council meeting decrying the fact that she could not read for the

80 Pincus Aff. Exh. 60. 81 Plumb Cert. Exh. CC; Pincus Aff. ¶ 59. 82 Pincus Aff. ¶ 34. The police department would later be implicated in the e-mail theft by Arch Liston, who testified that the e-mails were being forwarded to Public Safety Director Angel Alicia. See Two unidentified Hoboken officials mentioned in FBI probe are identified, Hudson Reporter (Oct. 12, 2012) (available at http://www.hudsonreporter.com/view/full_story/20474660/article--Report--Two-unidentified-Hoboken-officials-mentioned-in-FBI-probe-are-identified-?instance=home_Most_popular) 83 Pincus Aff. ¶ 59.

24 7107708.3

public record the prepared speech she had brought to the meeting to attack Ms. Pincus.84

Ultimately, Ms. Pincus maintained her position on the ZBA, and the entire episode demonstrated

Lane Bajardi and Beth Mason’s coordinated efforts to punish and silence bloggers critical of

their political schemes through abuse of a criminal complaint and by protesting laws

safeguarding public employees.

I. For Years Lane Bajardi Spoke at City Council Meetings to Promote Councilwoman Mason’s Political Career

As discussed above, Lane Bajardi has admitted that he attends and speaks at City Council

meetings to protect Beth Mason. He has also admitted that he is subject to substantial criticism

and ridicule for those performances (among other political acts). A small sample of those

performances highlights, in part, why the Plaintiffs are so roundly criticized. Lane Bajardi’s City

Council appearances can be briefly summarized: name calling, yelling, ethnically charged

attacks, threats to post his complaints anonymously on the internet, absurd conspiracy theories,

and outright lies. Some of his appearances are summarized below (the video of these

appearances, attached to the Plumb Cert. at Exh. A, illustrate Bajardi’s combative tone and the

public controversy he engenders):

• On July 22, 2009, Lane Bajardi spoke at the City Council meeting against a vote to shift

authority to name ZBA members from Mayor Cammarano to the City Council. Lane

Bajardi called the ordinance “sour grapes” and when he was roundly booed by the public in

attendance he said “your internet clowns are here Councilman Zimmer.”85

84 The video of Beth Mason’s outbursts at the September 7, 2011 City Council meeting are attached as Exhibit A(13) to the Plumb Cert. 85 A video of Lane Bajardi speaking out in favor of Mayor Cammarano retaining his ability to control the ZBA just days before Cammarano was arrested for accepting bribes to fix real estate deals is attached as Exh. A(1) to the Plumb Cert.

25 7107708.3

• On October 21, 2009, Lane Bajardi spoke at the City Council meeting to criticize ZBA

appointments. When he was told that his time was up, he asked Mayor Zimmer to answer

some questions. The public comment period is not a question and answer session, but when

she did not respond, he yelled into the microphone, “Congratulations! You’re a sham!”86

• On April 7, 2010, Lane Bajardi spoke at the City Council meeting to criticize one of Ms.

Pincus’ blog illustrations. He asked that Ms. Pincus be removed from the ZBA.87

• On April 13, 2010, Lane Bajardi spoke at the Board of Education meeting to criticize one of

Ms. Pincus’ blog illustrations. He shouted over Board members until they threatened to call

the police.88

• On November 4, 2010, Lane Bajardi brought a video camera to a City Council meeting in

which Tim Occhipinti was sworn in. After the meeting, Lane Bajardi calmly videotaped an

altercation between Michael Holmes, a prominent Russo-Mason supporter, threatening to

fight Forde Prigot, a Reformer and friend of the Mayor. Bajardi calmly recorded as Holmes

tells Forde to “put up your hands so you’ll see how fast you’ll go down” before being pulled

away from the altercation by other Russo-Mason supporters.89

• On November 15, 2010, Lane Bajardi addressed the City Council to criticize Ms. Pincus for

another blog illustration.90

• On December 15, 2010, Lane Bajardi addressed the City Council criticizing Mayor Zimmer’s

“ridiculous incompetence on display for all the world to see” for procedural delays relating to

an NFA letter. He then demonstrated his willingness to divide Hoboken along ethnic lines

and to address political issues through an ethnically biased framework when he said: “I guess

86 A video of Lane Bajardi calling Dawn Zimmer “a sham” is attached as Exh. A(2) to the Plumb Cert. 87 A video of Lane Bajardi’s presentation is attached as Exh. A(3) to the Plumb Cert. 88 A video of Lane Bajardi’s presentation is attached as Exh. A(4) to the Plumb Cert. 89 A video of Lane Bajardi videotaping the altercation is attached as Exh. A(5) to the Plumb Cert. 90 A video of Lane Bajardi’s presentation is attached as Exh. A(6) to the Plumb Cert.

26 7107708.3

Dawn Zimmer and Mr. Cunningham don’t have vowels at the end of their names so it’s not

incompetence.”91

• On January 5, 2011, Lane Bajardi spoke at the City Council attacking the Zimmer

administration and Hoboken Business Administrator Arch Liston for memos that Bajardi

stated had been distributed to city employees. Mr. Liston responded by asking Beth Mason,

“This is unbelievable. You’re going to let him lie?”92

• On January 10, 2011, Lane Bajardi spoke at a City Council identifying a Hoboken resident as

“one of the most vile public posters on the internet, slandering people left and right.” In

response to warnings that the City Council did not wish to be fact witnesses to his slander

Bajardi stated that he “would be happy to republish on some blog somewhere the incredibly

hostile commentary… to himself and members of this council.”93

• On April 5, 2011, Lane Bajardi spoke to the City Council, stating (without any factual basis)

that Mayor Zimmer was protected from the FBI “Bid Rig” arrests because of her “cozy

relationship” with Governor Christie and that Mike Lenz had been bribed in the same

manner as Mayor Camarrano. City Councilwoman Marsh admonished Beth Mason (the City

Council President) for allowing Bajardi to make his baseless allegations and then told Bajardi

“[i]f you want to accuse someone of a crime then I suggest you call the prosecutor’s office.”

Bajardi concluded, to jeers from the public in attendance, by telling Councilwoman Marsh to

“Go back to Jersey City with your friends there -- many of whom got rounded up -- and tell

me about your concern about corruption.”94

91 A video of Lane Bajardi’s ethnically based attack on Hoboken’s Mayor is attached as Exh. A(7) to the Plumb Cert. 92 A video of Lane Bajardi’s presentation is attached as Exh. A(8) to the Plumb Cert. 93 A video of Lane Bajardi’s statements is attached as Exh. A(9) to the Plumb Cert. 94 The video of Lane Bajardi’s five minute outburst is attached as Exh. A(10) to the Plumb Cert.

27 7107708.3

• On July 1, 2011, Lane Bajardi spoke to the City Council to insult Mayor Zimmer’s

employees, local bloggers, and various members of the City Council, and to advance his own

conspiracy theory about a “phantom IT team” deleting the e-mails that Beth Mason had been

requesting for months.95

J. Internet Commenters Using Pseudonyms “prosbus” and “Curious Gal” Promoted Beth Mason and Criticized Nancy Pincus in the Same Manner as Plaintiffs Had Done Previously and the Comments Otherwise Appear to be Authored by the Plaintiffs

On or about October 24, 2011, the screen name prosbus and Curious Gal appeared on

blogs commenting on Hoboken politics. Lane Bajardi no longer appeared at City Council

meetings. But, as discussed below, prosbus spoke in a voice strikingly similar to Lane Bajardi’s,

Curious Gal spoke in a voice strikingly similar to Kim Cardinal’s, and both espoused views

supportive of Beth Mason and critical of Mayor Zimmer, Theresa Minutillo, and Ms. Pincus.

Significantly, both prosbus and Curious Gal repeatedly referred back to the three

incidents that Lane Bajardi had used to publicly criticize Nancy Pincus: (1) the Nov. 2010

“Triumph des Shillens” image accompanying her criticism of Beth Mason’s support for Tim

Occhipinti’s potentially criminal get out the vote efforts; (2) the April 2010 punchbowl image

accompanying criticism of the Mason supported school board candidates’ promises to deny low-

income public school 7th and 8th graders laptops that would have been paid funded by a federal

grant; and, (3) the August 2011 satirical “FBI: Letter 4” which stated that if she were to become

an FBI agent Ms. Pincus would use the Vulcan Death Grip to subdue anyone resisting arrest.96

The only people in Hoboken who feigned outrage in response to all three publications were Lane

95 A video of Lane Bajardi voicing his conspiracy theory is attached as Exh. A(11) to the Plumb Cert. 96 Pincus Aff. ¶ 5.

28 7107708.3

Bajardi and Beth Mason. Also, it is unique to Lane Bajardi’s message discipline to consistently

tie Nancy Pincus to Mayor Zimmer, Theresa Minutillo, and other elected Reform politicians.97

After Lane Bajardi publicly criticized Ms. Pincus, prosbus and Curious Gal began

rehashing his three issues.98 Prosbus also linked to the same NJDC article that Lane Bajardi had

linked to posting under his own name on November 18, 2010 post.99 Based on these similarities,

and her knowledge that Lane Bajardi is the only person in Hoboken who has sought to “destroy”

her,100 Ms. Pincus reasonably formed the opinion that Lane Bajardi and Kim Cardinal are

Curious Gal and prosbus (and that they share those pseudonyms).

Additional evidence supporting Ms. Pincus’ theory that Lane Bajardi is prosbus and Kim

Cardinal is Curious Gal includes:

• Despite the continual identification of Plaintiffs as prosbus and Curious Gal since late 2011,

the Plaintiffs have never, prior to service of this lawsuit, contacted Ms. Pincus to inform her

that they are being misidentified in the blog comments. (And prosbus and Curious Gal have

never denied being Plaintiffs.)101

97 See Plumb Cert. Exh. A(3) (video of Bajardi at City Council: “Pincus, not a big financial contributor to the Zimmer campaign, instead part of the stealth negative campaign”); Plumb Cert. Exh. A(4) (video of Bajardi at Board of Education: “Ms. Minutillo proudly identified Ms. Pincus as quote our graphic designer”); Plumb Cert. Exh. A(6) (video of Bajardi at City Council: “This graphic was created by Nancy Pincus for her political attack blog which she uses to lash out at any citizen who dares to disagree with Mayor Dawn Zimmer and her allies on the Council and the Board of Education.”). Compare Plumb Cert. Exh. LL, pp. 104, 106 (“Zimmer appointed Zoning Board member Nancy Pincus”), 107 (“Nancy Pincus=Zimmer Appointed Member of the Hoboken Zoning Board”), 108; and compare Plumb Cert. Exh. MM, pp. 26 (“it is ridiculous to think Zimmer did not approve the appointment of Pincus”), 27 (“Nancy Pincus (Dawn appointed Hoboken Zoning Board member)”). 98 Plumb Cert. Exh. LL, pp. 100 (“no need for an off centered Nancy Pincus talking about feces”), 104 (“This is not time for Dawn to allow Nazi imagery, a denouncement by the National Jewish Democratic Association, an investigation by the Hoboken police concerning death threats to an elected official and a bowl of feces to get in the way of a political alliance and friendship with Zoning Board member Nancy Pincus.”), 107, 108; Plumb Cert Exh. MM, p. 26 (“We are talking about improper imagery used by an appointed public official which included Nazi propaganda, feces, and bodily harm.”). 99 Pincus Aff. Exh. 69. 100 Pincus Aff. Exh. 62 (Siegel Aff.) 101 Pincus Aff. ¶ 49.

29 7107708.3

• Despite the continual identification of Plaintiffs as prosbus and Curious Gal since late 2011,

the Plaintiffs never contacted the editor of the Hoboken Patch, Claire Moses, to have the

alleged misidentification comments removed (this fact is known by virtue of the fact that the

comments have not been deleted and the statements can still be viewed online).

• Curious Gal and prosbus are consistently critical of Mayor Zimmer, Theresa Minutillo, and

Nancy Pincus and consistently supportive of Beth Mason, mirroring the Plaintiffs’ publicly

and privately expressed criticism and support.102

• Curious Gal has sometimes responded to comments addressing her simply as “Kim.”103 On

one occasion Curious Gal responded to a post addressing her as Kim and then immediately

deleted that post.104

• Curious Gal had knowledge of this defamation lawsuit before it was served on the

defendants.105

• Curious Gal started hinting that a lawsuit was in the works on July 20, 2012, six days before

the lawsuit was filed. Plumb Cert. Exh. MM, p. 23 (“Sometimes lawsuits are necessary when

people act reprehensibly.”) Prosbus hinted at the lawsuit as early as May 2, 2012. Plumb

Cert. Exh. KK, p. 90 (“Grafix Avenger – It is encouraging to see more attention being paid

concerning your blogging antics and your appointed municipal position… Good luck in

defending yourself-”).

102 See Exh. LL and KK to the Plumb Cert. Exhibit LL includes 299 comments posted by Curious Gal on Hoboken Patch from June 3, 2012 to Sep. 27, 2012. Of those comments, 87 are critical of Mayor Zimmer, 75 are explicitly critical of Kids First, 15 are critical of Theresa Minutillo, and 9 are supportive of Beth Mason, and 14 are critical of Ms. Pincus. Exhibit KK includes 299 comments posted by prosbus on Hoboken Patch from April 13, 2012 to Sep. 2, 2012. Of those comments, 62 are critical of Mayor Zimmer, 43 are explicitly critical of Kids First, 26 are critical of Theresa Minutillo, 1 is supportive of Beth Mason, 2 are supportive of Tim Occhipinti and 8 are critical of Ms. Pincus. 103 Pincus Aff. ¶¶ 52-53. 104 Pincus Aff. ¶¶ 53. 105 See Plumb Cert. Exh. MM, p. 23 (“Sometimes lawsuits are necessary when people act reprehensibly.”)

30 7107708.3

• On July 20, 2012, six days before the complaint was filed by Plaintiffs’ Ohio counsel, in the

middle of a heated on-line exchange of comments between Curious Gal and the Defendants

in this case, an “Anonymous” commenter appeared and started citing Ohio defamation law

and stating that “I hear a similar case is brewing in Hoboken.”106

• Curious Gal refers to the City Council’s vote to shift authority over the ZBA from

Cammarano to the City Council as “sour grapes,” the same description that Lane Bajardi

used while defending Cammarano’s corruption before the City Council. Compare Plumb

Cert. Exh. A(1) and Pincus Aff. Exh. 68.

• Curious Gal states that “People who don’t know their history are condemned to repeat it”

(Plumb Cert. Exh. LL, p. 80, Curious Gal statement posted to Hoboken Patch at Aug. 5,

2012 at 11:08 pm) which echoes Lane Bajardi’s statement that “those who ignore their

mistakes are doomed to repeat them” (Pincus Aff. Exh. 44).

• Curious Gal and Kim Cardinal both refer to Mayor Zimmer in the diminutive as simply

“Dawn.” Compare Pincus Aff. Exh. 27 (“Should we be making Dawn publicly state who she

will replace with in the 4th Ward?”) and Plumb Cert. Exh. LL p. 20, 27, 28, 35, 36, 37, 39,

40, 41, 45, 46, 48, 49, 54, 60, 61, 65, 67, 75, 76 (“candidate Dawn”), 77 (“Councilwoman

Dawn”), 79, 80, 85, 87, 88 (“Dawn’s legacy”), 93, 94, 95 (“Dawn and her bloggers accept no

responsibility”), 96, 97, 99, 100, 103, 104 (“Nancy Pincus was appointed by Dawn”), 108,

111 (“Dawn’s history of discrimination”), 113, 114, 115, 116, 117, 118.

• Lane Bajardi stated at a City Council meeting that Dawn Zimmer and Peter Cunningham

“don’t have vowels at the end of their names so it’s not incompetence.” Plumb Cert. Exh.

A(7). Curious Gal stated that “Dawn knows best when it comes to these issues. After all,

106 Id., p. 23 (“There was a case in Ohiol last year where people on a blog were calling out someone like they do Lane and Kim”).

31 7107708.3

she doesn’t have a vowel at the end of her last name – that makes her smarter and more

knowledgeable than many of us.” Plumb Cert. Exh. LL, p. 112 (posted to Hoboken Patch at

1:54 pm on Monday, July 2, 2012).

• Lane Bajardi’s e-mails confirmed that he was anonymously commenting on-line in support

of Ms. Mason.107 Prosbus and Curious Gal are two of a handful of anonymous on-line

commenters who consistently support Ms. Mason.

• One of Nancy Pincus’ sources, Mike Lenz, had concluded and publicly stated that Kim

Cardinal posted under the pseudonym Red Haven, a now little used internet identity.108 Red

Haven no longer posting raised speculation concerning Kim Cardinal’s new pseudonym.

Kim Cardinal is a well-known Mason supporter and in many comment threads prosbus and

Curious Gal are the only commenters supporting Ms. Mason, suggesting that Kim Cardinal

had adopted those pseudonyms.

• Other commenters’ collective assessment that Curious Gal and prosbus are Plaintiffs.109

• On March 15, 2012, Ms. Pincus posted an article laying out the timeline of Lane Bajardi’s

support for Mayor Cammarano and Mayor Cammarano’s criminal acts and arrest. The next

day, after her comments with links to that post were repeatedly deleted and reposted,

prosbus posted a comment stating that he would stop participating in politics and “I’ve given

up writing for other sites… I’ve had it with my wife.”110 The self-description of prosbus as a

married man who supports Beth Mason, wrote for other websites, and was troubled by

107 Pincus Aff. Exh. 30 (“Better have some bloggers ready to defend this because I am sitting this one out.”) 108 Pincus Aff. Exh. 64 (Lenz Affidavit ¶¶ 13-15); Pincus Aff. ¶ 4. 109 See, for example, Plumb Cert. Exh. BBB (“This could generate some excitement in Edgewater with CuriousKim/Prosbus. Also, a chance to play the race card is always exciting for Kimmy.”; “Wow Kim, how long since you moved away?”). 110 Pincus Aff. ¶ 56.

32 7107708.3

allegations that Lane Bajardi had defended Peter Cammarano’s corruption, all suggested that

prosbus is Lane Bajardi.

• On January 10, 2011, former City Councilman Mike Lenz stated during a City Council

meeting that the Plaintiffs anonymously blog on the internet, that they have “done more than

any other human being in this city to lower the standard of public debate” and that their

anonymous blogging is a “cancer.”111

• The relatively small size of the Hoboken community which actively supports the Russo

Faction provides a limited list of potential identities for Curious Gal and prosbus.

ARGUMENT

I

SUMMARY JUDGMENT IS THE PREFERRED METHOD FOR DISPOS ING OF DEFAMATION LAWSUITS

New Jersey has long recognized that “summary judgment practice is particularly well-

suited for the determination of libel actions, the fear of which can inhibit comment on matters of

public concern.” Lynch v. New Jersey Educ. Ass’n, 161 N.J. 152, 169 (1999), citing Dairy

Stores, Inc. v. Sentinel Publ’g Co., 104 N.J. 125, 157 (1986); see also G.D. v. Kenny, 205 N.J.

275, 304-05 (2011) (“[A] timely grant of summary judgment in a defamation action has the

salutary effect of discouraging frivolous lawsuits that might chill the exercise of free speech on

matters of public concern.”); Maressa v. New Jersey Monthly, 89 N.J. 176, 196 (1982) (“The

perpetuation of meritless actions, with their attendant costs, chills the exercise of [free speech].

To avoid this, trial courts should not hesitate to use summary judgment procedures where

appropriate to bring such actions to a speedy end.”).

111 Pincus Aff. ¶ 4.

33 7107708.3

When a defamation complaint involves public figures or matters of public interest,

summary judgment should be granted, dismissing the complaint, if a reasonable jury could not

find that the plaintiff could establish actual malice by clear and convincing evidence. Lynch, 161

N.J. at 169, citing Anderson v. Liberty Lobby, 477 U.S. 242, 255-56 (1986). In opposing a

motion for summary judgment, “the ‘clear and convincing’ standard in a defamation action adds

an additional weight to the plaintiffs’ usual ‘preponderance of the evidence’ burden.” Durando

v. The Nutley Sun, 209 N.J. 235, 253 (2012) (dismissing defamation claim concerning false

statements because plaintiffs failed to establish a jury question concerning actual malice by clear

and convincing evidence), quoting Costello v. Ocean Cnty. Observer, 136 N.J. 594, 615 (1994).

Actual malice is decided by the court as a question of law. Lynch, 161 N.J. at 168, citing

Harte Hanks Commc’ns Inc. v. Connaughton, 491 U.S. 657, 685 (1989). To establish actual

malice, a plaintiff must show that a statement was published with “a high degree of awareness of

[its] probable falsity” and must “approach the level of publishing a ‘knowing, calculated

falsehood.’” Id. at 165. Neither “errors of interpretation of judgment” nor “misconceptions” are

sufficient to create a jury issue of actual malice. Lawrence v. Bauer Pub. & Printing Ltd., 89

N.J. 451, 477 (1982) (dismissing a defamation suit because public figure plaintiffs could not

establish that defendants knew that defamatory publications were false or that defendants

actually doubted their accuracy).

Based on the documents attached to the Plumb Cert. and the Pincus Affidavit, as

described throughout this memorandum of law, the Court could find, at this juncture, that the

Plaintiffs cannot establish by clear and convincing evidence that the complained of statements

that assert facts rather than opinion, if any (see below), in whole or in part, were published with

knowledge that they were false. Misconceptions and errors of interpretation or judgment

34 7107708.3

published by Ms. Pincus, if any, were based on the tremendous public record of comments

critical of Plaintiffs which they did not dispute for years but rather “endured for Beth

[Mason].”112 If Plaintiffs can somehow establish that the online identities at issue are not theirs,

the Plaintiffs’ total silence concerning their online identities – or alleged lack of online identities,

despite the e-mails discussed above – further establishes that Ms. Pincus could not know that her

statements were false.

II

PLAINTIFFS MUST ESTABLISH ACTUAL MALICE TO RECOVER DAMAGES BECAUSE THEY ARE PUBLIC FIGURES AND THE COMPLAINED OF

STATEMENTS ADDRESS ISSUES OF PUBLIC INTEREST

Undisputed facts demonstrate that the Plaintiffs are public figures, the statements address

matters of public concern, and that actual malice cannot be proven. Summary judgment is

therefore appropriate at this time.

A. The “Actual Malice” Standard

“Discourse on political subjects and critiques of the government will always fall within

the category of protected speech that implicates the actual-malice standard.” W.J.A. v. D.A., 210

N.J. 229, 244 (2012), quoting Senna v. Florimart, 196 N.J. 469, 496-97 (2008) (internal quotes

omitted). The actual malice standard represents “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[s].” Lynch, 161

N.J. at 166 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). Individuals

who participate in the “political arena” must “expect that the debate will sometimes be rough and

112 See Plumb Cert. Exh. 44; see also Plumb Cert. Exh. 47 (“Kim and I have taken heaploads of abuse from the Zimmerists… Through all that – much of the attacks on us BY NAME being done publicly in the blogs – we’ve said nothing publicly to defend ourselves because we thought the microscope on the inner workings of your campaign would damage people’s opinion of you”) (emphasis supplied).

35 7107708.3

personal.” Id., quoting Harte Hanks, 491 U.S. at 687. Politics is “no place for the meek and

thin-skinned.” Maressa, 89 N.J. at 200. As a matter of law in New Jersey, “[r]eaders know that

statements by one side in a political contest are often exaggerated, emotional and even

misleading.” Lynch, 161 N.J. at 166, quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 32

(1990) (Brennan, J., dissenting).

Private individuals who become so involved in matters of public interest such that they

become public figures for a limited range of issues may not maintain a defamation action without

establishing that the statements at issue were published with “actual malice.” Dairy Stores, Inc.,

104 N.J. at 138, citing Gertz v. Robert Welch, Inc., 418 U.S. 323, at 351-52 (1974); see also

Sisler v. Gannett Co., 104 N.J. 256, 274 (1986) (Applying the actual malice standard to a private

individual who knowingly engaged in conduct that one in his position should reasonably know

would implicate a legitimate public interest and distinguishing New Jersey law as providing

greater protection of free speech than federal defamation law.)113 In New Jersey, a matter is of

public interest when an individual “voluntarily and knowingly engaged in conduct that one in his

position should reasonably know would implicate a legitimate public interest, engendering the

real possibility of public attention and scrutiny.” Dairy Stores, 104 N.J. at 144, quoting Sisler,

104 N.J.at 274. The actual malice standard is applied in accordance with First Amendment

principals to “[t]hose who step into areas of public dispute, who choose the pleasures and

distractions of controversy.” Wilson v. Grant, 297 N.J. Super. 128, 139 (App. Div. 1996). Such

participants in public disputes “must be willing to bear criticism, disparagement and even

wounding assessments” because the First Amendment prohibits the Court from “mak[ing] public

dispute safe and comfortable for all the participants.” Id.

113 The plaintiff held to the actual malice standard in Sisler was a private, retired banker who had received a large loan from his former employer.

36 7107708.3

Public figure status is a matter for determination by the court. See Lawrence, 89 N.J. at

462. In determining whether an individual is a public figure, courts examine (1) the degree to

which a party has participated in a particular activity to determine whether the participation was

“voluntary and with a purpose to influence the outcome;” (2) the degree of exposure a party had

in the press; (3) the “extent to which that party had access to the media to have a more realistic

opportunity to counteract false statements than private individuals enjoy”; and (4) “plaintiff’s

past conduct and the public reaction to his conduct.” Vassallo v. Bell, 221 N.J. Super. 347, 368

(1987) (internal quotes omitted).

B. Plaintiffs Are Public Figures in Hoboken Politics

1. Plaintiffs have voluntarily participated in Hoboken politics with a purpose of influencing outcomes

Lane Bajardi is one of the most publicly visible political operatives in Hoboken. Lane

Bajardi has routinely attended City Council meetings to make lengthy comments either

supporting Beth Mason or Peter Cammarano, or criticizing the Mayor or Ms. Pincus. City

Council meetings are televised and Lane Bajardi’s frequent criticism at City Council meetings is

recorded and generally available on the internet. Futhermore, Lane Bajardi tends to be present

during contentious political events in Hoboken, including the anti-Zimmer midnight flyers

incident, the Occhipinti voting irregularities, and the altercation outside City Hall after

Occhipinti became a City Council member.114

Plaintiffs must also establish actual malice prior to any award of damages because of

Lane Bajardi’s additional voluntary efforts to influence politics which are often designed to

spark public interest. A sample list of Lane Bajardi’s participation in politics demonstrates that

114 Videos of a sample of these appearances attached as Exh. A to the Plumb Cert. and detailed in the Background, Sec. I, above.

37 7107708.3

he has taken voluntary actions as a political operative intended to effect political outcomes and

engender legitimate public interest, including:

a. Working on the Mayoral campaign of Carol Marsh.115

b. Working in the Reform movement to elect Theresa Minutillo to the Board of

Education in 2006.116

c. Working for, publicly speaking for, otherwise acting as the public face of the

Vote Hoboken Political Action Committee.117

d. Arranging the Vote Hoboken endorsement of Kids First Board of Education

candidates.118

e. Signing-up to be a poll challenger on behalf of Kids First.119

f. Coordinating an action plan for Kids First, including a get out the vote effort that

involved paid employees under the direction of Mussa Moore.120

g. Supporting Beth Mason, via the Vote Hoboken Political Action Committee,

throughout the May 2007 City Council campaign.121

h. Protecting Beth Mason, by criticizing former City Councilman Tony Soares and

denying a secret agreement between Beth Mason and Michael Russo.122

115 Pincus Aff. Exh. 64 (Lenz Aff. ¶¶ 11-13). 116 Id. (Lenz Aff. ¶ 17). 117 Id. (Lenz Aff. ¶¶ 19-21); see also Pincus Aff. Exh. 6, 11, 15. 118 Id. (Lenz Aff. ¶¶ 23-25); see also Pincus Aff. Exh. 15, 16, 17, 18. 119 Pincus Aff. Exh. 14; Pincus Aff. Exh. 16 (“please put me down as one of your challengers for election day”). 120 Pincus Aff. Exh. 15 (“Lane,… Thank you so much for your endorsement. We very much look forward to working collaboratively with Vote Hoboken for the success that we both expect to achieve on April 17th. I just spoke with randy and he asked me to reach out to you to help facilitate how Vote Hoboken is going to help support Kids First. he mentions a few areas: - website – flyers – gotv [get out the vote]”); Pincus Aff. Exh. 16 (“We are working on a proposed action plan. We will be in touch with specifics ASAP.”); Pincus Aff. Exhs. 17, 18. 121 Pincus Aff. Exh. 19 (“I have been out on the streets for Beth and Dawn, and no other candidates.”); 122 Id. (“You have been ‘anonymously’ posting for months that we (including Beth) have been ‘in league with the Russos’ with a ‘Secret Deal.’ It was your way of acting out like a little child… your novelty act has worn thin… you are a poisonous human being who destroys everything he touches… If anybody on this e-mail list wants the truth, you know where to find me…”).

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i. Operating as the Mason 2009 Mayoral campaign’s “principle liaison with

Hoboken411, a local blog that coordinated its anti Zimmer messaging with the

Mason campaign.”123

j. Working as one of five individuals (including Kim Cardinal) on the Beth Mason

“internet strategy” in Mason’s 2009 Mayoral campaign.124

k. Urging anonymous individuals whom he refers to as other “Masonistas” to post

anonymous comments on Hoboken 411 to criticize Mayor Zimmer.125

l. Attending a meeting to prepare candidates prior to the April 14, 2009 forum for

at-large City Council seats.126

m. Providing edits to campaign literature including campaign e-mails and

questionnaires.127

n. Anonymously blogging in support of Beth Mason’s political campaign.128

o. Writing statements for the Hudson Reporter (via his contact there, Tim Carroll)

and writing for Hoboken411 (via his contact there, Perry Klaussen) publicizing an

altercation between Beth Mason’s campaign manager and Mike Lenz.129

123 Pincus Aff. Exh. 65 (Stuiver Aff. ¶ 2); see also Pincus Aff. Exh. 67 (Soares Aff.). 124 Pincus Aff. Exh. 22. 125 Pincus Aff. Exh. 24 (“This message has been sent under cover to several Masonistas to protect their online identities… People should be posint on that thread with their thoughts to keep it alive. If you have a moment today, please weigh in with your thoughts…”). 126 Pincus Aff. Exh. 29. 127 Pincus Aff. Exh. 30 (E-mail from Ricky Mason to Lane Bajardi and one other individual: “Attached are draft answers to the Revolt questionnaire… I would love for you both to give it the final review… look at this tonight and make whatever changes are appropriate, so that it can be submitted tomorrow to Revolt and put up on Beth’s website…”); Pincus Aff. Exh. 39 (Lane Bajardi writes Mason platform); Pincus Aff. Exh. 41 (“Lane, Attached is the content of our latest email blast to go out tomorrow morning… As always, I’m open to change, if you have the time, take a look and your changes are what will be sent.”). 128 Id. (E-mail from Lane Bajardi to Ricky Mason: “Better have some bloggers ready to defend this because I am sitting this one out.”); see also Pincus Aff. Exh. 31 (E-mail from Thomas Bertoli to Lane Bajardi and Kim Cardinal: “Hoboken 411 has now posted the Dawn Zimmer deps. Spread the word and lets own the first comments page.”). 129 Pincus Aff. Exh. 34 (“Just finalized a statement from Raul that is going to Tim Carroll, and working another angle as well before Hoboken411 updates the story with new info tonight after 5pm”); see also Pincus Aff. Exh. 65 (Stuiver Aff. ¶¶ 2, 4) (“Lane Bajardi and Kim Cardinal were in charge of Mrs. Mason’s organized internet/blogging

39 7107708.3

p. Developing a list of poll challengers for the Mason campaign.130

q. Shutting down a discussion addressing midnight flyers distributed throughout

Hoboken attacking Mayor Zimmer because “This is not a conversation that

should take place via e-mail.”131

r. Drafting Beth Mason’s campaign platform.132

s. Campaigning for first ward votes by handing out literature.133

t. Working for Beth Mason for “a lot longer than the just the last few weeks” and

being one of three people in the Mason campaign who have “gotten things

done.”134

u. Attending City Council meetings “fighting the good fight and covering Beth

[Mason]’s flank for years.”135

v. “[W]orking to get Beth [Mason] elected to the 2nd Ward seat in the first place so

she could be in this position today [running for Mayor].”136

w. Working as one of three individuals in the Mason campaign to “reach the yuppie

voters.”137

x. Advising Beth Mason regarding future endorsements.138

strategy… they operated as the campaign’s principle liaisons with Hoboken411, a local blog that coordinated its anti Zimmer messaging with the Mason campaign…”). 130 Pincus Aff. Exh. 37 (E-mail from Lane Bajardi: “I’m working on a list of additional names, addresses and WARD AND DISTRICT which is also needed.”). 131 Pincus Aff. Exh. 38. 132 Pincus Aff. Exh. 39 (E-mail from Lane Bajardi addressing the Mason Team Platform: “Top stuff is what I wrote working with Beth for years. Bottom stuff is adjusted from the Revolt questionnaire.”). 133 Pincus Aff. Exh. 42. 134 Pincus Aff. Exh. 44 (E-mail from Lane Bajardi: “Kimberly, Sara, and I have been working for Beth for a lot longer than just the last few weeks… Kim and I have gotten things done.”); see also Pincus Aff. Exh. 39 (“working with Beth for years”). 135 Pincus Aff. Exh. 44 (E-mail from Lane Bajardi: “we’ve been at City Council meetings fighting the good fight and covering Beth’s flank for years”). 136 Id. 137 Id.

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y. Providing counsel to Peter Cammarano and endorsing Cammarano in his Mayoral

campaign.139

z. Speaking out at a City Council meeting criticizing the Council’s vote to remove

from Mayor Cammarano’s office his ability to name members to the ZBA, just

days before Mayor Cammarano was arrested for selling zoning variances.140

aa. Covering Beth Mason’s flank by criticizing Ms. Pincus at a City Council meeting

for gross humor illustrating criticism of Board of Education candidates.141

bb. Covering Beth Mason’s flank by criticizing Ms. Pincus at a Board of Education

meeting for gross humor illustrating her criticism of Board of Education

candidates.142

cc. Publicly supporting the Tim Occhipinti campaign and working the get out the

vote effort for Tim Occhipinti’s 2010 City Council campaign.143

dd. Covering Beth Mason’s flank by criticizing Ms. Pincus at a City Council meeting

for an image illustrating her criticism of Beth Mason’s monetary support for Tim

Occhipinti’s potentially criminal get out the vote efforts.144

ee. Covering Beth Mason’s flank by criticizing Mayor Zimmer and other reform

candidates at the March 23, 2011 Hoboken Municipal Hospital Authority

meeting.145

138 Pincus Aff. Exh. 46 (E-mail from Beth Mason to Lane Bajardi, Kim Cardinal and others: “I would like the opportunity to meet with you on Sunday evening to discuss where we are and complete the discussion on endorsements.”). 139 Plumb Cert. Exh. RR (Lane Bajardi’s endorsement of Peter Cammarano). 140 Plumb Cert. Exh. A(1). 141 Plumb Cert. Exh. A(3) (video of Bajardi’s City Council statements); Pincus Aff. Exh. 44 (“we’ve been at City Council meetings fighting the good fight and covering Beth’s flank for years”). 142 Plumb Cert. Exh. A(4). 143 Plumb Cert Exh. N (news report describing Lane Bajardi as an Occhipinti supporter); Pincus Aff. Exh. 59 (Triumph des Shillens blog article describing Bajardi’s participation in Occhipinti’s get out the vote efforts). 144 Plumb Cert. Exh. A(6) (video of Lane Bajardi’s City Council presentation); Pincus Aff. Exh. 44 (“we’ve been at City Council meetings fighting the good fight and covering Beth’s flank for years”).

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Kim Cardinal’s years of political activism on behalf of Beth Mason, described in the

background section above, clearly demonstrate her role as a public figure in Hoboken politics

based on her voluntary choice to engage in political conduct with a purpose of influencing

political outcomes. A brief list recapping some of those voluntary acts includes:

a. Attending political meetings and otherwise volunteering for the Carol Marsh

Mayoral campaign.146

b. Attending Vote Hoboken Political Action Committee meetings.147

c. Attending Kids First 2007 Board of Education campaign meetings to choose a

slate of candidates.148

d. Meeting with Board of Education member Theresa Minutillo to address issues

that exist between the Vote Hoboken Political Action Committee and the Kids

First candidates.149

e. Reviewing the bios of Kids First candidates for editing and suggestions.150

f. Calling a meeting at Beth Mason’s residence to threaten to withhold Vote

Hoboken PAC support from the Kids First candidates.151

g. Attacking former City Councilman Tony Soares for his supposed anonymous

criticism and for divulging that Beth Mason had entered into a secret deal with

Michael Russo.152

145 Pincus Aff. Exh. 66 (Kurta Aff. ¶¶ 4-6). 146 Pincus Aff. Exh. 64 (Lenz Aff. ¶¶ 11-13). 147 Id.(Lenz Aff. ¶¶ 19-21). 148 Pincus Aff. Exh. 3 (Kim Cardinal is tasked to “clean up the list” of candidates for Kids First), Exh. 4 (Kim Cardinal is invited to a strategy meeting for the upcoming school board and city council meetings), Exh. 5 (Kim Cardinal receives Dec. 2, 2006 Kids First meeting minutes), 12, 13. 149 Pincus Aff. Exh. 6 (an e-mail from Theresa Minutillo to Kim Cardinal and Beth Mason asking them to participate in the final selection of candidates); Exh. 11 (an e-mail from Theresa Minutillo to Kim Cardinal explaining that she would like to meet with Kim Cardinal and Beth Mason to “put to bed any concerns or issues that may exist”). 150 Pincus Aff. Exh. 12 (“Candidates: send your bios to Kim for editing and suggestions”). 151 Pincus Aff. Exh. 64 (Lenz Affidavit ¶ 24).

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h. Arranging a Vote Hoboken PAC Presidential Debate event to raise the profile of

Vote Hoboken PAC. 153

i. Explaining to Beth Mason the need for a political “internet strategy” and then

being one of five individuals (including Lane Bajardi) who attended Beth

Mason’s “internet strategy” meetings.154

j. Assuming authority to cancel “communications meetings” for the Mason Mayoral

campaign.155

k. Scheduling at least 26 campaign events for Beth Mason’s Mayoral campaign.156

l. Attending “Moms for Mason coffee” meetings and revising the agenda for Mason

Mayoral campaign meetings.157

m. Spending an entire day in her pajamas “dealing with the fallout from the

Maxwell’s story, among other pressing campaign issues.”158

n. Participating in the Mason campaign’s “Dear Neighbor” letter, which distributes

5,000 letters throughout Hoboken.159

o. Campaigning for first ward votes by handing out literature.160

p. Spending an entire day at the Mason campaign headquarters giving “her time and

effort for [Beth Mason’s] mess of a campaign.”161

152 Pincus Aff. Exh. 19 (“Dear Tony, Please stop with your lies and hate-filled messages… Please stop taking everyone’s energy away from helping their campaigns. Please, just stop.”). 153 Pincus Aff. Exh. 21. 154 Pincus Aff. Exh. 22 (E-mail from Beth Mason: “Kim was gracious enough yesterday to call me and send up a flag… and I think she is right that a small group of us needs to either pull a conference call together this weekend or spend 30 minutes discussing how we will approach the internet in the coming weeks…”). 155 Pincus Aff. Exh. 23 (“I’m having difficulty getting everyone to the 10am communications meeting so I’m going to cancel and reschedule for later this week.”). 156 Pincus Aff. Exh. 26 (“Everyone, These are all of the events I have scheduled…”). 157 Pincus Aff. Exh. 32. 158 Pincus Aff. Exh. 34 (“we are both still in our pajamas and dealing with the fallout from the Maxwell’s story, among other pressing campaign issues…”). 159 Pincus Aff. Exh. 35. 160 Pincus Aff. Exh. 42.

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q. Meeting with Kids First candidate Theresa Minutillo, on behalf of Beth Mason,

and, with Beth Mason sitting by silently while Kim Cardinal “insulted” “put…

down” and “criticized” Ms. Minutillo on behalf of Beth Mason, for not

“acknowledging support that Beth Mason had provided Kids First over the

years.”162

r. Posting political internet comments as Red Haven for years.163

s. Working for Beth Mason for “a lot longer than just the last few weeks” and

“gotten things done” for the Mason campaign.164

t. Covering Beth Mason’s flank for years.165

u. Working to get Beth Mason “elected to the 2nd Ward seat [in 2007] so she could

be in this position today [running for Mayor in 2009].”166

v. Working as one of three individuals within the Mason campaign to “reach the

yuppie voters.”167

w. Advising Beth Mason on endorsements.168

x. Conducting opposition research via OPRA requests in support of the 2010

Occhipinti City Council campaign.169

161 Pincus Aff. Exh. 44 (E-mail from Lane Bajardi: “Ast he man who stayed home all day Saturday with my infant so that my wife could give her time and effort for this mess of a campaign…”). 162 Pincus Aff. Exh. 63 (Minutillo Aff.); see also Pincus Aff. Exh. 30 (E-mail from Ines Garcia Keim to Mason supporters: “I think when Beth and Kim sat down with her [Minutillo], she was more concerned with protecting Dawn than in getting Beth’s support. She also did not bring her running mates to the meeting, which I find curious.”; E-mail from Lange Bajardi to Mason supporters: “Theresa [Minutillo] and company have already put out ‘their side’ of the story on the meeting with Beth last week, and she is getting killed already over it.”). 163 Pincus Aff. Exh. 64 (Lenz Affidavit ¶¶ 14-15). 164 Pincus Aff. Exh. 44. 165 Id. 166 Id. 167 Id. 168 Pincus Aff. Exh. 46. 169 Pincus Aff. ¶¶ 106-110; Pincus Aff. Exh. 48 - 58.

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As is the case with Lane Bajardi, for years Kim Cardinal has been an incredibly active

political operative in Hoboken in support of Beth Mason and others of the Russo Faction. Every

aspect of her role in politics was voluntary and clearly intended to influence politics and spark

legitimate public interest.

2. Plaintiffs Have Had Significant Exposure in the Press

Plaintiffs have also had significant exposure in the local press for their role as a campaign

operatives. Since September 2009, no fewer than 31 articles have been published referencing

Lane Bajardi and his role in Hoboken politics. Within those articles, the authors have referred to

Lane Bajardi as: (1) a “council critic”;170 (2) “resident[] critic”;171 (3) “local politico”;172 (4) “one

of Mason’s most vocal supporters”;173 (5) “a frequent critic of the administration”;174 (6) “a

frequent critic of Zimmer”;175 (7) a “frequent speaker at public meetings”;176 (8) a “serial council

speaker”;177 (9) “a supporter of Occhipinti”;178 (10) “a regular commentator on Hoboken’s

political scene”;179 (11) “allied with some of Zimmer’s political opponents”;180 (12) “an

outspoken critic”;181 (13) “a local politically involved Hoboken resident”; 182 (14) “part of the

political back-and-forth in Hoboken’s heated politics”;183 (15) “one of the few critics of the new

administration of Mayor Dawn Zimmer”;184 (16) a “vocal critic”;185 (17) “an ardent Mason

170 Plumb Cert. Exh. B. 171 Plumb Cert. Exh. C. 172 Plumb Cert. Exh. D. 173 Plumb Cert. Exh. E. 174 Plumb Cert. Exh. F, K; see also Plumb Cert. Exh. G (“a frequent critic of the current mayoral administration”). 175 Plumb Cert. Exh. I. 176 Plumb Cert. Exh. J. 177 Plumb Cert. Exh. L. 178 Plumb Cert. Exh. N. 179 Plumb Cert. Exh. O. 180 Id. 181 Plumb Cert. Exh. P. (also describing Bajardi as “the outspoken political critic”). 182 Plumb Cert. Exh. Q. 183 Id. 184 Id. 185 Plumb Cert. Exh. R, V.

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supporter”;186 (18) “Hoboken political activist Lane Bajardi”;187 (19) “a vocal fixture at local

government and school board meetings”;188 (20) “a close Mason ally and frequent critic of the

Zimmer administration”;189 (21) “often critical of the mayor’s allies”;190 and (22) “less-than-shy

political operative Lane Bajardi.”191

Kim Cardinal has, at times, made public comments on politics that have been reported in

the press, including her public comments addressing various development projects in

Hoboken.192

3. Plaintiffs Have Access to the Press and Can Otherwise Counteract False Statements

Plaintiffs have ample access to the press. Lane Bajardi writes letters to the editor,

endorsing political candidates, which are published in their entirety. On June 7, 2009, after Beth

Mason ran a distant third in the Mayoral campaign but before the runoff between Zimmer and

Cammarano, the Hudson Reporter published his lengthy letter to the editor endorsing Peter

Cammarano for Mayor. In that letter he admits that he is a public figure in Hoboken politics,

stating that he was already “a familiar face at council meetings” and that “viewers know” that he

“often criticizes the City Council.” In that endorsement he also stated that despite his criticism

“Peter [Cammarano] was the only candidate to reach out for my support and counsel after the

May election. As he’s done many times before, Peter listened to my opinions… .”193 On

October 25, 2009, the Hudson Reporter published Lane Bajardi’s letter to the editor in support of

186 Id. 187 Plumb Cert. Exh. S; see also Plumb Cert. Exh. T (“Local political activist Lane Bajardi”). 188 Plumb Cert. Exh. U. 189 Plumb Cert. Exh. AA. 190 Plumb Cert. Exh. BB. 191 Plumb Cert Exh. DD. 192 Plumb Cert. Exh. GG, HH. 193 Plumb Cert. Exh. RR.

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Beth Mason. The letter is a mix of harsh criticism of Dawn Zimmer and lavish praise for Beth

Mason.194

Plaintiffs have demonstrated their ability to counteract false statements made on the

internet. For example, Plaintiffs initiated Beth Mason’s internet strategy for her 2009 Mayoral

campaign, posted to the internet anonymously in support of Beth Mason, have a team of

“Masonistas” who anonymously post comments on the internet when so directed by the

Plaintiffs, and have contacts for getting statements published at the Hudson Reporter (via Lane

Bajardi’s contact Timothy Carroll) and at Hoboken 411 (via Lane Bajardi’s contact Perry

Klaussen).195 Tellingly, after Plaintiffs filed their complaint, their slanted version of the case was

presented in several local news outlets, including the breaking news coverage provided by

Hoboken411.196

Furthermore, in the context of this defamation lawsuit, which exclusively involves blogs

and blog comments (and one e-mail addressing those comments), anyone can counteract false

statements by merely adding a comment to a blog and rebutting other’s arguments. After all,

none of the complained of statements made it to traditional press until Plaintiffs filed their

lawsuit. For reasons that are not at all clear, Plaintiffs have never posted comments under their

own names rebutting the complained of statements despite their publicly stated monitoring of

multiple Hoboken political blogs.197 (And prosbus and Curious Gal have never denied being

194 Pincus Aff. Exh. 70. 195 Pincus Aff. Exh. 24 (“Masonistas”); Pincus Aff. Exh. 34 (Bajardi detailing his interactions with the media); Pincus Aff. Exh. 65 (Stuiver Aff. ¶¶ 2,4) (explaining that Bajardi was the Mason campaign’s conduit to Hoboken 411); Pincus Aff. Exh. 67 (Soares Aff.). 196 See Plumb Cert. Exh. II; Pincus Aff. ¶ 5 (excerpts from “Hoboken411 Exclusive: The ENTIRE Zimmer Blogger Lawsuit”); Pincus Aff. Exh. 1 (Hoboken411 articles parroting Bajardi’s City Council talking points); Pincus Aff. ¶ 4 (statements made by former City Councilman Mike Lenz at a City Council meeting stating, “I firmly believe he [Bajardi] writes everything that’s on Hoboken411”). See also Pincus Aff. Exh. 67 (Soares Aff. ¶ 5) (“I always perceived Mr. Bajardi as an inner circle political operative who had content control of Hoboken411”). 197 See Plumb Cert. Exh. A(3) (video of Lane Bajardi at a City Council meeting announcing that his lawyers are monitoring blog comments); Pincus Aff. Exh. 19 (“You have been ‘anonymously’ posting for months that we

47 7107708.3

Lane Bajardi and Kim Cardinal and have never denied being paid to post comments to the

internet even when such denials would have bolstered the persuasiveness of their arguments.

The one time Curious Gal responded to questions concerning whether she was paid, she seemed

to confirm that she was paid, when she stated “I would gladly post my comments for free. I trust

that answers your question.” See Plumb Cert. Exh. KK, p. 76.)198

4. Plaintiffs’ Past Conduct has Engendered Legitimate Public Response

For years, the Plaintiffs have operated in Hoboken politics and they have been openly and

roundly criticized for their divisive tactics. After they divided the Reform community and

secretly aligned with the Russo Faction, they refuted allegations that they had done precisely that

as “lies” and claimed they were being “smeared.”199 After they perceived that the Mason

Mayoral campaign had made irreparable mistakes, they claimed that they were “being slandered

on the internet because people stupidly think we are the ones advising Beth to make these

calls.”200 When the Mason Mayoral campaign was running behind in the closing days of the

election, Lane Bajardi detailed his support for Beth Mason and claimed that the Plaintiffs “had

(including Beth) have been ‘in league with the Russos’”); Pincus Aff. Exh. 30 (“And you know who gets the blame for all these poor decisions? I do, and Kim does. We are being slandered on the internet because people stupidly think we are the ones advising Beth to make these calls.”); Pincus Aff. Exh. 44 (“Go look at the slander-laden shitstorm that Kim and I have been the victims of on NJ.com, HobokenNow, RealHoboken, HobokenRevolt and HobokenJournal.”); Pincus Aff. Exh. 47 (“Kim and I have taken heaploads of abuse from the Zimmerists who have smeared us as THE people who made the decisions that ultimately doomed your campaign… much of it BY NAME being done publicly in the blogs…”); Pincus Aff. Exh. 67 (Soares Aff. ¶ 3) (“Bajardi stated that: ‘Beth and I are going to own your condo.’”). 198 Also note that the anonymous press that appears in Hoboken before elections is plainly sympathetic to Plaintiffs, echoing their public statements and using the illustrations Plaintiffs created to criticize Ms. Pincus. For example, as discussed above, after Lane Bajardi publicized Ms. Pincus’ Triumph de Shillens image, midnight flyers distributed throughout Hoboken echoed those points publicly raised by Lane Bajardi. The November 2012 Board of Education election has also involved anonymous press attacking Ms. Pincus. First, midnight flyers addressed the issues that Lane Bajardi had initially made public and also referenced the (false) allegation in the complaint that Ms. Pincus had somehow threatened the Plaintiffs’ child. And, just a few weeks ago, a van with five jumbo television screens was anonymously commissioned to display an anonymous, two minute attack ad criticizing Ms. Pincus for the same three issues raised by Lane Bajardi, employing the same side-by-side comparison of images that Lane Bajardi brought to the November 15, 2010 City Council meeting. (A video of the “Nazi Truck’s” video attacking Ms. Pincus is attached as Exh. A(12) to the Plumb Cert.) 199 Pincus Aff.. Exh. 19. 200 Pincus Aff. Exh. 30.

48 7107708.3

endured for Beth” a “slander-laden shitstorm” that arose in response to their political action.201

After Mason lost the election, Plaintiffs again acknowledged criticism for the mistakes they

made in the campaign, stating “Kim and I have taken heaploads of abuse from the Zimmerists

who have smeared us as THE people who made the decisions that ultimately doomed [the]

campaign.”202 For years, the Plaintiffs have not only participated in Hoboken politics but have

been roundly criticized for the mistakes they made in advising Beth Mason in her futile mayoral

campaigns.

C. Lane Bajardi is a General Purpose Public Figure Subject to the Actual Malice Standard

Lane Bajardi is an on-air anchor for 1010WINS, the CBS New York AM radio

channel.203 1010WINS is an icon of the NYC-metro region as the longest running all news

station in the country.204 As one of just 11 anchors for this non-stop 24/7/365 New York City

based news station, Lane Bajardi is clearly a public figure.

Bajardi has been a public figures for over a decade. Before becoming an anchor at

1010WINS, from 1996 to 1999, Lane Bajardi presented the 1010 WINS Moneywatch reports

every weekday morning. He also spent a decade reporting and anchoring radio and television

programs for Bloomberg, broadcasting live from various financial institutions. He has also

anchored and produced small business and personal finance shows and presented radio and TV

shows for WPIX in New York, WGN in Chicago, and WFTC in Minneapolis. His voice has

been heard on hundreds of radio stations across the country.205

201 In their e-mails, as in their complaint, Plaintiffs confuse legitimate political criticism with “slander.” 202 Pincus Aff. Exh. 47. 203 See http://newyork.cbslocal.com/station/1010-wins/ (photos of 11 anchors with Bajardi in the first row); see also http://newyork.cbslocal.com/personality/lane-bajardi/ (Bajardi’s 1010WINS bio). 204 Id. 205 A copy of Lane Bajardi’s 1010WINS bio is available at http://newyork.cbslocal.com/personality/lane-bajardi/ (Bajardi’s 1010WINS bio). A copy of Lane Bajardi’s resume is attached as Exh. YY to the Plumb Cert.

49 7107708.3

Lane Bajardi was or is also a public official, appointed by former Mayor Roberts as the

Chairman of The Observer Highway Advisory Committee.206 An individual who was once a

public official will be considered a public official for the purposes of the application of the actual

malice standard for as long as his or her actions are newsworthy and “a matter of lively public

interest.” Van Englen v. Broadcast News Networks, Inc., Nos. CIV 96-2503, CIV 96-2583, 1997

WL 406267 (D.N.J. 1997), citing Rosenblatt v. Baer, 383 U.S. 75, 87 n. 14 (1966).

D. The Fair Comment Actual Malice Standard Applies to Statements Addressing Plaintiffs’ Roles as Political Operatives and Other Matters of Public Interest

Fair comment is a qualified privilege for matters of public interest, and the defense of fair

comment regarding matters of public interest can “be overcome only by proof of actual malice.”

Dairy Stores, 104 N.J. at 150. A defendant who makes statements involving matters of public

concern is subject to the qualified privilege, which may be overcome only on the showing that

defendant authored the statements with knowledge of their falsity or reckless disregard of the

truth. Vassallo v. Bell, 221 N.J. Super 347, 373 (App. Div. 1987) (“Fair comment doctrine

extends to virtually all matters of legitimate public interest, and goes beyond matters of opinion

to statements of fact.”) (citing Dairy Stores, Inc., 104 N.J. at 147-48).

The threshold for a matter to be “of public interest” is low. See Rossi v. CBS Corp., No.

L-1135-07, 2012 WL 2529357 (App. Div. 2012) (assistant little league coach yelling at a player

is a matter of public interest); Sisler, 104 N.J. at 260, 268 (private figure former banker’s

procurement of loan from his former employer is a matter of public interest); Vassallo, 221 N.J.

Super at 372 (how the mayor and “his political associates” dealt with municipal employees is a

206 See “Observer Hwy bldg. can rise 9 stories, not 12 Council votes against bigger maximum on old garage property,” Tom Jennemann, Hudson Reporter (Aug. 22, 2006) (“Observer Highway Advisory Committee chairman Lane Bajardi, who lives in the neighborhood, said that the current plan that maximizes the property value…”) (available at http://www.hudsonreporter.com/view/full_stories_home/2409550/article-Observer-Hwy-bldg-can-rise-9-stories--not-12-Council-votes-against-bigger-maximum-on-old-garage-property).

50 7107708.3

matter of public interest); Rocci v. Ecole Secondaire Macdonald-Cartier, 165 N.J. 149, 156

(2000) (school teacher’s behavior on a class trip is a matter of public interest).

All of the complained of statements relate to Plaintiffs’ roles in Hoboken politics which

are matters of public interest, thereby implicating the “actual malice” standard for each

complained of statement.

The topics addressed in the complaint are also matters of public interest which

independently implicate the “actual malice” standard. For example, many of the statements

involve the FBI investigation of e-mail thefts at City Hall, which is a matter of public interest

that involves both politics and violation of federal laws. See Compl. ¶¶ 31, 38, 87. Other

statements address theories concerning what pseudonyms the Plaintiffs are posting under. See

Compl. ¶¶ 41, 47, 52, 56, 59, 62, 65, 77, 84, 87, 103, 118, 121. Plaintiffs have admitted to

anonymously posting on-line in support of Beth Mason’s political campaigns and that they have

worked for years in constant campaign mode supporting Beth Mason.207 Accordingly,

statements addressing what pseudonyms Plaintiffs are currently using in support of Beth

Mason’s political career address matters of public interest. Likewise, given their history of

contentious participation in Board of Education campaigns, whether or not the Plaintiffs support

public schools and members of the board of education is a matter of public interest. See Compl.

¶¶ 56, 59, 62, 71, 74.

Finally, the question of whether or not Plaintiffs are paid by Ms. Mason is a matter of

public interest. See Compl. ¶¶ 41, 74, 87, 118. The City Council has publicly debated whether

207 Pincus Aff. Exh. 30 (Bajardi stating “better have some bloggers ready to defend this because I am sitting this one out”); Pincus Aff. Exh. 24 (Bajardi encouraging fellow “Masonistas” to anonymously post comments on the internet); Pincus Exh. 44 (Bajardi explaining that Plaintiffs worked to get Ms. Mason elected to the 2d Ward so that she could run for Mayor and that Plaintiffs have “been at City Council… covering Beth’s flank for years”).

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Ms. Mason pays her anonymous political writers.208 The Plaintiffs have reportedly described

themselves as the only professional political operatives in Hoboken.209 The judge in a recent

criminal harassment trial found that Councilwoman Mason pays another political operative (who

is not listed on Mason ELECs) through her 501(c)(3) to do Ms. Mason’s political work, a judicial

finding that raises the inference that Mason likely also pays her other operatives.210 During Lane

Bajardi’s most active stretch of political work, he did not appear to have any other jobs and his

resume does not list any jobs during that period.211 Whether Councilwoman Mason paid her two

closest and fiercest political operatives, is clearly a matter of public interest.

III

STATUTE OF LIMITATIONS

The statute of limitations on actions for defamation in New Jersey is one year. N.J.S.A.

2A:14-3; see also Churchill v. State, 378 N.J. Super. 471 (App. Div. 2005) (single publication

rule applies to internet publications). Accordingly, the statements in Complaint ¶ 18 (published

June 8, 2011), ¶ 22 (published June 16, 2011), and ¶ 25 (published July 11, 2011) are time barred

and non-actionable because the complaint was not filed until July 26, 2012.

208 In December 2010, Beth Mason and City Business Administrator Arch Liston got into an argument during a public, televised City Hall meeting when Ms. Mason strongly objected to a vaguely described $600 item within Hoboken’s approximately $100 million annual budget. At that meeting, Business Administrator Arch Liston revealed that he believed Beth Mason pays “someone” substantial amounts to write her political material. Specifically, after Beth Mason read a prepared speech objecting to the $600 expenditure, the City Council discussion proceeded as follows:

Liston: I’ll bet you spent more than $600 to have someone write that for you. Mason: Excuse me? Bhalla: Hold on, hold on. Mason: All due respect, I write my own stuff, Mr. Liston. Liston: Oh, I believe that.

(A video of the exchange is attached as Exh. A(15) to the Plumb Cert.) The e-mails from Beth Mason’s campaign clearly demonstrate that Councilwoman Mason was lying when she said, “I write my own stuff.” In fact, those e-mails demonstrate that the Plaintiffs write her stuff. In summary, former Hoboken Business Administrator Arch Liston stated at a public meeting that Ms. Mason makes substantial payments to have “someone” write her political material and the e-mails from Beth Mason’s campaign reveal that Plaintiffs write Beth Mason’s political material. 209 Pincus Aff. Exh. 20 (“I spoke with Lane & Kim as well in the stairwell……learned that they are the professional ones in Hoboken and that everybody just does not understand them”). 210 Plumb Cert. Exh. SS (State of New Jersey v. Calicchio criminal harassment hearing excerpts). 211 Plumb Cert. Exh. YY (Bajardi resume).

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IV

THE COMPLAINED OF STATEMENTS ARE NOT DEFAMATORY

In New Jersey, defamation is the publication of false statements which injure the

reputation of another. Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 765

(1989). Slander or libel per se, subcategories of defamation which do not require proof of

special damages, apply where statements of fact charge the commission of a crime, a loathsome

disease, affect a person in his business, or impute unchastity to a woman. MacKay v. CSK

Publishing Co., Inc., 300 N.J. Super. 599 (App. Div. 1997) (describing slander or libel per se as

applied to charges that an individual had committed consumer fraud).212 The threshold issue in a

defamation lawsuit is whether the statement at issue is reasonably susceptible of a defamatory

meaning. Ward v. Zelikovsky, 136 N.J. 516, 528 (1994).

Whether a particular statement is defamatory “depends on its content, verifiability and

context.” Lynch, 161 N.J. at 167 (1999). Content must be judged, “not by its literal meaning but

by its objective meaning to a reasonable person of ordinary intelligence.” McLaughlin v.

Rosania, Bailets & Talamo, Inc., 331 N.J. Super. 303, 312 (App. Div. 2000). Verifiability refers

to whether a statement can be proven true or false, and statements that are not verifiable, such as

insults and name-calling, even if offensive, are not defamatory. Lynch, 161 N.J. at 167.

Similarly, opinions are not actionable unless they imply false and defamatory underlying facts.

Id. Context is also examined because it bears upon the “fair and natural meaning” of a

statement. Id. at 168.

212 Plaintiffs’ second cause of action asserts a claim for “defamation per se.” Internet expressions are treated as libel in New Jersey which makes the “slander per se” requirements, which are necessary to pursue presumed damages in a slander action, inapplicable. See W.J.A. v. D.A., 210 N.J. 229, 240 (2012). Where public figures or matters of public interest are concerned, presumed damages are not available absent proof of actual malice. Id. at 241-42. In all other matters, presumed damages are limited to nominal damages. Id. at 249. The Complaint only alleges negligent publication (Complaint ¶ 156) and, therefore, the Plaintiffs have not stated a cause of action for statements relating to public figures or matters of public interest.

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All of the complained of statements fall into one or more of the non-actionable categories

of speech described below.

A. The Content of the Complained of Statements Makes Them Non-Defamatory

1. Statements that Are Not “Of and Concerning” Plaintiffs Are Not Actionable

For a comment to be of and concerning a plaintiff, it must include “such reference to him

that those who read or hear the libel reasonably understand the plaintiff to be the person

intended.” Dijkstra v. Westerink, 168 N.J. Super 128, 133 (App. Div. 1979). The “absence of

identifying language in [a] statement” compels courts to reject defamation claims. Ditzel v.

Univ. of Medicine and Dentistry of New Jersey, 962 F.Supp. 595 (1997). Plaintiffs cannot state a

claim for defamation based on Complaint Paragraph 28 (Dear FBI: Letter No. 4) or Complaint

Paragraph 56 (Who Luvs Ya, Al?), because the complained of statements are not of and

concerning Plaintiffs.

2. True Statements Are Not Actionable

Truth is absolutely protected speech. G.D. v. Kenny, 205 N.J. at 293. Truths that are

“personally embarrassing or offensive to some” are no less protected than other truths. Id. at

303. In establishing the truth of a statement, defamation law overlooks minor inaccuracies,

focusing instead on “substantial truth.” Id. at 294, citing Masson v. New Yorker Magazine, Inc.,

501 U.S. 496, 516 (1991). A court must evaluate a statement as a whole to determine the

impression it will make on a reader, and “minor inaccuracies do not amount to falsity” so long as

the “gist” of the libelous charge is justified. Id. Plaintiffs bear the burden of proving that

statements are not substantially accurate. Id. at 304.

Accordingly, Plaintiffs cannot state a defamation claim based on assertions that they are

political operatives because those assertions are true. (See Complaint Par. 31, 41, 47, 52, 56, 77,

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87, 118.) “Political operative” is not a defined phrase213 but the appropriate definition of

“operative” is “a person who works toward achieving the objectives of a larger interest <

political operatives >.” See Merriam Webster On-Line Dictionary. As detailed at length in the

actual malice section above (Point II. C, D), Plaintiffs have spent years working towards

achieving larger political interests, including furthering the political career of Councilwoman

Mason. Accordingly, the true statements asserting that Plaintiffs are “political operatives” are

not actionable defamation.

Likewise, stating that Lane Bajardi works at 1010WINS and is an on-air anchor cannot

be the basis for a defamation complaint because that statement is also true. See Complaint Par.

84, 99, 121.

In assessing substantial truth a court must compare the “gist or sting” of the alleged

defamatory statement to the actual truth. G.D. v. Kenny, 205 N.J. at 294. As explained below,

Ms. Pincus’ assertion that Plaintiffs post anonymously as Curious Gal and prosbus is

substantially true and not actionable. See Complaint Par. 31, 41, 47, 52, 56, 59, 62, 65, 77, 84,

87, 103, 118, 121.

The first step in determining whether a statement is substantially true is identifying the

“gist or sting” of the statement. In this case, the “gist or sting” is that (1) Plaintiffs anonymously

post to the internet and (2) Plaintiffs’ support Beth Mason and criticize Kids First, Mayor

Zimmer, and Ms. Pincus.214 The second step in determining whether a statement is substantially

213 See Websters Unabridged Dictionary, 2d Ed. (no definition for political operative); Blacks Legal Dictionary, 9th Ed. (no definition for political operative). 214 See Exh. LL and KK to the Plumb Cert. Exhibit LL includes 299 comments posted by Curious Gal on Hoboken Patch from June 3, 2012 to Sep. 27, 2012. Of those comments, 87 are critical of Mayor Zimmer, 75 are explicitly critical of Kids First, 15 are critical of Theresa Minutillo, and 9 are supportive of Beth Mason, and 14 are critical of Ms. Pincus. Exhibit KK includes 299 comments posted by prosbus on Hoboken Patch from April 13, 2012 to Sep. 2, 2012. Of those comments, 62 are critical of Mayor Zimmer, 43 are explicitly critical of Kids First, 26 are critical of Theresa Minutillo, 1 is supportive of Beth Mason, 2 are supportive of Tim Occhipinti and 8 are critical of Ms. Pincus.

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true is comparing the “gist or sting” to the actual truth. As to whether the Plaintiffs anonymously

post to the internet, the truth of that assertion has been established based on e-mails from the

2009 Mayoral election,215 conversations between the Plaintiffs and other local political

operatives,216 and from public comments made by Lane Bajardi at City Council meetings.217 As

to whether the Plaintiffs support Beth Mason and criticize Mayor Zimmer, Kids First, and Ms.

Pincus, the truth of that assertion is likewise established by e-mails authored by the Plaintiffs,218

public statements made by the Plaintiffs,219 and internet comments authored by the Plaintiffs

under their own names, and further supported by the affidavits accompanying this

memorandum.220 Because the “gist or sting” of the assertion that Plaintiffs post as Curious Gal

and prosbus is true, the statement is substantially true and non-actionable.

215 See Pincus Aff. Exh. 30 (“Better have some bloggers ready to defend this because I am sitting this one out.”); Pincus Aff. Exh. Exh. 24 (“This message has been sent under cover to several Masonistas to protect their online identities… People should be posting on that thread with their thoughts to keep it alive…”); see also Pincus Aff. Exh. 31 (e-mail from another Mason supporter encouraging Plaintiffs to “own the first comments page”). 216 Pincus Aff. Exh. 64 (Lenz. Aff. ¶ 15). 217 Plumb Cert. Exh. A(9) (video of Lane Bajardi stating at a City Council meeting that he would “republish on some blog somewhere the incredibly hostile commentary… to himself and members of this counsel”). 218 See, for example, Pincus Aff. Exhs. 27, 30, 44, 46, 47. 219 Zimmer: Pincus Aff. Exh. 70 (Bajardi endorsing Mason over Zimmer); Plumb Cert. Exh. A(1) (Bajardi stating at a City Council meeting, “your internet clowns are here Councilman Zimmer”); Plumb Cert. Exh. A(2) (Bajardi stating to at a City Council meeting to Mayor Zimmer, “Congratulations! You’re a sham!”); Plumb Cert. Exh. A(7) (Bajardi stating at a City Council meeting that Mayor Zimmer’s “ridiculous incompetence” was “on display for all the world to see”). Minutillo: Pincus Aff. Exh. 63 (detailing Kim Cardinal’s harsh criticism of Kids First board member Theresa Minutillo. Pincus: Plumb Cert. Exh. A(3); Plumb Cert. Exh. A(5). 220 Pincus Aff. ¶ 19; Pincus Aff. Exh. 62 (Siegel Aff.) (“Lane said it would ‘destroy’ Nancy.”); Pincus Aff. Exh. 63 (Minutillo Aff. ¶ 3) (“For the next 20 minutes or so, Kim Cardinal insulted me, put me down and criticized me on behalf of Beth Mason, as Beth Mason sat silently by”); Pincus Aff. Exh. 64 (Lenz Aff.¶ 40) (“Press contacts confirm off the record that Lane continues to spin against Zimmer”); Pincus Aff. Exh. 65 (Stuiver Aff.) (describing Plaintiffs as “senior political operatives of the Mason organization… in charge of Mrs. Mason’s organized Internet/blogging strategy… the campaign’s principle liasons with Hoboken411, a local blog that coordinated its anti Zimmer messaging with the Mason campaign”); Pincus Aff. Exh. 66 (Kurta Aff. ¶¶5 (“Bajardi stated that Mayor Dawn Zimmer… only attends Authority meetings when she has called the media to take pictures of her giving speeches… Bajardi was more concerned that the sale would help… the Mayor’s political standing… than he was that my candidacy would harm the sale process and the institution”); Pincus Aff. Exh. 67 (Soares Aff. ¶ 5) (“I always perceived Mr. Bajardi as an inner circle political operative who had content control of Hoboken 411 as well as serving as one of Mrs. Mason’s most trusted advisors on message and debates.”).

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3. Statements Not Susceptible of a Defamatory Meaning Are Non-Actionable

“Whether the meaning of a statement is susceptible of a defamatory meaning is a

question of law for the court.” Ward, 136 N.J. at 529 (citing Kotlikoff v. The Community News,

89 N.J. 62, 67 (1982)). Statements that are not reasonably susceptible of a defamatory meaning

are not actionable defamation. Id.

Plaintiffs allege that they are defamed by statements alleging they are paid by

Councilwoman Mason. See Compl. ¶¶ 41, 74, 87, 118. But stating that individuals who have

publicly worked for years to advance Ms. Mason’s political career are paid for their efforts is not

defamatory.221 Receiving payment from Ms. Mason or her political organizations does not

expose an individual to “hatred, contempt or ridicule.” Romaine v. Kallinger, 109 N.J. 282, 289

(1988). Rather, Plaintiffs’ close association with Beth Mason, her politics of division, and her

alliance with the Russo Faction exposes Plaintiffs to contempt from the Reform Faction in

Hoboken without regard to whether or not they are paid for their efforts.222 In fact, Plaintiffs

were roundly criticized for their support of Beth Mason long before Beth Mason’s undisclosed

payments to her political operatives became a topic of public interest and long before Ms. Pincus

started her blog.223

221 Should this litigation continue after resolution of this motion based on a finding that Ms. Pincus asserted a fact concerning Plaintiffs’ IRS reports, Ms. Pincus would seek to prove the truth of that fact by reviewing the necessary financial documents including Plaintiffs’ tax returns, bank statements, earnings statements and all other financial documents from 2005 through the present. 222 And even if being paid by Beth Mason could possibly injure Plaintiffs, Ms. Pincus has established a good faith basis for asserting that Lane Bajardi is paid. See II.D, above. Plaintiffs simply cannot establish that Ms. Pincus alleged that Lane Bajardi is “paid” with knowledge of that statement’s falsity as is required by the actual malice standard. Furthermore, because Plaintiffs have never communicated with Ms. Pincus under their own names prior to initiation of this lawsuit, even if the comments are false, nothing could be revealed in discovery that could establish that Ms. Pincus knew the statements were false. 223 See Pincus Aff. Exh. 19 (“You have been ‘anonymously’ posting for months that we (including Beth) have been ‘in league with the Russos’”); Pincus Aff. Exh. 30 (“And you know who gets the blame for all these poor decisions? I do, and Kim does. We are being slandered on the internet because people stupidly think we are the ones advising Beth to make these calls.”); Pincus Aff. Exh. 44 (“Go look at the slander-laden shitstorm that Kim and I have been the victims of on NJ.com, HobokenNow, RealHoboken, HobokenRevolt and HobokenJournal.”); Pincus Aff. Exh.

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Plaintiffs also allege that they are defamed by allegedly false statements asserting that

they post as prosbus and Curious Gal. See Compl. ¶¶ 41, 47, 52, 56, 59, 62, 65, 77, 84, 87, 103,

118, 121. Besides being substantially true (see IV.A.2, above) there is nothing defamatory about

identifying the Plaintiffs as the authors of the Curious Gal and prosbus posts. As a rule, those

posts are articulate, reasoned, and factually detailed.224 The authors are consistently supportive

of Beth Mason and critical of Mayor Zimmer, Kids First, and Ms. Pincus – precisely the support

and criticism Plaintiffs have publicly voiced. Tellingly, Plaintiffs have not alleged why being

identified as prosbus and Curious Gal defames them because they cannot.

B. Opinions and Similar Statements Are Unverifiable and Non-Defamatory

1. Opinion Is Non-Actionable Privileged Speech

Opinions are privileged and non-actionable. If opinions are based on alleged facts and

the facts are disclosed “even the most derogatory or unreasonable opinion is not actionable

because ‘readers can interpret the factual statements and decide for themselves whether the

writer’s opinion was justified.’” Casamasino v. City of Jersey City, 304 N.J. Super. 226, 243

(1997), rev’d on other grounds, 158 N.J. 333 (1999), quoting Kotlikoff, 89 N.J. at 72-73 (1982)).

In other words, harm caused by the publication of an opinion is only actionable “if a reasonable

factfinder would conclude that the statements imply reasonably specific assertions of fact.”

Higgins v. Pascack Valley Hosp., 158 N.J. 404, 427 (1999) (letters written to plaintiff’s employer

stating that plaintiff could not be trusted, had violated ethical guidelines, and would likely make

false statements in the future was non-actionable opinion). Where a statement could be

construed as either fact or opinion, a defendant is not held liable because “a[n] interpretation

47 (“Kim and I have taken heaploads of abuse from the Zimmerists who have smeared us as THE people who made the decisions that ultimately doomed your campaign… much of it BY NAME being done publicly in the blogs…”). 224 See Plumb Cert. Exhs. LL and MM for samples of prosbus and Curious Gal comments.

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favoring a finding of ‘fact’ would tend to ‘impose a chilling effect on speech.’” Lynch, 161 N.J.

at 168, quoting Dairy Stores, 104 N.J. at 148.

While opinion is never actionable defamation, several categories of opinion have been

specifically identified as non-actionable. Political opinions, for example, occupy the “highest

rung” of protected speech and are never a proper basis for a defamation suit. Snyder v. Phelps,

131 S.Ct. 1207, 1215-16 (2011) (“Speech deals with matters of public concern when it can ‘be

fairly considered as relating to any matter of political, social, or other concern to the

community.’”) “Political discourse depends on the expression of opinion” and, therefore, New

Jersey Courts will not suppress speech relating to politics, even though such speech may be

emotional, partisan, or self-interested. Lynch, 161 N.J. at 168. As detailed in the statement by

statement analysis (Section IV.D, below), all of the complained of statements address Hoboken

politics, within either articles on a partisan, amateur political blog, or within heated political

debates in the comments sections of another blog. As expressions of opinion within political

discourse the complained of statements are non-actionable.

Opinions concerning the beliefs of others are subjective assertions not sufficiently

susceptible to being proved true or false to constitute defamation. Edelman v. Croonquist, No.

09-1938, 2010 WL 1816180 (D.N.J. 2010) (blog entries accusing plaintiffs of being racists were

non-actionable opinion). In Edelman, the Court questioned whether charges of racism could

ever constitute actionable defamation, citing favorably Stevens v. Tillman, 855 F.2d 394, 402

(7th Cir. 1988) (“Accusations of ‘racism’ no longer are ‘obviously and naturally harmful.’ The

word has been watered down by overuse, becoming common coin in political discourse.”)

(emphasis added). In a footnote, the Edelman decision explained that the Stevens decision was

reached in accordance with New Jersey law. The Edelman decision also explained that charges

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of racism “fit comfortably within the immunity for name-calling.” Edelman, 2010 WL 1816180

at *6. Likewise, in DeAngelis v. Hill, 180 N.J. 1, 14 (2004), statements referring to the plaintiff

as a “bigot” were held non-actionable despite the clear charge of racism.

In this case, Plaintiffs allege that charges of racist motives (Complaint ¶ 121) and “anti-

semitism” (Complaint ¶ ¶ 47, 52) defame them. But these charges “fit comfortably within the

immunity for name calling” and, plainly are subjective assertions concerning the beliefs of others

that are not sufficiently susceptible to being proved true or false to constitute defamation.

Edelman, 2010 WL 1816180.

Opinions concerning the commission of crimes are no less protected because of

conclusions asserting criminality, whether or not such opinions are correct. See Van Englen,

1997 WL 406267 at *4 (opinion that “the major crime” appeared to be within the police

department, and identifying the supposed criminals, is non-actionable statement of opinion); see

also Lynch, 161 N.J. at 170 (political flyer identifying opponent as a lead figure in the mafia was

non-actionable despite implication of criminality). Likewise, implication or innuendo of

criminal acts, based on stated facts, are not defamatory but simply commentary protected by the

First Amendment. See Ward, 136 N.J. 516, 535 (discussing Cibenko v. Worth Publishers, Inc.,

510 F. Supp. 761 (D.N.J. 2006)).

In this case, Plaintiffs repeatedly state that they are defamed by statements implying

criminal activity. See Compl. ¶¶ 31, 38, 56, 65, 74, 87, 103, 121. But the statement identified by

the Plaintiffs in each paragraph either does not imply criminal activity or states an opinion that

addresses criminal activity. Plaintiffs cannot maintain their defamation claims by reading

charges of criminality where none exist or by complaining of mere opinions that address crimes.

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2. Rhetoric and Hyperbole Are Non-Actionable Speech

Rhetoric and hyperbole are also protected speech. See Lynch, 161 N.J. at 167-68

(“Loose, figurative or hyperbolic language is not likely to imply specific facts, and thus is not

likely to be deemed actionable.”). In Casamasino, public statements concerning tax assessments

that created “a wide open door inviting corruption” and “opens the door for someone to take

payoffs” were found non-actionable because they were “merely rhetoric and hyperbole.” 304

N.J. Super. at 243-44 (citing Kotlikoff, 89 N.J. at 72 (1982)). In Lynch, political flyers naming an

opponent the “Boss of Bosses” (a reference to the head of the leading mafia family in New York

City and implying involvement in criminal activity) was non-actionable because “the reader

would understand the statement to be hyperbole and name-calling emanating from a rough-and-

tumble political campaign.” 161 N.J. at 170-71. Accordingly, when Ms. Pincus stated that the

Plaintiffs’ child would be “better off raised by wolves” and stated “somebody call DYFUS”

(New Jersey’s child protective services) because Plaintiffs do not support Ms. Pincus’ preferred

Board of Education candidates, any reasonable reader would understand these statements to be

hyperbole. See Complaint ¶¶ 59, 62, 65, 71, 74.

Rhetorical questions calculated to provoke discussion are likewise not capable of

defamatory meaning. Cibenko v. Worth Publishers, Inc., 510 F.Supp. 761, 764-65 (D.N.J. 1981)

(photograph of white plaintiff prodding a black man with his nightstick, accompanied by the

rhetorical question “Would the officer be likely to do the same if the ‘offender’ were a well-

dressed middle-aged white person?” held not capable of defamatory meaning). In Cibenko, the

District Court went on to hold that any innuendo drawn from the rhetorical question (i.e., that the

plaintiff is racist and specifically prejudiced against blacks), is “simply the author’s commentary

on undisputed facts” and “[a]s such, it is editorial opinion, safeguarded by the First

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Amendment.” Id. at 765, citing Gertz, 418 U.S. at 339 (1974). Thus, the complained of

rhetorical questions in this case, are also non-actionable. See Complaint ¶ 103.

3. Insults Are Not Actionable Defamation

“Epithets, insults, name-calling, [and] profanity… are not actionable” defamation.

DeAngelis, 180 N.J. at 14. In assessing the potential for defamatory meaning, courts must

“differentiate between defamatory statements and obscenities, vulgarities, insults, epithets,

name-calling and other verbal abuse.” Id. (internal quotes omitted); see also Hagaman v. Angel,

No. ATL-L-2408-03, 2005 WL 1390360, *3-6 (N.J. Super. 2005) (statement referring to plaintiff

as “the Auto Insurance Fraud Queen” was non-actionable name calling despite the implication of

a crime; statements in a blog referring to plaintiff as a “trailer trash park bigot” are non-

actionable name calling.)

Only verifiable statements, which can be proved true or false, may constitute actionable

defamation. Lynch, 161 N.J. at 167. “Absent a settled meaning, the truth or falsity of an insult is

not susceptible to such proof.” Id. (calling a man a “wife-beating skunk” not actionable as

unverifiable insult)); Ward, 136 N.J. at, 537 (calling a woman a “bitch” not actionable as

unverifiable insult); Edelman, 2010 WL 1816180 (charges of racism fall within the immunity for

name calling). Accordingly, stating Plaintiffs are “persons of interest” or “political operatives”

cannot be actionable defamation because those terms do not have settled meanings. Comp. ¶¶

31, 41, 47, 52, 56, 77, 87, 118.

Plaintiffs allege that they have been defamed because Ms. Pincus stated that they “suck

as parents.” Compl. ¶¶ 59, 62; see also Compl. ¶¶ 65, 71. Whether Plaintiffs “suck as parents”

is unverifiable. The phrase is also meaningless invective or name calling and therefore non-

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actionable. Likewise, charges of racism and anti-Semitism fit comfortably within the immunity

for name-calling. Compl. ¶¶ 47, 52, 121.

C. The Context of the Complained of Statements Makes Them Non-Defamatory

Statements must be viewed in their context to determine whether they are actionable

defamation. See DeAngelis, 180 N.J. at 15 (“[C]ourts must consider the listener’s reasonable

interpretation, which will be based in part on the context in which the statement appears… to

determine whether the statement was capable of a defamatory meaning.”) (quoting Ward, 136

N.J. at 532). The context to be considered is both “narrowly linguistic and broadly social.”

Wilson, 297 N.J. Super at 137. The medium by which the statement is disseminated, political

speech, overblown criminal charges, jokes and long-time wars of words, each discussed below,

all put reasonable readers on notice that statements are opinion rather than fact.

First, the “medium by which the statement is disseminated and the audience to which it is

published” affects whether a statement is actionable because certain media put reasonable

recipients on notice that statements will be “provocative and caustic” and the reasonable

recipients accordingly discount such statements. Id. at 138 (listeners to a.m. radio talk shows

discount statements made in that medium). The publications of comments on blogs, especially

when the content of the blogs is sometimes rude and offensive, provides context to readers

sufficient to provide notice that “the language that has been provided amounts to nothing more

than defendant’s negative opinion” of the plaintiff and “a reasonable person would find that the

language of the statements themselves is only the opinion of the speaker.” Hagaman, 2005 WL

1390360 at *3. In this case, all of the complained of comments are either published on an

amateur, partisan political blog that is often rude and offensive, or are comments within heated

exchanges in the comments sections of a blog addressing Hoboken politics. The audience for

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these publications knows that amateur partisan political blogs represent the opinion of the

speaker, as do nominally anonymous comments posted below political blog articles.

Second, “statements made in the heat of a contentious political campaign” are not likely

to be actionable defamation because “political discourse, even in its meanest form, is at the very

core of free speech protections.” G.D. v. Kenny, 205 N.J. at 291-92; see also McLaughlin, 331

N.J. Super. at 312-13 (“[A]ccusations during a heated political campaign are likely to carry less

credibility for the average person than they would in a less emotional context.”). In New Jersey,

“[p]olitics is not a parlor game” and individuals supporting campaigns may be “caught in the

cross-fire” without redress. G.D. v. Kenny, 205 N.J. at 309 (factually inaccurate campaign flyers

attacking campaign aid held non-defamatory based, in part, on the political context of the

statements).225 Any accusations made in the complained of statements are within the context of

Hoboken’s political “schism.”

Third, where criminal allegations are concerned “a court needs to examine a statement in

context to determine whether it conveys the impression that a plaintiff is being accused of a

crime.” Karnell v. Campbell, 206 N.J. Super. 81, 89, 93 (App. Div. 1985) (letter accusing

developer of “theft” and “rape” was not actionable defamation because “any reader would

understand that she [defendant] was not accusing plaintiffs of the crimes of rape or theft”).

Accordingly, Plaintiffs’ assertions that Ms. Pincus’ figurative language addressing their politics

actually accuses Plaintiffs of prostitution and should be read literally to imply the crime of

prostitution are misplaced. See Complaint ¶¶ 65, 74.

Fourth, there is no defamation where complained of statements, taken in context, are

“clearly understood as being parody, satire, humor or fantasy.” Salek v. Passaic Collegiate

225 The plaintiff in G.D. v. Kenny had not worked on a political campaign for six years prior to the publication of the complained of statements. G.D. v. Kenny, 205 N.J. at 284-85.

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School, 255 N.J. Super. 355, 359 (App. Div. 1992) (publication suggesting an ongoing sexual

relationship non-actionable satire); see also Hustler Mag. v. Falwell, 485 U.S. 46 (1988). Thus,

the satire complained of in Complaint Para. 28 is a not actionable.

Finally, a “long time war of words” between parties to an action causes reasonable

readers to “naturally discount[] to some degree statements made in the heat of vitriolic battle,

because the recipient understands the human tendency to exaggerate positions during the

passions and prejudices of the moment.” Wilson, 297 N.J. Super. at 137-38. All of the

complained of statements in this case involve a public, “long time war of words” between Ms.

Pincus and the Plaintiffs. Plaintiffs initiated the war of words when Lane Bajardi repeatedly

spoke at City Council and Board of Education meetings attempting to score political points

against Mayor Zimmer by linking Ms. Pincus and her sometimes crude blog illustrations to the

Mayor. Those efforts have continued, either by Plaintiffs or their political allies, through internet

comments and anonymous flyers and anonymous video vans publicizing statements critical of

Ms. Pincus throughout Hoboken. Anyone paying attention to Hoboken politics, i.e., the

audience of the complained of statements, is aware of the long time war of words between the

parties.

All of the complained of statements are within blog articles or blog comments, address

political issues in a contentious political setting, and are elements of a long time war of words

between the Plaintiffs and Ms. Pincus. Any one of these three contexts would suffice to put a

reasonable reader on notice that the complained of statements are merely heated opinion. In this

case, with all three factors present, no reasonable reader could possibly understand the

complained of comments to be anything but opinion.

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D. Analysis of Each Complained of Statement is Necessary to Dispose of or “Pare Down” Defamation Complaints at the Earliest Possible Stage of Litigation

Summary judgment should be used to bring defamation suits to a “speedy end.”

Maressa, 89 N.J. at 196. Even where one or more in a series of complained of statements may

be actionable, an “early paring” of a defamation claim is appropriate to “isolate precisely what is

at issue, help determine the scope of the discovery… and clarify for defendant what it must

prove to assert the defense of truth.” Id. at 197. In order to isolate precisely what is at issue,

each complained of statement must be analyzed in context. In this case, the context of the

complained of statements provides readers with notice that each of the complained of statements

are opinion involving political issues and stated within a long running, public war of words and

are therefore not actionable defamation. While context alone is sufficient to dismiss this case,

the following, statement-by-statement analysis addresses additional reasons why the Plaintiffs

cannot maintain a claim for defamation.

1. Complaint Paragraph 28

The complained of Article is an August 15, 2011 blog entry entitled “Dear FBI: Letter

No. 4.”226 The Article is not actionable defamation because it is a joke and not “of and

concerning” the Plaintiffs. Furthermore, Ms. Pincus published a full retraction.

Plaintiffs allege that the Article threatens violence against Plaintiffs and their child and

falsely implies Plaintiffs’ involvement in criminal activity.227 In fact, the statement is non-

defamatory because the Article is a joke that is not “of and concerning” the Plaintiffs or their

child. The Article simply does not mention Plaintiffs or their child. The Plaintiffs’ assertion that

violence was threatened “against their child” is baseless but was widely reported in Hoboken

226 Pincus Aff. Exh. 60. 227 Plaintiffs do not allege that this statement is false but not defamatory. Accordingly, the claim should be dismissed for failure to state a defamation claim.

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after Plaintiffs filed this lawsuit, and is further evidence of the improper purpose of this

litigation.228

The Article was published as a hand-written, three page image of a satirical, fantasy-

based letter to the FBI. This is the fourth in a series of nine such satirical letters and clearly

marked as such (“Dear FBI: Letter No. 4”). The context of the letter informs reasonable readers

that the letter is a joke.229 For example, the first paragraph states:

Dear FBI, How’ve you been? Sorry you haven’t heard from me in a while. No, I’m not mad at you, I was on vacation. Have you had one this summer? Remember to bring your sun block – 35 or higher. Do you burn or tan?”

The last paragraph invites “FBI” out for a “falafel at Mamoun’s” and asks if the FBI likes hot

sauce. Likewise, in the third paragraph, the letter asks the FBI: “did that bird ever crap on your

shoulder?” Reasonable readers would recognize these statements as satire or jokes and

understand the remainder of the publication to also be a joke. There is no defamation where

complained of statements are “satire, humor or fantasy.” Salek, 255 N.J. Super. at 359.

The fourth paragraph makes a joke out of the notion that Ms. Pincus, a slight blogger

with a degree in architecture who has never held a gun, might be hired by the FBI and issued a

gun, in stating:

I think I’d do a GREAT job. First of all, I’ve always wanted to shoot someone. I’d get a gun, right? Well, I’d definitely use it. Alot. Maybe everyday. Bang bang! Take that! Only do I ask questions first THEN shoot? Or shoot FIRST and ask questions later? I guess it’s in the manual, right?

No serious text addressing the FBI would ask these questions or use the phrase “Bang bang!

Take that!” Obviously, this letter is a joke. Jokes in poor taste are no less protected by the First

Amendment. See Hustler Mag., 485 U.S. at 48-50 (article purporting to quote public figure

228 Pincus Aff. ¶¶ 11, 34, 38, 46. Plumb Cert. Exh. II. 229 The larger context of the letter posted to a partisan, satirical blog also alerts readers to discount the veracity of any claims made therein. See Point IV.B, above.

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relaying details of drunken, incestuous sexual escapade in an outhouse with his mother deemed

non-actionable joke).

Expanding on the joke that she might someday work for the FBI, the letter states that she

has a “whole list of people to arrest… all within walking distance! One’s on upper Hudson,

another’s on Park, one lives above a Pet Shop… I’ll tell you, I’ll just walk over at 6 am and

knock on their doors. And if they don’t answer right away, I’ll take out my gun and shoot the

door knob (I get a gun, right?) And if they resist I’ll apply the Vulcan Death Grip – one squeeze

and they’re down.”230 Again, reasonable readers would identify this paragraph as a joke. The

Vulcan Death Grip is a fictitious hand-to-hand combat technique used by Mr. Spock, a half-

human, half-alien (Vulcan) officer on the Starship Enterprise in a 1968 episode of the science

fiction series Star Trek, i.e., the statement is non-defamatory fantasy.231

In case any reasonable reader who frequented Ms. Pincus’ blog could not discern from

context that the letter was a joke, one week later Ms. Pincus published a full retraction (“Dear

FBI: Letter No. 5”), in the same publication format as the August 15 publication, in response to a

criminal complaint reportedly filed by Lane Bajardi232 and others. The retraction states, in part:

I regret any misunderstanding if anyone took any part of this seriously, or as anything but utter nonsense… 1. I DO NOT want to work for [the FBI]… That was a JOKE… 2. I have NEVER NOT EVER wanted to shoot ANYONE. That was a JOKE. The idea of the joke was self-ridicule in this fake ‘job-interview’ scenario. So the statement was meant to be an eye-rolling stupid thing to say. There is NO TRUTH in that statement. 3. I don’t have a list of people to arrest. That was a JOKE. I don’t even shop with a shopping list. 4. The shooting the

230 The plain meaning of this sentence is that Ms. Pincus, if she were an FBI agent, would arrest -- not shoot, not harm, just arrest -- people, and “if they resist” her judicially sanctioned, legal FBI arrest, she would nevertheless execute the arrest warrant by way of a fictitious grappling technique. No reasonable person reads that sentence and concludes that the Plaintiffs’ child has been threatened. 231 Even in the fantasy world of Star Trek, there is no such thing as a Vulcan Death Grip. See Star Trek, Season 3, Ep. 2 at http://www.startrek.com/watch_episode/gYcqGmppa8GO (Nurse Chapel: “But there’s no such thing as a Vulcan death grip!” Captain James T. Kirk: “Ah, but the Romulans don’t know that.”) 232 Plaintiffs failure to demand retractions of the other Statements precludes punitive damages and substantially decreases other damages based on Plaintiffs failure to mitigate. The retraction demonstrates Ms. Pincus’ willingness to retract or otherwise correct statements given adequate notice.

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doorknob off was a JOKE…. 5. I do not want to share a falafel with [the FBI] at Mamoun’s. If we go to Mamoun’s I am getting my own. I’ve been doing satire for a year and a half. I am not always funny.233

Soon after publication of the subject article, Augustin C. Torres, the “Political Insider”

for The Jersey Journal, reported that Mason, Occhipinti, and Lane Bajardi had filed a criminal

complaint against Ms. Pincus based on the content of the letter.234

Besides being a joke, the statement is not “of and concerning” Plaintiffs,235 and the

reference to “Park” does not make it so.236 See Ditzel, 962 F.Supp. at 605 (stating that a financial

report Plaintiff had prepared contained errors was not defamatory because “[u]nless someone

knew that plaintiff was a member of the department and that he had been discharged, the reader

would have no way of knowing that [the statement] pertained to the plaintiff”). As in Ditzel the

Plaintiffs ask the court to assume a reader knew several things about the Plaintiffs, including

their address and that the author suspects that they (and only they, among the residents of

“Park”) might eventually be arrested in connection with the FBI investigation. And, as also in

Ditzel, the absence of sufficient identifying language, despite the potential inclusion of some

identifying language, compels rejection of the defamation claim.


Paragraph 31 complains about a handful of statements within a five-page article

discussing the changes that have occurred in Hoboken since the beginning of the FBI

investigation concerning the Mayor’s stolen e-mails, published on September 13, 2011,237

entitled “The Calm Before.” The statements are not actionable defamation because they are

233 See Pincus Aff. Exh. 60. 234 See Plumb Cert. Exh. CC. 235 In response to the criminal complaint reportedly filed by Plaintiff Lane Bajardi, the Hoboken Police Department spent approximately one hour asking Ms. Pincus who was referenced in the article. Clearly, the Hoboken Police could not discern, from the text, who the article was “of and concerning.” See Pincus Aff. ¶ 60. 236 Query why Plaintiffs, who claim not to be political operatives and to have nothing to do with the stolen e-mails from the Mayor’s office currently being investigated by the FBI, would even assume that the article refers to them. 237 Plaintiffs misstate the date of publication as August 15, 2011. Complaint ¶ 31.

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opinion, do not have a definite meaning, are true, are substantially true, or are not susceptible to

a defamatory meaning.

The article features a satirical image of FBI agents raiding a City Council meeting. The

entire post addresses issues of public concern, including e-mail theft from City Hall, an FBI

investigation into the theft, and changes that have occurred in Hoboken politics since the FBI

raid. The article discusses the sudden halt in Mason friendly advertisements and articles on

Hoboken 411, the shuttering of the Russo Civic Association building, Lane Bajardi’s decision to

stop attending City Council meetings, the sudden absence of Mason friendly comments on

various blogs, a less combative public demeanor from City Councilman Mike Russo, and the

relocation of another political operative from Hoboken to the Shore. The complained of

statement is:

City Council regular for years, Beth Mason operative Lane Bajardi- famous for choreographed City Council performances coordinated with self-authored hit pieces in Hoboken411.com and scripted Mason outrage- has been MIA at public meetings. Severed from Hoboken411.com and neutered at the City Council, Bajardi has been lashing out on Patch and Hudson Reporter forums. To boot, he's ditched his 'known' screen names, commenting under a variety of new ones, with rants as identifiable as a finger print. GA thinks the motive for using so many screen names is to create the perception that the 'message' is shared by many messengers. In fact, it's one person blowing a lot of smoke. Ha! It looks like I spoke too soon... the Mason checkbook seems to have flipped open to throw a certain cyber-slug a bone. Yes, he's published another putrid Bajardi screed. FBI, they're at it again. Persons-of-interest, enjoy the time you have left. Unshackled. Plaintiffs allege that these statements are false and defamatory because (1) Mr. Bajardi is

not a person of interest, (2) is not involved in criminal activity, (3) is not a political operative, (4)

is not paid by Ms. Mason, (5) does not anonymously post on Hoboken Patch, and (6) did not post

any comments referenced by the statements. But Lane Bajardi is a political operative (see Point

IV.A.2, above), Ms. Pincus’ opinion that he is paid by Beth Mason is not defamatory (see Point

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IV.A.3, above), and stating that Lane Bajardi anonymously posts on Hoboken Patch is

substantially true (see Point IV.A.2, above).

The article is non-actionable opinion based on stated facts concerning the FBI’s raid on

City Hall in response to the theft of e-mails from the Mayor’s office and also states that

Cammarano’s prison sentence was likely reduced because “he talked.” Ms. Pincus then clearly

signals to her readers that she is stating her opinion, which is based on her observations: “ GA

believes the following are a direct consequence of the FBI’s ongoing investigation in Hoboken.

Note these are simply my own observations.”238 A list of six changes in Hoboken follow. Two

of those involve Lane Bajardi. The first states that Hoboken411 is no longer used as a “Mason

propaganda tool” and the second states that Lane Bajardi has stopped attending City Council

meetings. Both of these truthful observations are well documented.

Person-of-interest does not have a specific meaning and, for that reason alone, cannot be

defamatory.239 Lynch, 161 N.J. at 167 (referring to plaintiff as a “wife beating skunk” was non-

defamatory because words that do not have a settled meaning are not defamatory). Bajardi was

known to work closely with Beth Mason, and the Hudson Reporter had reported that many

people believed Mason had been involved in the e-mail theft based on the text of the FBI’s

criminal complaint against Ricciardi. In addition, the FBI had been visiting Ms. Pincus’ blog

when she wrote articles relating to Mason and Bajardi.240 Ms. Pincus used these facts as the

basis of her non-defamatory opinion that Lane Bajardi is a “person of interest.”

238 In the larger context of a partisan political blog detailing minutia of insider politics, a reasonable reader would be on notice that everything on the blog is merely Ms. Pincus’ opinion. 239 See Dilemma of Interest, American Journalism Review, Donna Shaw, February/March 2006 (Plumb Cert. Exh. PP) (Addressing the recent increase in the use of the phrase “person of interest,” reasons for its use, and the meaning of the term. “‘Person of interest’ means… nothing… it is a vague term that has no real understandable definition.”) 240 Pincus Aff. ¶ 124; Pincus Aff. Exh. 61.

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The Article does not state that Bajardi is involved in criminal activity. Rather, it

truthfully states that shortly after initiation of the FBI investigation Lane Bajardi stopped

attending City Hall meetings and that Hoboken 411 stopped running advertisements and articles

promoting Beth Mason and authored by Lane Bajardi. Ms. Pincus’ opinion regarding her

interpretation of these stated facts is non-actionable, even if that conclusion implies involvement

in crime. See Van Englen, 1997 WL 406267 at *4 (opinion that “the major crime” appeared to

be within the police department, and identifying the supposed criminals, is non-actionable

statement of opinion). In fact, opinions are protected speech no matter how derogatory or

unreasonable. Casamasino,, 304 N.J. Super. at 243, rev’d on other grounds, 158 N.J. 333,

quoting Kotlikoff, 89 N.J. at 72-73).

As to whether or not Lane Bajardi authored the “referenced” statements, none of the

those statements are identified and, therefore, authorship is unverifiable. To the extent Plaintiffs

deny that they have written any anonymous comments on Hoboken Patch or Hoboken 411,

allegations that they have written comments supporting Beth Mason and the Russo Faction, and

critical of Mayor Zimmer, Theresa Minutillo, and Nancy Pincus are substantially true, whether

the comments were in fact authored by Plaintiffs or other “Masonistas.” See IV.A.2, above.

Furthermore, Ms. Pincus provides the factual basis for her opinion that the latest “rants”

are Lane Bajardi’s because his style is “as identifiable as a fingerprint.” The fingerprint style of

Plaintiffs’ posts are detailed in the Section J of the Background and Facts. Ms. Pincus’ opinion

concerning the authorship of comments, based on stated facts, is non-actianable.

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Plaintiffs state that they have been defamed by the November 9, 2011 Grafix Avenger

blog article entitled “Excerpts From the Complaint.” The complained of statement is not

actionable defamation because it is opinion.

The subject of the November 9 Article is the criminal complaint filed by the Department

of Justice against Patrick Ricciardi, the Hoboken City Hall IT staffer who was accused of

stealing e-mails from the Mayor and “certain Mayor’s Office Employees” and forwarding those

e-mails to others, including a City municipal official and a former City municipal official, as

well as undisclosed other individuals.241 The Article addresses a topic of public interest.

The criminal complaint pointedly notes that some City Council members retain strong

ties to previous administrations and that evidence of a political “schism” is evident in the local

blogs. Specifically, the complaint states:

7. The investigation has also revealed that many of the elected and appointed officials in the City retain strong ties to the previous administration or are otherwise politically opposed to the Mayor, and have sparred with the current Mayor on a variety of municipal issues, large and small. These officials include several members of the City Council, as well as high-ranking employees of different City municipal agencies such as Public Safety Department, the Fire Department, and the OEM.

8. Evidence of this schism in the City is apparent through the postings of articles and comments on City-related issues to different weblogs, or “blogs.”

These and other relevant portions of the Complaint were posted within the November 9

Article which states Ms. Pincus’ opinion that Ricciardi made false statements to the FBI in order

to cover-up a conspiracy. A reasonable reader, encountering a self-identified conspiracy theory

on a partisan, political, amateur blog would understand the statements to be opinion based on the

context alone.

241 See Plumb Cert. Exh. XX (U.S. v. Ricciardi Criminal Complaint).

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The complained of statement242 is:

Another point of note is the role of the “blogs” in the complaint, citing them as evidence of the political schism in Hoboken. GA believes this points to Hoboken411.com, Perry Klaussen and Lane Bajardi for their handling of leaked emails and other leaked materials as part of the conspiracy. It also points to the other political blogs – whose emails were requested on the Mason-Russo resolution: Hoboken Journal, Mile Square View and Grafix Avenger.

Plaintiffs allege that these statements are false and defamatory because (1) Lane Bajardi

was not involved in the theft of e-mails, (2) Lane Bajardi is not involved in the handling of e-

mails or other materials leaked in relation to that crime, (3) Lane Bajardi is not a party to a

conspiracy, and (4) the statements imply involvement in criminal activity.

Ms. Pincus’ conspiracy theory, based on the text in the criminal complaint which was

published within the November 9 Article, was that the City Council members with “strong ties to

the previous administration,” i.e., the Russo Faction, were involved in e-mail theft.243 In the

Article, Ms. Pincus further hypothesizes that the Russo-Mason resolutions attempting to acquire

e-mails sent to various bloggers was intended to make stolen e-mails publicly available, as a

cover for anyone in possession of the stolen e-mails. Lane Bajardi had also appeared at City

Council meetings supporting Ms. Mason’s e-mail investigation.244 Ms. Pincus’ opinion is based

242 Plaintiffs’ effort to expand the complained of statements with the phrase “including, but not limited to the following” does not state a claim for whichever other statements Plaintiffs purport to be defamatory. See Miele v. Rosenblum, 254 N.J. Super. 8, 12-14 (App. Div. 1991) (plaintiffs must specify the defamatory words and the meaning they attach to them). 243 Ms. Pincus was certainly not the only Hoboken resident to form this opinion. See S. Hortillosa, Hoboken City Council Minority members deny involvement in suspended IT officer’s alleged hacking of city officials’ emails, The Jersey Journal (published on NJ.com) (Nov. 11, 2011) (“While some believed that council members Beth Mason, Tim Occhipinti, Michael Russo, and Theresa Castellano – all Zimmer opponents – were involved in the incident, they have all denied wrongdoing.”) (available at http://www.nj.com/hobokennow/index.ssf/2011/11/hoboken_city_ council_minority.html). 244 See Plumb Cert. Exh. A(11) (Lane Bajardi stating that the e-mail investigation had been undermined by the Mayor’s “phantom IT team.”)

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on stated facts and clearly identified as opinion.245 Reasonable readers would understand the

entire Article to be opinion.

Furthermore, the complained of statement does not state or imply that Lane Bajardi was

involved in the theft of e-mails or other criminal activity. The statement plainly states that Ms.

Pincus believes that the FBI’s complaint points to Lane Bajardi, among others, for handling

leaked e-mails. The only potential criminal activity was the theft of the e-mails (the leak) which

the FBI attributed to Ricciardi. Once the e-mails are “leaked,” distributing them to the press or

publishing them is not a crime. See Bartnicki v. Vopper, 532 U.S. 514 (2001) (disclosure of

information by an innocent recipient does not impute criminal guilt, despite knowledge that the

initial disclosure was unlawful); see also New York Times Co. v. United States, 403 U.S. 713

(1971). Plaintiffs’ tortured reading of the statement is not the fair and natural meaning of the

words and the Court should not strain the natural meaning to adopt Plaintiffs’ imputation of

criminal activity. Lynch, 161 N.J. at 168.

Second, Ms. Pincus stated facts from a criminal complaint, relevant portions of which

were published within the Article, and concludes from those facts, in a manner that makes clear

to the reasonable reader she is stating an opinion (i.e., “GA believes this points to”), that the

website that most prominently opposes Mayor Zimmer is involved in the subject conspiracy

theory. (Recall that Perry Klaussen runs Hoboken411, and Lane Bajardi is Beth Mason’s

245 A supporting but unstated basis for the theory was the correlation of dates between the Mason-Russo resolutions, one of which was published with the Article, which requested City Hall staffer e-mails from “January 1, 2010” and the criminal complaint’s statement that the e-mails had been stolen since “early 2010.” See C. Moses, Council President Wants Mayor’s Staffers’ E-Mails, HobokenPatch.com (April 1, 2011) (“Mason and Russo want to see all e-mails since Jan. 1, 2010, from the city-issued e-mail addresses of [two City Hall employees].”); C. Moses, Mason Wants Mayor’s Staffers E-Mails to Press, HobokenPatch.com (May 16, 2011) (“Now, the resolution asks for specific emails to and from local bloggers, reporters, as well as former Michael Lenz campaign worker Sam Briggs and Blueline Campaigns.”). The articles are available at http://hoboken.patch.com/articles/council-president-wants-mayors-staffers-e-mails and http://hoboken.patch.com/articles/mason-wants-mayors-staffers-e-mails-to-local-press.

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conduit to Hoboken411.246) Opinions that disclose all of the facts on which they are based,

“even the most derogatory or unreasonable opinion is not actionable because ‘readers can

interpret the factual statements and decide for themselves whether the writer’s opinion was

justified.’” Casamasino, 304 N.J. Super. at 243 (quoting Kotlikoff, 89 N.J. at 72-73 (1982)),

rev’d on other grounds, 158 N.J. 333. Accordingly, the complained of statements of opinion in

the November 9 Article are non-actionable opinion. Plaintiffs incorrectly assert that opinions

constitute actionable defamation simply because they address criminal activity. In fact, even if

criminal acts had been implied, they still would be opinions and privileged. See Van Englen,

1997 WL 406267 at *4 (opinion that “the major crime” appeared to be within the police

department, and identifying the supposed criminals, is non-actionable statement of opinion).


On December 23, 2011, Ms. Pincus published an Article on her blog entitled

“Smartboards and the I.R.S.” The complained of statement is not defamatory because it is true,

substantially true, not susceptible to a defamatory meaning, a rhetorical question meant to spur

discussion, or opinion.

The article addresses comments made to other articles below other blogs concerning the

Hoboken public schools. The complained of statements include the following

Then there’s CuriousGal (Bajardi’s Bridezilla) – who’sNOT curious enough to know why her hubby’s never appeared on a Mason ELEC or if that revenue stream has been reported to the I.R.S GA’s heard the I.R.S. has given cash rewards to those who report tax cheats. Maybe CuriousGal can get us the answer:

How to Report Suspected Tax Fraud Activity:

http://www.irs.gov/individuals/articls0.id=106788.00.html) I hear the I.R.S. is curious about unreported income.

246 See Pincus Aff. Exh. 65 (Stuiver Aff. ¶ 4).

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A real curious gal might explore what’s really going on in our schools instead of trashing elected Board members and their children.

For compensation? For fun?

A real curious gal might want to know what happens to whose compensation for political campaign work goes unreported to the NJ Election Law Enforcement Commission and the I.R.S.

GA is certainly curious about that. I must be a Curious Gal.

Plaintiffs allege that these statements are defamatory because Kim Cardinal (1) does not

post as Curious Gal, (2) is not a political operative, (3) is not paid by Ms. Mason, (4) does not

have unreported income from Ms. Mason, (5) encourages readers to contact the IRS to “initiate

an unwarranted investigation of Plaintiffs.”

Kim Cardinal is a political operative (see IV.A.2, above) and assertions that she posts as

Curious Gal are substantially true (id). Whether Kim Cardinal is paid by Beth Mason is not

susceptible to a defamatory meaning. See IV.A.3, above.

The statement does not state that Kim Cardinal has unreported IRS income but instead

questions “if that revenue stream has been reported to the I.R.S.” This is clearly a question

meant to spur discussion on an issue of public concern and therefore not actionable. See

Cibenko, 510 F. Supp at 765. Even the title of the link to an I.R.S. circular is stated in the form

of a personal opinion: “How to Report Suspected Tax Fraud.” Ms. Pincus’ suspicion that Ms.

Mason’s operatives may have committed tax fraud is non-actionable opinion. Furthermore,

contrary to Plaintiffs assertions that the statement encourages readers to contact the IRS, the only

person being “encouraged to contact the IRS” is Kim Cardinal, to whom the post is addressed

(“Maybe CuriousGal can get us the answer.”).

Finally, the IRS independently determines whether or not to initiate tax fraud

investigations, anyone may submit a Form 3949A reporting anyone else, and such submittals do

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not harm anyone. In contrast, falsified information submitted on a Form 3949A exposes the

submitter to potential criminal violations. See 18 U.S.C. 1001 et seq.


On January 18, Ms. Pincus sent an e-mail to 1010WINS. The e-mail is not actionable

defamation because it is true, substantially true, non-actionable name calling, or unverifiable

opinion. In addition, the e-mail was sent to a single recipient who understood its content to be

opinion.

The e-mail states:

Lane Bajardi is a hyper-partisan political operative who blogs under the screen name ‘prosbus’, and is now fomenting anti-Semitism in his latest effort to smear Hoboken’s Jewish mayor, Dawn Zimmer. As a Jew, I am offended and disgusted by this. As a well-known political blogger in Hoboken, I will be asking my community to reject Mr. Bajardi and his hate-mongering. I don’t think your advertisers will appreciate a voice on your airwaves actively engaged in spreading bigotry and intolerance in the Hoboken community. Here are (2) of Mr. Bajardi’s posts attached, in case he has them deleted first:

prosbus

10:42 am on Monday, January 16, 2012

Santa was removed from Calabro; Zimmer got angry with Father Vinny after the police mass at St. Ann’s Roman Catholic Church last year; Saint Patrick’s Day Parade cancelled… some are seeing a pattern developing.

prosbus

1:04 pm on Monday January 16, 2012

The definition of anti-semitism is suspicion of, hatred toward, or discrimination against Jews for reasons connected to their Jewish heritage. Nothing could be further from the truth. What I do know as facts are these:

1) Santa was removed from the public schools this Christmas… 2) … Mayor Zimmer raised her voice repeatedly and had to be restrained after the police mass at St. Ann’s… 3) The St. Patrick’s Parade committee recently cited Mayor Zimmer’s “religious/cultural intolerance” in a lettering surrounding the events of the recent St. Patrick’s Parade cancellation…

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A climate of intolerance is building up in this city and it is centered around religious and cultural issues. The former whispered voices are now becoming a chorus.

Plaintiffs’ allege that the statement is defamatory because Lane Bajardi (1) is not anti-

semitic,247 (2) has not posted anything anti-Semitic, or anything attacking other ethnic or

religious groups, (3) is not a political operative, (4) and does not post as prosbus.

But Lane Bajardi is a political operative and that true statement is not actionable

defamation. See IV.A.2, above. Assertions that Bajardi posts as prosbus are substantially true

and not susceptible to a defamatory meaning. See IV.A.2 and IV.A.3, above.

Whether or not Lane Bajardi is anti-Semitic is a matter of unverifiable opinion, name

calling and not actionable. DeAngelis v. Hill, 180 N.J. at 14; Edelman, 2010 WL 1816180 at *6.

Ms. Pincus clearly stated the basis of her opinion by reproducing the entirety of two blog

comments that she believed were authored by Lane Bajardi and she found offensive. In fact,

both of the referenced prosbus blog comments relate only facts. In Ms. Pincus’ opinion, the

presentation of the facts amounted to anti-Semitism.

Her opinion that Lane Bajardi is anti-Semitic is supported by Lane Bajardi’s City Council

appearance wherein he verbally attacked Jewish Mayor Zimmer (and Mr. Cunningham) before

concluding that they “don’t have vowels at the end of their names so it’s not incompetence.”

That performance demonstrated to Ms. Pincus that Lane Bajardi is willing to make ethnically-

charged public comments while insulting Hoboken’s Jewish Mayor. The letter from Mike Lenz

to Lane Bajardi demanding that he retract comments published on Hoboken 411 implying that

Lenz is racist further informed Ms. Pincus’ belief that Lane Bajardi employs charges of racism

and ethnic based attacks within his anti-Zimmer rhetoric. The practice of the Russo Faction

247 Note that Ms. Pincus, Dawn Zimmer, and Beth Mason are all Jewish. Lane Bajardi has publicly stated that he had a Jewish grandfather who enlisted in the Army during World War II to liberate concentration camps.

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employing ethnically charged arguments is further illustrated by the use of a video van in

Hoboken to criticize Ms. Pincus with images of Nazi flags.248 The “Nazi Van” which supported

the Russo Faction’s November 2012 candidates for the Board of Education has resulted in a

powerfully worded condemnation from local rabbis and has further convinced Ms. Pincus that

Lane Bajardi and his Russo Faction allies are anti-Semitic.249

Lane Bajardi’s employer saw the e-mail for what it was, one listener’s opinion

concerning the unverifiable beliefs of one of 1010WINS public figure anchors. Rather than

blindly believe Ms. Pincus, the station manager instead interpreted her statement as merely her

opinion that Lane Bajardi posts as prosbus. Ms. Pincus received a response from 1010WINS

stating, “Ms. Pincus: Do you have any proof that Mr. Bajardi is ‘prosbus’? Thanks.”250 That

was the end of the matter. As a matter of fact, no reasonable person who read the e-mail

believed Ms. Pincus’ statement of opinion, the sole recipient immediately questioned the veracity

of the statement, and Ms. Pincus chose not to follow through with her evidence (stated above).

The e-mail expressed Ms. Pincus’ opinion concerning a public figure, was understood to be

opinion, and does not constitute actionable defamation.


The complained of statements appeared within a blog article dated January 16, 2012 and

entitled “Hate on MLK Day.” The article is not actionable defamation because it is true,

substantially true, unverifiable, name calling or opinion.

248 See Plumb Cert. Exh. A(12). 249 See Hudson Reporter, “Hoboken’s Rabbi’s Weigh In on Nazi Truck,” Oct. 19, 2012, available at http://hudsonreporter.com/view/full_stories_home/20549502/article (“I am shocked this could happen in this day and age. In other countries it’s a crime to use that image. We have freedom of speech, but a million and a half Jewish babies were killed…this is not something that should be used for some political gain.”) 250 Plumb Cert. Exh. CCC.

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The article discusses the St. Patrick’s Parade Committee’s accusations that Dawn Zimmer

had cancelled the parade because of ethnic and religious intolerance. (A bald faced political

attack by the Russo Faction friendly Parade Committee that ignored the option for a weekday

parade and ignored the impacts of the unruly, drunken Saturday parade crowds that resulted in

property damage, noise complaints, arrests, police overtime, assaults and rapes.251) The post

then stated,

But if the St. Patrick’s Parade Committee fired the opening salvo, it’s been taken to the bottom of the swamp in the anti-Semitic rantings of political operative Lane Bajardi. Bajardi posts as ‘prosbus’ on Patch; it’s one of many screen names he uses. While GA mainly ignores the dreck that pours from him like a broken sewage pipe, his anti-Semitism can’t be.

Of course, such filth is evidence of Zimmer’s political strength. Her handling of Hurricane Irene was top-notch, she (and the Hospital Authority) saved our hospital, she reduced property taxes by 10% - the most in Hudson County, she got the F.B.I. into Hoboken and turned over our City’s data banks for the first-ever serious attempt to clean up City Hall… and the list goes on.

That’s why Bajardi needs to use the Dirty Jew strategy. He’s got nothing else.

So he’s peddling hate and prejudice. He and his buddies are saying the (Jewish) mayor and her allies are anti-Christian, anti-Irish, anti-Italian, anti- (name your ethnicity)

This opinion addressing an emotional issue of public concern is based on stated facts,

published within the Article, including the following post, accompanied by the text, “So, see for

yourself. The Face of Hate. In his own words.”

prosbus

10:42 am on Monday, January 16, 2012

Santa was removed from Calabro; Zimmer got angry with Father Vinny after the police mass at St. Ann’s Roman Catholic Church last year; Saint Patrick’s Day Parade cancelled… some are seeing a pattern developing.

251 See Hoboken’s St. Patrick’s Day Parade Cancelled, Claire Moses (Jan. 13, 2012), Hoboken Patch, available at http://hoboken.patch.com/articles/st-patrick-s-day-parade-canceled.

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Plaintiffs allege that the statements are false and defamatory because (1) Lane Bajardi is

not anti-Semitic, (2) does not post anything anti-Semitic, (3) is not a political operative, and (4)

does not post as prosbus. Each of these allegations are addressed in Point 5 above (addressing

Complaint Paragraph 47). Accordingly, the complained of statements are not actionable

defamation.


The complained of statements are within a blog article dated January 25, 2012, entitled

“Who Luvs Ya, Al?” The article is not actionable defamation because it is true, substantially

true, not of and concerning Plaintiffs, and non-actionable name calling.

Most of the article addresses the alleged corruption of Hoboken’s fired Construction

Code Officer. After being fired for insubordination, Arezzo sued the City and filed an

administrative action to get his job back. (Since then, the administrative action has been

dismissed, finding that Arezzo was properly fired, and the State has cancelled his inspection

license based on corruption during the Russo administration, specifically, for Arezzo holding an

interest in a building he was inspecting.252)

So, when GA read that Arezzo was claiming to be the victim of harassment, well. After playing a mournful tune on the world’s smallest violin, I had to laugh at the mournful post of Curious Gal, who does not deny being Kim Cardinal, the political operative wife of political operative Lane Bajardi (who has not denied posting as prosbus.

That paragraph is followed by screen shots of two comments, one from Curious Gal and

one from prosbus, stating:

CuriousGal ; Mr. Arezzo has the unfortunate distinction of being a born and raised Hobokenknight. This automatically makes him a “less than” commodity

252 The final administrative action upholding Arezzo’s suspension and upholding Arezzo’s removal from office is available at http://www.hobokennj.org/docs/corpcounsel/Civil-Service-Commission-Final-Administrative-Action-Arezzo-v-Hoboken.pdf. Hoboken Patch, Sate Officially Revokes Former Construction Official’s License, Claire Moses (Aug. 17, 2012).

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for Mayor Zimmer and her administration. That he is suing the city for the shameful way he was treated is neither a surprise nor is it a unique situation. Liston’s bully tactics of threats, locking offices and creating a hostile work environment will all be documents as this suit progresses. Very glad that someone is standing up to Zimmer, Liston and the whole thug crew currently in charge of City Hall.

Maybe Mr. Da Horsey or Nancy Pincus can post Mr. Arezzo’s punitive complaint against Dawn and Mr. Liston on their respective blogs ;-)

prosbus: greenhaven – How about the lawsuit concerning the unlawful attempted termination of the Hoboken Construction Code Official?...

Ms. Pincus concluded the post by writing: “Who luvs ya, Al? Mr. and Mrs. Melanoma,

defenders of corruption, haters of the clean, progressive Kids First majority School Board. And

that’s about it.”

Plaintiffs allege the statements are false and defamatory because (1) Plaintiffs are not

political operatives, (2) Kim Cardinal does not post as Curious Gal, (3) Bajardi does not post as

prosbus, (4) describing Plaintiffs as defenders of corruption falsely implies involvement in

criminal activity, and (5) “referring to Plaintiffs as Mr. and Mrs. Melanoma is highly damaging

to Plaintiffs’ reputations, and calls for violence against Plaintiffs.”

Plaintiffs are political operatives. See IV.A.2, above. Assertions that Plaintiffs post as

Curious Gal and prosbus are substantially true. See id, above. And Plaintiffs have defended

corruption (see Section C in the Background and Facts, above). True statements are not

actionable defamation.

Despite the Plaintiffs’ assertions, the article is not even of and concerning them. Rather,

the article carefully states facts, identifying commenters by their pseudonyms and then stating

that the commenters have never denied that they are Plaintiffs. Specifically, the Article states,

“Curious Gal, who does not deny being Kim Cardinal, the political operative wife of political

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operative Lane Bajardi (who has not denied posting as prosbus).” This comment is non-

actionable truth which is not of and concerning the Plaintiffs.

Even if the statement were of and concerning the Plaintiffs, the statement “defenders of

corruption” does not falsely imply involvement in criminal activity and no reasonable reader

would adopt the Plaintiffs strained construction. Arezzo was corrupt and prosbus and Curious

Gal were defending him. In the larger context, Plaintiffs and Ms. Pincus are on opposite sides of

Hoboken’s political spectrum and Ms. Pincus believes that Plaintiffs’ side, the Russo Faction, is

corrupt. Her belief is based on several prison sentences and FBI investigations of Hoboken

politicians and their appointees, which have exclusively involved the Russo Faction. Based on

those arrests and investigations, Ms. Pincus believes that anyone who champions the Russo

Faction, including anyone who works for Beth Mason, is defending corruption. Even so, the

Article did not imply that Plaintiffs are corrupt, just Arezzo.

Furthermore, Plaintiffs have defended corruption. Lane Bajardi’s defense of Mayor

Cammarano’s effort to retain control of the ZBA at the same time Mayor Cammarano was

selling zoning variances for cash is one example. True statements are not actionable, even if

they are defamatory.

The assertion that Plaintiffs are a cancer on the Hoboken political scene, and therefore

referred to as “Mr. and Mrs. Melanoma” is an insult.253 Insults are not actionable defamation.

See IV.B.3, above. Plaintiffs’ assertion that the insult “calls for violence against Plaintiffs” is a

strained interpretation of the “fair and natural meaning” of the statement; strained to the point

that it can only be understood to have been included so that Plaintiffs could include that

253 This particular insult is also fair comment, echoing statements made by former City Councilman Mike Lenz at a City Council meeting on January 10, 2011. See Pincus Aff. ¶ 4.

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allegation in their press releases that followed the filing of this claim for the improper purpose of

influencing the November 2012 Hoboken Board of Education election.254

8. Complaint Paragraphs 59, 62, 65, 71 and 74

The complained of statements are comments to a Hoboken Patch article published

January 26, 2012 and entitled “Dissecting the State of the City Address.” The statements are not

defamatory because they are true, substantially true, unverifiable, non-actionable name calling,

opinion, not susceptible to a defamatory meaning, and hyperbole. As with all of the comments,

but particularly pronounced in this case, the context of the anonymous blog comment section

clearly signals to readers that the statements are opinion.

The comments pages for the article include 116 comments that print out on 28 pages, in

small font, and extend across four full days of contentious sniping among the handful of

commenters. CuriousGal “owned” the first comment. The next four comments, none of which

were authored by Ms. Pincus, identify “CuriousGal” as Kim and Lane Bajardi and query why

Lane has never showed up on a Mason ELEC.

The comment complained of in Paragraph 59 states:

Curious Kim Cardinal and gettheledout44 Bajardi… trashing the public shools has become your full-time occupation, hasn’t it? Have the Russos adopted you yet? You are so protective of their buddy Al Arezzo. It’s heartwarming how you care about Arezzo, but attack our public schools that your own child may be using in a year or two. What kind of parents are you? Trying to drive families away from public schools by trashing them 24/7. You could care less about your own kid, future public school student? You hatred of the mayor is more important than him. You 2 suck as parents. Somebody call DYFUS. The kid would be better off being raised by wolves. Poor thing.

Plaintiffs allege that the statements are defamatory because (1) Kim Cardinal acts to

ensure her child’s well-being, (2) suggesting that someone call DYFS damages their reputations

254 See Plumb Cert. Exh. II.

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and (3) Plaintiffs do not post comments under the identified pseudonyms including variations of

Curious Gal and gettheledout44.

The complained of statement in Paragraph 62 states:

USE OUR SCHOOLS, folks. Do not listen to this nit wit.

The teachers are wonderful, and the learning environment is extremely supportive of kids at all levels of performance. Whichever end of the ‘testing’ spectrum your child may be, the teachers provide the time and materials to challenge or support them. These imbeciles are trying to discourage public school attendance, even though they are PARENTS here. They are more loyal to their political hatreds than their community.

This Curious Cardinal MOTHER hates the mayor more than she looks out for the welfare of her own child. gettheledout44 Bajardi would rather trash the schools than support them for the sake of his young child. They suck as parents. Neither of these 2 nitwits, blogging for poor AL Arezzo, give a damn about our schools. They should adopt Al Arezzo and change their last names to Russo.

Their poor kid. Won’t somebody call DYFUS? He’d be better off being raised by wolves.


ensure her child’s well-being, (2) suggesting that someone call DYFS damages their reputations

(3) Plaintiffs do not post comments under the identified pseudonyms including variations of

Curious Gal and gettheledout44, and (4) Plaintiffs are not associated with Al Arezzo.

The complained of statement in Paragraph 65 responds to the following post:

I hear former HHS Principal Dr. Lorraine Cella is suing the Hoboken Board of Ed and Peter Carter for harassment and sexual discrimination charges--- let's see how KIDS FIRST and their own disregard for ethics, morals, and the law play out over the next few months. Maybe Nancy Pincus can post the lawsuit on her trash blog?


Certainly, Curious Kim Cardinal, I'd be delighted. It'll only cost you $1/word. Have one of your pimps write a check. But please, no bouncy ones. In fact, it has to clear before I post for you, since you are known to shill for criminals.

Now, getting back to the subject, what kind of mother trashes her school district 24/7 for political patrons? You are a lousy parent. You have no interest in the

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school system in your child's community. A true disgrace. He'd be better off being raised by wolves.


ensure her child’s well-being, (2) Kim Cardinal does not post comments under the identified

pseudonyms including variations of Curious Gal, (3) Kim Cardinal “is not paid by Hoboken

politicians or criminals,”255 (4) the statement implies Plaintiffs’ child should be taken from their

custody, (5) the statements associate Kim Cardinal with prostitution and criminality, and (5) the

statements falsely imply that Kim Cardinal has worked for criminals.


Curious Kim… you are a hoot. So, you’ll ‘work on informing people of the objective and verifiable data that shows the ineptitude that is going on with Minutillo, McAllistar and company at the Board of Ed for the past 34 months…”

HAW HAW… you are a legend in your own mind. Boy, we are all shakin’ in our boots! Ooooh… scary stuff! Bring it on, Kim Arezzo Cardinal Russo. You’ve made anything you and hubby have to irrelevant with your defense of the “39 year civil servant” (Arezzo) and denial of past BoE corruption. You and hubby lack normal parental instincts, hating the mayor is more important than supporting the public school system for your own son. Somebody call DYFUS. He’d be better off being raised by wolves.

Plaintiffs allege that the statements are defamatory because (1) Plaintiffs work to ensure

their child’s well-being, (2) the statements imply Plaintiffs’ child should be taken from their

custody, (3) Kim Cardinal does not hate Mayor Zimmer, and (4) Plaintiffs are not associated

with Al Arezzo.


Oh Curious prosbus you’ve become so polite all of a sudden. I guess you’re pinch hitting for hubby while he’s on 1010WINS.

Sorry I don’t play your game, am not repeating myself ad nauseum. That’s your game, honey.

255 Query why Plaintiffs have used such specificity in stating who does not pay them.

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Let’s see you and hubby run for the School Board, or volunteer in the schools, or run events like Minutillo, than you can bitch all you like. In other words, get off your nasty ass and do something for our community. Turning tricks for politicos may satisfy your ego, buy you ain’t helping your kid. You’re a miserable mother, attacking our schools for political masters. The kid would be better raised by wolves.

Plaintiffs allege that the statements are defamatory because (1) Plaintiffs work to ensure

their child’s well-being, (2) Kim Cardinal does not attack Hoboken public schools, (3) Kim

Cardinal is not “paid by Hoboken politicians,” (4) the statements imply Plaintiffs’ child should

be taken from their custody, and (5) the statements associate Kim Cardinal with prostitution and

criminality.

Plaintiffs repeatedly assert that they care deeply about their child and act to ensure his

well-being and that the complained of statements threaten the removal of Plaintiffs’ child from

their custody and is damaging to their reputations. Plaintiffs’ strained readings can only be

interpreted as disingenuousness. First, whether or not the Plaintiffs care deeply about their child

and act to ensure his well-being is unverifiable but, more importantly, Plaintiffs’ assertions

simply are not germane to this lawsuit. Ms. Pincus stated the fact that Plaintiffs’ attack the

public school and then stated her opinion, based on that fact, specifically, that they are terrible

parents. That is an opinion and an insult and it is unverifiable. Ms. Pincus then engages in

hyperbole, stating “Somebody call DYFUS” and then heightens the hyperbole by stating her

opinion that their child “would be better raised by wolves.” No reasonable reader would call

DYFUS upon learning that Plaintiffs support a different slate of Board of Education candidates

than Ms. Pincus and no reasonable reader would conclude that Plaintiffs’ child should be taken

from their custody or would be better off raised by wolves. Name calling and hyperbole are

privileged speech and do not constitute actionable defamation. See IV.B.2 and IV.B.3, above.

88 7107708.3

Assertions that Plaintiffs are prosbus and Curious Gal (and other pseudonyms by

commenters participating in support of and on behalf of the Russo Faction in the same thread of

comments) are substantially true. See IV.A.2, above.

Assertions that Kim Cardinal “hates” Mayor Zimmer are unverifiable and therefore not

actionable defamation. See Wilson, 297 N.J. Super. at 136-37.

Assertions that Plaintiffs are paid for their work on behalf of the Russo Faction, including

Beth Mason, are not susceptible to a defamatory meaning and not actionable as defamation. See

IV.A.3, above.

Kim Cardinal’s assertion in the Complaint that she does not attack public schools is false.

First, Ms. Pincus stated the fact that Plaintiffs attack the public schools based on her belief that

they are prosbus and Curious Gal. Even if those statements were authored by other Masonistas,

Plaintiffs have repeatedly attacked the current Board of Education (i.e., the public school),

including Vote Hoboken’s decision, via Plaintiffs, to withhold support from the 2007 Kids First

campaign, Beth Mason’s decision not support Kids First in 2009, Ricky Mason’s decision to

support Real Results in 2009, and Kim Cardinal’s interview of Theresa Minutillo at Beth

Mason’s house, where Kim Cardinal verbally attacked Board of Education member Ms.

Minutillo until she walked out.

Plaintiffs seem to assign two meanings to the phrases “have your pimps write a check”

and “turning tricks for politicos may satisfy your ego.” On the one hand they understand the

statements to be metaphors for being paid to support the Russo Faction, including Ms. Mason.

On the other hand, Plaintiffs strain the same text to literally mean that Kim Cardinal is a

prostitute and criminal. As discussed above, assertions that Plaintiffs are paid for the well-

documented work as political operatives are not susceptible to a defamatory meaning. Plaintiffs’

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literal “sex worker” interpretation simply does not make sense in context and would not be so

interpreted by a reasonable reader. See McLaughlin, 331 N.J. Super. at 312.

Plaintiffs also assert that they are defamed by statements associating them with Al

Arezzo the Russo Faction-appointed building inspector who was the recently fired for

insubordination destruction of government property256 and has since had his license revoked by

New Jersey for inspecting a building that he partially owned.257 To the extent that Plaintiffs have

promoted the Russo Faction since at least 2009, they are truthfully associated with the Russo

Faction’s corrupt appointees, including Al Arezzo. To the extent that another “Masonista”

posted the prosbus and Curious Gal comments supportive of Al Arezzo, the assertion that

Plaintiffs posted the comments is substantially true. Finally, allegations that a plaintiff knows or

associates with a criminal are not defamatory as a matter of law. Romaine, 109 N.J. at 289.


The complained of statement comes from a two page blog article published January 30,

2012 entitled “Code Problem?” The statements are not actionable defamation because they are

true, substantially true, opinion, and not susceptible to a defamatory meaning.

The article starts with the publication of a letter that Ms. Pincus received from a reader

querying whether the vent atop Plaintiffs’ penthouse was properly installed. The letter to Ms.

Pincus states:

hey GA, this smokestack on L*** Baj*rdi’s penthouse apartment is a recent addition, maybe a couple of years old. it was built below the height of the adjacent building and next to a window. it looks like it’s blowing carbon monoxide into that apartment. I think those

256 Arezzo was suspended for insubordination and then fired for removing the SIM card from his City issued cell phone, and destroying the hard drive on his City issued computer. Final administrative decision available at http://www.hobokennj.org/docs/corpcounsel/Civil-Service-Commission-Final-Administrative-Action-Arezzo-v-Hoboken.pdf. 257 Hoboken Patch, Sate Officially Revokes Former Construction Official’s License, Claire Moses (Aug. 17, 2012).

90 7107708.3

vents are supposed to go beyond the adjacent roof line and not under a window. here’s a photo. is this legal?

The blog then reposts three comments to a Hoboken Patch article, entitled “Former

Construction Official Sues City.”258 The complained of, republished posts state:

Pincus: Curious Gal, anti-Zimmer operative, is a big Al Arezzo fan.

I bring that up because she is believed to be Kim Cardinal (Has never denied it) the wife of ‘prosbus’ – believed to be Lane Bajardi (has never denied it). Take a look in this Patch comment, she calls Arezzo a “knight” and “shamefully treated” and a victim of “bully tactics.”

CuriousGal: Mr. Arezzo has the unfortunate distinction of being a born and raised Hobokenknight. This automatically makes him a “less than” commodity for Mayor Zimmer and her administration. That he is suing the city for the shameful way he was treated is neither a surprise nor is it a unique situation. Liston’s bully tactics of threats, locking offices and creating a hostile work environment will all be documents as this suit progresses. Very glad that someone is standing up to Zimmer, Liston and the whole thug crew currently in charge of City Hall.

Maybe Mr. Da Horsey or Nancy Pincus can post Mr. Arezzo’s punitive complaint against Dawn and Mr. Liston on their respective blogs ;-)

prosbus: greenhaven – How about the lawsuit concerning the unlawful attempted termination of the Hoboken Construction Code Official?...

Between the CuriousGal and prosbus screenshots, Ms. Pincus wrote, “And hubby

‘prosbus’ is a big Arezzo fan, too; calls Arezzo’s termination ‘unlawful.’” The blog goes on to

state, “As for that smokestack, reader I think you need to contact the Construction Office: Hours:

M-F, 9 am – 4pm, tel: (201) 420-2066… He’s got to know this like the back of his hand. Not

me. But here’s what I found from the NJ State Mechanical Code, Chapter 8 – Chimneys and

Vents.” The blog then provides a page of applicable building code and concludes “Does that

smokestack look like it’s 4 feet below the window? Really, one can’t tell from a photograph.

Maybe prosbus or Curious Gal can measure it for us?”

258 “Former Construction Official Sues City: Al Arezzo worked for the city for 39 years before his termination in 2011,” Claire Moses, HobokenPatch (Jan. 25, 2012).

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Plaintiffs allege that the complained of statements are defamatory because (1) they do not

post as Curius Gal and prosbus, (2) they are not political operatives, (3) they do not support Al

Arezzo, (4) the “statements imply Plaintiffs improper involvement with the installation of a …

carbon monoxide vent,” and (5) the statement encourages readers to contact state officials, which

harms their reputation.

Stating that Plaintiffs post as Curious Gal and prosbus is substantially true (see IV.A.2,

above) and non-defamatory to Plaintiffs (see IV.A.3, above). Within the complained of

statement Ms. Pincus explicitly states their identities as her personal opinion (“believed to be”)

and states the factual basis for each opinion (“has never denied it”). Opinion based on stated

facts is not actionable defamation. See IV.B.1, above.

Plaintiffs again assert that they are defamed by statements associating them with Al

Arezzo. To the extent that Plaintiffs have spent years promoting the Russo Faction politicians,

they are truthfully associated with the Russo Faction’s corrupt appointees, including Al Arezzo.

To the extent that another Masonista may have posted the prosbus and Curious Gal comments

supportive of Al Arezzo, the assertion that Plaintiffs posted the comments is substantially true.

Finally, allegations that a plaintiff knows or associates with a criminal are not defamatory as a

matter of law. Romaine, 109 N.J. at 289. By extension, allegations that plaintiffs know or

associate with a former public employee who was suspended for insubordination and ultimately

fired is, likewise, not defamatory.

The statements do not “imply Plaintiffs improper involvement with the installation of a…

carbon monoxide vent.” Rather, Ms. Pincus asks whether the vent is legal, then reviews the

regulations addressing vents, and concludes that the facts do not provide sufficient information to

determine whether the vent is legal or not. Again, Plaintiffs strain the fair and natural meaning

92 7107708.3

of words to bolster their frivolous lawsuit. But even if the statement did imply the existence of a

building code violation, such an implication is not susceptible to a defamatory meaning (because

it does not harm reputations) and therefore is not actionable defamation.

Finally, the statement encouraging a single reader to contact the “construction office” to

ask whether the vent is legal is not susceptible to a defamatory meaning. Plaintiffs do not

explain how or why this statement might harm their reputation because no such injury flows

from the report of a suspected building violation for a vent that does not service the Plaintiffs’

penthouse. See Complaint ¶ 80.

10. Complaint Paragraphs 84 and 87

Paragraphs 84 and 87 complain of comments to a Galloway Patch article published on

January 31, 2012, entitled “Former Hoboken, Bridgeton Business Administrator Named Interim

Acting Township Manager in Galloway: Arch Liston was also Township Manager and Chief of

Police in Mount Holly.”259 The complained of statements are not actionable defamation because

they are true, substantially true, name calling, not susceptible to a defamatory meaning, and

opinion.

The statements are two of 43 comments posted to the Article. Within those comments,

CuriousGal criticized Arch Liston’s record as Hoboken’s Business Administrator. Another

commenter, addressing “CuriousGal/Outofcontrol” stated, “You are a nasty, bitter partisan… .”

ThisMeansWar wrote “VinVan, Prosbus, Curiousgal (and other names they may use as the night

goes on) are the husband and wife PAID OPERATIVE team of Lane Bajardi and Kim Cardinal.

Bajardi and Cardinal are extremely closely aligned with (PAID BY) the political machine in

Hoboken.” Redrider765 wrote “[Beth Mason] has spent a fortune on paid bloggers who’s sole

259 “Former Hoboken, Bridgeton Business Administrator Named Interim Acting Township Manager in Galloway: Arch Liston was also Township Manager and Chief of Police in Mount Holly,” Galloway Patch, Anthony Bellano (Jan. 31, 2012).

93 7107708.3

mission in life is to trash her opponents… Her posters are actually rather stupid.” KHoboken

wrote “I see that the waters of Galloway have been infected with the toxic and carcinogenic

presence of the myriad of screen names used by the paid political operative of the Russo/Mason

cabal.”

CuriousGal and Vinvan engaged in the heated exchange, using their anonymous posts to

attack Liston and Mayor Zimmer. Throughout the exchange Curious Gal and Vinvan did not

respond to or deny the repeated allegations that they were Plaintiffs. Within the context of this

lengthy and heated exchange, Ms. Pincus wrote the following, which is complained of in

Complaint Paragraph 84:

I live in Hoboken. We have a sickness living amongst us – his name is Lane Bajardi and his wife is Kim Cardinal. Here they are posting as: VinVan, CuriousGal, prosbus, OutofControl.

Both of them work in the media – Bajardi is an anchor on 1010WINS radio.

They are sick people – Bajardi was actually arrested for assaulting a local blogger and stealing his camera. See story here:

http://www.hudsonreporter.com/view/full_story/7140972/article—Polie-arrest-made-in-alleged-incident-at-Board-of-Education-forum-

These 2 run smear campaigns on anyone affiliated with Mayor Dawn Zimmer. And they are sick people. Undiagnosed, with serious personality disorders.

I was no surprised to find out that they were smearing Arch Liston, and EXCEPTIONAL Business Administrator.

Do your best to ignore these 2 – we call them Mr. and Mrs. Melanoma. I’m a blogger and political activist, and also a frequent target of these 2 malevolent creatures. Do contact me with questions:


post as Curius Gal, prosbus, VinVan, or OutofControl, (2) calling Plaintiffs a “sickness”

damages their reputations, and (3) identifying 1010WINS as Lane Bajardi’s employer, where he

is an on-air anchor, endangers his job.

94 7107708.3

Ms. Pincus also wrote, which is complained of in Paragraph 87:

Bruce, the “39-year civil servant” is Al Arezzo, a former Construction Code official who ‘allegedly’ extorted people I know and is infamous in our City.

CuriousGal (Kim Cardinal) is a hideous political operative whose husband has worked for years on the campaigns of a wealthy local Councilwoman named Beth Mason., yet Bajardi has NeverR ppeared on a Mason an ELEC report- meaning lots of undeclared income to the IRS. Oooops!

http://www.hudsonreporter.com/view/full_story/7140972/article—Police-arrest-made0in-alleged-incident-at-Board-of-Eductaion-forum-

Mr. Bajardi, blogging here as VinVan has been questioned by the FBI, and is believed to be part of the criminal conspiracy to steal our mayor’s email and trafficking confidential city information.

A friend of Bajardi’s named Patrick Ricciardi, has been arrested. More arrests will follow. Don’t be surprised if you read about him in the paper.

Arch is HONEST and THAT is why these vile, sick people are attacking him here. Read about it how Arch smacked down Mason and you’ll see why they are trying to smear him here:

http://grafixavenger.blogspot.com/2011/12/liston-kos-mason-in-round-1.html


post as Curius Gal or VinVan, (2) they are not political operatives, (3) they are not paid “by Ms.

Mason,” (4) they do not have undeclared income, (5) Bajardi has never been questioned by the

FBI, (6) Bajardi is not involved in a conspiracy involving the theft or trafficking of e-mails, (7)

Bajardi is not friends with Ricciardi (City Hall IT staffer accused of stealing e-mails), (8) the

statements imply Plaintiffs’ involvement in criminal activity.

• As discussed above, identifying Plaintiffs as the authors of comments by prosbus and

Curious Gal (and the similar comments attributed to VinVan and OutofControl) is

substantially true (see IV.A.2, above) and not susceptible to a defamatory meaning (see

IV.A.3, above).

• Plaintiffs are political operatives and true statements are not defamatory. See IV.A.2, above.

95 7107708.3

• Assertions that Plaintiffs are paid by Ms. Mason are also not susceptible to a defamatory

meaning. See IV.A.3, above.

• Referring to Plaintiffs as a “sickness” is name-calling and not actionable defamation. See

IV.B.3, above.

• Identifying 1010WINS as Lane Bajardi’s place of employment is true and therefore not

actionable defamation. See Complaint ¶ 10.

• Ms. Pincus’ statement that the failure to file ELEC reports would likely be accompanied by a

failure to disclose income is stated within the contentious exchange of anonymous comments

and is understood by reasonable readers to be non-actionable opinion. The comment

provides the factual basis for the opinion by way of a link to a Graphix Avenger blog article

that provides pictures and a transcript of former Hoboken Business Administrator Arch

Liston stating at a City Council meeting that he believes Ms. Mason pays more than $600 for

someone to write short statements that she brings to City Council meetings. Ms. Mason’s

ELEC reports do not list anyone being paid to “write her stuff” but Ms. Pincus has many e-

mails that demonstrate that Plaintiffs write for Ms. Mason. Based on the disclosed facts, Ms.

Pincus’ opinion is not actionable defamation, even if the opinion is ultimately derogatory or

incorrect. See IV.B.1, above.

• Stating that someone has “been questioned by the FBI” is not subject to a defamatory

meaning, as the FBI routinely questions individuals who are not suspected of any

wrongdoing but may have information useful to their investigations. Whether or not Mr.

Bajardi has been questioned by the FBI is likely unverifiable while the investigation is

pending. Ms. Pincus believes Bajardi was questioned because of Beth Mason’s admission

that she had spoken with the FBI, suggesting that her closest political operative would also be

96 7107708.3

spoken to, and Lane Bajardi’s sudden disappearance from City Council meetings following

the FBI raid on City Hall. See IV.D.2, above.

• Finally, whether or not Lane Bajardi is friends with yet another potentially corrupt Russo

Faction appointee (this time Ricciardi who has been charged with stealing e-mails from the

Mayor’s office) is unverifiable. To the extent that Plaintiffs have spent years promoting the

Russo Faction politicians, they are truthfully associated with the Russo Faction’s corrupt

appointees, including Ricciardi. Finally, allegations that a plaintiff knows or associates with

a criminal are not defamatory as a matter of law. Romaine v. Kallinger, 109 N.J. 282, 289

(1988).

11. Complaint Paragraphs 99 and 100260

The complained of statements come from a blog article published March 12, 2012 and

entitled “Silence on the Lenz” and comments posted to that Article. The statements are not

actionable defamation because they are true.

The post explains that Hoboken411 had been defaming Mike Lenz, that Lenz sent a

retraction demand to Perry Klaussen (owner and operator of Hoboken 411), Beth Mason, and

Lane Bajardi, that only Beth Mason accepted the certified mail delivery, but, nevertheless,

changes were made to the article in question. Lenz sent a second letter to Mason, Bajardi and

Klaussen, demanding further changes and none of the respondents accepted the certified letter.

Ms. Pincus posted the entire letter within her blog. The article concludes,

So what does the silence tell you? (rhetorical)

GA takes a special interest in one member of the trio: the ‘on-air personality’ who works fo the AM radio station 1010WINS. The corporate owner of 1010WINS is

260 Plaintiffs do not allege that the statements in Complaint ¶¶ 99 and 100 are defamatory. This brief explains why these statements are not actionable defamation because statements that are not actionable defamation may not form the basis of other torts. See G.D. v. Kenny, 205 N.J. 275 (2011); see also Section V, below.

97 7107708.3

CBS. In fact, this on-air personality is a news reader. And as such prohibited from engaging in local partisan politics.

This radio-guy’s silence with respect to the Lenz letter, the absence of denial that he’d ghostwritten the “Deconstructing Michael Lenz’ smear is an admission that he DID.

He IS a partisan political operative participating in an online smear campaign. And knows he CAN’T deny it because there may be a sworn deposition in his future. Or may not.

In the comments section, a commenter (“JAM”) states that “maybe lenz should send the

letter to lane at his 1010wins work address, care of the HR department.”261 Another commenter,

Redrider765 states “Station manager would be my suggestion.” Pincus responds, “ I agree with

you, Red.”

Plaintiffs allege that stating that Lane Bajardi works at 1010WINS and encouraging

readers to contact his employer endangers his job. First, stating that Lane Bajardi is an on-air

anchor at 1010WINS does not endanger his job. See Complaint ¶ 10. Second, Ms. Pincus does

not encourage readers to contact Bajardi’s employer, rather, she “agree[s]” (an opinion) with

Redrider765 who had suggested that Mike Lenz send his letter to the 1010WINS station

manager. Stating an opinion of agreement with a reader’s suggestion to take an action is not

capable of being proven true or false because it does not state a fact. See IV.B.1, above.

The context of the entire article was addressing the fact that Bajardi, Mason, and

Klaussen would not accept certified letters addressing their false charges of racism and

discrimination made on Hoboken 411 against Mike Lenz. The commenters reasonably

suggested the letter be sent to Lane Bajardi’s place of employment where he would likely receive

the letter. Ms. Pincus’ agreement with that assessment is not actionable defamation.

261 Ms. Pincus is not liable for comments posted by third parties on her blog. 47 U.S.C. § 230.

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Complaint Paragraph 103 includes statements published within the March 16, 2012

Grafix Avenger blog article “The Sound of Silence.” The article is not defamatory because it is

true, substantially true, rhetorical questions and opinion.

The article states:

Guess WHO showed up to... um...defend the person he's not supposed to be- at least according to the corporate owner of 1010WINS, CBS.

prosbus.

It was overdue, frankly.

His wife Kim Cardinal was getting pounded, forced to fend off the onslaught of commenters asking the obvious: was Lane Bajardi unwittingly used to aid and abet the corruption of Hoboken's zoning adjustment authority or was he Cammarano's willing pitch man in this corruption?

GA can personally attest to Bajardi's long war on a fair and honest official- myself. Now that we've discovered his alliance with Cammarano for control of the zoning adjustment authority (which Cammy sold to Dwek just days earlier) it puts Bajardi's lust for my seat in it's proper perspective; ingratiating himself with corrupt and powerful individuals is what it's been about.

Take a look at who he and the Mrs. are sidling up to these days. Al Arezzo.

Case closed.

Today prosbus is in a bit of a bind. He can't 'defend' or 'explain' the actions of Lane Bajardi without stepping out from behind his screen name. It's delicious.

But he did finally show up- to suggest the Cammarano-Bajardi disclosure was "undocumented hearsay" from a "biased source" (GA).

So here's his comment with my response below.

The blog article then republishes a comment from prosbus stating “Undocumented

hearsay by a biased source against a known political opponent concerning circumstances that

occurred 2 ½ years ago. Thanks for your input Scott.”

99 7107708.3

The prosbus comment is followed by Ms. Pincus’ responsive post which included a

timeline of the following events: Peter Cammarano agreeing to sell zoning variances, Lane

Bajardi publicly speaking in favor of Peter Cammarano retaining his ability to name members of

the zoning board (a prerequisite to Cammarano’s ability to follow through on his end of the

bribes), and Peter Cammarano’s arrest for corruption. Prior to those events, Lane Bajardi

publicly endorsed Peter Cammarano because Cammarano had sought Lane Bajardi’s counsel and

listened to his advice.262

Plaintiffs allege that the complained of statements are false and defamatory because (1)

Lane Bajardi does not post as prosbus, (2) Lane Bajardi has “never aided or abetted corruption,”

(3) Lane Bajardi “is not working for or with former Hoboken mayor Peter Cammarano,” (4) the

statements imply involvement in criminal activity, and (5) identification of Lane Bajardi’s

workplace endangers his job.

Whether Lane Bajardi posts as prosbus is not susceptible to a defamatory meaning (see

IV.A.3, above) and is substantially true (see IV.A.2, above).

Ms. Pincus did not state that Lane Bajardi “aided or abetted corruption” rather she fairly

reported a question others were asking, specifically “was Lane Bajardi unwittingly used to aid

and abet the corruption of Hoboken's zoning adjustment authority or was he Cammarano's

willing pitch man in this corruption?” Even if the question were attributed to Ms. Pincus, it is a

rhetorical question meant to spur discussion and, therefore, non-defamatory. Within the larger

context of the exchange, Ms. Pincus immediately provides the factual basis for her question,

Bajardi’s work with Cammarano concerning authority over the ZBA. If the rhetorical question

did suggest that Bajardi “aided or abetted corruption” knowingly or unwittingly the suggestion is

an opinion based on disclosed facts and therefore not actionable defamation. See IV.B.1, above. 262 Plumb Cert. Exh. RR.

100 7107708.3

Plaintiffs assertion that Bajardi “is not working for or with former Hoboken mayor Peter

Cammarano” does not address the complained of statement. Ms. Pincus was clearly referring to

Lane Bajardi’s former work for Peter Cammarano when he publicly lobbied for Cammarano’s

retention of authority over the ZBA. The full context of the statement includes the factual

timeline which Ms. Pincus relied on to reach her opinions.

The statement does not imply involvement in criminal activity. There is nothing illegal

about the Plaintiffs’ well-documented efforts to ingratiate themselves to corrupt (Peter

Cammarano) and powerful (Beth Mason) public officials. The rhetorical question addressing

“aiding and abetting” Cammarano’s corruption asks whether Bajardi’s role was unwitting,

thereby negating the knowledge element necessary to imply criminal behavior.

Finally, truthfully identifying Lane Bajardi’s place of employment, 1010WINS where he

is an on-air anchor, is not actionable defamation. See IV.A.2, above.


The complained of statement is a comment to a Hoboken Patch Article published on May

21, 2012 entitled “The Charter School Tax Dilemma.”263 The statement is not actionable

defamation because it is substantially true, not susceptible to a defamatory meaning, rhetorical

questions and opinion. Again, these anonymous comments are part of a heated exchange on a

political blog and understood by reasonable readers as opinions.

The one page Patch article resulted in 717 posts (that print out on 117 pages in small

font) spanning over three weeks. One of those comments is the statement complained of in

Complaint ¶ 118. During those three weeks of comments a hearing was held concerning Board

of Education member Theresa Minutillo’s criminal harassment complaint against Matt Calicchio,

an employee of Beth Mason’s 501(c)(3) “civic league.” The judge found that Calicchio and his 263 “The Charter School Tax Dilemma,” Hoboken Patch, Scott Siegal (May 21, 2012).

101 7107708.3

witness lied on the stand, and found that Calicchio was being “used” for political purposes in

exchange for a job at the Mason Family Civic League. The judge also decried Calicchio’s

“bullying” of political officials on behalf of the Mason Family Civic League. Calicchio was

however found not guilty of criminal harassment because Minutillo is “a public figure and we

live in a democracy.”264 On approximately page 89 of the comment thread, the discussion

veered into the Calicchio criminal harassment trial.

One hundred pages into the ongoing, heated political discourse, in which others had

repeatedly identified prosbus and Curious Gal as Lane Bajardi and Kim Cardinal, Ms. Pincus

posted details of the Calicchio trial and was immediately attacked as a bully by Curious Gal. In

response, Ms. Pincus wrote the below complained of statement:

It appears I've hit a nerve with Curious Gal / Kim Cardinal. About hubby prosbus/Lane Bajardi never appearing on an ELEC report, and ALL of that unpaid tax-income you 2 may owe the IRS? Is the IRS a bully, too? How has Bajardi been paid all these years?

What about Klaussen? I never saw his name on a Mason ELEC after 24/7 advertising last year.

It looks like taxpayers were funding Mason's 501(3)(c) political operative employment agency. Are CG and prosbus on the 501(c)(3) dole, too? Is that why she's so angry now?

http://grafixavenger.blogspot.com/2012/06/bombshell-mason-finboy-non-profit-sham.html

Yes, puzzledone, Mason's thug harassed a woman with her 5 year-old daughter- THAT's a bully. Timmy dispatched cops to my house to interrogate me in the presence of my (then) 8-year old daughter. THAT's a bully.

CG thinks truth tellers and sunlight and tax laws are 'bullies'. Boo hoo.

Somebody, call a WAHHHHHmublance.

Plaintiffs allege that the complained of statement is false because (1) Plaintiffs do not

post anonymously as Curious Gal and prosbus, (2) Plaintiffs are not paid political operatives, 264 See Plumb Cert. Exh. SS (relevant portions of the hearing transcript).

102 7107708.3

and are “not paid by Ms. Mason or any 501(c)(3) affiliated with Mason,”265 and (3) are not being

investigated by the IRS, and have not “committed tax evasion.”

Plaintiffs are not defamed by statements asserting that they post as Curious Gal and

prosbus (see IV.A.3, above) and, in any case, the assertion is substantially true (see IV.A.2,

above). The complained of statement does not state that Plaintiffs are “paid by Ms. Mason or

any 501(c)(3) affiliated with Mason.” The complained of statement does not say that Plaintiffs

are being investigated by the IRS or that they have committed tax evasion.

The rhetorical questions posed in the complained of statements are non-actionable

rhetoric. The question “all of that unpaid tax-income you 2 may owe the IRS?” is a question that

by the use of the word “may” leaves open the possibility that taxes have been paid. “How has

Bajardi been paid all these years?” is also merely a rhetorical question meant to inspire

discussion and based on the facts that (1) Bajardi’s resume does not report that he held a job

between 2009 and 2011 – those years are simply left blank – and (2) Bajardi did steady political

work for Beth Mason during that time period.

Likewise, the rhetorical question “Are CG and prosbus on the 501(c)(3) dole too?” is

meant to spur debate concerning which of Beth Mason’s other political operatives are being paid.

Days before the complained of comment was posted, a Superior Court Judge found that an

individual, Matt Calicchio, was being paid by the Mason Family’s 501(c)(3) to do political work

for Beth Mason. Ms. Pincus knew that Calicchio was not listed on any Mason ELECs. That

disconnect raised a legitimate question of public concern regarding who else was being paid to

do political work for Beth Mason but was not listed on any Mason ELECs. Another issue of

public concern that had been recently debated at a City Council meeting is the identity of who

Beth Mason pays to write her political material. It is well documented that Plaintiff Lane Bajardi 265 Query why the Plaintiffs used such specific language to describe the 501(c)(3) that does not pay them.

103 7107708.3

has written for Beth Mason. Given these indisputable facts, and commenting on an issue of

public concern, Ms. Pincus did not defame Plaintiffs by asking the rhetorical question, “Are CG

and prosbus on the 501(c)(3) dole, too?” because rhetorical questions are not actionable

defamation. See IV.B.2, above.

The context of the statement also reveals that it is non-defamatory. The statement is

posted 100 pages into a 117-page comment thread addressing Hoboken politics. Throughout

those 717 comments not a single commenter was persuaded to change their mind by any other

commenter. No one was listening, everyone was shouting. On page 87 of the comments (June

6, 8:12 pm), a reasonable reader wrote, “I like to see passionate opinions on both sides, I assure

you I do not come here for my facts.” While most “reasonable readers” likely would not even

read these comments, certainly not 100 pages of them, anyone who did read them would quickly

discern that they were nothing more than a political shouting match between entrenched camps

of individuals who seem to know each other and clearly do not like each other. Given that

context, no reasonable reader would take these comments at face value, but rather as the opinions

of each speaker, and for that reason alone the complained of statement is not defamatory.


The complained of statements were published on June 23, 2012 within the blog entry

entitled “Data Smuggling at the BoE: Whodunit?” The statements are not actionable defamation

because the statements are true, substantially true, not verifiable, opinion, and not susceptible to

defamatory meaning.

104 7107708.3

The Article advances a conspiracy theory hatched from the comments section of a June

14, 2012 Hoboken Patch article entitled, “Long Time High School Track Coach not Re-

Appointed.”266

That Patch article was followed by 79 comments. The first comment, which was not

authored by Ms. Pincus, stated, “This could generate some excitement in Edgewater with

CuriousKim/Prosbus. Also a chance to play the race card is always exciting for Kimmy.” The

comments discussion degenerated from there. Twenty-six comments into the heated exchange of

comments, Curious Gal indicated that she had inside information concerning the basis of the

decision not to re-appoint the public school’s track coach, and, later, promised readers “more

about this in the next few weeks.” By the end of the comment string, essentially all of the

commenters had identified Curious Gal as Kim Cardinal.

In response to those comments, the complained of Article proposed a conspiracy theory.

This conspiracy theory was a joke, written in a detective dime novel/film noir style, and only

pretending that there was a “whodunit” question concerning how information flows from closed

session board of education meetings to the internet. The article first summarized the e-mail theft

from the Mayor’s offices and then addressed recent statements leaked from closed session Board

of Education meetings.

The conspiracy theory advanced by Ms. Pincus in her blog hypothesizes two

conspirators, an insider (Conspirator A) and a political operative (Conspirator B) to push the

leaked information to the local press. Conspirator A is identified as Maureen Sullivan. (Readers

of Ms. Pincus’ blog would recall that Maureen Sullivan ran for the Board of Education with the

Kids First / Reform candidates but then defected to the Russo Faction in a manner similar to

Beth Mason’s political career.) The article includes a comment purportedly authored by 266 Plumb Cert. Exh. BBB.

105 7107708.3

“MaureenSullivan” (the article from which the comment is copied is not identified) which begins

with the phrase “In closed session, the majority of the board decided on a contract…” and goes

on to relate supposed details of a closed session Board of Education meeting.

Ms. Pincus’ theory concerning Conspirator B states:

The political operative who posts online under many different monikers, but mostly as Curious Gal and prosbus, and has never denied she is Kim Cardinal. Cardinal is the current (or former) wife of 1010WINS cabby-crooner Lane Bajardi. Cardinal has not denied she's moved out of Hoboken to a waterside development in Edgewater. Curious Kim has been the Energizer Bunny of this conspiracy to seed Patch with closed-session allegations- which cannot be debated or refuted because they are closed session. This is Cardinal's modus operandi- planting ugly rumors online, lies and spin, against those she perceives as 'enemies'. All disturbing, and in this case, her victim is an African American. The vigor and venom with which Curious Gal has pursued this individual with unethically-obtained information NOT AVAILABLE BY OPRA REQUEST suggests a very dark motive driving her animus toward this African American professional.

The remainder of the post discusses Maureen Sullivan’s former disclosures of closed

session meetings and her disdain for Kids First Board of Education members. Closed session

Board of Education meeting minutes are not available by OPRA request.

Plaintiffs allege that the complained of statement is defamatory because Kim Cardinal (1)

“is not racist” (2) has never posted racist comments directed toward an African American, (3)

“nor has she pursued any investigation against an African American out of racist motivation,” (4)

does not post as Curious Gal or prosbus, and (5) does not live in Edgewater. Plaintiffs further

allege that (6) Plaintiffs are not divorced, (7) Plaintiffs are not maintaining separate residences,

and (8) stating where Mr. Bajardi works endangers his job, and (9) the statements imply

involvement in criminal activity.

• Stating that Lane Bajardi is an on-air anchor at 1010WINS is true and, therefore, not

defamatory. See Complaint ¶ 10.

106 7107708.3

• Stating that Kim Cardinal posts comments as Curious Gal or prosbus is substantially true.

See IV.A.3, above.

• Whether or not Kim Cardinal is racist is not verifiable and non-defamatory. See IV.B.1,

above. Rather, it is merely Ms. Pincus’ opinion that Kim Cardinal is a racist based primarily

on her opposition to Kids First candidates.

• The complained of statement does not state or imply that Cardinal posted racist comments

directed towards African Americans. Rather, it implies that statements posted by Curious

Gal, whom Ms. Pincus believes is Kim Cardinal, were inspired by racist motivations.

Whether or not Kim Cardinal is racist is unverifiable and necessarily opinion.

• The complained of statement does not state that Kim Cardinal has “pursued any investigation

against an African American out of racist motivations.” (However, if it did say that, it would

be protected as unverifiable and opinion.)

Plaintiffs’ remaining contentions are similarly meritless. Assertions that Kim Cardinal

lives in Edgewater, maintains a separate residence, or is divorced is not susceptible to a

defamatory meaning. The basis for Ms. Pincus’ opinion that Plaintiffs’ may be divorced is

clearly stated in the text, i.e., Curious Gal’s refusal to deny that she has moved to Edgewater.

The comment section to the Patch Article, which is the basis for the complained of Article,

includes a response to Curious Gal’s question about Edgewater by providing an image showing

the location of the residence of a “Kim Cardinal” in Edgewater.

Finally, Plaintiffs’ allegation that the complained of statement implies criminal activity is

simply misstates First Amendment law. Receiving and disseminating leaked information, even

information that was leaked illegally, is not criminal. In fact, the publication of leaked

information is protected speech. New York Times Co. v. United States,

107 7107708.3

403 U.S. 713 (1971). The complained of statement simply does not imply criminal activity and

Plaintiffs’ strained interpretations cannot make it so.

V

THE COMPLAINED OF STATEMENTS DO NOT STATE CLAIMS FO R INTENTIONAL TORTS

Plaintiffs’ fourth cause of action claims that Ms. Pincus, by publishing the complained of

statements, has intentionally inflicted emotional distress upon them and has somehow interfered

with undisclosed contracts, are wholly without merit.

As an initial matter, conduct which does not constitute actionable defamation may not be

relied on to sustain a different cause of action based solely on the consequences of that alleged

defamation. G.D. v. Kenny, 205 N.J. at 275; see LoBiondo v. Schwartz, 323 N.J. Super 391, 417

(1999). Specifically, where an intentional tort “is predicated upon the same conduct on which

the defamation count is predicated, the defamation cause completely comprehends the malicious

interference cause” because “if the alleged defamation is not actionable, then its consequences

are also not actionable.” Lobiondo, 323 N.J. Super. at 417; see also Decker v. The Princeton

Packet, 116 N.J. 418, 432 (1989) (the interrelated nature of emotional distress and defamation

claims call for “consistent results”). For the reasons explained in Parts III and IV above, the

complained of statements do not constitute actionable defamation and, therefore, do not state

claims for intentional torts.

Second, even where complained of statements constitute actionable defamation against a

public figure or address a matter of public concern, a plaintiff must establish actual malice to

prevail in an action for intentional torts based on the same conduct. DeAngelis, 180 N.J. at 20;

citing Hustler, 485 U.S. at 56; see also Decker v. Princeton Packet Inc., 116 N.J. 418, 432

108 7107708.3

(1989) (to recover for infliction of emotional harm, plaintiff must establish at least the same level

of intent as necessary to find defamation). Plaintiffs do not even allege fault beyond negligence.

See Complaint ¶ 156. The Court may find at this stage that the complaint must be dismissed

based on the incontrovertible evidence that the Plaintiffs cannot establish that Ms. Pincus

published with knowledge that the complained of statements were false.

A. The Complaint Does Not State A Cause of Action for Intentional Infliction of Emotional Distress

A plaintiff must plead four elements to state a claim for intentional infliction of emotional

distress. See Griffin v. Tops Appliance City, Inc., 337 N.J. Super. 15, 22-23 (App. Div. 2001).

Plaintiff has the burden of establishing that the defendant (1) acted intentionally or recklessly,

and (2) outrageously and (3) proximately caused (4) severe distress. Id. (quoting Buckley v.

Trenton Sav. Fund Soc'y., 111 N.J. 355, 366-67 (1988)). A court determines whether outrageous

conduct could possibly be found as a matter of law based on the facts. See Taylor v. Metzger,

152 N.J. 490, 509-10 (1998). In addition to the failure to state a claim for defamation and the

Plaintiffs’ inability to establish actual malice, the complaint fails to identify outrageous conduct

and fails to plead severe distress.

Plaintiffs have not bothered to identify the “extreme or outrageous” conduct necessary to

form the basis of an intentional infliction of emotional distress claim. Buckley v. Trenton Saving

Fund. Soc., 111 N.J. 355, 365-66 (1988). To state a claim for intentional infliction of emotional

distress, conduct must be “so outrageous in character, and so extreme in degree, as to go beyond

all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a

civilized community.” Id. at 366-67 (quoting Restatement (Second) of Torts, Sec. 46 comment

d). Such conduct must clearly exceed all bounds tolerated by decent society. See Hume v.

Bayer, 178 N.J. Super. 310 (N.J. Super. 1981). In Hume, New Jersey recognized intentional

109 7107708.3

infliction of emotional distress for behavior beyond all bounds of decency in an action by parents

against a doctor who merely removed their son’s mildly infected appendix but told the plaintiffs

that he had instead excised possibly cancerous tissue and that a test for cancer (which was never

performed) would take two days. The defendant doctor then withheld pain relievers for two days

while the patient repeatedly vomited in a great deal of pain (from an undiagnosed bowel

blockage) before telling the parents that the fictional cancer tests were negative. Id. at 313. In

Hume, the court cited examples of sufficiently outrageous conduct, including spreading false

rumors that a plaintiff’s son had hung himself, bringing a mob to a plaintiff’s door with a threat

to lynch him if he did not leave town, and wrapping a dead rat inside a loaf of bread for a

sensitive person to open. Id. at 314. Recently, the Appellate Division catalogued scenarios that

meet the “elevated threshold” of pleading an intentional infliction of emotional distress,

including, in addition to the facts in Hume, (1) a county sheriff using an atrocious racial slur to

refer to an African-American employee, (2) falsely reporting that a non-violent Buddhist plaintiff

had threatened to kill students and then arranging to have the plaintiff removed publicly from a

school in retaliation for spurned sexual advances, (3) three individuals at a military facility,

including the plaintiff’s supervisor, surrounding the plaintiff, making comments and gestures to

suggest that she was to perform a sexual act on the supervisor while others watched and then

threatening that the Mafia would become involved if the plaintiff pursued an investigation of the

incident, and (4) a landlord shutting off heat, running water, and security in an effort to induce

tenants to vacate. Ingraham v. Ortho-McNeil Pharmaceutical, 422 N.J. Super. 12, 21 (App. Div.

2011) (collecting cases). In contrast, the outrageous conduct requirement was not met when a

plaintiff was called names and subjected to intimidating gestures or when derogatory gender-

based comments were made to a plaintiff along with allegations that her fiancé was a cheat and a

110 7107708.3

liar. Ferraro v. Bell Atlantic Co., 2 F.Supp.2d 577, 589 (D.N.J. 1998); Obendorfer v. Gitano

Group, Inc., 838 F.Supp. 950, 952, 955 (D.N.J. 1993).

In this case, the Plaintiffs have only identified either blog articles or comments to blog

articles that they allege are defamatory. None of the posts even approach the outrageous conduct

necessary to state a claim for intentional infliction of emotional distress. Plaintiffs have

identified a handful of comments in which they claim that they were threatened, but (1) no such

threats were ever made and (2) even if Plaintiffs were “threatened” such threats would not

constitute intentional infliction of emotional distress. See Ferraro, 2 F.Supp.2d at 589

(intimidating gestures are not sufficient to state a cause of action for intentional infliction of

emotional distress).

Finally, the Plaintiffs do not sufficiently allege injury to sustain a cause of action for

intentional infliction of emotional distress. The “severe emotional distress” required to prevail

on a cause of action for intentional infliction of emotional distress is “a severe and disabling

emotional or mental condition which may be generally recognized and diagnosed by trained

professionals.” Turner v. Wong, 363 N.J. Super. 186, 200 (App. Div. 2003). The distress must

result in either “physical illness” or “serious psychological sequelae.” Id. Plaintiffs mere

statement that “Defendants’ actions caused Plaintiffs severe emotional distress,” without

describing the medically diagnosed physical illness or mental impairment, cannot sustain a cause

of action for intentional infliction of emotional distress. Plaintiffs have also failed to provide a

written statement of damages as demanded within Pincus’ November 14, 2012 Answer.

B. The Complaint Does Not State A Cause of Action For Intentional Economic Torts

Plaintiffs’ First and Fifth causes of action, which claim tortious interference with

business relations and intentional interference with prospective economic relations, fail to state a

111 7107708.3

claim because the Plaintiffs have not identified a contract that was breached or economic

opportunity foregone based on the complained of comments.

An action for tortious interference with a prospective business relation protects the right

to pursue one’s business, calling or occupation free from undue influence or molestation.

Printing Mart-Morristown, 116 N.J. at 750. To establish such a claim, plaintiff must establish:

(1) a reasonable expectation of economic advantage; (2) that the defendant intentionally

interfered with that interest; (3) injury or loss inflicted without justification or excuse; and (4)

causation. Id. at 751-52.

Plaintiffs claim that by identifying Mr. Bajardi’s place of work and sending an e-mail to

his supervisor, Ms. Pincus has intentionally interfered with his prospective economic interest

because “Mr. Bajardi has received reprimands and warnings from his employer as a result of

Defendants’ actions.” See Complaint ¶ 168; see also ¶¶ 47, 84, 99, 100, 103, 121 (statements

identifying 1010WINS as Lane Bajardi’s employer).

The Plaintiffs have not identified an economic loss inflicted without justification. Rather,

Plaintiffs state that Lane Bajardi has received reprimands and warnings.267 Since the initial

publication of the comments that form the basis of the Complaint, Lane Bajardi has been hired

by 1010WINS, became an on-air anchor, started voicing radio commercials, and has

occasionally been assigned the “drive-time” anchor time slot. His meteoric rise as a radio

personality, after years of unemployment, to the apex of his chosen profession indicates that he

has not suffered any economic damages at all. And Plaintiffs tellingly do not say what

267 Plaintiffs state that the reprimands and warnings resulted from the Defendants actions. Plaintiffs would be hard-pressed to discern the reprimands and warnings Bajardi received based on the Defendants actions as distinguished from reprimands and warnings Bajardi would receive upon disclosure of undisputed facts concerning Bajardi’s role in Hoboken politics including, among other things, his inflammatory City Council appearances including ethnically based accusation directed towards the Jewish Mayor, his robbery arrest, and the Board of Education’s threat to have him arrested for his public disturbance.

112 7107708.3

reasonable economic advantage Lane Bajardi has missed out on at 1010WINS during his short

tenure with that organization. Furthermore, as stated above, nothing that Ms. Pincus stated

concerning 1010WINS constituted actionable defamation and, the economic causes of action

against her should be accordingly dismissed.

CONCLUSION

For the reasons explained above, the Court should grant Defendant Nancy Pincus’ motion

for summary judgment and dismiss the Complaint in its entirety on the merits and with prejudice.

In the alternative, the Court should grant Defendant Nancy Pincus’ motion for summary

judgment (1) dismissing each statement which does not constitute actionable defamation, (2)

declaring that the Plaintiffs are public figures and/or that the complained of statements constitute

matters of public interest sufficient to implicate the “actual malice” standard, (3) dismissing the

non-defamation tort claims, and (4) any such further relief as this Court deems appropriate.

Dated: New York, New York January 7, 2013

CARTER LEDYARD & MILBURN LLP

By: _______________________________ Michael K. Plumb, Esq. Two Wall Street New York, New York 10005 (212) 732-3200 Attorneys for Defendant Nancy Pincus

TO: Amy D. Cox, Esq. 2308 Dorchester Street West Furlong, PA 18925

113 7107708.3

Whitney C. Gibson Colleen M. Devanney Vorys, Sater, Seymour and Pease LLP Suite 3500, Great American Tower 301 East Fourth Street Cincinnati, OH 45202 Kerry B. Flowers Flowers & O’Brien, LLC 70 Adams Street, 4th Floor Hoboken, NJ 07030

Roman Brice 1032 Hudson Street Hoboken, NJ 07030

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