Bajardi v. Pincus
| Decision Date | 02 August 2019 |
| Docket Number | DOCKET NO. A-5668-14T4,DOCKET NO. A-5745-14T4,DOCKET NO. A-5729-14T4 |
| Parties | LANE BAJARDI and KIMBERLY CARDINAL BAJARDI, Plaintiffs-Respondents, v. NANCY PINCUS, ROMAN BRICE, and JOHN DOES 1-10, Defendants-Respondents. IN THE MATTER OF WHITNEY GIBSON, ESQ., Appellant. LANE BAJARDI and KIMBERLY CARDINAL BAJARDI, Plaintiffs-Appellants, v. NANCY PINCUS, ROMAN BRICE, and MARK HEYER, Defendants-Respondents. LANE BAJARDI and KIMBERLY CARDINAL BAJARDI, Plaintiffs-Respondents, v. NANCY PINCUS, ROMAN BRICE, and MARK HEYER, Defendants-Respondents. IN THE MATTER OF JONATHAN Z. COHEN, ESQ., Appellant. |
| Court | New Jersey Superior Court – Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Before Judges Nugent, Currier and Geiger.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3723-12.
William T. Reilly argued the cause for appellants Whitney Gibson, Esq. and Vorys, Sater, Seymour and Pease, LLP, in A-5668-14 (McCarter & English, LLP, attorneys; William T. Reilly, of counsel and on the brief).
Francis X. Garrity argued the cause for appellants Lane Bajardi and Kimberly Cardinal Bajardi in A-5729-14 (Garrity, Graham, Murphy, Garofalo & Flinn, PC, attorneys; Thomas D. Flinn, of counsel; Jane Garrity Glass, on the brief).
Marshall D. Bilder argued the cause for appellant Jonathan Z. Cohen, Esq., in A-5745-14 (Eckert Seamans Cherin & Mellott, LLC, attorneys; Marshall D. Bilder and Jason S. Feinstein, of counsel and on the brief).
Kerry Brian Flowers argued the cause for respondent Mark Heyer in A-5668-14, A-5729-14, and A-5745-14 (Flowers & O'Brien, LLC, attorneys; Kerry Brian Flowers and Michele A. Daitz, of counsel and on the briefs).
Stephen R. Katzman argued the cause for respondent Nancy Pincus in A-5729-14 (Methfessel & Werbel, attorneys; Stephen R. Katzman, of counsel and on the brief; Christian R. Baillie, on the brief).
Alexander W. Booth, Jr. argued the cause for respondent Roman Brice in A-5729-14, and joined in the briefs of respondent Mark Heyer in A-5668-14 and A-5745-14.
In these back-to-back appeals, which we consolidate for this opinion, plaintiffs appeal from a series of orders dismissing their defamation action, and they and their attorneys appeal from orders awarding counsel fees to defendants and imposing sanctions. The backdrop is the contentious political climate that existed in Hoboken from 2009 through 2012. During that time, through July 2011, plaintiff Lane Bajardi (Bajardi) emerged as a not infrequent and often outspoken participant at city council meetings and some board of education meetings, where he routinely criticized officeholders aligned with a political faction he opposed.
Defendant Nancy Pincus, a self-described "political-satirist blogger," who supported the incumbent mayor during the relevant period and harshly criticized the opposing political faction, was frequently the target of Bajardi's criticism.2 Defendants regularly posted commentary on various internet sites about Bajardiand his wife, plaintiff Kimberly Cardinal Bajardi (Kimberly), who also supported the political faction that opposed the incumbent mayor.3
Between June 2011 and July 2012, defendants posted more than thirty blogs about plaintiffs, falsely accusing them of continuing their participation in politics and internet exchanges by posting under new screen names. With two exceptions, these blogs were posted after plaintiffs had ceased all participation in Hoboken civic and political affairs. Pincus also sent an email to Bajardi's employer, falsely accusing Bajardi of authoring what she deemed an anti-Semitic post to an internet site. Alleging the postings between June 2011 and July 2012 were defamatory, plaintiffs filed the lawsuit from which this appeal stems.
Plaintiffs appeal from the summary judgment dismissal of the majority of their defamation claims, from several rulings at trial resulting in the dismissal of their action at the close of their evidence, and from the post-trial order requiring them to pay more than a quarter million dollars in counsel fees. In the other two appeals, plaintiffs' attorneys - one who filed the complaint andrepresented plaintiffs during some of the pretrial proceedings, the other who represented plaintiffs during the remaining pretrial proceedings and at trial - appeal from orders requiring them to pay sanctions. Because two of plaintiffs' claims presented disputed facts that should have been resolved by a jury, and because the trial court erred by awarding counsel fees, we reverse and remand for further proceedings.
Although the arguments plaintiffs present on appeal do not challenge the outcome of many of the dispositive pretrial motions defendants made, the motions are relevant to the trial judge's imposition of frivolous claims fees and sanctions. For that reason, we recount most of the pretrial proceedings.
On July 26, 2012, plaintiffs filed a complaint in which they alleged that on different and separate occasions between June 8, 2011, and July 19, 2012, defendants posted on internet websites more than thirty defamatory statements about them. According to the complaint, Pincus posted twenty-one, Brice three, the John Doe defendant later identified as Heyer six, and John Doe defendantsidentified by their screen names (the Screen Name defendants), four.4 Plaintiffs also alleged Pincus sent a defamatory email to Bajardi's employer. When plaintiffs filed the complaint, Whitney Gibson, Esq., admitted pro hac vice, and Amy Cox, Esq., a New Jersey attorney, represented them.
Before filing answers, Pincus and Heyer sent letters to Gibson under Rule 1:4-8, requesting dismissal of the complaint. On September 26, 2012, Pincus's then-counsel asserted in a letter the litigation was a SLAPP suit,5 initiated for the improper purpose of harassing Pincus, creating needless litigation costs, and chilling legitimate political speech. Counsel explained why the causes of action were unsupported by facts or the law, and advised that if plaintiffs did not withdraw the complaint, Pincus would apply for sanctions.
A few weeks later, on October 15, 2012, Heyer's counsel sent a Rule 1:4-8 letter to Gibson, claiming to represent individuals who posted under various screen names mentioned in the complaint, and demanding the complaint be withdrawn. Counsel claimed the litigation was a SLAPP suit intended to silencepolitical speech. Counsel further claimed that plaintiffs' causes of action were without factual or legal merit, arguing that the alleged statements were not actionable as defamation given the subject matter of the statements and the context in which they were made. Counsel noted plaintiffs' work on behalf of a particular candidate and their involvement in Hoboken's political affairs, which rendered them public figures.
On October 23, 2012, Gibson responded to Pincus's letter. Gibson explained that plaintiffs' claims were made in good faith, and not for an improper purpose. He further explained that the claims were not frivolous, setting forth the factual and legal bases for the causes of action. Finally, he denied that plaintiffs were public figures, but stated that even if they were they could succeed on the defamation claims because defendants made their statements with reckless disregard for the truth.
In November 2012, Pincus and Brice filed answers to the complaint, and in January 2013, Pincus moved for summary judgment. The first pretrial judge granted the motion in part and dismissed three allegedly defamatory statements as time-barred but determined that genuinely disputed issues of material fact precluded summary judgment as to the remaining statements. The Appellate Division denied Pincus's motion for leave to appeal.
Later that year, in November 2013, Gibson and Cox withdrew as plaintiffs' counsel. Jonathan Z. Cohen, Esq. represented plaintiffs through trial.
The following month, on December 22, 2013, Pincus wrote to Cohen and asked that plaintiffs dismiss the litigation as frivolous under Rule 1:4-8. She attached her former attorney's September 26, 2012 letter, as well as some discovery materials.
Thereafter, on April 11, 2014, the first pretrial judge granted in part and denied in part Brice and Heyer's Rule 4:6-2(e) motions to dismiss the complaint for failure to state a cause of action. The judge dismissed four paragraphs that identified allegedly defamatory statements and a fifth paragraph that alleged defendants may have posted defamatory statements under twelve enumerated screen names. In his decision, the judge found potential merit in certain allegations in the complaint.
Two months later, in June 2014, the first pretrial judge granted plaintiffs' motion to compel identification of whoever was using the screen names "ThisMeansWar" and "JackStop". Significantly, the judge remarked on the potential merits of plaintiffs' claims.
The following month, after filing a summary judgment motion as well as an unsuccessful motion for a stay, Heyer acknowledged he used the screennames ThisMeansWar and JackStop, answered the complaint, and counterclaimed for a violation of the Frivolous Litigation statute, N.J.S.A. 2A:15-59.1. Plaintiffs filed a motion to dismiss the counterclaim, which a second pretrial judge granted.
Next, Pincus and Brice filed motions for summary judgment. Heyer's was still pending. On August 22, 2014, while the three summary judgment motions were pending, Heyer's counsel sent a letter to Cohen under Rule 1:4-8, referencing his October 15, 2012 letter to Gibson, as well as Pincus's September 26, 2012, letter to Gibson, which he enclosed. Counsel asked that plaintiffs withdraw the complaint, charging that it was a frivolous SLAPP suit, filed for the improper...
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