MEMORANDUM AND ORDER
In this libel action, 1 plaintiff Leonard Jenoff is seeking damages from the Hearst Corporation, which publishes The News American. 2 Plaintiff’s second amended complaint alleges in forty-six Counts that seven different stories which appeared in various editions of defendant’s newspapers between December 22 and December 31, 1974 and on February 7, 1975 were libelous. Each odd-numbered Count asserts a cause of action based on the alleged malicious publication by defendant of defamatory statements, and each even-numbered Count asserts a cause of action based on the alleged negligent publication by defendant of the same statements. Compensatory damages are sought in the twenty-three even-numbered Counts, and compensatory and punitive damages are sought in the twenty-three odd-numbered Counts.
The articles 3 which form the basis of plaintiff’s complaint contained various statements relating to plaintiff’s activities as a “police spy.” At the time that the articles were written, there was pending in a state court in Maryland a notorious criminal case involving one John E. (Liddie) Jones, who had been accused of being a major heroin dealer in the Baltimore area. William Carrier, a Baltimore lawyer, was one of Jones’ attorneys. The newspaper articles, which are the subject of this libel action and which were published on December 22, 1974 and thereafter, charged, inter alia, that plaintiff, acting for the Baltimore City Police Department, broke into Carrier’s office one night in August 1974 and that two key written statements of defense witnesses disappeared from the attorney’s *543 office. Earlier articles concerning plaintiff had appeared in defendant’s newspaper on December 11, 12, 13, 14 and 15, 1974, but plaintiff does not allege that these articles were libelous. These earlier articles had included statements that plaintiff was a “secret operative” of the Inspectional Services Division (“the ISD”) of the Police Department and that plaintiff had “infiltrated” the offices of attorney Carrier by working as the attorney’s investigator. However, these earlier articles did not state that plaintiff had broken into the attorney’s office in August 1974.
Presently pending before this Court is a motion for summary judgment filed by the defendant, pursuant to Rule 56, F.R.Civ.P. Briefs in support of and in opposition to the motion, as well as numerous exhibits, affidavits and depositions, have been filed by the parties. Defendant relies on several of the depositions that have been filed and also on the affidavits of two reporters, an editor and certain individuals who were the principal sources for the articles. In opposing the pending motion, plaintiff relies on the depositions of plaintiff and of Lt. Donald Woods of the Baltimore City Police Department. This Court would note that summary judgment was granted in favor of defendant here in an earlier libel action brought in this Court by Lt. Woods, based upon the same series of articles. Woods v. Hearst Corporation, 2 Med.L.Rptr. 1548 (D.Md.1977). However, this case presents issues quite different from those in the Woods suit.
What must be decided here is the proper standard which the Court should apply in determining whether defendant is liable under the facts of this case. In particular, this Court must decide whether the test of
New York Times v. Sullivan,
After a review of the briefs and the record and after hearing oral argument, this Court is satisfied that defendant’s motion for summary judgment should be granted in part and denied in part. This Court would agree with plaintiff that an undercover police informant performing the duties he did here is neither a “public official” nor a “public figure.”
I
The “public official” doctrine
In New York Times v. Sullivan, supra, the Supreme Court held that the First Amendment prohibits a public official from recovering damages for defamatory and false statements relating to his official conduct unless he proves that the statement was made with actual malice. 4 The plaintiff there was an elected Commissioner of the City of Montgomery, Alabama, who was held under the facts presented to be a “public official.”
In
Rosenblatt v. Baer,
*544 It is clear therefore that the “public official” designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.
Accordingly, the Court there held that a county commissioner in charge of a county ski recreation area could be a “public official.”
It is now well established that a police officer may be a “public official.”
Time, Inc. v. Pape,
In extensive pretrial proceedings in this case, defendant has been permitted to engage in wide-ranging discovery pertaining to plaintiff’s activities over a period of years as an undercover informant. At various times, plaintiff has supplied information to the Baltimore City Police Department, to the Federal Bureau of Investigation and to the Drug Enforcement Administration. Investigative files have been produced by these agencies and have been reviewed by counsel for defendant. 5
A review of these files makes it abundantly clear that plaintiff was never even an employee of a state or federal law enforcement agency, much less a public one. The DEA files which have been produced indicate that plaintiff was an unpaid, cooperating informant whose involvement with the DEA ended in April 1971. From 1971 to 1973, plaintiff also supplied information to the F.B.I. In a memorandum dated November 12, 1971 prepared by F.B.I. Special Agent Roland Swanson, plaintiff was characterized as a “potential criminal informant,” and plaintiff was advised that he should not consider himself an employee of the F.B.I., although he would be reimbursed for some expenses. From February 1974 to January 1975, plaintiff furnished similar information to the ISD of the Baltimore City Police Department. He was not a salaried employee of the Department but was reimbursed for expenses of approximately $423.
Defendant argues that plaintiff’s status as a confidential informant was equivalent to that of an undercover police officer and that therefore plaintiff was a “public official.” This contention is clearly without merit. An undercover police officer is a salaried full-time employee of a police department who, for limited periods of time, poses as a private citizen. On the other hand, plaintiff was an actual private citizen who occasionally supplied information to law enforcement agencies and who was reimbursed for some of his expenses. Indeed, plaintiff performed a function which could not be undertaken by an undercover police officer who could do no more than pretend that he was a private citizen. The very nature of plaintiff’s duties required that he conduct his activities privately and as far removed from public or open scrutiny as possible.
On the record here, this Court concludes that plaintiff was not a government or public employee and that in any event, his status as a confidential informant was certainly not “of such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it.”
Rosenblatt v. Baer, supra,
*545 II
The “public figure’’ doctrine
In
Curtis Publishing Co. v. Butts, supra,
the Supreme Court extended the actual malice standard of
New York Times v. Sullivan, supra
to “public figures.” In
Rosenbloom v. Metromedia, Inc.,
Gertz went on to recognize two categories of “public figures”:
In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions.
Id. at 351,94 S.Ct. at 3013 .
In that case, plaintiff Gertz was an attorney involved in civil litigation brought by a murder victim’s family against the policeman who was convicted of that murder. The Supreme Court concluded that Gertz could not be considered a “public figure” in an action in which he sought damages for defamatory statements contained in a magazine concerning his role in the criminal trial. “[B]y looking to the nature and extent of an individual’s participation in the particular controversy giving rise to the defamation,” the Court noted that plaintiff played no role in the criminal trial and “did not thrust himself into the vortex of this public issue, nor did he engage the public’s attention in an attempt to influence its outcome.”
Id.
at 352,
More recently, in
Firestone,
the Supreme Court expressly rejected the proposition that a private individual becomes a public figure by mere involvement in a “cause célebre.” The Court there held that the wife of the scion of a wealthy industrial family did not become a “public figure” because her husband instituted divorce proceedings against her on grounds of extreme cruelty and adultery. The Court noted that under the
Gertz
test, plaintiff had not “thrust herself to the forefront of any particular public controversy in order to influence the resolution of the issues involved in it.”
Id.,
In the present case, defendant contends that while plaintiff may not be a “public figure” for all purposes, his activities as a confidential informant amount to a voluntary participation in the particular public controversy that arose concerning surveillance activities of the ISD. This argument does no more than restate the now repudiated Rosenbloom proposition that involvement by a plaintiff in a matter of public interest requires the application of the actual malice standard. Applying the Gertz and Firestone tests to the facts here, this Court cannot conclude that plaintiff, as an undercover police informant, thrust himself to the forefront of the public controversy concerning improper ISD surveillance activities in order to influence the resolution of the issues involved. To act in such a way would be totally inconsistent with plaintiff’s role as a secret informer for the police. Plaintiff at most played a very minor role in the myriad activities of the ISD, and there is nothing in the record to indicate that plaintiff ever attempted to publicize his role or to propagandize his views on this or any other subject. This Court finds and concludes that the plaintiff was a private *546 individual, not a “public figure.” Time, Inc. v. Firestone, supra; Gertz v. Robert Welch, Inc., supra.
Defendant also contends that prior articles about plaintiff had propelled him into the public eye and made him a “public figure.” To accept such a “cause célebre” argument would be to reinstate the Rosenbloom doctrine. As both Gertz and Firestone make abundantly clear, a “public controversy” is not to be equated with all controversies of interest to the public.
In claiming that plaintiff is a “public figure," defendant relies heavily on two recent decisions of the United States District Court for the District of Columbia. Neither case is in point. In
Wolston v. Reader's Digest Ass’n, Inc.,
In
Buchanan v. Associated Press,
After a review of the pertinent authorities, this Court is satisfied that plaintiff’s status is closely analogous to those of the plaintiffs in Gertz and Firestone, who were held to be “private individuals.” Indeed, the private status of a confidential police informant is much more apparent than that of the prominent attorney in Gertz or of the Palm Beach socialite divorcee in Firestone. Inasmuch as plaintiff is neither a “public official” nor a “public figure,” the actual malice standard of New York Times v. Sullivan is inapplicable in this case.
Ill
Negligence
The Maryland Court of Appeals held in
Jacron Sales Co., Inc. v. Sindorf,
One who publishes a false and defamatory communication concerning a private person or concerning a public official or public figure in relation to a purely private matter not affecting his conduct, fitness or role in his public capacity, is subject to liability, if, but only if, he
(a) Knows that the statement is false and that it defames the other,
(b) Acts in reckless disregard of these matters, or
*547 (c) Acts negligently in failing to ascertain them.
The Court further held that proof of a defendant’s fault must be established by a preponderance of the evidence.
Although it has been held elsewhere that a plaintiff in a defamation action must come forward with a more persuasive showing than other litigants in order to defeat a publisher’s motion for summary judgment,
e.g., Washington Post Co. v. Keogh,
In
Phoenix Savings and Loan, Inc. v. Aetna Casualty and Surety Co.,
In opposing defendant’s motion for summary judgment as to the even-numbered Counts of the second amended complaint, plaintiff’s primary contention is that defendant was negligent in relying on the written statement of one Delbert Malott, which was delivered to defendant’s reporters by attorney William Carrier. Malott’s statement, which is a purported eyewitness account of the alleged break-in of Carrier’s office by plaintiff, was the principal source for defendant’s articles. It is undisputed that defendant’s reporters did not talk to Malott before publication of the articles. It is further undisputed that defendant’s reporters were unaware that Malott had a criminal record and that attorney Carrier was then engaged in extensive criminal activity for which he was later indicted and convicted, following his plea of nolo contendere.
Defendant asserts that it was not negligent in publishing the “break-in” articles. It points out that attorney Carrier was at the time an apparently reputable member of the bar and that the credibility of Malott was vouched for by Carrier; that defendant’s reporters made reasonable, albeit unsuccessful, efforts to verify the information; and that defendant’s editors and attorneys carefully scrutinized the articles prior to publication. 7
*548
These facts and the conflicting inferences which arise from them present an issue concerning the negligence
vel non
of defendant and its reporters which cannot be decided on a motion for summary judgment. Whether defendant exercised due care in publishing these articles under all the circumstances here is a question which must be presented to the jury for a decision. The affidavits, exhibits and depositions now before the Court could reasonably support an inference of negligence on the part of defendant. On the other hand, the record here could likewise support an inference that defendant and its representatives exercised due care under all the circumstances. In deciding this issue, questions concerning the credibility of the witnesses will have to be resolved by the jury. Clearly, questions of credibility cannot be determined by the Court on a motion for summary judgment.
Batchelor v. Legg & Co.,
For these reasons, this Court concludes that defendant is not entitled to summary judgment as to the even-numbered Counts of the second amended complaint. These Counts allege negligence on the part of the defendant, and the issues raised must be decided at the trial of this case.
IV
Punitive damages
The odd-numbered Counts, alleging malice and seeking punitive damages, present questions which are quite different. It is now well established that a plaintiff in a defamation action cannot recover punitive or exemplary damages in the absence of proof of actual malice under
New York Times v. Sullivan, supra. Gertz v. Robert Welch, Inc., supra,
In order to recover punitive as well as compensatory damages, a private individual must meet the same strict standard of actual malice that is required for a “public official” or a “public figure” to maintain a libel action. Thus, although plaintiff in this case need prove only negligence to recover compensatory damages, he must prove actual malice in order to recover punitive damages.
Appleyard v. Transamerican Press, Inc.,
The standard of actual malice or its equivalent was explained by the Supreme Court in
St. Amant v. Thompson,
These cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.
In the Thompson case, the Supreme Court discussed the following facts and concluded that they fell short of establishing actual malice or reckless disregard for truth:
[The publisher] had no personal knowledge of [plaintiff’s] activities; [the publisher] relied solely on [a third party’s] affidavit although the record was silent as to [the third party’s] reputation for *549 veracity; [the publisher] failed to verify the information with those in the union office who might have known the facts
Id.
at 730,
In the pending case, this Court is satisfied that the affidavits and depositions of defendant’s reporters, the prepublication statements of the witnesses Sallow and Malott and the deposition testimony of Malott and Carrier conclusively establish the absence of actual malice. However, as previously noted, there are disputed inferences of fact concerning negligence on the part of defendant or its representatives. The present record indicates that neither the reporters nor the Executive Editor had reason to believe the articles were false. Before publication, the defendant had obtained a signed statement from Malott, dated December 16, 1974, which read as follows:
Some time in August of 1974, I visited Mr. Leonard Jenoff at his office in the Standard Oil Building located at 501 St. Paul Place, Baltimore, Maryland 21202. At that time I did not know Mr. William Carrier. Mr. Jenoff asked me to accompany him to the 13th floor where we entered the office of a Mr. Carrier and I waited in the waiting room while Mr. Jenoff went into Mr. Carrier’s private office. No one was in Mr. Carrier’s office at the time since it was approximately 10:00 p.m. on a Thursday evening. Mr. Jenoff advised me that he was in partnership with Mr. Carrier in a trucking business and that he had to go into Mr. Carrier’s office for some papers. Subsequent to that visit, Mr. Jenoff referred me to Mr. Carrier to handle a legal matter for him.
Defendant had also received a sworn statement from one Ronald Sallow dated December 9, 1974, which stated that plaintiff worked for the ISD. William Carrier subsequently confirmed Malott’s statement by telling reporters Olesker and Nawrozki that his office had been broken into, that papers were missing and that Jenoff was not supposed to have a key.
Plaintiff contends that defendant should have investigated more thoroughly the written statement of Malott and the oral statement of Carrier. But if this contention is proved at trial to the satisfaction of the jury, no more than negligence will have been established. The failure of the defendant to have thoroughly investigated the factual basis for its articles would not as a matter of law establish actual malice or its equivalent. St. Amant v. Thompson, supra; Time, Inc. v. Johnston, supra.
In support of his argument that actual malice has been proved here, plaintiff relies on certain statements made by defendant’s reporters before these articles were published. On the day before publication of the first article, Olesker called plaintiff and stated, among other things, “We know all about you, and you better confess.” Subsequently, Nawrozki told plaintiff that he would become “the Lt. Calley of the police department,” and that plaintiff would “burn” if he did not corroborate the facts concerning the alleged break-in.
On a different record and standing alone, these statements might in another case support an inference of malice. But in this case, they must be considered in the light of all the other facts in the record. The affidavits and the depositions of Olesker and Nawrozki show that no malice was involved when they acted as they did. Other than the statements themselves, plaintiff can point to no specific facts in the record indicating that the two reporters harbored any feelings of ill will towards him. See Rule 56(e).
Quite clearly, the reporters here were doing no more than attempting to bring pressure on plaintiff to admit the incidents. *550 When he declined to do so, they decided to publish the articles in any event, having satisfied themselves that a sufficient basis existed for publication. Whether they or the Executive Editor should have done more must be determined by the jury. But, when considered in the light of the other facts established by the record here, these isolated statements made by defendant’s reporters and relied upon by plaintiff amount to no more than evidence of “zealous investigative reporting” on the part of Olesker and Nawrozki. Woods v. The Hearst Corporation, supra at 1551.
For these reasons, this Court concludes that defendant is entitled to summary judgment as to the allegations of malice in the second amended complaint. On the record here, there is no triable issue concerning plaintiff’s right to recover punitive damages. The same result was reached by Judge Murray on a different record in Woods v. The Hearst Corporation, supra, which involved a different plaintiff but the same series of articles.
Accordingly, it is this 27th day of June, 1978, by the United States District Court for the District of Maryland,
ORDERED:
1. That defendant’s motion for summary judgment be and the same is hereby granted in part and denied in part;
2. That summary judgment in favor of defendant be and the same is hereby granted as to Counts 1, 3, 5, 7, 9,11,13,15,17,19, 21, 23, 25, 27, 29, 31, 33, 35, 37, 39, 41, 43 and 45 of the second amended complaint; and
3. That summary judgment in favor of defendant be and the same is hereby denied as to Counts 2, 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26, 28, 30, 32, 34, 36, 38, 40, 42, 44 and 46 of the second amended complaint.
Notes
. Diversity jurisdiction exists in this case.
. The News American is a daily newspaper which is widely disseminated in the Baltimore metropolitan area.
. The articles were written by Michael Olesker and Joe Nawrozki, who were at the time reporters employed by the defendant.
. To establish actual malice, a plaintiff must prove that the statement was made with knowledge that it was false or with reckless disregard as to its truth or falsity.
. Because of the sensitive nature of these files, they have, pursuant to Protective Orders entered by the Court, been held under seal.
. Some years before these newspaper articles were published, plaintiff was involved as a volunteer and photographer in the congressional campaign of United States Representative Parren J. Mitchell. Statements in defendant’s newspaper that plaintiff “infiltrated” the campaign are not the subjects of plaintiffs libel claims asserted in this case.
. At the hearing on this motion, defendant contended for the first time that plaintiffs denial of the break-in allegations at his deposition was inherently incredible. However, this is not a case where the plaintiff has failed to deny the truth of defendant’s articles. Cf., Anderson v. Stanco Sports Library, Inc., supra. The credibility of the plaintiff is for the jury to determine.