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November 24, 1971


The opinion of the court was delivered by: Campbell, Senior District Judge.


This is an action for libel brought by plaintiff, Gordon Novel, against defendants, Jim Garrison and HMH Publishing Company. At all times relevant to this case, Garrison was the District Attorney for the Parish of Orleans, Louisiana. HMH Publishing Co. is publisher of a widely circulated magazine known as "Playboy". The alleged libel occurred in an article which appeared in Playboy Magazine and which was the result of an interview with Garrison relating to his widely publicized investigation into the assassination of President John F. Kennedy.

  "In response to your Honor's question as to whether
  all of the evidence is in the record at this point
  regarding the issue of malice, I would say that as to
  the defendant, HMH Publishing Company, I think that,
  yes, all of the evidence regarding malice or lack
  thereof is in fact now present in the record."

Plaintiff's counsel also agreed that the record was complete on the issue of whether the defendant Garrison was entitled to quasi-judicial immunity. Plaintiff's counsel, however, did not think that the record was complete as to the issue of the existence of malice on the part of the defendant Garrison, because "particularly his motive and subjective feelings there's something that would have to be brought out."

In light of the above statements of counsel generally conceding the completeness of the record and upon my own consideration of the legal arguments excellently presented by the parties, I am convinced that the motions of both defendants should be granted and judgment should be entered on their behalf.

In granting defendants' motions, I am of course fully aware that summary judgment may not be granted if there is any genuine issue of material fact still to be resolved. In determining whether there is any genuine issue of material fact, the court is authorized to examine the proffered materials beyond the pleadings, particularly depositions, answers to interrogatories and stipulations of uncontested facts, as are presently before the court. In Kirk v. Home Indemnity Company, 431 F.2d 554 (1970), our Court of Appeals for the 7th Circuit observed that the function of the summary judgment procedure is essentially the same as the theory underlying the motion for directed verdict. The decision in Kirk then quoted Professor Moore's authoritative work in Federal Practice:

  "The crux of both theories is that there is no
  genuine issue of material fact to be determined by
  the trier of the facts, and that on the law
  applicable to the established facts the movant is
  entitled to judgment. As Justice Jackson stated in
  Sartor v. Arkansas Natural Gas Co. [321 U.S. 620, 64
  S.Ct. 724, 88 L.Ed. 967] `a summary disposition . . .
  should be on evidence which a jury would not be at
  liberty to disbelieve and which would require a
  directed verdict for the moving party.'" 431 F.2d at
  559, citing 6 Moore's Federal Practice 2d Ed.
  Paragraph 56.02(10) at 2043.

The opinion in Kirk also states appropriately that, "when a motion for summary judgment is made and properly supported, an adverse party may not rest upon the mere allegations of his pleading but his response by affidavits or otherwise must set forth specific facts as showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, should be entered against him." 431 F.2d at 560. In a similar vein, our Court of Appeals in Ashwell & Company v. Transamerica Insurance Company, 407 F.2d 762 (1969) observed:

  "Rule 56 does not provide any method for exactly
  determining the presence of an issue of fact, and so
  each case depends upon the facts peculiar to it.
  Speaking in general terms, the court

  is not authorized under the rule to try issues of
  fact but it has the power to penetrate the
  allegations of fact in the pleadings and look to any
  evidential source to determine whether there is an
  issue of fact to be tried." 407 F.2d at 766.

Summary judgment procedures have been particularly utilized in libel cases. As explained by the Court of Appeals for the 5th Circuit in Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858, 867 (1970):

  "Freedom of expression must have a necessary
  breathing space if it is to survive. If these
  statements raise factual issues of actual malice,
  that necessary breathing space becomes almost
  meaningless. As has been noted, actual malice is a
  constitutional issue to be determined initially by
  the trial judge on motion for summary judgment."
  The defendants in this case have cited numerous relevant
decisions where summary judgments have been granted in favor of
defendants where the pleadings and other available evidence
establishes that a plaintiff's proof on the malice issue will
surely fail. See Washington Post Company v. Keogh, 125
U.S.App.D.C. 32, 365 F.2d 965 (1966); Wasserman v. Time, Inc.,
138 U.S.App.D.C. 7, 424 F.2d 920 (1970); Thompson v. Evening Star
Newspaper Company, 129 U.S.App.D.C. 299, 394 F.2d 774 (1968);
Time, Inc. v. McLaney, 406 F.2d 565 (5th Cir. 1969); Walker v.
Pulitzer Publishing Company, 394 F.2d 800 (8th Cir. 1968); Hurley
v. Northwest Publications, Inc., 398 F.2d 346 (8th Cir. 1968);
Konigsberg v. Time, Inc., 312 F. Supp. 848 (S.D.N.Y. 1970);
Sellers v. Time, Inc., 299 F. Supp. 582 (E.D.Pa. 1969) aff'd
423 F.2d 887 (3rd Cir. 1970); Cerrito v. Time, Inc., 302 F. Supp. 1071
(N.D.Cal. 1969); Bennett v. Transamerican Press, 298 F. Supp. 1013
(S.D.Ia. 1969); Jackson v. Atlantic Monthly Company, 324 F. Supp. 1302
 (N.D.Ga. 1971); and Spern v. Time, Inc., 324 F. Supp. 1201
(N.D.Pa. 1971). In the last cited Spern case, the court stated
(at 1204):
  "The plaintiff must bear the burden of coming forth
  with affirmative evidence of facts indicating the
  defendant's ...

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