T Keller Farms, LLC, et al. v. Brigitte Holmes Livestock Co., Inc., No. 1:08-CV-243, 2010 U.S. Dist. LEXIS 63982 (N.D. Ind. Jun. 25, 2010)

(defendant sold approximately 284 calves to plaintiffs that defendant represented as “milk-producing replacement heifers,” but turned out to be freemartins; plaintiff sued for breach of contract, breach of warranty of fitness for a particular purpose, violation of the PSA and fraud; during litigation, in attempt to find additional parties who were similarly affected as potential witnesses, plaintiff placed ads in farm publication stating “Wanted dairymen who bought replacement heifers that turned out to be freemartins from Holmes Livestock, Steve Holmes, Mervin Mishler and Levi Graber, please call 419-852-2269”; defendant sued for defamation and plaintiff moved for summary judgment; summary judgment granted as to flyer appearing at livestock because no evidence that plaintiff published flyer; summary judgment not granted as to ad even though plain language not defamatory, makes no affirmative charge of wrong-doing on defendant’s part, and no evidence that plaintiff published ad with defamatory intent; court believed that ad imputes misconduct in defendant’s trade or business and is, therefore, presumed defamatory; irrelevant that ad caused no damage to defendant because damages are presumed; even though ad makes no mention that defendant is deceiving its customers and is merely seeking similarly situated parties, if any, court believed that ad could not rule that ads, as a matter of law, were true).