EXAM#____________________

Part II: Essay Question (19 points)

Recommended Time: (30 minutes)

Strawberry Fields Inc. (“SFI”) owns a small strawberry farm near the City of Salinas in the State
of California. As part of their strawberry-growing operation, to help stop mersey beatles from
eating their berries, since 2015 SFI has sprayed the pesticide Bugdead on its strawberry plants.
Recent scientific studies have indicated that exposure to the chemicals in Bugdead is linked to
certain cancers, and farm laborers working in the SFI strawberry field were and are exposed to
Bugdead. However, in 2014 Bugdead was approved for use as an agricultural pesticide by the
National Farm Agency under the Federal Farm Act.

In March 2019, a class action lawsuit was filed against SFI in federal district court in California,
in which the sole named plaintiff was Daniel Salazar (“Salazar”). Salazar currently works as a
farm laborer in the SFI strawberry field, and has worked as a farm laborer in the SFI strawberry
field since 2015 when it is alleged that use of Bugdead began. The proposed (putative) class in
the lawsuit includes 35 persons, all of whom are current farm laborers in the SFI strawberry
field.

In this class action lawsuit, no money damages are being sought by the plaintiff Salazar or on
behalf of the class. Instead, the class action lawsuit seeks a declaration from the court that use of
Bugdead on the SFI strawberry field constitutes an “ultra-hazardous” activity under California
tort law due to the health risks to farm laborers, and seeks a permanent injunction from the court
prohibiting SFI from continuing to use Bugdead on its strawberry field. SFI has taken the
position that the “ultra-hazardous” state law tort claim is pre-empted by federal law by the
approval of Bugdead by the National Farm Agency under the Federal Farm Act.

Pursuant to the requirements and provisions of FRCP 23(a) and FRCP 23(b), analyze and
evaluate whether or not the federal district court is likely to certify the proposed (putative)
class in the class action lawsuit filed again SFI regarding use of the pesticide Bugdead.

END OF PART II: ESSAY QUESTION

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 EXAM#____________________
Part III: Essay Question (19 points)
Recommended Time: (30 minutes)

Theresa Jones (“Jones”) and Desmond Smith (“Smith) were married in 2013 in Albuquerque,
New Mexico and lived together in Albuquerque until 2017. As relations in the marriage soured,
in 2017 Jones and Smith separated, and Jones moved to El Paso, Texas (where she was originally
from and where much of her family lived). In November 2018, when it appeared her differences
with Jones were irreconcilable, Jones filed a complaint for divorce in federal district court in
New Mexico where Smith was still living (pursuant to diversity subject matter jurisdiction)
which included claims for spousal support under New Mexico state law. Under New Mexico
state law, the parties’ respective incomes are key factors for determining spousal support.

In the course of the divorce litigation, and claims relating to spousal support, a dispute arises as
to the amount of Smith’s income since 2016. Smith runs a construction company – called Smith
& Babson Builders -- with a partner named Peter Babson (“Babson”). Babson’s deposition was
noticed during the litigation as part of discovery, and during his deposition Babson was asked the
following question by Jones’ attorney: “Mr. Babson, according to my client Theresa Jones, at a
December 2016 Smith & Babson Builders holiday party, you spoke to Ms. Jones to warn her that
something strange was going on with Desmond, and that at this holiday party you warned Ms.
Jones that Desmond had told you he was having some clients pay money into an off-shore
account in Bermuda in case Ms. Jones divorced him and tried to go after his assets. Mr. Babson,
can you please provide me with more details about what Desmond Smith told you about this off-
shore account in Bermuda?” At this point, the attorney defending Babson in the deposition
responded “Objection to the deposition question, as it calls for inadmissible hearsay regarding
what Desmond Smith told Mr. Babson. Based on this objection, I am going to instruct Mr.
Babson not to answer this deposition question.”

After first making a good faith attempt to resolve this discovery dispute through the meet and
confer process, the attorney for Theresa Jones files a motion to compel with the federal district
court, seeking an order compelling Peter Babson to answer the deposition question related to
what Desmond Smith told him about a possible off-shore account in Bermuda to which clients
were directed to make payments. The attorney for Peter Babson opposes this motion to compel
on the same basic grounds supporting the objection made during Babson’s deposition.

Analyze and evaluate whether the federal district court is likely to grant or deny the
motion to compel filed by the attorney for Theresa Jones in connection with Peter Babson’s
refusal to answer the question posed during his deposition relating to Desmond Smith’s
comments concerning a possible off-shore account in Bermuda.

END OF PART III

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 EXAM#____________________
Part IV: Essay Question (19 points)
Recommended Time: (30 minutes)

Doug Elmwood and Sally Travis graduated from Atlantic High School in Wilmington, Delaware
in June 2016. In November 2018, Doug Elmwood (who now lives in North Carolina) wrote the
following post on his Facebook page: “Any of you remember Sally Travis from high school? I
think we all know how Sally got into Yale University. Always helpful when Daddy offers to pay
for a new $500,000 building at Yale while your application is pending.”

In December 2018, outraged at the November 2018 Facebook post by Doug Elmwood, Sally
Travis (who now lives in Connecticut) wrote the following post on her Facebook page: “Any of
you remember Doug Elmwood from high school? The same Doug Elmwood that was accepted to
Duke University as a student-athlete because of his stellar high school swimming career.
Interesting, I was on Atlantic’s high school swim team and don’t recall ever seeing Doug in the
pool. Guess must not have been too hard for Doug’s parents to photo-shop his head onto a real
swimmer’s body for his Duke application.”

In January 2019, outraged by the December 2018 Facebook post by Sally Travis, Doug
Elmwood wrote the following post on his Facebook page: “Funny thing about Sally Travis, she
got a near perfect score on her SATs but she always came across as quite dumb and an
intellectual dolt. Perhaps her Daddy just paid someone that was actually smart to take the SAT
for Sally, and Yale was none the wiser.”

In March 2019, Sally Travis sues Doug Elmwood in federal district court based on diversity
subject matter jurisdiction, and alleges a single count of “defamation” under state tort law on the
basis of the November 2018 Facebook post alleging she was accepted to Yale because her father
paid for the construction of a Yale campus building. In the complaint Sally Travis files against
Doug Elmwood, she does not make any allegations relating to the January 2019 Facebook post
alleging that someone else took the SAT for her.

(A) If Doug Elmwood does not file a counter-claim against Sally Travis in this pending
lawsuit alleging that Sally Travis “defamed” him in her December 2018 Facebook
post alleging that he lied in his application to Duke University about whether he was
on the high school swim team, will Doug Elmwood be later barred from bringing
this defamation claim against Sally Travis in a separate subsequent lawsuit?

(B) If Sally Travis does not amend her complaint or otherwise introduce evidence in this
pending lawsuit alleging that Doug Elmwood also defamed her in his January 2019
Facebook post alleging that someone one else was paid to take the SATs for her, will
Sally Travis be later barred from bringing this additional defamation claim against
Doug Elmwood in a separate subsequent lawsuit?

END OF EXAM
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