CALLAHAN, Circuit Judge:
Plaintiffs-Appellants Raymond Vinole and Ken Yoder ("Plaintiffs") appeal the district court's order granting Defendant-Appellee Countrywide Home Loans, Inc.'s ("Countrywide") motion to deny class certification. In this wage-and-hour dispute, Plaintiffs seek to represent a proposed class of current and former Countrywide employees who are or were employed as External Home Loan Consultants ("HLCs"). They allege that Countrywide mis-classified HLCs as "exempt" outside sales employees and, as a result, Countrywide impermissibly failed to pay premium overtime and other wages. In a procedural wrinkle, Countrywide filed its motion to deny certification before Plaintiffs filed a motion for certification pursuant to Federal Rule of Civil Procedure 23 ("Rule 23") and prior to the pretrial motion deadline and discovery cutoff.
On appeal, we consider whether the district court abused its discretion by (1) considering Countrywide's motion to deny class certification before Plaintiffs had filed a motion to certify and prior to the pretrial and discovery cutoffs, and (2) denying class certification based on its reasoning that individual issues predominate over common issues. See Fed.R.Civ.P. 23(b)(3). We affirm. First, no rule or decisional authority prohibited Countrywide from filing its motion to deny certification before Plaintiffs filed their motion to certify, and Plaintiffs had ample time to prepare and present their certification argument. Second, the district court did not abuse its discretion by denying certification under Rule 23(b)(3) because the record supports its conclusion that individual issues predominate over common issues.
I
Countrywide is a corporation that provides mortgages to homeowners and home purchasers. It employs roughly 1,140 HLCs, like Plaintiffs Vinole and Yoder, in small satellite offices throughout California to sell loan products on its behalf. HLCs are focused on outside sales and "represent Countrywide in local communities, and specifically work with realtors, builders, and other potential business partners in order to develop business relationships
Countrywide applies a uniform wage exemption to HLCs, categorizing them as "exempt" outside salespeople to whom Countrywide is not obligated to pay overtime and related wages. It relies on the "outside salesperson" exemption found in the California Industrial Wage Commission's ("I.W.C.") Wage Order 4-2001, § 1(C), codified at Cal.Code Regs., tit. 8, § 11040, and a similar exemption in the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 213(a)(1). I.W.C. Wage Order 4-2001, § 2(M) defines an outside salesperson as a person "who customarily and regularly works more than half the working time away from the employer's place of business selling tangible or intangible items or obtaining orders or contracts for products, services, or use of facilities."
Evidence in the record, in the form of declarations from HLCs regarding the amount of time individual HLCs spent inside and outside the office, suggests that the time spent in or out of the office varies greatly. Countrywide does not keep records reflecting whether any particular HLC qualifies for the exemption and does not monitor any possible change in an HLC's exemption eligibility-it apparently only tracks the number and value of loans that HLCs close each month.
In October 2006, Plaintiffs filed a complaint in California state court, which Countrywide removed to federal court in January 2007. The First Amended Class Action Complaint ("Complaint") alleges twelve causes of action against Countrywide on the theory that Countrywide impermissibly classified all HLCs as exempt despite the fact that most HLCs primarily engaged in non-exempt activities inside the office.
The Complaint also proposes eight sub-classes within the larger class.
On August 7, 2007, before the discovery cutoff and pretrial motion cutoff, Countrywide filed a motion to deny certification. The discovery cutoff was scheduled for November 9, 2007, and the pretrial motion
On November 15, 2007, the district court granted Countrywide's motion. First, the district court held that it was permitted to decide the question of certification on Countrywide's motion under Rule 23 notwithstanding the fact that Countrywide had filed its motion before the pretrial motion and discovery cutoff dates. Second, the district court held that class certification was not substantively proper because Plaintiffs had not met their burden to demonstrate the applicability of one of the Rule 23(b) certification grounds. Specifically, it concluded that individual issues predominated over common issues because determining the propriety of a HLC's exempt status would require an individualized analysis of how each HLC spent his or her time, and that Countrywide had "no common scheme or policy that would diminish the need for individual inquiry." (Order at 5, Nov. 15, 2007.)
After entry of the district court's order, Plaintiffs successfully petitioned this court for permission to file an interlocutory appeal pursuant to Federal Rule of Civil Procedure 23(f).
II
We review a district court's order denying class certification for an abuse of discretion. Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001). As we stated in Parra v. Bashas', Inc.,
536 F.3d 975, 977-78 (9th Cir.2008) (citation and internal quotation marks omitted).
III
A
We first address Plaintiffs' argument that a defense motion to deny class certification "brought outside the context of a plaintiff's motion actually seeking certification is procedurally improper per se." Although we have not previously addressed this argument directly, we conclude that Rule 23 does not preclude a defendant from bringing a "preemptive" motion to deny certification.
Rule 23(c)(1)(A) addresses the timing of a district court's class certification determination, and states: "Time to Issue: At an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action." Fed.R.Civ.P. 23(c)(1)(A). Nothing in the plain language of Rule 23(c)(1)(A) either vests plaintiffs with the exclusive right to put the class certification issue before the
In addition, contrary to Plaintiffs' assertion that the district court here charted "troubling new territory" by entertaining Countrywide's motion to deny certification, federal courts have repeatedly considered defendants' motions to deny class certification. In Rutledge v. Electric Hose & Rubber Co., we affirmed the district court's order granting defendants' motion to deny certification under Rule 23, albeit without expressly addressing any challenge to the defendants' ability to bring such a motion before plaintiffs moved for certification. 511 F.2d 668, 673 (9th Cir.1975). In Cook County College Teachers Union, Local 1600 v. Byrd, the Seventh Circuit also concluded that it was proper for the district court to consider the defendants' motions to deny certification where the plaintiffs had not yet moved to certify a class. See 456 F.2d 882, 884-85 (7th Cir.1972) ("One opposing a class action may move for an order determining that the action may not be maintained as a class suit."), cert. denied, 409 U.S. 848, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972); see also Parker v. Time Warner Entm't. Co., 331 F.3d 13, 21-22 (2d Cir.2003) (reviewing a district court's order granting defendant's motion to deny class certification but vacating that order because the district court had not permitted plaintiffs to conduct limited discovery).
Plaintiffs' proposed rule is also contrary to the fact that district courts throughout the nation have considered defendants' "preemptive" motions to deny certification. See, e.g., Fedotov v. Peter T. Roach & Assocs., P.C., 354 F.Supp.2d 471, 478 (S.D.N.Y.2005) (stating that "defendant's Motion for Denial of Class Certification—a procedural `preemptive strike' against this purported class action—is properly before this court"); Chevron USA, Inc. v. Vermilion Parish Sch. Bd., 215 F.R.D. 511, 515-16 (W.D.La.2003) (granting defendants' motion to deny class certification), aff'd, 377 F.3d 459, 464 (5th Cir.2004); Bryant v. Food-Lion, Inc., 774 F.Supp. 1484, 1495 (D.S.C.1991) (denying on the merits defendant's motion to deny class certification brought before start of discovery); Osborn v. Pennsylvania-Delaware Serv. Station Dealers Ass'n, 499 F.Supp. 553, 560 (D.Del.1980) ("Plaintiff's briefing appears to incorrectly assume that defendants to purported class actions may only raise issues regarding the appropriateness of this procedure in response to class certification motions."); Brown v. Milwaukee Spring Co., 82 F.R.D. 103, 104 (E.D.Wis.1979) ("While the plaintiff has the burden of establishing her right to maintain a class action, the defendants may test the propriety of the action by means of a motion for denial of class certification.").
In In re Wal-Mart Stores, the district court did not have before it a Rule 23 motion to deny class certification—instead, and unlike the present case, the district court was considering the defendant's motions to dismiss and strike class allegations pursuant to Federal Rule of Civil Procedure 12, when the defendant had not yet answered the complaint, discovery had not yet commenced, and no motion to certify a class had been filed. See 505 F.Supp.2d at 614-16. The district court exercised its discretion and denied the motions in order to allow plaintiffs time to conduct discovery prior to considering the propriety of the class allegations. Id. at 615-16. However, it in no way set forth an absolute prohibition on defense motions to deny certification.
Plaintiffs' reliance on Baas is similarly unfounded because that case involved a defendant's motions to dismiss and strike class allegations on vagueness grounds and was decided in nearly the same procedural posture as In re Wal-Mart Stores. See Baas, 2007 WL 2462150 at *2-3 (distinguishing a Rule 23 motion and holding that defendant's attempt to dismiss class allegations under Rule 12 was premature). As in In re Wal-Mart Stores, Baas did not adopt the per se rule urged by Plaintiffs here.
Finally, the Plaintiffs misread Beauperthuy as supporting a per se prohibition on preemptive motions to deny class certification. In that case, the district court denied defendants' motion under Rule 23(d)(4) to compel amendment of the pleadings to eliminate class allegations on the grounds that such a motion was "procedurally inseparable" from the question of class certification, and that the plaintiffs had not yet filed a motion to certify. Beauperthuy, 2006 WL 3422198, at *3. The district court held only that it was procedurally improper to consider a motion to compel an amendment of the pleadings in a class action case where the question of certification was not yet before the court and discovery was ongoing. Id. Again, the district court did not announce the rule forwarded by Plaintiffs here.
In short, Plaintiffs have read into Rule 23 a per se prohibition against defendants filing of a motion to deny class certification where none exists. A defendant may move to deny class certification before a plaintiff files a motion to certify a class. Accordingly, the district court did not err by considering Countrywide's motion.
B
Having determined that Countrywide filed its motion to deny class certification at a permissible point in the proceedings, we next consider whether the district court
Plaintiffs offer virtually no factual assertions in support of their claim that the district court abused its discretion by considering Countrywide's motion to deny certification before the December 3, 2007 pretrial motion deadline. They essentially argue that it was unfair for the district court to consider Countrywide's motion when it did. However, the operative scheduling order simply states that "[a]ll other pretrial motions must be filed on or before December 3, 2007." As the district court noted in its order, "the scheduling order neither provides Plaintiffs an exclusive right nor a specifically designated period of time to address the issue of class certification." (Order at 3.) In addition, Plaintiffs have not offered any authority, and we have found none, for the proposition that a district court either abuses its discretion or errs as a matter of law by considering the issue of class certification before expiration of a pretrial motion deadline. Plaintiffs' argument is essentially a re-packaged version of their argument that plaintiffs are entitled to complete control over the timing of a district court's consideration of the class certification issue, an argument which we have already rejected.
We also conclude that Plaintiffs were provided with adequate time in which to conduct discovery related to the question of class certification such that the district court did not abuse its discretion by considering Countrywide's motion. District courts have broad discretion to control the class certification process, and "[w]hether or not discovery will be permitted... lies within the sound discretion of the trial court." Kamm v. Cal. City Dev. Co., 509 F.2d 205, 209 (9th Cir.1975); accord Armstrong v. Davis, 275 F.3d 849, 871 n. 28 (9th Cir.2001). Although a party seeking class certification is not always entitled to discovery on the class certification issue, we have stated that "[t]he propriety of a class action cannot be determined in some cases without discovery," Kamm, 509 F.2d at 210, and that "the better and more advisable practice for a District Court to follow is to afford the litigants an opportunity to present evidence as to whether a class action was maintainable." Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1313 (9th Cir.1977) (holding, however, that class certification was properly denied without discovery where plaintiffs could not make a prima facie showing of Rule 23's prerequisites or that discovery measures were "likely to produce persuasive information substantiating the class action allegations"); accord Mantolete v. Bolger, 767 F.2d 1416, 1424-25 (9th Cir.1985). Our cases stand for the unremarkable proposition that often the pleadings alone will not resolve the question of class certification and that some discovery will be warranted.
Several things are apparent from this colloquy. First, at the time of the hearing Plaintiffs had conducted significant discovery and did not intend to propound any additional discovery seeking information from Countrywide regarding the propriety of class certification. Second, it is evident that Plaintiffs had made a strategic choice to limit the amount of evidence it presented to the district court in opposition to Countrywide's motion; they proffered their class certification arguments through their "preview" declarations. Third, Plaintiffs' real complaint is not that they were deprived of adequate time in which to complete discovery, but that they "didn't want to be on defendants' schedule." But, again, this is just a variation on Plaintiffs argument in favor of a per se rule. Plaintiffs, in a strategic gamble, relied on their position that Countrywide's motion was procedurally improper—an argument we have rejected—to avoid having the district court decide the motion on the merits. Nothing in the record suggests that Plaintiffs could not have more diligently prepared their certification argument in the months between the date Countrywide filed its motion and the date Plaintiffs' opposition brief was due.
Moreover, the record indicates that Plaintiffs did not request a continuance or an extension of time in which to respond to Countrywide's motion. If Plaintiffs truly were not prepared to present their position on class certification, it seems reasonable that they would have requested an extension or continuance as soon as possible after Countrywide filed its motion to deny class certification.
IV
Next, we review the merits of the district court's denial of class certification for an abuse of discretion. Zinser, 253 F.3d at 1186. Plaintiffs' claim that the district court abused its discretion by not certifying a class in accordance with Wang v. Chinese Daily News, Inc., 231 F.R.D. 602 (C.D.Cal.2005), which certified a Rule 23(b)(3) class on the basis of an employer's uniform classification of a group of its employees as exempt.
A
Under Rule 23(b)(3), a class may be certified if the district court "finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy."
Keeping the requirements and purpose of Rule 23(b)(3) in mind, our assessment of whether the district court abused its discretion also implicates the analytical framework within which courts review application of an exemption to an employee. Here, the district court held that analysis of the outside salesperson exemption precluded certification because that analysis would require an individualized inquiry into the manner in which each HLC actually carried out his or her work, and that this burden was not lessened by the presence of other issues susceptible to common proof. (See Order at 4-7.)
Federal law and California law provide exemptions for "outside salespersons."
Under federal law, the FLSA's exemption found in 29 U.S.C. § 213(a)(1) exempts employees whose "primary duty" is making sales or "obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer," and "[w]ho is customarily and regularly engaged away from the employer's place or places of business in performing such primary duty." 29 C.F.R. § 541.500(a).
B
Plaintiffs ask us to follow the Wang decision and adopt a rule that class certification is warranted under Rule 23(b)(3) whenever an employer uniformly classifies a group of employees as exempt, notwithstanding the requirement that the district court conduct an individualized analysis of each employee's actual work activity. See
We decline to adopt such an approach because—as set forth in greater length in our opinion in In re Wells Fargo— we hold that a district court abuses its discretion in relying on an internal uniform exemption policy to the near exclusion of other factors relevant to the predominance inquiry. See In re Wells Fargo Home Mortgage Overtime Pay Litig., No. 08-15355, slip. op. at 8335-36. As we stated there, focusing on a uniform exemption policy alone does little to further the purpose of Rule 23(b)(3)'s predominance inquiry, which requires an assessment of the relationship between individual and common issues. Id. Instead of adopting what would essentially be a bright-line presumption in favor of class certification, we favor an approach that takes into consideration all factors that militate in favor of, or against, class certification. Id. at 8334. The overarching focus remains whether trial by class representation would further the goals of efficiency and judicial economy. See Zinser, 253 F.3d at 1189.
Our approach is consistent with that taken by several district courts with respect to evaluating class certification in the wage exemption context.
Here, the district court weighed the relevant considerations and properly focused on whether class certification would enhance efficiency and further judicial economy. It stated that "in cases where exempt status depends upon an individualized determination of an employee's work, and
Plaintiffs argue that these trial burdens could be mitigated through the use of "innovative procedural tools" such as questionnaires, statistical or sampling evidence, representative testimony, separate judicial or administrative mini-proceedings, expert testimony, etc. They also argue that the district court could have certified the entire class subject to later modification of the class, redefine the class, or certify subclasses. These arguments are not persuasive in light of our determination that Plaintiffs' claims require a fact-intensive, individual analysis of each employee's exempt status. Moreover, Plaintiffs have not provided authority for the proposition that the district court abused its discretion by not certifying a class and using these tools. It is not certain that these tools would actually assist the court, and the decision to use such tools is within the discretion of the district court.
Here, the district court correctly selected and applied Rule 23's criteria, and there is no persuasive evidence in the record that it relied on an improper factor, failed to consider a factor entitled to substantial weight, or mulled the correct mix of factors but made a "clear error of judgment in assaying them." Parra, 536 F.3d
V
We decline to adopt Plaintiffs' proposed rule that a defendant may not move to deny class certification under Rule 23(b)(3) unless and until the plaintiffs have affirmatively moved to certify a class. In addition, we conclude that the district court did not abuse its discretion by considering Countrywide's motion where Plaintiffs had a sufficient opportunity to present its case in favor of class certification. Finally, consistent with our decision in In re Wells Fargo Home Mortgage Overtime Pay Litigation, issued today, we decline to adopt a rule that a Rule 23(b)(3) class is presumptively proper where an employer uniformly classifies a group of employees as exempt. Here, the district court conducted a proper inquiry considering the relevant factors and, accordingly, its order denying class certification is
FootNotes
Jewel Tea Co. v. Williams, 118 F.2d 202, 207-08 (10th Cir.1941).
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