Plаintiffs-Appellants Raymond Vínole and Ken Yoder (“Plaintiffs”) appeal the district court’s order granting DefendantAppellee 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 nоt 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 Vínole 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 wagеs. 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 whеther 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. 2 Plaintiffs seek to represent a putative class defined as follows:
All current and former California-based emplоyees having a title of Loan Consultant and/or other similarly designated titles, who have worked for Defendant COUNTRYWIDE HOME LOANS, INC. within the last four (4) years from the filing of the Complaint up to and including the time of trial for this matter (“Loan Consultants”)!.]
The Complaint also proposes eight subclasses 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 thе 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). 3
II
We review a district court’s order denying class certification for an abuse of discretion.
Zinser v. Accufix Research Inst., Inc.,
[w]e limit our review to whether the district court correctly selеcted and applied Rule 23’s criteria. An abuse of discretion occurs when the district court, in making a discretionary ruling, relies upon an improper factor, omits consideration of a factor entitled to substantial weight, or mulls the correct mix of factors but makes a clear error of judgment in assaying them.
Ill
A
We first address Plaintiffs’ argument that a defense motion to deny class certification “brought outside the context of a plaintiffs 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 cоurt’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.
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.,
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
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,
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 “proeedurally inseparable” from the question of class certification, and that the plaintiffs had not yet filed a motion to certify.
Beauperthuy,
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 tо 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 “[wjhether or not discovery will be permitted ... lies within the sound discretion of the trial court.”
Kamm v. Cal. City Dev. Co.,
[Counsel]: The complaint was filed October 20th, 2006.
The Court: Okay. So tomorrow will be one year.
[Counsel]: Yes.
The Court: And here there has been— it has been in the federal court for ... about 10 months. And ... discovery closes in two or three weeks?
[Counsel]: Right. We are — I would say, your honor, that we are anticipating being able to file a Rule 23 motion within about four weeks.
The Court: What more discovery would you do?
[Counsel]: Wе are not going to conduct any more discovery in terms of obtaining information from the defense or taking depositions and so forth, but we are compiling additional declarations from putative class members.
As I mentioned in the briefing, we provided a preview of those declarations, because we didn’t want to be on defendants’ schedule forced into putting forth our Rule 23 motion in opposition to a procedurally improper motion to deny class certification.
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 thе 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. 7
IV
Next, we review the merits of the district court’s denial of class certification for an abuse of discretion.
Zinser,
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.”
8
Fed. R.Civ.P. 23(b)(3). The predominance inquiry focuses on “the relationship between the common and individual issues” and “tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.”
9
Hanlon v. Chrysler Corp.,
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 thаt 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 salesper
Under federal law, the FLSA’s exemption found in 29 U.S.C. § 213(a)(1) exempts employees whosе “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).
12
Similar to the California exemption, analysis of the FLSA exemption is a fact-intensive inquiry.
See, e.g., Tumminello v. United States,
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 requirеment 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. OS-15355, slip. op. at 8335-36. As we stated there, focusing on a uniform exemption policy alone does little to further the purpose of Rulе 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,
Our approach is consistent with that taken by several district courts with respect to evaluating class certification in the wage exemption context.
13
These courts acknowledged the employer’s uniform application of an exemption to employees, but focused on whether the employer exercised some level of centralized control in the form of standardized hierarchy, standardized corporate policies and procedures governing employees, uniform training programs, and other factors susceptible to common proof.
See, e.g., Sepulveda,
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. 15
Here, the district court corrеctly 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
y
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 AFFIRMED.
Notes
. Countrywide also employs Internal Home Loan Consultants, who perform inside loan origination work based on phone calls and walk-ins. Countrywide classifies these employees as non-exempt workers who are paid on an hourly basis.
. Plaintiffs allege claims for restitution of overtime wages, failure to pay overtime wages, failure to pay minimum wages, failure to provide meal periods, failure to provide rest periods, illegal record keeping, unfair business practices, conversion, and declaratory relief. They seek back pay with interest, declaratory relief, injunctive relief, punitive damages, penalties, and attorneys’ fees.
. We ordered that this case be calendered with In re Wells Fargo Home Mortgage Overtime Pay Litigation, No. 08-15355, also decided today, because the cases involve similar issues as to the certification of a class of loan consultants.
. Several secondary sources also recognize that either plaintiffs or defendants may put class certification at issue and that defendants may move to deny class certification before plaintiffs file a motion to certify a class.
See, e.g.,
James Wm. Moore, 5 Moore’s Fed. Practice, § 23.82[1] (Matthew Bender 3d ed. 2009) ("The defendant need not wait for the plaintiff to act, however. The defendant may move for an order denying class certification.”); William B. Rubenstein, Alba Conte & Herbert B. Newberg, 3 Newberg on Class Actions, § 7:6 (4th ed. June 2009) ("Not infrequently, however, the defendants may initially move for an order denying the class.”); Charles Alan Wright, Arthur R. Miller & Mary
. In our case, during the hearing on Countrywide’s motion to deny certification, the district court specifically recognized the Countrywide’s motion was brought pursuant to Rule 23, not Rule 12(b).
. The Eleventh Circuit recently stated that “the parties' pleadings alone are often not sufficient to establish whether class certification is proper, and the district court will need to go beyond the pleadings and permit some discovery and/or an evidentiary hearing to determine whether a class may be certified.”
Mills v. Foremost Ins. Co.,
. Plaintiffs argue that they asked the district court to "belay its ruling on the motion to
. On appeal, the parties do not dispute whether Plaintiffs have satisfied the requirements of Rule 23(a), which is a prerequisite to class certification.
See Paira,
. The party seeking certification bears the burden of demonstrating that he has met the requirements of Rule 23(b).
Zinser,
. The Tenth Circuit summarized the rationale underlying these exemptions as follows:
The reasons for excluding an outside salesman are fairly apparent. Such salesmen, to a great extent, works individually. There are no restrictions respecting the time he shall work and he can earn as much or as little, within the rangе of his ability, as his ambition dictates. In lieu of overtime, he ordinarily receives commissions as extra compensation. He works away from his employer’s place of business, is not subject to the personal supervision of his employer, and his employer has no way of knowing the number of hours he works per day. To apply hourly standards primarily devised for an employee on a fixed hourly wage is incompatible with the individual character of the work of an outside salesman. Jewel Tea Co. v. Williams,118 F.2d 202 , 207-08 (10th Cir.1941).
. The California Supreme Court has cautioned that a defendant cannot defeat class certification simply by raising an exemption as an affirmative defense,
Sav-on Drug Stores, Inc. v. Superior Court,
. The term "primary duty” includes "work performed incidental to and in conjunction with the employee’s own outside sales.” 29 C.F.R. § 541.500(b).
. However, as is apparent from the
Wang
and
In re Wells Fargo
decisions, no consensus has developed.
See Heffelfinger v. Elec. Data Sys., Inc.,
No. CV 07-00101 MMM (Ex),
. We cite the Tierno and Alba decisions for their respective discussions of the presence of centralized corporate policies detailing employees' job duties and responsibilities that reflect the realities of the workplace. Consistent with our holding in In re Wells Fargo, we do not embrace any dispositive reliance in those decisions on the rule from Wang. See In re Wells Fargo Home Mortgage Overtime Pay Litig., slip. op. at 8334-36.
. Plaintiffs also argue that the district court abused its discretion by improperly analyzing the merits of the underlying claims when it noted that Plaintiffs' proposed class includes HLCs who, through their own declarations, are admittedly exempt. (Order at 7 (''[I]f the Court were to certify this proposed class, it would allow putative class members who, by their own admission do not qualify for relief, to litigate inherently meritless claims through a representative action.”).) Plaintiffs characterize the district court as denying certification based on the taint of a few putative class members. Plaintiffs’ argument is not persuasive. The district court may consider the merits of the claims to the extent that it is related to the Rule 23 analysis,
see Hanon v. Dataproducts Corp.,