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United States Court of Appeals for the Ninth Circuit
February 5, 2009, Argued and Submitted, Pasadena, California; July 7, 2009, Filed
[*937] 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 [**2] 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.
Countrywide is a corporation that provides mortgages to homeowners and home purchasers. It employs [**3] 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 [*938] and obtain referral business." They are paid entirely on commission, based on loan production. 2 Countrywide declares that it "has no control over what HLCs actually do during the day" and does not monitor how HLCs perform their work activities. It further states that "[i]t is immaterial how much, or how little time HLCs spend in the office, or working overall" and that "[i]t is up to each HLC to decide how much time they want to spend doing this, how they want to market themselves, and how much money they want to make." HLCs can earn several hundreds of thousands of dollars, and the average annual compensation of Countrywide's HLCs during the relevant period was over $ 100,000.
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571 F.3d 935 *; 2009 U.S. App. LEXIS 14771 **; 158 Lab. Cas. (CCH) P35,603; 14 Wage & Hour Cas. 2d (BNA) 1797
RAYMOND VINOLE, on behalf of himself and all others similarly situated; KEN YODER, Plaintiffs-Appellants, v. COUNTRYWIDE HOME LOANS, INC., a New York corporation, Defendant-Appellee.
Prior History: [**1] Appeal from the United States District Court for the Southern District of California. D.C. No. CV-07-00127-DMS. Dana M. Sabraw, District Judge, Presiding.
Vinole v. Countrywide Home, Inc., 246 F.R.D. 637, 2007 U.S. Dist. LEXIS 86402 (S.D. Cal., 2007)Mevorah v. Wells Fargo Home Mortg. (In re Wells Fargo Home Mortg.), 571 F.3d 953, 2009 U.S. App. LEXIS 14864 (9th Cir. Cal., 2009)
Disposition: The court affirmed the district court's decision.
class certification, district court, exemption, discovery, Plaintiffs', certify, deny certification, employees, class action, certification, predominance, pretrial motion, defense motion, defendants', common issue, abused, cases, discovery cutoff, individualized, allegations, declarations, factors, motions, salesperson, deadline, spend
Civil Procedure, Appeals, Standards of Review, Abuse of Discretion, Special Proceedings, Class Actions, Appellate Review, Certification of Classes, Judicial Officers, Judges, Discretionary Powers, Judicial Discretion, Discovery & Disclosure, General Overview, Prerequisites for Class Action, Maintainability, Labor & Employment Law, Wage & Hour Laws, Defenses