Kuehn v. Cadle Co.

245 F.R.D. 545, 2007 U.S. Dist. LEXIS 18380, 2007 WL 809657
CourtDistrict Court, M.D. Florida
DecidedMarch 15, 2007
DocketNo. 5:04-cv-432-Oc-10GRJ
StatusPublished
Cited by7 cases

This text of 245 F.R.D. 545 (Kuehn v. Cadle Co.) is published on Counsel Stack Legal Research, covering District Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kuehn v. Cadle Co., 245 F.R.D. 545, 2007 U.S. Dist. LEXIS 18380, 2007 WL 809657 (M.D. Fla. 2007).

Opinion

ORDER

HODGES, District Judge.

This case is before the Court for consideration of the Plaintiffs Motion for Class Certification (Doc. 61), to which the Defendant has responded (Doe. 70). The motion has been thoroughly briefed by both parties. Upon a review of the record, the Court concludes that the Plaintiffs motion is due to be denied.

Background

The facts, as set forth in the Plaintiffs Second Amended Complaint (Doc. 62), are as follows.1 The Plaintiff, Bonnie Kuehn, received an Amicus Bank credit card while employed in Florida at Amicus FSB. Ms. Kuehn used the credit card and maintained a balance on it. In late 2002, Amicus ceased all electronic banking operations in the United States, and deactivated all of its employee credit cards, effective January 1,2003.

In January 2004, Cadleway Properties, Inc., an entity owned and operated by Daniel C. Cadle, purchased several thousand Amicus credit card accounts from Amicus FSB, including Ms. Kuehn’s. Cadleway Properties is a holding company with no employees; all of its work is done via contract by employees of Cadle, including all debt collection services. Daniel Cadle is also the owner and President of Cadle. Ms. Kuehn alleges that Cadleway Properties hired Cadle to service and collect on the Amicus credit card accounts, as well as the various accounts held by the putative class.

On January 13, 2004, Ms. Kuehn received a letter sent by employees of Cadle purporting to collect on her Amicus credit card account balance. The letter was drafted by Daniel Cadle and is a form letter issued to thousands of debtors across the country. The letter contains the following provision, which Ms. Kuehn contends falsely implies a connection with the Internal Revenue Service in violation of the FDCPA:

Also enclosed is an IRS-generated W-9 to certify your Tax Identification Number (TIN). For individuals, this is your Social Security Number. Please complete this form indicating the above account number, and sign and return it to us as soon as possible. You are subject to a $50 penalty imposed by the IRS under 26 U.S.C. 6723 if you fail to furnish a TIN.

Second Am. Complt., ¶ 21 (emphasis in Second Am. Complt.).

Ms. Kuehn alleges in her Second Amended Complaint that this language violates several sections of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., (“FDCPA”). In particular, Ms. Kuehn alleges that this language violates § 1692e(10) because “it falsely implies that the IRS, an arm of the Federal Government, has been or is going to be involved in the collection of the debt at issue,” and because the letter includes an improper request for Taxpayer Identification Numbers. Second Am. Complt. ¶¶28, 34. The language also is alleged to violate § 1692e(9) “in that a W-9 form is only used in certain circumstances when large amounts of debt are forgiven such that the consumer has to include the forgiveness as income. At the time Defendant sends this form letter no debt has been forgiven and such arrangements are rarely made by debt collectors, if ever. However, the purpose of sending the IRS W-9 is to illegally obtain information about the consumer that the debt collector does not have.” Id. at ¶29. Lastly, Ms. [547]*547Kuehn contends that this language in the Cadle letter is “patently false” because it is the party forgiving the debt, not the debtor, who is subject to the $50 IRS penalty.

Discussion

Ms. Kuehn seeks certification of a Federal Rule of Civil Procedure 23(b)(2) and (b)(3) class for the recovery of damages provided by § 1692k, as well as injunctive and declaratory relief. Specifically, Ms. Kuehn proffers the following class definition:

All consumers in the State of Florida to whom employees of The Cadle Company, (whether working for The Cadle Company or another Cadle-related entity), sent a collection letter that included an IRS W-9 request for Taxpayer Identification Number and referenced an IRS penalty for failing to furnish their Taxpayer Identification Numbers to the Cadle Company.

Second Am. Complt., ¶ 7. The class members would be those consumers who received such a letter during the one year time period prior to the filing of this action: between September 22, 2003 and September 22, 2004. The class also excludes persons who received letters sent on debts owned by Cadle itself.2 (Doc. 61 at 1).

“The initial burden of proof to establish the propriety of class certification rests with the advocate of the class.” Rut-stein v. Avis Rent-A-Car Systems Inc., 211 F.3d 1228, 1233 (11th Cir.2000). To obtain class certification, a party must satisfy all four of the threshold requirements of Rule 23(a): numerosity, commonality, typicality and adequacy of representation. If these prerequisites are met, the party seeking certification must then show that the action is maintainable under at least one of the three provisions of Rule 23(b). See Amchem Products, Inc. v. Windsor, 521 U.S. 591, 613-16, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997); Rut-stein, 211 F.3d at 1233-34. In this case, Ms. Kuehn seeks certification under Rule 23(b)(2) — that Cadle has acted in ways generally applicable to the putative class; and Rule 23(b)(3) — that common questions of law or fact predominate over individual issues.

While the FDCPA clearly contemplates class-wide relief, see 15 U.S.C. § 1692k(a)(2)(A), the putative class representative must still first satisfy the requirements of Rule 23. In an attempt to do so in this case, Ms. Kuehn asserts the following: (1) that Cadleway Properties purchased several thousand Amicus Bank credit card accounts, and sent a virtually identical copy of the letter at issue to each account purchased; (2) that the majority of Amicus Bank credit cards were issued to Florida consumers, thus it can be assumed that the putative class would number in the thousands; (3) that the factual circumstances are similar among putative class members — namely that they each received a letter from Cadle containing the same false and misleading information concerning the IRS, W-9 Forms, and Taxpayer Identification Numbers; (4) that the legal question is identical among putative class members — namely, whether the language contained within Cadle’s letter violated the FDCPA; (5) that the claims of Ms. Kuehn are typical, if not identical, to those of the putative class; and (6) that Ms. Kuehn will fairly and adequately protect the interests of the putative class.' Ms. Kuehn also argues that she has satisfied Rule 23(b)(2) because the identical letter Cadle mailed to all putative class members represents an action of general applicability to all members of the class. With respect to Rule 23(b)(3), Ms. Kuehn contends that the common issues of law and fact in this case predominate over any individual questions, and that a class action is the superior method for adjudicating this controversy.

Cadle contends in its opposition that Ms.

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Bluebook (online)
245 F.R.D. 545, 2007 U.S. Dist. LEXIS 18380, 2007 WL 809657, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kuehn-v-cadle-co-flmd-2007.