                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 08-16547                ELEVENTH CIRCUIT
                                                             JUNE 10, 2009
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                               CLERK

                D.C. Docket No. 04-00432-CV-OC-10-GRJ

BONNIE KUEHN,

                                                     Plaintiff-Appellee,

                                  versus

THE CADLE COMPANY, INC.,

                                                     Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________
                             (June 10, 2009)


Before BLACK, BARKETT and COX, Circuit Judges.

PER CURIAM:
                                    I. BACKGROUND

       Bonnie Kuehn received a dunning letter printed on Cadleway Properties, Inc.

letterhead. Kuehn brought a putative class action against Cadleway, alleging that the

letter violated the Truth in Lending Act, 15 U.S.C. § 1601 et seq., and the Fair Debt

Collection Practices Act, 15 U.S.C. § 1692 et seq.

       After the statute of limitations had run, Kuehn filed an Amended Complaint

naming The Cadle Company, and not Cadleway, as the Defendant, and alleging that

it was Cadle who had sent the offending letter.

       Cadle moved to dismiss the Amended Complaint, arguing, among other things,

that it was barred by the one-year statute of limitations, and did not relate back to the

filing of the original Complaint because it added a new Defendant. The district court

denied Cadle’s motion.

       As the litigation progressed, class action certification was denied and Kuehn

narrowed her claims to violations of the Fair Debt Collection Practices Act. She

moved for summary judgment on those claims, which the district court granted in part

and denied in part.1

       Cadle now appeals the final judgment entered in favor of Kuehn.



       1
         The district court sua sponte granted summary judgment to Cadle on those claims for which
it denied Kuehn’s summary judgment motion. (R.3-87 at 12 n.13.)

                                                2
    II. CONTENTIONS OF THE PARTIES AND ISSUES ON APPEAL

      First, Cadle argues on appeal that the district court erred in denying its motion

to dismiss. Specifically, Cadle argues that the Amended Complaint was barred by the

one-year statute of limitations, and that the district court abused its discretion in

concluding that the Amended Complaint related back to the filing of the original

Complaint. Kuehn responds that the district court did not abuse its discretion in

concluding that the requirements of Fed. R. Civ P. 15(c)(1) were met, and that the

Amended Complaint therefore related back to the time of the filing of the original

Complaint.

      Second, Cadle argues that the district court erred in granting in part Kuehn’s

motion for summary judgment, as the issue of whether a dunning letter violated 15

U.S.C. § 1692e(10) is a jury question under Eleventh Circuit precedent. Kuehn

responds that a jury question is only presented when there is a factual dispute as to

the deceptiveness of the dunning letter. Here, contends Kuehn, there was no such

dispute, and thus summary judgment was appropriate.

      In this appeal we determine whether the district court abused its discretion in

concluding that the Amended Complaint related back to the filing of the original

Complaint. Additionally, we determine whether the dunning letter’s alleged violation

of 15 U.S.C. § 1692e(10) should have been submitted to a jury.

                                          3
                          III. STANDARD OF REVIEW

      We review a district court’s application of Rule 15(c)’s relation-back doctrine

for an abuse of discretion. Powers v. Graff, 148 F.3d 1223, 1226 (11th Cir. 1998)

(citations omitted). We review for clear error “the findings of fact necessary for

application of the rule.” Id. (citations omitted).

      We review de novo the district court’s grant of summary judgment. Boim v.

Fulton County Sch. Dist., 494 F.3d 978, 982 (11th Cir. 2007).

                                 IV. DISCUSSION

      Cadle argues that Kuehn’s mistake in initially suing Cadleway instead of Cadle

is “not the type of mistake contemplated by Rule 15(c)(3).” (Appellant’s Br. at 12.)

Cadle argues that relation back is only appropriate under Rule 15(c) when “the

plaintiff sues the correct party but misidentifies that party.” (Id. at 18.) Cadle

contends that Kuehn stated in her papers opposing Cadleway’s Motion to Dismiss

that Cadle might be the party who sent the letter, and therefore Kuehn knew Cadle

was the correct party to sue, could have amended her Complaint within the statute-of-

limitations period, and her failure to do so precludes application of the relation-back

doctrine. Cadle does not dispute that the other requirements of the relation-back

doctrine are satisfied, (Appellant’s Reply Br. at 1 n.1), and so we address only

whether Kuehn’s mistake satisfies the requirement of Rule 15(c)(1)(C)(ii).

                                           4
       Kuehn’s mistake as to the correct party to sue, Cadleway or Cadle, is the type

of mistake contemplated by Rule 15(c)(1)(C)(ii). In Itel Capital Corp. v. Cups Coal

Co., 707 F.2d 1253 (11th Cir. 1983), we concluded that there was no abuse of

discretion when the district court permitted the relation back of an amended

complaint which added a defendant who was at the heart of the conduct at issue and

who was a 97% owner of the originally named defendant. Id. at 1258. We noted that,

“In reaching this conclusion, we read the word ‘mistake’ in Rule 15(c) liberally.” Id.

at 1258 n.9 (citation omitted). Here, Kuehn sued the company named on the letter

giving rise to the lawsuit. The district court found that, upon learning that the letter

was not sent by the company listed on the letter, but by another closely-related

company, Kuehn immediately amended her Complaint.2 (R.2-39 at 16.) The district

court did not abuse its discretion in concluding that the Amended Complaint related

back to the time of the filing of the original Complaint.

       Cadle next argues that the district court erred in granting summary judgment

in part to Kuehn on her Fair Debt Collection Practices Act claim. In particular, Cadle

argues that the district court erred in concluding that the dunning letter violated 15

U.S.C. § 1692e(10) as a matter of law. Cadle argues that we held in Jeter v. Credit


       2
         Cadle cites Kuehn’s opposition to its Motion to Dismiss as evidence that the district court’s
finding is clearly erroneous. (Appellant’s Br. at 10-11.) Having reviewed the record evidence Cadle
cites, we conclude the district court’s finding was not clearly erroneous.

                                                  5
Bureau, Inc., 760 F.2d 1168, 1176 (11th Cir. 1985) that the issue of whether a

dunning letter violates 15 U.S.C. § 1692e(10) is an issue for a jury and should not be

decided as a matter of law.

       In Jeter, we did not hold that whether a dunning letter violates 15 U.S.C. §

1692e(10) is always a question for a jury. Rather, we held that if there are two sets

of reasonable inferences that could be drawn from a dunning letter, and one set of

inferences would result in a violation of 15 U.S.C. § 1692e(10), while the other would

not, it was appropriate for a jury to decide which set of inferences to draw. 760 F.2d

at 1176.

       In this case, the dunning letter stated:

       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.

(R.1-14, Ex. A at 1.) The letter clearly states that the failure to provide a TIN would

subject Kuehn to a $50 penalty imposed by the IRS. Cadle admits that this is only

true if it had to file a 1099-C, and nothing had yet occurred that made filing a 1099-C

necessary.3 (R.3-78 at 11.) Only one inference is possible from the dunning letter,


       3
       Cadle cites 26 C.F.R. § 1.6050P-1(e)(7)(ii) for the proposition that it was required to warn
Kuehn that a failure to provide a TIN subjected her to a $50 penalty. (R.3-78 at 11.) The regulation

                                                 6
and that is that the failure to complete the enclosed W-9 form and return it to Cadle

would subject Kuehn to a $50 penalty imposed by the IRS. But, that is misleading.

       Cadle’s threat that Kuehn’s failure to supply her TIN would subject her to a

penalty imposed by the IRS violates 15 U.S.C. § 1692e(10) as a matter of law. 15

U.S.C. 1692(e) states:

       A debt collector may not use any false, deceptive, or misleading
       representation or means in connection with the collection of any debt.
       Without limiting the general application of the foregoing, the following
       conduct is a violation of this section:

               ***

               (10) The use of any false representation or deceptive means
               to collect or attempt to collect any debt or to obtain
               information concerning a consumer.

Here, the threat that Kuehn would be subject to an IRS penalty for failure to furnish

her TIN was a misleading statement that was used in an attempt to obtain her TIN.

Cadle violated the statute as a matter of law. The district court correctly entered

summary judgment for Kuehn on this claim.




does not support Cadle’s argument. It states that the warning must be included in a letter soliciting
a TIN only after the occurrence of an identifiable event. 26 C.F.R. § 1.6050P-1(e)(7)(ii). An
identifiable event is one that triggers a requirement to file a 1099-C. Id. at § 1.6050P-1(a). But,
Cadle admits that nothing had occurred yet (i.e. there was no identifiable event) that triggered its
requirement to file a 1099-C. (R.3-78 at 12.)

                                                 7
                               V. CONCLUSION

      The district court did not abuse its discretion in concluding that the Amended

Complaint related back to the time of the filing of the original Complaint.

Additionally, the district court properly granted summary judgment in part to Kuehn.

We affirm the judgment of the district court.

      AFFIRMED.




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