                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 01-2328
                                     ___________

David Peters, on behalf of himself    *
and all others similarly situated;    *
                                      *
            Plaintiff-Appellant,      * Appeal from the United States
                                      * District Court for the
     v.                               * District of Nebraska.
                                      *
General Service Bureau, Inc.,         *
                                      *
            Defendant-Appellee.       *
                                      *
                                 ___________

                             Submitted: December 14, 2001
                                Filed: January 28, 2002
                                 ___________

Before MURPHY and HEANEY, Circuit Judges, and PIERSOL,1 District Judge.
                          ___________

MURPHY, Circuit Judge.

       David Peters brought this action against General Service Bureau, Inc. (GSB),
under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (FDCPA),
alleging that GSB had sent him a false, misleading, and coercive collection letter.




      1
        The Honorable Lawrence L. Piersol, Chief Judge, United States District Court
for the District of South Dakota.
The district court2 granted GSB summary judgment and denied Peters' motion to alter
or amend the judgment. Peters appeals, and we affirm.

       After Peters defaulted on a $408.80 debt for medical services, GSB became the
assignee of the debt. GSB is a debt collection agency incorporated in Nebraska. It
filed a petition in state court to recover the debt and sent Peters a copy, together with
a letter requesting him to appear voluntarily. Both parties agree that Nebraska law
permits the use of a voluntary appearance letter (VA) to effect service of process. See
Neb. Rev. Stat. § 25-516.01. The VA sent by GSB informed Peters that if he did not
consent within five days to appear voluntarily, the agency's "only alternative" would
be to request personal service of process by a city constable at his residence or place
of employment. The VA also stated that unless Peters agreed to "appear and deny the
petition, or otherwise plead," a default judgment would be entered against him. It
instructed Peters to "contact [his] own attorney" if he had any questions concerning
the VA or proceeding before the court.

       Peters originally included class allegations in his complaint, seeking statutory
damages under 15 U.S.C. § 1692k(a) on behalf of all Nebraska residents who had
received a VA from GSB in connection with the collection of a consumer debt.
Peters later decided to abandon the class allegations and to proceed on his own
behalf, alleging that the VA he received violates 15 U.S.C. § 1692d–1692f (barring
abusive, false, and unfair debt collection practices). Both parties moved for summary
judgment. During the hearing on the motions, the parties informed the court that
there were fifty one other FDCPA cases against GSB in the district and that all would
be affected by the decision in this case. The other cases were later gathered together
for management purposes in a consolidated file and stayed pending the decision in
this case.


      2
         The Honorable Joseph F. Bataillon, United States District Judge for the
District of Nebraska.

                                          -2-
        Peters argued to the district court that his VA contained a literally false
statement because service by constable was not GSB's "only alternative" if he were
to refuse to appear voluntarily. Nebraska law also permits service of process by
certified mail or by authorized agent. Neb. Rev. Stat. § 25-505.01, -506.01. He also
claimed that the words "appear" and "plead" were misleading because they implied
that he must go to the courthouse or to GSB to contest his debt, but Nebraska law
requires only a written response. Neb. Rev. Stat. § 25-503.01. Finally, Peters
asserted that the VA was misleading and coercive because it did not inform him that
he would have 30 days in which to respond. See id.

       The district court concluded that the VA's "only alternative" statement was not
false because service of process by a constable was GSB's only feasible option from
the practical point of view, that the VA's use of the terms "appear" and "plead" was
not misleading or confusing, and that the FDCPA did not require the VA to inform
a debtor of the deadline for answering a petition. After stating these conclusions, the
court commented that if any portion of the VA had been false or misleading, Peters
would have had to "adduce evidence of the effect of the language on the reader" in
order to succeed, citing Walker v. Nat'l Recovery, Inc., 200 F.3d 500 (7th Cir. 1999).
After the district court granted summary judgment to GSB, Peters unsuccessfully
moved to alter or amend the judgment, submitting affidavits from eight consumers
who claimed to have been actually confused or misled by the VA.

      Peters argues that the district court erred in its rulings and in relying on the
Seventh Circuit Walker case which he claims conflicts with Duffy v. Landberg, 215
F.3d 871 (8th Cir. 2000). GSB responds that the district court did not err and that its
mention of Walker was only dictum. Review of summary judgment is de novo,
taking the evidence in a light most favorable to the nonmoving party. Freyermuth v.
Credit Bureau Services, Inc., 248 F.3d 767, 770 (8th Cir. 2001). Orders denying
motions to alter or amend a judgment are reviewed for abuse of discretion, Global



                                         -3-
Network Technologies, Inc. v. Reg'l Airport Auth., 122 F.3d 661, 665-66 (8th Cir.
1997).

       The FDCPA is designed to protect consumers from abusive debt collection
practices and to protect ethical debt collectors from competitive disadvantage. 15
U.S.C. § 1692(e). It prohibits certain types of collection practices, such as the use or
threat of violence, obscene language, publication of shame lists, and harassing or
anonymous telephone calls. 15 U.S.C. § 1692d. The FDCPA also contains general
prohibitions on "conduct the natural consequence of which is to harasses, oppress, or
abuse any person" (15 U.S.C. § 1692d), the use of "any false, deceptive, or
misleading representation or means" (15 U.S.C. § 1692e), and any "unfair or
unconscionable means to collect or attempt to collect a debt" (15 U.S.C. § 1692f).
A successful plaintiff may recover actual damages, statutory damages up to $1,000,
attorney fees, and costs. 15 U.S.C. 1692k(a). In his complaint Peters alleged that the
VA sent by GSB violated several statutory prohibitions (§§ 1692d, 1692e, 1692f), but
on appeal he focuses his argument on § 1692e.

       In evaluating whether a debt collection letter is false, misleading, or deceptive
in violation of § 1692e, the letter must be viewed through the eyes of an
unsophisticated consumer. Duffy, 215 F.3d at 873. The "unsophisticated consumer"
test was adopted by the Seventh Circuit in Gammon v. G. C. Services Ltd.
Partnership, 27 F.3d 1254, 1257 (7th Cir. 1994), which preferred it to the "least
sophisticated consumer" standard used by a number of other circuits. See Wilson v.
Quadramed Corp., 225 F.3d 350, 354-55 (3rd Cir. 2000); Smith v. Computer Credit,
Inc., 167 F.3d 1052, 1054 (6th Cir. 1999); Terran v. Kaplan, 109 F.3d 1428, 1431-32
(9th Cir. 1997); United States v. Nat'l Fin. Serv., Inc., 98 F.3d 131, 136-39 (4th Cir.
1996); Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993); Jeter v. Credit
Bureau, Inc., 760 F.2d 1168, 1175 (11th Cir. 1985). These tests are designed to
protect consumers of below average sophistication or intelligence, but they also
contain an "objective element of reasonableness," Gammon, 27 F.3d at 1257, that

                                          -4-
"prevents liability for bizarre or idiosyncratic interpretations of collection notices,"
Wilson, 225 F.3d at 354, quoting Nat'l Fin. Serv., Inc., 98 F.3d at 136. See also
Duffy, 215 F.3d at 874-75.

        Peters argues that any representation in a debt collection letter which is literally
false violates § 1692e, regardless of the sophistication of the consumer. In support
of this theory he relies on the Seventh Circuit decision in Avila v. Rubin, 84 F.3d
222, 227 (7th Cir. 1996).3 Avila adapted trademark concepts to assess FDCPA
claims, an approach continued in Johnson v. Revenue Management Corp., 169 F.3d
1057, 1060 (7th Cir. 1999) and Walker, 200 F.3d at 503. In the trademark context,
a literally false advertising statement violates § 43 of the Lanham Act, 15 U.S.C.
1125, as a matter of law, but the question whether a statement is misleading or
confusing is a matter of fact. Id. at 227, discussing Abbott Lab. v. Mead Johnson &
Co., 971 F.2d 6, 13 (7th Cir. 1992). The Seventh Circuit has similarly reasoned that
a literally false statement in a debt collection letter violates the statute as a matter of
law, Avila, 84 F.3d at 227, but that the question whether a statement deceives or
misleads is a "matter of fact rather than law," Walker, 200 F.3d at 503. Peters argues
that because we used the Seventh Circuit's unsophisticated consumer standard in
Duffy, we should also borrow from that court's trademark analysis and treat literally
false statements as per se violations of § 1692e.4



       3
        Peters also cites Jeter v. Credit Bureau, Inc., 760 F.2d 1168 (11th Cir. 1985),
for the proposition that literal falsehoods are per se violations of § 1692e. Jeter did
not make such a holding, however, but remanded for factual findings under §
1692e(5) and (10). Id. at 1175-78. At most, Jeter stands for the proposition that some
circumstances might show a per se violation of § 1692e.
       4
        Peters does not urge a complete adoption of the Seventh Circuit FDCPA
approach, however, because he opposes the Walker requirement that a plaintiff show
actual consumer confusion to prove a statement is misleading or confusing under §
1692e.

                                            -5-
         GSB argues that its VA is not false because it has no viable alternative other
than service by constable. Its president testified that serving process by certified mail
is administratively costly and has historically yielded a response rate of only about
10% in the area in which Peters resides. GSB also argues that the VA is not
misleading from the perspective of an unsophisticated consumer because (1) GSB
always elects to serve process by constable and (2) constable service is the inevitable
consequence of not signing and returning the VA to GSB. The VA would be false
if it stated that GSB's only alternative under Nebraska law is service by constable, but
it does not do that.5 Moreover, an unsophisticated consumer would not likely be
interested in a listing of all types of service of process that GSB could theoretically
employ. The unsophisticated consumer test is a practical one, and statements that are
merely "susceptible of an ingenious misreading" do not violate the FDCPA. White
v. Goodman, 200 F.3d 1016, 1020 (7th Cir. 2000) (description of rights belonging to
Colorado residents does not misleadingly imply that residents of other states have no
such rights). See also Duffy, 215 F.3d at 875. We conclude that the VA's "only
alternative" statement is not literally false. Even if it were deemed to be literally
false, however, it would not mislead because it effectively conveys the consequences
of failing to sign and return the VA. We conclude as a matter of law that the
statement does not violate § 1692e.

       The VA states that a consumer who does not appear voluntarily must "appear
and deny the petition, or otherwise plead" in order to avoid default judgment, and
Peters argues that the terms "appear" and "plead" misleadingly imply that a consumer
must show up at either the courthouse or GSB's office to contest the debt. GSB
counters that the "appear" or "plead" language is taken from well established
Nebraska case law, see, e.g., Murphy v. Murphy, 237 Neb. 406, 408 (1991) (default

      5
       GSB could have avoided an attack for falsehood by better drafting of the VA.
A statement that serving process by constable is GSB's "only viable alternative" or
that GSB "will serve process by constable" would have been truthful according to its
evidence, clearer, and less subject to attack.

                                          -6-
judgment filed when defendant failed to "plead or appear"), and that dictionary
definitions of these words include their legal meanings. Although an unsophisticated
consumer cannot be expected to know the legal meanings of terms, he or she would
understand that the VA relates to the legal process and that it offers two options: to
"appear and deny" a petition "or otherwise plead." The phrase "or otherwise plead"
is sufficient to alert an unsophisticated consumer that he or she need not physically
appear to deny a petition. The reference to other means of pleading could provide
more information, but the VA is not so misleading as to violate § 1692e, particularly
since the letter states, "If you have any questions concerning the use of the Voluntary
Appearance, or proceedings before the Court, please contact your own attorney."

      Peters notes that Neb. Rev. Stat. § 25-503.01 requires a defendant to respond
"within thirty days," and he argues that the VA's failure to disclose this deadline is
misleading. The thirty days begin to run only when process is served, and every
summons must notify a defendant of that deadline. Neb. Rev. Stat. § 25-503.01.
GSB points out that service of process is not effective until GSB has filed a signed
and returned copy of the VA or has served process by constable. In either case, GSB
then provides the consumer with a notice identifying the date by which an answer is
due. We conclude that the failure to mention the thirty day deadline in the VA does
not violate § 1692e.

      Finally, Peters argues that the district court erred by referring to lack of
evidence on "the effect of the language on the reader." He says the evidentiary
requirement imposed by the Seventh Circuit in Walker conflicts with this court's
Duffy decision. The district court made this reference after it had already concluded
that GSB's statements were not false or misleading as a matter of law. It then went
on to state that "assuming arguendo" the VA could be construed to be "false,
deceptive, or misleading," Peters had not shown actual confusion. Our cases have not
required a showing of actual confusion, see Duffy, 215 F.3d at 874-75, and this
comment of the district court was not part of its holding and need not be addressed

                                         -7-
here. Burdine v. Dow Chemical Co., 923 F.2d 633, 635 n.2 (8th Cir. 1991) (dicta will
not be basis for reversal).

       The district court denied without comment Peters' motion to alter or amend the
judgment under Fed. R. Civ. P. 59(e). Peters submitted eight affidavits with his
motion, seeking to prove that consumers were actually confused or misled by the VA.
Arguments and evidence which could have been presented earlier in the proceedings
cannot be presented in a Rule 59(e) motion. See Garner v. Arvin Indus. Inc., 77 F.3d
255, 258-59 (8th Cir. 1996). See also Hagerman v. Yukon Energy Corp., 839 F.2d
407, 413-14 (8th Cir. 1987) (affirming denial of Rule 59 motion belatedly seeking to
offer affidavits into evidence). The district court did not abuse its discretion in
denying Peters' motion to alter or amend the judgment.

       Since the district court did not err in granting summary judgment to GSB or
abuse its discretion in denying the post judgment motion to alter or amend, we affirm
the judgment.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                        -8-
