Allan Stevo v. Pamela Frasor

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1271
ALLAN STEVO,
Plaintiff-Appellant,
v.
PAMELA FRASOR, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:07-cv-06647—Sheila M. Finnegan, Magistrate Judge.
ARGUED SEPTEMBER 13, 2011—DECIDED NOVEMBER 17, 2011
Before POSNER, SYKES, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. This appeal is a reminder of
the value of a crystal-clear record of the parties’ consent
to have a magistrate judge preside over their case under
28 U.S.C. § 636(c), especially when the magistrate judge
assignment changes. Such a change occurred here, and
the documentation of the consents to the new magistrate
judge leaves something to be desired. We conclude in
the end, however, that the record of consent, both ex-
pressed in writing and implied from conduct, is suffi-

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2 No. 11-1271
ciently clear that the new magistrate judge could
properly enter final judgment. On the merits, the appel-
lant challenges two discretionary matters of case man-
agement — denial of additional extensions of time for
discovery, and a decision to overlook minor failures to
comply with the local rule on summary judgment. We
find no abuse of discretion, so we affirm.
I. Factual and Procedural Background
Plaintiff-appellant Allan Stevo has lived in Blue Island,
Illinois his entire life. He has been active in local politics,
including an unsuccessful run for mayor against one
of the defendant-appellees here. In 2001, Blue Island
passed an ordinance requiring all homes to have an
outside water meter. Letters were sent to all residents
in November 2003, and again to Stevo in January 2005,
requesting that they schedule an appointment to install
a meter. Stevo did not do so. In April 2005, notice was
posted on his home, and Stevo (or someone else at his
address) refused a certified letter from the city water
superintendent. That letter threatened to shut off Stevo’s
water on April 27, 2005 unless steps were taken to
relocate his meter. Steps were not taken, and the water
was shut off, remaining off for about seven weeks.
During that time, Stevo carried water from a building
he owned across the street and pursued various avenues
of complaint with city officials. Finally, on June 12,
2005, Stevo arranged for an outside meter installation.
The meter was installed, and his water service was
restored two days later.

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No. 11-1271 3
Stevo sued the city, the mayor, and the aldermen in
November 2007 alleging that his water was shut off
without due process of law and that he was singled
out as a “class of one” for irrational or political rea-
sons in violation of the equal protection clause of the
Fourteenth Amendment. After surviving a motion to
dismiss, the case was assigned to Magistrate Judge Keys
based on the written consent of all parties. Discovery
continued over fifteen months, and during that time
the court extended the discovery cut-off date seven
times. Stevo alternately proceeded pro se and was repre-
sented by counsel. He was represented by counsel when
he consented to proceed before Magistrate Judge Keys,
and he was represented by his current counsel when the
case was reassigned to Magistrate Judge Finnegan and
during her consideration of defendants’ summary judg-
ment motion.
Magistrate Judge Keys cut off discovery on February 24,
2010, though he gave permission for each side to take
one more contemplated deposition. Stevo’s new counsel
sought but was refused additional discovery, and Stevo
challenges that ruling here. While the summary judg-
ment motion was pending, the judge extended briefing
deadlines and allowed Stevo to amend his complaint to
include equal protection claims. Rather than respond
to defendants’ arguments and stated facts, counsel for
Stevo opposed the summary judgment motion by ob-
jecting to violations of Northern District of Illinois Local
Rule 56.1 by defendants. He argued that defendants
had included their legal arguments in the motion itself
rather than in a separate memorandum and had failed

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4 No. 11-1271
to number the paragraphs in their statement of facts.
Magistrate Judge Finnegan exercised her discretion not
to prolong the lawsuit and decided not to enforce
strictly the district court’s local rule. She denied Stevo’s
objections. She also gave him more time to submit a
substantive response to the summary judgment mo-
tion. Stevo did not do so, however, and the judge
then granted summary judgment for defendants.
II. Jurisdiction of the Magistrate Judge
A district judge may assign a magistrate judge to hear
a civil case and render final judgment, provided that all
parties consent voluntarily. 28 U.S.C. § 636(c). Consent is
required because magistrates are not protected by the
full guarantees of judicial independence in Article III of
the Constitution. See Mark I, Inc. v. Gruber, 38 F.3d 369,
370 (7th Cir. 1994). We have held that consent need not
be in writing, but it must be on the record, clear, and
unambiguous. Kalan v. City of St. Francis, 274 F.3d
1150, 1152 (7th Cir. 2001) (parties’ consent to one named
magistrate judge did not extend to a different, later-
assigned magistrate judge). The Supreme Court has held
that consent can also be implied from conduct of parties
during the proceedings, at least where the parties have
notice of their right to refuse. Roell v. Withrow, 538 U.S.
580, 590 (2003) (“We think the better rule is to accept
implied consent where, as here, the litigant or counsel
was made aware of the need for consent and the right
to refuse it, and still voluntarily appeared to try the
case before the Magistrate Judge.”).

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No. 11-1271 5
The parties litigated this case before two magistrate
judges. No party raised the issue of a possible defect in
consent until Stevo objected in his reply brief on appeal,
citing Kalan. Arguments raised for the first time so late
in the proceedings are waived, unless of course they
question appellate or subject matter jurisdiction. If the
parties have not given valid consent to entry of judg-
ment by a magistrate judge, we treat the purported judg-
ment as not final so that we lack appellate jurisdiction.
In Kalan, we held that lack of consent to a magistrate
judge is “a jurisdictional defect that the parties cannot
waive.” 274 F.3d at 1153. Following Kalan, if we were
to find a lack of consent here, we would be without
jurisdiction to hear this appeal and would be required
to vacate and remand for additional proceedings in the
district court. Because we find unambiguous consent
here, both in writing and implied from the conduct of
the parties, we have jurisdiction to hear this appeal. (In
Roell, the Supreme Court expressly declined to decide
whether the court of appeals was correct in treating lack
of consent as a jurisdictional defect. 538 U.S. at 591 n.8.
We need not reconsider that aspect of Kalan in this
case, however, since no such defect is present.)
In the joint Rule 26(f) conference report filed October 1,
2008, the attorneys for both sides expressly consented
in writing to the jurisdiction of Magistrate Judge Keys.
Dkt. No. 34 at 3. The complication here is that the case
was later reassigned to then newly-appointed Magistrate
Judge Finnegan. Stevo asserted for the first time in his
reply brief to this court that his consent was limited on
its face to Magistrate Judge Keys, and that he never

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6 No. 11-1271
consented in writing to the reassignment. The Rule 26(f)
report refers to consent to both “a” magistrate judge
generally and “the” magistrate judge specifically, id.,
presenting a more ambiguous scenario than was present
in Kalan — where consent to one named magistrate judge
did not provide consent to a different magistrate
judge assigned later. See 274 F.3d at 1154. Such fine
linguistic parsing of the Rule 26(f) report is not neces-
sary here for two reasons:
First, plaintiff Stevo and defendants impliedly con-
sented to the reassignment to Magistrate Judge Finnegan
by proceeding in her court through discovery and sum-
mary judgment without objection. See Roell, 538 U.S. at
590-91. As in Roell, id. at 584, the parties also stood silent
as Magistrate Judge Finnegan made clear her belief that
the parties had consented. See Memorandum Opinion
and Order, S.A. at 10 (“The parties have consented to
the jurisdiction of the United States Magistrate Judge
pursuant to 28 U.S.C. § 636(c).”). More important, the
parties also had an earlier opportunity to object when
the reassignment was first entered in the docket. See
Dkt. No. 37 at 1, 2 (noting the parties’ consent to reas-
signment, as specified “on the attached form(s)”). After
Roell, litigants who have knowingly proceeded without
objection through lengthy discovery and summary judg-
ment proceedings with one or more magistrate judges
are deemed to have impliedly consented to section 636(c)
jurisdiction. See 538 U.S. at 590. It would frustrate
justice and reason to permit such parties to wait until
they learn that they have lost before citing technical
defects in the form of any party’s consent to secure a do-

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No. 11-1271 7
over. Id. (noting the harm in allowing parties to “sit
back without a word about their failure to file the form,
with a right to vacate any judgment that turned out not
to their liking”).
Second, although here the signed standard form pro-
viding consent and notice of the right to refuse was
inexplicably not attached to the reassignment order
when it was filed (as discussed below), the parties did
consent and thereby acknowledged the required notice.
The Roell Court stated that “notification of the right to
refuse the magistrate judge is a prerequisite to any infer-
ence of consent.” Id. at 587 n.5. The district court has
wisely included such a notice on the consent form that
it provides for parties to sign when their case is first
assigned to a magistrate: “Should this case be reassigned
to a magistrate judge other than the magistrate judge
designated pursuant to Local Rule 72, the undersigned
may object within 30 days of such reassignment.” United
States District Court for the Northern District of
Illinois, Consent to Exercise of Jurisdiction By a United
States Magistrate Judge, available at http://www.
ilnd.uscourts.gov/PUBLIC/Forms/consent.pdf (last visited
November 14, 2011). Counsel for all parties signed such
a form on October 2, 2008 when they originally
consented to Magistrate Judge Keys. No party objected
within 30 days after the reassignment to Magistrate
Judge Finnegan. Stevo, through his counsel at the time,
had notice of his right to refuse consent to the reassign-
ment and never exercised that right.
As noted, for unknown reasons the signed consent
form evidencing notice does not appear in the district

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8 No. 11-1271
court’s electronic docket or in the record on appeal,
either attached to the reassignment where it should
routinely be, or otherwise. As we noted in Kalan, evidence
of voluntary consent should appear in the record. 274
F.3d at 1152. Where that evidence is instead derived
from parties’ conduct during proceedings, it follows that
the notice required as a prerequisite to an inference of
consent under Roell should also appear in the record.
After the consent objection was raised by Stevo, and
before oral argument, counsel for defendants responded
to an inquiry by the court and provided copies of the
signed consent form to the panel and to counsel for
Stevo. No party has challenged the authenticity of the
signed consent form or otherwise disputed the form’s
contents, such that factual authenticity determinations
by the district court would be called for. Although
Stevo’s counsel understandably complained at oral argu-
ment of the late discovery of the form, we note that
this entire issue of consent was only raised at the last
minute by Stevo himself in his reply brief on appeal.
The district court’s docket entry 37 refers to an attached
consent form. The form could only have been “omitted
from . . . the record by error or accident,” as con-
templated in Federal Rule of Appellate Procedure 10(e)(2).
We have, and exercise here, the authority under that
rule to correct that error and order that the record be
supplemented with the signed consent form that was
submitted to this court at the time of oral argument. See
Fed. R. App. P. 10(e)(2)(C). Where we have previously
declined to exercise our authority to supplement the
record, our purpose has often been to avoid rewarding

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No. 11-1271 9
parties for failing to correct known deficiencies. See,
e.g., LaFollette v. Savage, 63 F.3d 540, 545 (7th Cir. 1995).
Here, an accidental omission went undiscovered until
the last minute on appeal, and correcting the record
serves to avoid punishing innocent parties for an
unnoticed omission. Supplementing the record here
corrects a harmless bureaucratic slip that should not
defeat our jurisdiction and grant Stevo an unjustified do-
over of his entire lawsuit. We have docketed with the
clerk of this court the signed consent form that provided
notice of the right to refuse reassignment to a new magis-
trate judge.
All parties voluntarily consented to proceedings be-
fore Magistrate Judge Finnegan, who therefore had juris-
diction under § 636(c) to hear the case and render
final judgment. That valid final judgment having been
entered, we have jurisdiction under 28 U.S.C. § 1291 to
consider this appeal. We turn next to the merits of
Stevo’s appeal.
III. Rulings by the District Court
Ordinarily, we review a district court’s grant of sum-
mary judgment de novo. Omnicare, Inc. v. UnitedHealth
Group, Inc., 629 F.3d 697, 705 (7th Cir. 2011). In this appeal,
however, Stevo has not presented any arguments on
appeal directed to the substance of Magistrate Judge
Finnegan’s thoughtful summary judgment opinion. Stevo
challenges only the district court’s refusals to grant addi-
tional discovery and to enforce Local Rule 56.1 strictly
before ruling on the summary judgment motion. Both of

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10 No. 11-1271
the challenged actions by the district court are discre-
tionary rulings that we review only for abuse of that
discretion. See Woods v. City of Chicago, 234 F.3d 979, 990
(7th Cir. 2000) (discovery matters); Borcky v. Maytag Corp.,
248 F.3d 691, 697 (7th Cir. 2001) (application of local rules).
Stevo asserts that the district court abused its discre-
tion when, after extending discovery seven times over
fifteen months, it finally brought the discovery period to
a close. We disagree. Discovery must have an end point,
and “the decision to cut off discovery is committed to
the management skills of the district court.” K.F.P. v. Dane
County, 110 F.3d 516, 520 (7th Cir. 1997). We will not
reverse based on a discovery limit without a clear
showing of actual and substantial prejudice. E.g., Searls
v. Glasser, 64 F.3d 1061, 1068 (7th Cir. 1995). Where a
party has had an “adequate opportunity to investigate,”
prejudice in this context requires something more than
the absence of the smoking gun the party was looking
for. Id. Stevo’s changes in counsel and late focus on his
equal protection theory may have been reasons for
wanting an eighth discovery extension, but the district
court did not abuse its discretion in concluding that
Stevo had been allowed adequate time.
Federal Rule of Civil Procedure 56(d) provides an
opportunity for a party responding to a summary judg-
ment motion to alert the district court that he lacks
“facts essential to justify [his] opposition” and to request
additional time or discovery. From the record it appears
that Stevo did not seek Rule 56(d) relief or renew his
earlier objections to the close of discovery while the

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No. 11-1271 11
summary judgment motion was pending. Stevo confined
his opposition briefing entirely to the Local Rule 56.1
issue discussed below. He did not mention the need for
additional discovery in his earlier (granted) motion
for additional time to respond to the motion. See Dkt.
Nos. 79, 82, and 75. The district court did not abuse its
discretion by ruling on defendants’ summary judgment
motion when it did. See Wallace v. Tilley, 41 F.3d 296,
303 (7th Cir. 1994).
Finally, Stevo argues that the district court erred
by considering the defendants’ summary judgment
motion although it did not comply strictly with all
formal requirements of Local Rule 56.1. This argument
reflects a profound misunderstanding of the relevant
law and the purposes of the formal requirements in the
district court’s Local Rule 56.1. Because of the high
volume of summary judgment motions and the benefits
of clear presentation of relevant evidence and law, we
have repeatedly held that district judges are entitled to
insist on strict compliance with local rules designed to
promote the clarity of summary judgment filings.
E.g., Ammons v. Aramark Uniform Services, Inc., 368 F.3d
809, 817-18 (7th Cir. 2004). We have not endorsed the
very different proposition that litigants are entitled to
expect strict enforcement by district judges. Rather, “it
is clear that the decision whether to apply the rule
strictly or to overlook any transgression is one left to the
district court’s discretion.” Little v. Cox’s Supermarkets,
71 F.3d 637, 641 (7th Cir. 1995).
In a case squarely on point here, for example, we
found no error in a district judge’s decision to overlook

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12 No. 11-1271
similar technical failures in a motion for summary judg-
ment where the motion provided ample notice of the
relevant facts and law. Harmon v. OKI Systems, 115 F.3d
477, 481 (7th Cir. 1997). We accord “considerable defer-
ence” to district courts’ interpretations of their rules.
Little, 71 F.3d at 641. The district court did not enforce
(or relax) the rules unequally as between the parties
here. Any prejudice to Stevo arose either from his own
reliance on his misguided expectation or from his lack
of success in discovering evidence that might have sup-
ported his unusual claims.
As the district court noted, Stevo could have
preserved his Local Rule 56.1 objections while also com-
plying with the rule himself and filing a substantive
response to defendants’ factual statement. S.A. 17. In
fact, the court allowed Stevo extra time to do so after
announcing its ruling on the Rule 56.1 issue. Id. at 9. This
reciprocal leniency from Magistrate Judge Finnegan,
designed to promote the resolution of the case on
the merits and without undue delay or expense, but
applied with care so as not to prejudice either side, was
very much in keeping with the spirit of the rules them-
selves. Local rules, like the Federal Rules of Civil Pro-
cedure that they supplement, should be construed to
provide for the “just, speedy, and inexpensive deter-
mination of every action” on its merits. Fed. R. Civ. P. 1.
These rules were not intended to provide a maze of
technical traps to complicate and delay litigation with-
out advancing the merits. The district court did not
abuse its discretion in its application of Local Rule 56.1
here.

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No. 11-1271 13
Accordingly, the judgment of the district court in
favor of defendants is AFFIRMED.
11-17-11

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