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 expressed in writing and implied from conduct, is suffi-
2 No. 11-1271

ciently clear that the new magistrate judge could

properly enter final judgment. On the merits, the appellant challenges two discretionary matters of case management — 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.
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 reasons 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 represented 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 judgment 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 judgment 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 objecting 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
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 motion. 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, laterassigned 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.”).
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 judgment by a magistrate judge, we treat the purported judgment 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
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 necessary here for two reasons:

First, plaintiff Stevo and defendants impliedly consented to the reassignment to Magistrate Judge Finnegan

by proceeding in her court through discovery and summary 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 reassignment, as specified “on the attached form(s)”). After

Roell, litigants who have knowingly proceeded without

objection through lengthy discovery and summary judgment 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-
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 providing 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 inference 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 reassignment and never exercised that right.

As noted, for unknown reasons the signed consent

form evidencing notice does not appear in the district
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 argument 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 contemplated 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
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 doover 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 magistrate judge.

All parties voluntarily consented to proceedings before Magistrate Judge Finnegan, who therefore had jurisdiction 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 summary 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 additional discovery and to enforce Local Rule 56.1 strictly

before ruling on the summary judgment motion. Both of
10 No. 11-1271

the challenged actions by the district court are discretionary 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 discretion 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 judgment 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
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
12 No. 11-1271

similar technical failures in a motion for summary judgment 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 deference” 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 supported his unusual claims.

As the district court noted, Stevo could have

preserved his Local Rule 56.1 objections while also complying 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 themselves. Local rules, like the Federal Rules of Civil Procedure that they supplement, should be construed to

provide for the “just, speedy, and inexpensive determination 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 without advancing the merits. The district court did not

abuse its discretion in its application of Local Rule 56.1

here.
No. 11-1271 13

Accordingly, the judgment of the district court in

favor of defendants is AFFIRMED.

11-17-11