In the

United States Court of Appeals

For the Seventh Circuit

No. 99-3343

FANNIE B. KALIS,

Plaintiff-Appellant,

v. 

COLGATE-PALMOLIVE COMPANY, 

MILLEN TRUE VALUE HARDWARE

and MILLEN HARDWARE,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern

Division.

No. 95 C 7673--Sidney I. Schenkier, Magistrate

Judge.

Argued April 14, 2000--Decided November 3, 2000

 Before POSNER, RIPPLE and ROVNER, Circuit

Judges.

 RIPPLE, Circuit Judge. Fannie B. Kalis

brought this products liability action

against Colgate-Palmolive Company

("Colgate") and other defendants/1 for

injuries caused by the explosion of a

container of fondue fuel. Colgate moved

for summary judgment on the ground that

Ms. Kalis could not establish that

Colgate manufactured the product that

caused her injury. The district court

granted Colgate’s motion, and Ms. Kalis

appealed. For the reasons set forth in

the following opinion, we affirm the

judgment of the district court.

I

BACKGROUND

A.Facts

1.

 In April 1986, Ms. Kalis’ mother, Nancy

Kalis ("Mrs. Kalis"), purchased liquid
fondue fuel from a local hardware store

to use at an upcoming party for Ms.

Kalis’ older sister, Jennifer. During the

party, the flame under the fondue pot

went out, and Mrs. Kalis attempted to

relight it. When she did so, the

container of liquid fondue fuel exploded

and caused severe injuries to Ms. Kalis.

Within a few days of the accident, either

Jennifer or Mrs. Kalis discarded the

fondue pot and fuel container.

 Nearly ten years later, on December 28,

1995, Ms. Kalis brought this action

against Colgate. In her complaint, Ms.

Kalis alleged that Colgate, as

manufacturer of the fondue fuel and

container, was responsible for her

injuries on theories of negligence,

breach of warranty, and strict liability.

On October 23, 1996, the district court

issued a preliminary pretrial scheduling

order that set forth some procedural

agreements of the parties, including the

decision that "this case may be tried by

the assigned Magistrate Judge." R.22 at

4. Ms. Kalis later executed a more formal

consent to adjudication by a magistrate.

See R.24. Specifically, Ms. Kalis’

counsel agreed that: "In accordance with

the provisions of 28 U.S.C. sec. 636(c)

and Fed. R. Civ. P. 73, the above named

. . . parties . . . hereby voluntarily

consent to have a United States

magistrate judge conduct any and all

further proceedings in the case,

including the trial, and entry of a final

judgment." Id.

 More than a year later, the district

court conducted a status hearing.

According to the accompanying minute

entry, the hearing was "held and

continued to 9:30 a.m. on 1/13/98. Non

expert discovery to be completed by

2/13/98. . . ." Minute Entry of December

5, 1997. During the course of discovery,

Colgate propounded interrogatories to Ms.

Kalis that, among other information,

requested a description of any details

concerning the fondue fuel container used

at the party. In response, Ms. Kalis did

not state that the fuel was manufactured

by Colgate; rather, she stated that it

was a generic type of liquid fondue fuel,

in a white-yellow, pint-sized container,

which bore the trade or brand name "True

Value." 
 Colgate also deposed Mrs. Kalis, who

testified that she could not recall

details concerning the fuel container,

other than its height (eight to nine

inches) and color (yellow). Mrs. Kalis

indicated that she thought the container

was cylindrical in shape, but was not

sure. She did not know how the container

was packaged or the amount of fuel it

held. She further testified that she did

not recall seeing any type of brand name

or warnings on the package. As to

thematters on which Mrs. Kalis lacked

recollection, she indicated that she

could not think of anything that would

refresh her memory of the fuel or fuel

container that she had purchased nearly

twelve years earlier. 

 In November 1997, Colgate served on Ms.

Kalis amended requests to admit. These

requests asked that Ms. Kalis admit that

she lacked knowledge "of any written

representations on the packaging of the

product." R.49, Ex.D, Plaintiff’s

Response to Colgate’s Amended Request to

Admit at 1. Ms. Kalis failed to respond

to the requests within thirty days after

service, and the requests therefore were

deemed admitted. See R.69 at 16.

2.

 One month after the close of discovery,

on March 13, 1998, Colgate moved for

summary judgment. The crux of Colgate’s

motion was that Ms. Kalis had failed to

come forth with any evidence that Colgate

manufactured the fuel or the fuel

container that caused her injuries.

According to an order entered that same

day, the district court set a briefing

schedule that required Ms. Kalis to file

her responsive brief by May 11, 1998. 

 Despite the court’s order, no answer was

filed within the allowed time period, and

the docket does not reflect a motion for

extension of time to respond to Colgate’s

motion for summary judgment. Instead, on

June 10, 1998, Ms. Kalis moved to stay

briefing on the summary judgment motion

and to seek additional discovery. In her

motion, Ms. Kalis stated that her

mother’s memory regarding the brand of
fondue fuel had been refreshed after

examining color photocopies of Sternobrand liquid fondue fuel./2 Ms. Kalis

attached an affidavit by her mother in

which Mrs. Kalis stated that her

recollection concerning the manufacturer

of the fuel and fuel container had been

refreshed. She now believed "that the

product which I bought in April 1986 at

Millen True Value Hardware in Wilmette,

Illinois was Sterno liquid fondue fuel in

a container the same as or very similar

to the one depicted in the photocopies my

lawyer showed to me." R.47, Ex.A at 2.

The pictures used to refresh Mrs. Kalis’

memory were attached to the affidavit. 

 In her moving papers, Ms. Kalis stated

that she now believed Millen’s Hardware

Store sold only one brand of fondue fuel

at the time she was injured.

Consequently, Ms. Kalis asked the

district court to suspend briefing for

ninety days and to permit the completion

of discovery directed to prove this

theory. Ms. Kalis also sought an order

compelling Colgate to answer outstanding

discovery requests concerning the

identity of the manufacturer and

distributor of the Sterno fuel and

container./3 The court denied the

motion without an opinion, but extended

the response time for the motion for

summary judgment until June 30, 1998.

 Ms. Kalis filed her response on June 30,

1998. In addition to other materials in

opposition to the motion for summary

judgment, Ms. Kalis attached her mother’s

affidavit, amended answers to Colgate’s

interrogatories, and belated answers to

Colgate’s amended requests to admit.

Colgate timely filed its reply brief on

July 14, 1998 and also filed an

accompanying motion to strike both Mrs.

Kalis’ affidavit and Ms. Kalis’ answers

to the requests for admissions.

B.District Court’s Disposition

1.

 After failed settlement attempts, the

district court ruled on the summary

judgment motion on May 10, 1999. The

court agreed with Colgate that Ms. Kalis

had "failed to identify evidence

sufficient to permit a jury to reasonably

conclude that Colgate manufactured or

supplied the fondue fuel that exploded on
April 15, 1986." R.69 at 9. Ms. Kalis,

the district court explained, "plainly

understands that this is so, and for that

reason has sought to avoid summary

judgment by including in her response two

items--never produced during discovery--

that plaintiff claims creates a genuine

issue of material fact concerning whether

Colgate manufactured the fuel: (a) the

affidavit of Nancy Kalis . . . and (b) a

response to amended request to admit. . .

." Id. at 10. The court then addressed

whether these two submissions should be

considered.

 With respect to the affidavit, the

district court believed that it

contradicted earlier testimony/4 and

appeared to be filed solely to create a

question of material fact to survive

summary judgment. After reviewing this

court’s decisions in Buckner v. Sam’s

Club, Inc., 75 F.3d 290 (7th Cir. 1996),

and Adusumilli v. City of Chicago, 164

F.3d 353 (7th Cir. 1998), the district

court determined that Mrs. Kalis had not

offered a "plausible explanation for the

discrepancy" between her earlier

testimony and the affidavit and therefore

disregarded the affidavit. R.69 at 14

(internal quotation marks and citations

omitted).

 The court also noted that the

photographs used to refresh Mrs. Kalis’

recollection, attached as exhibits to the

affidavit, were not produced prior to the

close of discovery. Because Ms. Kalis

offered no justification for why the

photographs were not used or produced

during the course of over two years of

discovery, the court held that allowing

her to use them would prejudice Colgate

and would violate the court’s discovery

orders. 

 The court then turned to Ms. Kalis’

attempt to file belated responses to the

requests to admit. The requests had been

deemed admitted by operation of law

thirty days after they were served.

Contrary to these admissions, Ms. Kalis

claimed that her attorney possessed color

photocopies of a yellow container of

Sterno fondue fuel and that, as a result

of viewing these photographs, she had

knowledge of the writings on the

container. The court found that Ms. Kalis
"ha[d] offered no excuse for [the] tardy

reply (which [was] simply tendered

without seeking leave of court). If

counsel wished to withdraw the

admissions, the ’proper procedural

vehicle’ would have been a motion under

Rule 36(b)." Id. at 17. Because Ms. Kalis

was using the affidavit to undo the

effect of the default admissions, and

because Ms. Kalis had not established a

basis for retracting her earlier default

admissions, the court granted the motion

to strike plaintiff’s responses to the

requests to admit. 

 The court then summarized its findings

with respect to the evidentiary issues.

"Without the affidavit, plaintiff is left

swimming in a sea of ambiguous

descriptions, conflicting descriptions,

and failed memories about the allegedly

defective fondue fuel and its

manufacturer." Id. at 15. Consequently,

the district court held that Ms. Kalis

had not brought forth sufficient evidence

to warrant a trial.

 The court next turned to the alternative

basis for judgment, raised by Colgate in

its reply, that under Illinois law "the

absence of the actual product in a

product liability action is a sufficient

ground for granting summary judgment for

the defendants." Id. at 17. The district

court held that the absence of the

container "would affect Colgate’s ability

to contest the source of the manufacture

of [the] items; it would affect Colgate’s

ability to defend against the charges of

negligence and warranty . . . ; and it

would affect Colgate’s ability to raise

other potential defenses." Id. at 22.

Given this prejudice, the district court

concluded that "under governing Illinois

law[,] plaintiff would not be allowed to

proceed with this case in the absence of

the fuel and container. Accordingly, this

provides an independent and alternative

basis for the Court’s grant of summary

judgment to Colgate." Id. at 23. 

2.

 After the court’s summary judgment order

issued, Ms. Kalis then filed a motion for

reconsideration. In her motion, Ms. Kalis

argued that the district court should
have considered the affidavit and answers

to the requests for admissions. Even in

the absence of these documents, however,

Ms. Kalis believed that summary judgment

was inappropriate because discovery

strongly suggested that Colgate was the

only manufacturer of liquid fondue fuel

in the Chicago area in 1986. The district

court, however, noted that, if existing

discovery responses supported this

theory, Ms. Kalis would not need

additional discovery to prove her theory.

As well, the district court stated that

Ms. Kalis had not explained "why, during

that lengthy [discovery] period, she

failed to obtain the discovery that she

now claims would allow her to demonstrate

a triable issue of fact." R.78 at 4. The

court also rejected Ms. Kalis’ argument

that summary judgment should have been

denied because Colgate had failed to

respond to her discovery requests. It

stated: "If plaintiff believed that

Colgate failed to comply with discovery,

then the time to raise that issue would

have been during the pendency of

discovery. . . . Such an argument could

have been made during the pendency of the

summary judgment motion but was not, and

therefore will not be considered further

on this motion to reconsider." R.78 at 4-

5 n.2. The district court concluded that

Ms. Kalis had not brought forward any new

issues that compelled it to reconsider

entry of judgment on behalf of Colgate;

the district court therefore denied Ms.

Kalis’ motion to reconsider. 

II

DISCUSSION

 Ms. Kalis claims several errors in the

district court’s disposition. First, she

maintains that the district court abused

its discretion in striking Mrs. Kalis’

affidavit. Second, she argues the

district court erred in ruling on the

summary judgment motion in the face of

her request for additional discovery.

Third, she believes that the district

court erred in holding that the absence

of the fuel container would constitute an

absolute bar to recovery under Illinois

law. Finally, she states that the

magistrate judge did not have the

authority to enter summary judgment. We

address each of her contentions in turn.

A.Mrs. Kalis’ Affidavit
 Ms. Kalis first argues that the

affidavit submitted by her mother in

support of the motion for additional

discovery merely supplements and

clarifies prior sworn testimony, and the

district court therefore erroneously

struck the affidavit as contradicting her

mother’s prior testimony. We review a

district court’s decision to strike or

disregard parts of an affidavit in

opposition to a motion for summary

judgment for an abuse of discretion. See

Adusumilli v. City of Chicago, 164 F.3d

353, 359 (7th Cir. 1988). "Under this

standard, ’[d]ecisions that are

reasonable, i.e., not arbitrary, will not

be questioned. . . .’" Id. (citations

omitted). 

 Here the district court carefully

evaluated the answers to the

interrogatories as well as the prior

deposition testimony of Mrs. Kalis to

determine whether there were

contradictions between the discovery

responses and the affidavit. In her

interrogatory answers, Ms. Kalis

identified the brand name of the fondue

fuel that exploded and injured her as

"True Value." During her deposition, Mrs.

Kalis disclaimed any knowledge of the

manufacturer, shape, or volume of the

container for the fuel. She also stated

that she could think of nothing that

would refresh her recollection concerning

the brand name of the fuel. However, in

her affidavit, Mrs. Kalis stated that,

after viewing photocopies of pictures

shown to her by counsel, she "now

believe[s] that the product which [she]

bought in April 1986 at Millen True Value

Hardware in Wilmette, Illinois was Sterno

liquid fondue fuel in a container the

same as or very similar to the one

depicted in the photocopies [her] lawyer

showed to [her]." R.49, Ex.C at 2.

 "As a general rule, the law of this

circuit does not permit a party to create

an issue of fact by submitting an

affidavit whose conclusions contradict

prior deposition or other sworn

testimony." Buckner v. Sam’s Club, Inc.,

75 F.3d 290, 292 (7th Cir. 1996).

Consequently, we must determine whether

Mrs. Kalis’ affidavit contradicts her
prior sworn testimony. In doing so, we

find our decision in Buckner v. Sam’s

Club, Inc. instructive. In Buckner, a

plaintiff had stepped on an object which

caused her to fall and injure herself;

despite a search, the item that caused

the fall was never recovered. When

deposed, Mrs. Buckner stated that she did

not know what the object was, but

described it as "something uneven and

faulty" and then as a "lump" under her

foot. Id. at 292. In a later affidavit in

opposition to a motion for summary

judgment, however, Mrs. Buckner stated

that she stepped on a small object that

"’felt to be about the size of a ladies

watch, which is one of the types of items

that were on the display tables.’" Id.

The district court in Buckner excluded

the affidavit as a "’clear attempt by

plaintiffs to shore up obvious gaps in

their prima facie case with phantom

evidence’ that was contradictory to her

sworn deposition testimony." Id. In

upholding the district court’s ruling,

this court noted:

In the context of opposing a motion for

summary judgment, and when contrasted

with a clear prior statement disclaiming

knowledge of the object, this highly

specific description appears to be an

effort to undo (contradict) the effects

of the deposition testimony and thereby

establish the missing causal link between

the store and the fall. This is certainly

a conclusion the district court could

have rationally made, which for purposes

of our review was not an abuse of

discretion.

Id. at 293. 

 The same is true here. Mrs. Kalis has,

from the beginning, disclaimed any

knowledge of the manufacturer of the fon

due fuel and never was able to identify

an object or document that might refresh

her memory. However, long after the close

of discovery, Mrs. Kalis viewed pictures

provided by Ms. Kalis’ attorney, those

pictures allegedly refreshed her memory,

and Mrs. Kalis was then able to state

conclusively that "Sterno" was the brand

name on the bottle. Like the affidavit

presented in Buckner, Mrs. Kalis’

affidavit does not function to clarify

prior statements, but it "appears to be

an effort to undo (contradict) the
effects of the deposition testimony."

Id.; see also Adusumilli, 164 F.3d at 360

(upholding district court’s action in

striking affidavit as contradicting prior

testimony where the affidavit reported

incidents of sexual harassment and the

plaintiff previously had testified that

she "[could] not recall any incidents of

harassment in 1992"); Slowiak v. Land

O’Lakes, Inc., 987 F.2d 1293, 1296 (7th

Cir. 1993) (finding a "direct

contradiction" between an antitrust

plaintiff’s deposition testimony that "he

could not remember any specific instance

in which he wanted to charge more but

didn’t" and his affidavit statement that

"’[i]f Schweigert had not fixed the price

that I had to charge my customers, there

would have been many occasions on which I

would have charged more for many of the

Schweigert products I sold’"). Here, the

district court’s application of our

"well-established rule" that affidavits

in conflict with prior sworn testimony

should be disregarded was not an abuse of

discretion. Adusumilli, 164 F.3d at 360. 

B. Denial of Motion to Extend Discovery

 Ms. Kalis next argues that the district

court erred in denying her request for

additional discovery before it ruled on

Colgate’s summary judgment motion.

Specifically, Ms. Kalis requested that

the district court allow her additional

time for discovery to test her theory

that Millen Hardware Store sold only

Sterno-brand fondue fuel in 1986. She

also requested that the district court

compel Colgate to answer outstanding

discovery requests. "’Our standard

ofreview for the district court’s

decision not to allow additional pretrial

discovery is abuse of discretion.’" FDIC

v. American Cas. Co. of Reading, 998 F.2d

404, 407 (7th Cir. 1993) (citing Olive

Can Co. v. Martin, 906 F.2d 1147, 1152

(7th Cir. 1990)). 

 Both the timing and substance of the

motion lead us to conclude that the

district court did not abuse its

discretion in denying it. Discovery

closed on February 13, 1998. One month

later, on March 13, 1998, Colgate filed

for summary judgment. By minute entry of

March 24, 1998, the district court

ordered Ms. Kalis to file her answer
brief by May 11, 1998. On June 10, 1998,

nearly one month after Ms. Kalis should

have filed her answer brief, Ms. Kalis

filed her motion to stay briefing and for

other relief. Thus, the issue of

additional discovery was raised for the

first time almost four months after the

close of discovery and nearly one month

after Ms. Kalis’ response to the summary

judgment motion should have been filed. 

 Furthermore, Ms. Kalis did not present

any compelling arguments for allowing her

to conduct additional discovery. In her

motion, Ms. Kalis did not come forward

with any reason why the photographs,

which had refreshed Mrs. Kalis’

recollection and prompted interest in a

new factual theory, had not been found or

presented earlier. Furthermore, Ms. Kalis

did not come forward with any reason why,

in the two and one-half years of

discovery, she was not able to garner

evidence regarding the types of fondue

fuel sold at Millen’s Hardware Store--a

theory that did not depend on Mrs. Kalis’

recollection. We cannot fault the

district court for denying Ms. Kalis’

motion when no effort was made to present

the issue to the court in a timely

fashion and when no effort was made to

explain why the requested discovery could

not have taken place within the original

discovery period.

 Ms. Kalis also intimates that Colgate

thwarted her effort to obtain needed

information by failing to answer

interrogatories and requests for

production that she had propounded./5

According to papers filed in the

districtcourt, Ms. Kalis claims to have

forwarded these discovery requests to

Colgate on November 13, 1997. Although

she did not receive any responses to

these requests, her counsel did not

contact Colgate concerning these alleged

deficiencies until February 2, 1998, a

date that counsel recognized was less

than two weeks before the discovery cut

off./6 Ms. Kalis did not bring the

issue before the district court for

another four months when, on June 10,

1998, she filed her motion to stay

briefing and for other relief. In the

course of her motion, Ms. Kalis’ counsel

represented that "[t]o plaintiff’s

attorney’s knowledge, this court has not
cutoff fact discovery," R.47 at 5, and

requested that the court compel Colgate

to answer the discovery served.

 The district court took the view that

Ms. Kalis’ attempt to secure discovery

from Colgate was belated. See R.78 at 4-5

n.2. Indeed, Ms. Kalis did not raise the

issue until after the close of discovery,

after a motion for summary judgment had

been filed, after a briefing schedule had

been set, and after her time for response

had come and gone. We do not believe that

the district court abused its discretion

in considering the summary judgment

motion, without first compelling

discovery, when Ms. Kalis had been so lax

in asserting her rights. See Brill v.

Lante Corp., 119 F.3d 1266, 1269, 1275

(7th Cir. 1997) (holding that district

court did not abuse its discretion in

entering summary judgment for defendant,

despite the defendant’s alleged lack of

response to plaintiff’s discovery

requests, where plaintiff filed motion to

compel three months after close of

discovery and three weeks after motion

for summary judgment was filed); cf. JOM,

Inc. v. Adell Plastics, Inc., 193 F.3d

47, 51 (1st Cir. 1999) (holding that

party could not wait until the eve of

trial to contest allegedly deficient

discovery requests). In addition to Ms.

Kalis’ lack of diligence, she failed to

comply with the requirements of Federal

Rule of Civil Procedure 37 for bringing a

motion to compel. Specifically, Rule 37

requires that a motion to compel "must

include a certification that the movant

has in good faith conferred or attempted

to confer with the person or party

failing to make the discovery in an

effort to secure the information or

material without court action." Fed. R.

Civ. P. 37(a)(2)(B). Ms. Kalis’ June 10

motion did not include a Rule 37(a)

certification, and, consequently, the

district court did not abuse its

discretion in denying that motion. 

C. Motion to Strike Answers to Requests to

Admit

 Ms. Kalis also takes issue with the

district court’s failure to consider her

belated answers to Colgate’s requests for

admissions. As with other discovery

matters, we review the district court’s
decision on this issue for an abuse of

discretion. See American Auto. Ass’n

(Inc.) v. AAA Legal Clinic of Jefferson

Crooke, P.C., 930 F.2d 1117, 1119 (5th

Cir. 1991).

 In November 1997, Colgate served on Ms.

Kalis requests that she admit that (1)

she did not have any knowledge of the

substance of any written representations

on the packaging of the product; (2) she

had no knowledge of any documentation

provided with a container of Sterno

fondue fuel used in 1986; (3) she did not

possess a photograph of the container of

the Sterno fondue fuel that was used in

April 1986; and (4) her expert had never

examined the container in which the

Sterno fondue fuel was contained. Ms.

Kalis failed to respond to these

requests, and, therefore, according to

Rule 36, they were deemed admitted. Seven

months later, Ms. Kalis served a response

to the requests to admit that

incorporated Mrs. Kalis’ recent memory

concerning the fondue fuel container. 

 "[T]he proper procedural vehicle through

which to attempt to withdraw admissions

made in these circumstances is a motion

under Rule 36(b) to withdraw admissions."

United States v. Kasuboski, 834 F.2d

1345, 1349 (7th Cir. 1987). Federal Rule

of Civil Procedure 36(b) provides in

relevant part that "[a]ny matter admitted

under this rule is conclusively

established unless the court on motion

permits withdrawal or amendment of the

admission." Fed. R. Civ. P. 36(b)

(emphasis added). Ms. Kalis never filed a

motion to withdraw admissions under Rule

36(b), and, therefore, the district

court’s decision to strike her belated

answers to Colgate’s requests was not an

abuse of discretion.

 In sum, the district court did not abuse

its discretion in disregarding Mrs.

Kalis’ affidavit or the belated answers

to the requests to admit. It further did

not abuse its discretion in denying Ms.

Kalis’ additional discovery or in

declining to compel Colgate to answer

discovery requests when those issues were

not brought before the court in a timely

fashion. Without the additional documents

and discovery, Ms. Kalis cannot establish
a connection between Colgate and the

product that caused her injuries.

Consequently, the district court properly

entered summary judgment for Colgate./7

D. Magistrate Judge’s Authority to Enter

Summary Judgment 

 Finally, Ms. Kalis argues that the

magistrate judge did not have the

authority to enter a summary judgment

order. We find this argument completely

devoid of merit. All parties signed a

consent form that indicated that, in

accordance with 28 U.S.C. sec. 636 and

Federal Rule of Civil Procedure 73, the

magistrate judge may conduct any and all

further proceedings, including trial and

entry of final judgment. See R.24.

Furthermore, the authorizing statute, 28

U.S.C. sec. 636(c), clearly allows a

magistrate judge to "conduct any or all

proceedings . . . and order the entry of

judgment" when all parties have

consented./8 Consequently, the

magistrate judge had the authority to

enter summary judgment. 

 Conclusion

 For the foregoing reasons, we affirm the

judgment of the district court.

AFFIRMED

/1 The claims against the other defendants are not

at issue in this appeal.

/2 Colgate manufactured Sterno-brand liquid fondue

fuel at the time Ms. Kalis suffered her injuries.

/3 Specifically, Ms. Kalis stated:

In May 1998, plaintiff took a rule 30(b)(6)

deposition of a COLGATE witness. At that time,

COLGATE’s attorney indicated that certain written

discovery served by plaintiff had not been received by her. A copy of the written discovery

had been served on COLGATE in 1997. Another copy

was forwarded to COLGATE’S attorney weeks in

advance of the deposition. . . . This written

discovery should be answered. It is basic discovery concerning the identity of the manufacturer

and distributors of the fuel and container. The
rule 30(b)(6) witness produced by COLGATE had not

searched COLGATE’s records concerning issues in

the case, such as the identity of the firm which

distributed or sold Sterno in Chicago in 1986.

Those records should be searched. The COLGATE

rule 30(b)(6) witness identified others who have

or may have superior knowledge (to that of the

witness) concerning the manufacture and distribution of the fuel.

R.47 at 4.

/4 Specifically, Mrs. Kalis had testified that she

could not recall any details about the fuel

container (including its shape or its volume)

other than its height (8 to 9 inches) and its

color (yellow). She also testified that she could

not think of anything that would refresh her

recollection concerning the fuel container. See

R.69 at 7, 10.

/5 In her motion to stay briefing, Ms. Kalis also

argued that the Rule 30(b)(6) witness provided by

Colgate, James Lau, "had not searched COLGATE’s

records concerning issues in the case, such as

the identity of the firm which distributed or

sold Sterno in Chicago in 1986. The records

should be searched. The COLGATE rule 30(b)(6)

witness identified others who have or may have

superior knowledge (to that of the witness)

concerning the manufacture and distribution of

the fuel." R.47 at 4. Although Ms. Kalis makes

vague references in her brief to the knowledge of

Colgate’s 30(b)(6) witness (or lack thereof), she

does not argue that the trial court abused its

discretion by failing to grant additional 30(b)(-

6) discovery. See Appellant’s Br. at 20. Indeed,

in the list of errors she assigns to the district

court, see Appellant’s Br. at 8-9, she does not

mention any error with respect to the court’s

failure to compel the 30(b)(6) witness to familiarize himself with Colgate’s records (assuming

that they existed). Because Ms. Kalis fails to

make a cogent argument on this point, supported

by relevant authority, this argument is waived.

See United States v. Berkowitz, 927 F.2d 1376,

1384 (7th Cir. 1991) ("We repeatedly have made

clear that perfunctory and undeveloped arguments,

and arguments that are unsupported by pertinent

authority, are waived (even where those arguments

raise constitutional issues).").

 Furthermore, we do not understand Ms. Kalis to

be arguing that Colgate intentionally withheld a

more knowledgeable witness than that which it

produced. As stated above, Ms. Kalis’ reference

in her brief to other persons named by Mr. Lau in

his deposition is not sufficient to escape waiver

under our precedent. Additionally, a review of
Mr. Lau’s deposition testimony reveals that all

the individuals with greater knowledge on the

subject matter of the litigation were no longer

Colgate employees: a former marketing manager had

retired, and the remaining members of the management team had left Colgate when it sold the

Sterno line in 1997. See R.74, Ex.F at 60-65.

Finally, even if we were convinced that Colgate

had withheld a more knowledgeable witness, we

could not lay all the blame with Colgate. Rule

30(b)(6) requires that the topics for the deposition be specified with "reasonable particularity." Ms. Kalis’ generic Rule 30(b)(6) notice, see

R.74, Ex.D, does not meet this standard. See

Alexander v. Federal Bureau of Investigation, 188

F.R.D. 111, 114 (D.D.C. 1998) (rejecting notice

to depose on "any matters relevant to this case"

as not meeting the "reasonable particularity"

requirement); see also Prokosch v. Catalina

Lighting, Inc., 193 F.R.D. 633, 638 (D. Minn.

2000) ("[T]he requesting party must take care to

designate, with painstaking specificity, the

particular subject areas that are intended to be

questioned, and that are relevant to the issues

in dispute.").

 Moreover, even if we did not believe that Ms.

Kalis had waived these arguments, we would be

reluctant to find that the district court abused

its discretion in denying additional Rule 30(b)(-

6) testimony. The district court was justified in

denying Ms. Kalis’ request because she failed to

meet her burden under Rule 56(f) for securing

additional discovery in the face of a motion for

summary judgment. Federal Rule of Civil Procedure

56(f) states: 

Should it appear from the affidavits of a party

opposing the motion that the party cannot for

reasons stated present by affidavit facts essential to justify the party’s opposition, the court

may refuse the application for judgment or may

order a continuance to permit affidavits to be

obtained or depositions to be taken or discovery

to be had or may make such other order as is

just.

"A party seeking the protection of Rule 56(f)

must make a good faith showing that it cannot

respond to the movant’s affidavits. The rule

requires the filing of an affidavit stating the

reasons for a claimant’s inability to submit the

necessary material to the court." United States

v. All Assets and Equip. of W. Side Bldg. Corp.,

58 F.3d 1181, 1190 (7th Cir. 1995) (citations and

footnote omitted). Although "[a] court may disregard a failure to formally comply with Rule

56(f)," the opposing party’s request for a continuance must "clearly set[ ] out the justifica-
tion for the continuance." Pfeil v. Rogers, 757

F.2d 850, 856 (7th Cir. 1985). "When a party

fails to secure discoverable evidence due to his

own lack of diligence," the necessary justification is lacking, and "it is not an abuse of

discretion for the trial court to refuse to grant

a continuance to obtain such information." Id. at

857; see also Farmer v. Brennan, 81 F.3d 1444,

1449 (7th Cir. 1996) ("This Court has noted that

the party seeking further time to respond to a

summary judgment motion must give an adequate

explanation to the court of the reasons why the

extension is necessary."). 

 Ms. Kalis’ motion to extend time did not meet

these requirements. First, Ms. Kalis’ motion was

not supported by an affidavit. Second, although

Ms. Kalis mentioned in her motion that the Rule

30(b)(6) deposition was taken the month prior,

she offered the district court no explanation why

the Rule 30(b)(6) deposition was not conducted

within the discovery period. In the absence of a

reason from Ms. Kalis concerning the delay in the

Rule 30(b)(6) deposition, the district court was

entitled to conclude that the delay was due to

Ms. Kalis’ lack of diligence. Consequently, the

district court did not abuse its discretion in

refusing her additional Rule 30(b)(6) discovery.

See Pfeil, 757 F.2d at 857 ("When a party fails

to secure discoverable evidence due to his own

lack of diligence, it is not an abuse of discretion for the trial court to refuse to grant a

continuance to obtain such information."). 

 Additionally, although a specific time is not

stated in the rule, we believe that a party

needing additional discovery is under an obligation to bring the issue before the court in an

expeditious manner. Here, Ms. Kalis failed to

bring her motion to stay briefing and for additional discovery until three months after the

motion for summary judgment was filed and the

briefing schedule was set and one month after her

response was due. Under these circumstances, we

cannot fault the district court in denying Ms.

Kalis’ motion.

/6 Specifically, Ms. Kalis’ counsel states: "Please

confirm that you will provide answers to discovery and produce a witness at the deposition

notwithstanding the discovery cutoff." R.74,

Ex.C.

/7 Ms. Kalis also maintains that the district court

erred in entering judgment on the alternative

ground that, under Illinois law, the absence of

the fondue fuel container is an absolute bar to

recovery. Because we have upheld the district
court’s judgment on the first ground for summary

judgment, we have no occasion to reach the alternative ground.

/8 28 U.S.C. sec. 636 provides, in relevant part:

 (c) Notwithstanding any provision of law to the

contrary--

 (1) Upon the consent of the parties, a fulltime United States magistrate . . . may conduct

any or all proceedings in a jury or nonjury civil

matter and order the entry of judgment in the

case, when specially designated to exercise such

jurisdiction by the district court or courts he

serves. . . .