Stevo v. Frasor

• Decision Date: 17 November 2011
• Docket Number: No. 11–1271.,11–1271.
• Citation: 662 F.3d 880
• Parties: Allan STEVO, Plaintiff–Appellant, v. Pamela FRASOR, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

662 F.3d 880

Allan STEVO, Plaintiff–Appellant,

v.Pamela FRASOR, et al., Defendants–Appellees.

No. 11–1271.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 13, 2011.Decided Nov. 17, 2011.

Michael Radzilowsky(argued), Attorney, Chicago, IL, for Plaintiff–Appellant.

Peter M. Murphy, II(argued), Attorney, Palos Heights, IL, for Defendants–Appellees.

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 sufficiently 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-appellantAllan 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.

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 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.SeeMark 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, 123 S.Ct. 1696, 155 L.Ed.2d 775(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.”).

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, 123 S.Ct. 1696.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. 34at 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 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.See274 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.SeeRoell,538 U.S. at 590–91, 123 S.Ct. 1696.As in Roell, id. at 584, 123 S.Ct. 1696, the parties also stood silent as Magistrate Judge Finnegan made clear her belief that the parties had consented.SeeMemorandum 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.SeeDkt. No. 37at 1, 2(notingthe 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.See538 U.S. at 590, 123 S.Ct. 1696.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-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, 123 S.Ct. 1696.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...