Kalis, Fannie B. v. Colgate-Palmolive ( 2000 )

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 Sterno-
brand 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 re-
ceived 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 discov-
ery 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 distribu-
tion 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 famil-
iarize 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 manage-
ment 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 deposi-
tion be specified with "reasonable particulari-
ty." 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 essen-
tial 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 disre-
gard a failure to formally comply with Rule
56(f)," the opposing party’s request for a con-
tinuance 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 justifica-
tion 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 discre-
tion 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 obliga-
tion to bring the issue before the court in an
expeditious manner. Here, Ms. Kalis failed to
bring her motion to stay briefing and for addi-
tional 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 discov-
ery 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 alter-
native 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 full-
time 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. . . .