*1 This case is before the court on Defendant Formel D's Motion to Dismiss Opt-In Plaintiffs Who Failed to Respond to Discovery. Doc. 82. For the reasons explained below, the court RESERVES RULING on Formel D's motion to dismiss pending compliance with this order and previous orders.

I. BACKGROUND

Plaintiff Allen L. McMurray, on behalf of himself and others similarly situated, asserts claims under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., (“FLSA”) alleging that Formel D intentionally failed to compensate employees for overtime work. Doc. 1. On October 10, 2019, the court granted Mr. McMurray's motion for conditional class certification, giving members of the class the opportunity to opt in to the lawsuit. Doc. 35. The court then approved the parties' joint motion regarding their proposed notice and consent forms, which authorized Mr. McMurray “to provide notice to all additional putative opt-in collective action plaintiffs.” Doc. 43. Approximately forty-five individuals have since filed opt-in forms. Doc. 64 ¶¶ 7–8; Docs. 72, 83, 92.

After being reassigned the case, the undersigned held a status conference on July 8, 2020, in which the parties discussed the status of discovery and proposed litigation deadlines. The court entered a Scheduling Order, which provides that discovery is due to be completed by January 19, 2021. Doc. 66. The following day, the court denied Formel D's unopposed motion to dismiss the claims of opt-in plaintiff Ray Mann because the court “has not entered an order compelling Mr. Mann to participate in discovery, the violation of which might implicate Rule 37.” Doc. 67 at 4.

On July 29, 2020, Formel D filed a motion to compel discovery pursuant to Federal Rule of Civil Procedure 37, requesting that the court order (1) twenty-eight opt-in plaintiffs (the “Opt-In Plaintiffs”) to respond fully to Formel D's written discovery requests on or before August 7, 2020, and (2) that each request for admission issued to Charlie Vance be deemed admitted. Doc. 68. On the morning of September 3, 2020, the court held a hearing on Formel D's motion to compel. Docs. 76, 77.

On September 4, 2020, the court entered on order granting in part and denying in part Formel D's motion to compel discovery. Doc. 78. The court granted Formel D's motion to compel the overdue discovery responses from the Opt-In Plaintiffs and ordered those plaintiffs to “serve their overdue discovery responses without any objections on or before September 28, 2020.” Id. at 5–7. The court denied Formel D's request that Mr. Vance should be found to have admitted Formel D's requests for admissions. Id. at 7–11. But the court found that Mr. Vance's responses to Formel D's requests for admission were deficient and ordered Mr. Vance to “serve rule-compliant amended answers to Formel D's requests for admission, as well as any other outstanding, overdue discovery responses, on or before September 28, 2020.” Id. at 9–11. The order warned that the court “likely will not grant any further extensions of time ... to respond to Formel D's outstanding discovery requests,” and that “[f]ailure to timely and adequately comply with th[e] order will expose those plaintiffs to the possibility of sanctions under Federal Rule of Civil Procedure 37.” Id. at 11.

*2 On September 30, 2020, Formel D requested leave to file a discovery motion, Docs. 79, 80, which the court granted, Doc. 81. On October 7, 2020, Formel D filed the pending Motion to Dismiss Opt-In Plaintiffs Who Failed to Respond to Discovery. Doc. 82. Then on October 20, 2020, Formel D filed a Notice of Supplementation of the Record, updating the exhibit to the motion to dismiss. Doc. 84. The plaintiffs filed their response on October 20, 2020, Doc. 85, and Formel D filed its reply on October 27, 2020, Doc. 86.

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 37(b)(2), “[i]f a party ... fails to obey an order to provide or permit discovery, ... the court where the action is pending may issue further just orders” including, among other sanctions, “striking pleadings in whole or in part”; “dismissing the action or proceeding in whole or in part”; “rendering a default judgment against the disobedient party”; or “treating as contempt of court the failure to obey any order.” Fed. R. Civ. P. 37(b)(2). “Instead of or in addition to the[se] orders ... , the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C).

The Eleventh Circuit consistently holds “that while district courts have broad powers under the rules to impose sanctions for a party's failure to abide by court orders, dismissal is justified only in extreme circumstances and as a last resort.” Wouters v. Martin Cnty., 9 F.3d 924, 933 (11th Cir. 1993) (citing Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1542 (11th Cir. 1993)). The sanction of dismissal under Rule 37(b) is “warranted only where noncompliance with discovery orders is due to willful or bad faith disregard for those orders.” Wouters, 9 F.3d at 934. Further, the severe sanction of a dismissal “is appropriate only ... when less drastic sanctions would not ensure compliance with the court's orders.” Malautea, 987 F.2d at 1542. But “[w]hen lesser sanctions would be ineffective, Rule 37 does not require the vain gesture of first imposing those ineffective lesser sanctions.” Id. at 1544.

III. ANALYSIS

Formel D moves to dismiss with prejudice or, in the alternative, without prejudice the Opt-In Plaintiffs and Mr. Vance pursuant to Federal Rule of Civil Procedure 37(b) for their failure to comply with the court's September 4, 2020 order. Doc. 82. That order directed the Opt-In Plaintiffs to serve their overdue discovery responses without any objections on or before September 28, 2020, and Mr. Vance to serve rule-compliant amended answers to Formel D's requests for admissions by that same date. Doc. 78. Formel D alleges that none of those opt-in plaintiffs complied with that order. Doc. 82 at 2. Specifically, Formal D informs the court that (1) four opt-in plaintiffs “never responded to Formel D's written discovery requests,”[1] (2) twelve opt-in plaintiffs “took no action to resolve their untimely and unsigned discovery objections,” (3) twelve[2] opt-in plaintiffs “provided signed responses but failed to remove their untimely discovery objections,” and (4) Mr. Vance “never responded to Formel D's written requests.” Id. at 3.

*3 The plaintiffs' response does not specifically mention Mr. Vance's failure to amend his deficient responses to Formel D's requests for admissions. Doc. 85.[3] Further, the plaintiffs do not dispute that the following four opt-in plaintiffs have not served any responses to Formel D's discovery requests:

The plaintiffs also do not dispute that the following twelve opt-in plaintiffs have served unsigned responses with objections to Formel D's discovery requests:

Finally, the plaintiffs do not dispute that the following twelve opt-in plaintiffs have submitted signed responses with objections to Formel D's discovery requests:

Formel D asserts that the Opt-In Plaintiffs and Mr. Vance willfully failed to comply with the court's order and that lesser sanctions than a dismissal with prejudice will not suffice. Id. at 4. Formel D also asserts that those opt-in plaintiffs “had ample time to respond before the court's September 28, 2020 deadline”—ranging from 103 days to 330 days to respond—but failed to do so. Id. at 5. Formel D asserts that these plaintiffs also failed to offer a cause for such failure, other than “suggest[ing] that COVID-19 made it difficult to meet in person.” Id. Formel D asserts that, “[m]ost importantly, the Court forewarned these opt-in Plaintiffs of the potential consequences for failing to comply with the Court's Order, and they failed to comply anyway.” Id. Further, Formel D asserts that the Opt-In Plaintiffs and Mr. Vance's willful violation of the court's order and pattern of noncompliance with their discovery obligations “show that lesser sanctions than dismissal would be ineffective,” and “have prejudiced Formel D and endangered the integrity of the discovery process in this litigation.” Id. at 6. Specifically, Formel D argues that plaintiffs' “failure to provide discovery responses prejudices Formel D's ability to defend itself against this lawsuit” and its “ability to timely move for decertification,” as well as “slows the discovery process in this litigation.” Id. at 7.

Formel D cites two controlling Eleventh Circuit cases to support its argument that Federal Rule of Civil Procedure 37(b)(2)(A) authorizes the court to impose a sanction of dismissal with prejudice of the Opt-In Plaintiffs and Mr. Vance's claims for their failure to comply with the discovery order—Moon v. Newsome, 863 F.2d 835 (11th Cir. 1989), and Aztec Steel Co. v. Florida Steel Corp., 691 F.2d 480 (11th Cir. 1982). Doc. 82 at 5–6. In Moon, the Eleventh Circuit affirmed dismissal of the action under Federal Rule of Civil Procedure 41(b) as a sanction for the plaintiff's failure to comply with a court order directing him to provide certain discovery. Moon, 863 F.2d at 837. Although Formel D requests dismissal as a sanction pursuant to Federal Rule of Civil Procedure 37(b), not under Rule 41(b), the Eleventh Circuit observed in Moon that “[d]ismissal of an action is a proper sanction under Rule 37(b),” and that “[b]ecause plaintiff's misbehavior ... was intentional, it would not have been an abuse of discretion for the court to dismiss under Rule 37(b) for failure to comply with the court's discovery order.” Id. at 837 n.1.

*4 In Aztec Steel Co., the defendants filed two motions to compel responses to interrogatories because the plaintiff's responses were “evasive,” “incomplete,” and “inadequate.” Aztec Steel Co., 691 F.2d at 481. The district court granted both motions to compel, and the plaintiff was provided two opportunities to supplement its answers to the interrogatories. Id. Because the plaintiff's third set of responses to their interrogatories remained incomplete, the defendants filed a motion to dismiss. Id. The district court found that the plaintiff “had willfully flouted court ordered discovery,” “consider[ed] the inefficacy of lesser sanctions,” and dismissed the plaintiff's claims pursuant to Rule 37(b) for failure to comply with court ordered discovery. Id. The plaintiff appealed the dismissal of its claims and the Eleventh Circuit affirmed, reasoning that the plaintiff's “contumacious conduct justified the district court's dismissal of the entire action.” Id. at 482. The court further observed that “Rule 37 sanctions are imposed not only to prevent unfair prejudice to the litigants but also to insure the integrity of the discovery process.” Id.

Formel D also cites unpublished Eleventh Circuit cases that apply controlling precedent regarding the imposition of sanctions under Rule 37(b) to support its motion to dismiss. See Doc. 82 at 2, 4–6. For example, in Lyle v. BASF Chemistry, Inc., the defendants filed four discovery motions regarding the plaintiff's repeated failure to adequately respond to the defendant's discovery requests and, after the fourth motion, the district court dismissed the complaint with prejudice as a sanction for those failures. 802 F. App'x 479, 480–81 (11th Cir. 2020). For the first two discovery motions, the court ordered the plaintiff to respond to the discovery requests by a particular date and extended the discovery deadline. Id. The plaintiff failed to adequately respond by the deadlines set by the court. Id. For the third discovery motion, the court struck all of the plaintiff's objections as untimely and ordered her to provide complete discovery responses within fourteen days of the order. Id. at 481. The plaintiff again failed to adequately respond by the deadline set by the court. Id. For the fourth discovery motion, the court granted the defendant's motion to dismiss the complaint with prejudice due to the plaintiff's “repeated discovery failures” that “were attributable to both [the plaintiff] and her attorney.” Id. In total, the district court amended its discovery deadlines three times to give the plaintiff more time to respond, but “each time, she failed to submit complete and adequate responses to the defendants' discovery requests.” Id. at 482.

On appeal, the Eleventh Circuit observed that it was “not entirely clear whether the district court dismissed [the plaintiff's] complaint under Federal Rule of Civil Procedure 41(b) or Rule 37(b)(2)(A),” but reasoned that “the distinction [did not] matter ... [because the court] reviews a district court's dismissal under either Rule 41(b) or Rule 37(b)(2)(A) for abuse of discretion.” Id. at 482. The Eleventh Circuit held that “[t]he district court did not abuse its discretion in dismissing [the plaintiff's] complaint with prejudice—whether it dismissed it under Rule 41(b) or Rule 37(b)(2)(A).” Id. The Eleventh Circuit reasoned that, under Rule 37(b), the district court acted well within its discretion because the district court (1) found that the plaintiff's behavior “amounted to a pattern of willful and bad faith conduct,” and (2) “considered the lesser sanctions of either once again extending her discovery deadline or imposing monetary sanctions and concluded that neither would be effective at prompting [the plaintiff] to comply with its orders and her discovery obligations.” Id.

Similarly, in Fortson v. City of Baldwin, the two individual plaintiffs appealed the district court's dismissal of their complaint as a sanction for their failure to comply with discovery requests and procedural rules. 699 F. App'x 906, 907 (11th Cir. 2017). The Eleventh Circuit held that the district court did not abuse its discretion by dismissing the plaintiffs' claims with prejudice. Id. at 907. First, the court observed that the record supported the district court's finding that the plaintiffs willfully failed to adequately respond to discovery. Id. The court warned the plaintiffs “that it could dismiss their complaint for failure to comply with the Federal Ruled of Civil Procedure and other court rules,” but they failed to respond to the discovery requests “beyond referring Defendants to their complaint and attached exhibits.” Id. The court then ordered the plaintiffs to respond to the discovery requests and “reminded them that failure to do so could result in dismissal of the action,” but they “again responded to many of the requests by generally referring Defendants to their previous filings.” Id. Second, the court observed that the record supported “the district court's finding that lesser sanctions than dismissal would have been ineffective.” Id. The court reasoned that the plaintiffs' filings in both the district and circuit courts “demonstrate[d] their unwillingness to comply with procedural rules,” and that their noncompliance was prejudicial to the defendants. Id. at 907–908. It further reasoned that, “[g]iven [the plaintiffs'] failure to obey the district court's multiple warnings,” the district court was not required to impose ineffective lesser sanctions before dismissing the action. Id.

*5 Finally, Formel D cites Shortz v. City of Tuskegee, 352 F. App'x 355 (11th Cir. 2009), to support its assertions that Rule 37(b)(2)(A) authorizes a court to impose the sanction of dismissal with prejudice on parties who fail to comply with discovery orders and that “[w]hen other courts have considered similar circumstances, they dismissed the non-responsive plaintiffs' claims with prejudice.” Doc. 82 at 2, 4. In Shortz, the defendants filed a motion to compel because the plaintiff's “responses to their interrogatories were unsworn, incomplete, and evasive,” and the court held a hearing on that motion. Shortz, 352 F. App'x at 356–57. During the hearing, the court instructed the plaintiff to adequately respond to the interrogatories and other outstanding discovery requests by a certain date. Id. at 357. But the defendants eventually filed a second motion to compel because the plaintiff “failed to provide responses to their interrogatories and document requests” by the court's deadline and “stated during his deposition that he has ‘been too busy’ to comply with the court's order.” Id. The court ordered the plaintiff to show cause why the motion to compel should not be granted, but the plaintiff failed to respond to the court's order to show cause. Id. The court granted to motion to compel, ordered the plaintiff to respond by a certain date, and cautioned that “failure to respond to discovery ... as ordered may result in sanctions, including dismissal.” Id. After the second deadline to respond passed, the defendants informed the court “that they had not received any discovery from [the plaintiff] since the entry of the court's ... order.” Id. Following a status conference, the court dismissed with prejudice the lawsuit and observed that the plaintiff was aware of and understood the court's orders, was able to comply with them, and intentionally failed to comply with those orders. Id. at 357–58. The court reasoned that the plaintiff provided “no justifiable reason” for his failure to comply with the orders, and found that “any lesser sanction would be ineffective and futile given that [the plaintiff] purposefully ... disregarded multiple court orders.” Id.

The Eleventh Circuit held that “[t]he district court did not abuse its discretion in dismissing with prejudice [the plaintiff's] claim” for failure to comply with the court's discovery orders. Id. at 359. The court reasoned that because the plaintiff “failed to enunciate any compelling reason for failing to comply with the court's repeated orders to respond to the defendants' discovery requests, the district court correctly found that [the plaintiff's] failure to comply was a result of willfulness or bad faith.” Id. at 359–60. The court further found that the district court did not abuse its discretion in finding that any sanction less than dismissal with prejudice would not have sufficed, “[i]n light of [the plaintiff's] continued failure to comply with the court's orders and his failure to offer an explanation for his non-compliance.” Id. at 360. Indeed, the Eleventh Circuit found that the plaintiff's failure to produce the requested information “after two-and-a-half months leads to the conclusion that further sanctions would not have successfully compelled production.” Id.

The plaintiffs' response argues that the opt-in plaintiffs who have submitted signed discovery responses with objections have “substantially complied” with the court's order because, although they “did not amend their responses to state without objections,” they submitted signed responses to Formel D's discovery requests. Doc. 85 ¶¶ 1–2. The plaintiffs assert that the court “is free to note that the responses are deemed submitted without objections,” but do not cite any authority to support this assertion. Id. ¶ 2. Instead, to support their argument that dismissal of the action is improper when there is clear and convincing evidence of substantial compliance with court orders, the plaintiffs cite a case from a district court in Rhode Island, Sunbeam Corp. v. Black & Decker (U.S.) Inc., 151 F.R.D. 11 (D.R.I. 1993). Id. ¶ 3.

Formel D's reply asserts that the plaintiffs' response “relies on an out-of-circuit district court case to suggest applying a ‘clear and convincing’ standard here, but [Formel D's] counsel found no binding authority applying [that standard], and Lyle and other Eleventh Circuit cases ... do not apply ... a clear and convincing standard to the movant in a discovery motion.” Doc. 86 at 2–3. The reply maintains that these opt-in plaintiffs should be dismissed because they violated the court's order by submitting signed discovery responses with objections. Id. at 7. Formel D further requests, in the alternative, that the court “order these twelve opt-in Plaintiffs to appear for depositions during the week of November 9, 2020 to determine if their discovery responses are compliant.” Id.

The court has not been presented, nor has it found, any Eleventh Circuit precedent applying a clear-and-convincing standard to motions for sanctions brought pursuant to Rule 37(b). The court's discovery order specifically directed the Opt-In Plaintiffs to “serve their overdue discovery responses without any objections on or before September 28, 2020.” Doc. 78 at 7. Because these twelve Opt-in Plaintiffs submitted their signed responses with objections, they failed to comply with the court's discovery order. Docs. 82-1, 84. Further, not only did opt-in plaintiff Shelica Green serve Formel D with discovery responses containing objections, but she also served her responses on October 20, 2020, nearly a month after the deadline set in the court's discovery order. See Doc. 84. Partial or “substantial” compliance with the court's order does not constitute compliance.

*6 The plaintiffs further argue that dismissal with prejudice is improper for the opt-in plaintiffs who either failed to respond or have served unsigned discovery responses with objections. Doc. 85 ¶ 4. They assert that Formel D “has not shown bad faith resistance to this Court's discovery orders,” and that Formel D does not specifically show the court how it has been prejudiced. Id. ¶ 7. The plaintiffs further assert that Formel D “has not noticed the depositions of any of the opt-ins,” and that “[i]f the information sought from these opt-in plaintiffs was indeed so necessary to Formel D's defense of this case, and a failure to have these responses truly prejudicial to it, then it would have sought to compel their attendance at a deposition, which it has not [done].” Id. ¶ 8. Further, the plaintiffs assert that “nothing is preventing Formel D from deposing these opt-ins if it wants to know what they have to say,” and “[i]f their testimony is factually lacking, such is better weeded out at summary judgment rather than a motion to dismiss.” Id. ¶ 9.

The plaintiffs cite five Eleventh Circuit precedents to support their contention that dismissal with prejudice pursuant to Rule 37(b) is not proper in this case—Griffin v. Aluminum Co. of America, 564 F.2d 1171 (5th Cir. 1977);[5] Malautea, 987 F.2d 1536; Wouters, 9 F.3d 924; Cox v. American Cast Iron Pipe Co., 784 F.2d 1546 (11th Cir. 1986); and U.S. v. Certain Real Property Located at Route 1, 126 F.3d 1314 (11th Cir. 1997). Griffin, Cox, and Route 1 are inapposite because the plaintiffs' claims were dismissed under Rule 37(d). Here, Formel D moves to dismiss the Opt-In Plaintiffs and Mr. Vance's claims pursuant to Rule 37(b).

In Malautea, the defendants appealed the sanctions of having their answers struck and default judgment entered against them pursuant to Rule 37(b)(2)(C) because they “continually and willfully resisted discovery.” Malautea, 987 F.2d at 1538. The Eleventh Circuit observed that “the defendants richly deserved the sanction of default judgment” because they “refused to reveal ... discoverable information, willfully violating the court's three clear orders.” Id. at 1542–43. The court determined that that the defendants willfully violated these orders because their alleged misunderstanding of the scope of discovery “was not the cause of their failure to comply,” nor did they provide a “credible explanation of how [they] [mis]interpreted the discovery orders” or clarify the orders after being “twice-threatened with the sanction of a default judgment.” Id. The court further observed that this determination of willfulness was not “called into question by the defendants' naked assertion that they were unable to produce the information in the time allowed” because they “show[ed] no evidence of inability to comply.” Id.

The Eleventh Circuit further observed that this drastic sanction against the defendants was “just” because they “received ample notice of the possibility of a default judgment sanction and liberal opportunity to show why the sanction was not deserved.” Id. Indeed, “after three orders, an extension of time allowed for discovery, and two explicit warnings of a default judgment sanction,” the defendants still failed to comply with the court's discovery orders. Id. Finally, the court observed that “sanctions less harsh than default judgment would not have changed the defendants' behavior,” as they had “engaged in an unrelenting campaign to obfuscate the truth.” Id. at 1544.

In Wouters, the plaintiffs appealed the dismissal of fourteen plaintiffs from a FLSA collective action for their “fail[ure] to properly respond to interrogatories despite two court orders directing their compliance.” 9 F.3d at 932–33. The Eleventh Circuit explained that, in the district court, after the plaintiffs filed an unopposed motion for an extension of time to respond to defendant's interrogatories, the court entered its first discovery order that directed the plaintiffs to respond to the interrogatories by a certain date. Id. After the court's deadline to respond passed, the defendant filed a motion for discovery sanctions. Id. The court entered its second order, which provided that the defendant was entitled to attorney's fees for preparing the discovery motion, the plaintiff must “submit proper answers to interrogatories” by a certain date, and failure to properly respond to the interrogatories would result in dismissal of the fourteen plaintiffs. Id. But the court's second order did not offer “elaboration of the term ‘properly.’ ” Id. Following entry of the second order, thirteen of the fourteen plaintiffs responded to the interrogatories. Id. Nevertheless, the defendant moved to dismiss under Rule 37(b)(2)(C) “based on the plaintiff's failure to comply with the discovery order by giving improper answers to interrogatories.” Id. The district court granted the motion and dismissed the fourteen plaintiffs, noting their “failure to object to the interrogatories despite the passage of six months and several warnings to properly respond.” Id.

*7 The Eleventh Circuit held that “the district court abused its discretion by dismissing the fourteen plaintiffs who failed to respond properly to interrogatories” and reversed the dismissal. Id. at 934. The court observed that the plaintiffs' violation of the discovery orders did not amount to “willfully contemptuous conduct warranting dismissal,” noting that the district court “made no specific finding of bad faith resistance to its discovery orders.” Id. The Eleventh Circuit further observed that the plaintiffs' “noncompliance with the discovery order did not prejudice [the] defendant,” as the defendant “obtained proper or complete answers during plaintiffs' depositions,” “used the depositions in support of its successful motion for summary judgment, and was “awarded deposition costs ... as part of the sanction.” Id. Further, the Eleventh Circuit observed that the less drastic sanction of an “award of attorney's fees for preparation of the motion to dismiss pursuant to plaintiffs' violation of the discovery order” was available, but the court rejected that lesser sanction “and opted instead to dismiss.” Id.

Each of the Eleventh Circuit cases cited in the parties' briefing that affirm dismissal or default judgment sanctions, with the exception of Fortson, concern the imposition of such drastic sanctions following the entry of at least two court orders compelling responses to discovery. See Aztec Steel Co., 691 F.2d 480; Lyle, 802 F. App'x 479; Shortz, 352 F. App'x 355; Malautea, 987 F.2d 1536. Here, the court has entered only one order compelling the Opt-In Plaintiffs' signed discovery responses without objections and Mr. Vance's rule-compliant amended answers to Formel D's requests for admissions, which order was ignored by all of those opt-in plaintiffs. In Fortson, the court appears to have only entered one order compelling discovery responses, but the court also gave “multiple warnings” that it would dismiss the plaintiffs' complaint if they did not comply with federal rules, court rules, and the court's discovery order. 699 F. App'x at 907–908. Here, the court has only once warned the Opt-In Plaintiffs and Mr. Vance that “[f]ailure to timely and adequately comply with this order will expose th[e] plaintiffs to the possibility of sanctions under Federal Rule of Civil Procedure 37.” Doc. 78 at 11.

Consistent with that warning, the court will impose the lesser sanction of payment of the “reasonable expenses, including attorney's fees, caused by the failure” to comply with the court's order. Fed. R. Civ. P. 37(b)(2)(C). This sanction is expressly provided for under Rule 37(b) as an alternative to the imposition of more drastic sanctions, such as dismissal. See id. Accordingly, the court reserves ruling on Formel D's motion to dismiss with prejudice the claims of the Opt-In Plaintiffs, excluding Derrick Barnes,[6] and Mr. Vance. Because the plaintiffs have not attempted to explain or justify their failure to comply with the court's discovery order, nor have they presented the court with any circumstances that would make an award of expenses unjust, the plaintiffs are ORDERED to “pay [Formel D] the reasonable expenses, including attorney's fees, caused by the failure.” Fed. R. Civ. P. 37(b)(2)(C). Formel D is ORDERED to submit evidence of such expenses and fees within thirty days of the date of this order. Plaintiffs are ORDERED to submit any response they have to Formel D's fee petition within thirty days of the date that it is filed.

The imposition of the sanction of payment of Formel D's expenses here is consistent with Eleventh Circuit precedent. In Wouters, the Eleventh Circuit reversed the dismissal of fourteen FLSA collective action plaintiffs who failed to respond properly to interrogatories because, among other reasons, the less drastic sanction of an “award of attorney's fees for preparation of the motion to dismiss” was available. 9 F.3d at 934. The Eleventh Circuit consistently holds that the severe sanction of a dismissal “is appropriate only ... when less drastic sanctions would not ensure compliance with the court's orders.” Malautea, 987 F.2d at 1542.

*8 In addition to the payment of Formel D's reasonable expenses and attorney's fees incurred as a result of the remaining Opt-In Plaintiffs' and Mr. Vance's noncompliance with the court's discovery order, the court further orders those plaintiffs to fully comply with the instructions contained in its previous discovery order on or before February 1, 2021. See Doc. 78. In that order, the court specifically directed the Opt-in Plaintiffs “to serve their overdue discovery responses without any objections” by a certain date. Id. at 7. The order further provided that “[s]ervice of draft, unexecuted, and/or noncompliant discovery responses will not comply with this order – the responses must be rule-compliant and served by the court's deadline.” Id. The court also found that Mr. Vance's answers to Formel D's requests for admissions did not comply with Rule 36, and directed Mr. Vance “to serve rule-compliant amended answers to Formel D's requests for admission, as well as any other outstanding, overdue discovery responses” by a certain date. Id. at 9–11. None of the remaining Opt-In Plaintiffs or Mr. Vance fully complied with that order—all of the Opt-In Plaintiffs who have responded to Formel D's discovery requests have done so with objections, some of the Opt-In Plaintiffs have submitted unsigned responses to Formel D or have completely failed to respond, and Mr. Vance never amended his answers to Formel D's requests for admissions. Further, the plaintiffs have not provided the court with any explanation for their failure to comply with the discovery order.

In light of these failures and the plaintiffs' lengthy delays in responding to Formel D's discovery requests, the remaining Opt-In Plaintiffs who have not served Formel D with outstanding discovery responses in compliance with the court's order, Doc. 78 at 5–7, are ORDERED to serve completed, signed, and rule-compliant discovery responses without any objections on or before February 1, 2021. As was previously ordered in the court's first discovery order, Doc. 78 at 7–11, Mr. Vance is ORDERED to serve rule-compliant amended answers to Formel D's requests for admission, as well as any other outstanding, overdue discovery responses, on or before February 1, 2021.

Failure to timely and fully comply with this order will expose those plaintiffs to additional sanctions, including the payment of Formel D's additional fees and expenses and/or dismissal of their claims, under Federal Rule of Civil Procedure 37. Following the plaintiffs' filings, Formel D is ORDERED to file any necessary supplement to its pending motion for sanctions on or before February 8, 2021.

DONE and ORDERED this 15th day of January, 2021.

On October 20, 2020, after filing the pending motion to dismiss, Formel D received unsigned responses with objections on behalf of opt-in plaintiff Shelica Green. Doc. 84. On the day it received Ms. Green's responses, Formel D notified the court by supplementing the record. Id.

Formel D's motion to dismiss states that eleven opt-in plaintiffs provided signed responses with objections, but that appears to be a typographical error, as both parties have indicated that twelve opt-in plaintiffs have submitted signed responses. See Docs. 82-1, 85 ¶ 2.

It does not appear as though Formel D contends that Mr. Vance failed to respond to any written discovery other than the requests for admission. See Docs. 82, 82-1, 85.

In a footnote, Formel D's reply references its previous motion to dismiss Mr. Mann, which motion the court denied, see Doc. 67, as well as Mr. Mann's failure to appear to his noticed deposition. Doc. 86. But Formel D did not raise the issue of Mr. Mann's failure to appear to his deposition in the pending motion to dismiss. See Doc. 82.

Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981) (“We hold that the decisions of the United States Court of Appeals for the Fifth Circuit ..., as that court existed on September 30, 1981, handed down by that court prior to the close of business on that date, shall be binding as precedent in the Eleventh Circuit, for this court, the district courts, and the bankruptcy courts in the circuit.”).

On December 17, 2020, Mr. Barnes filed a notice of voluntary dismissal with prejudice “any wage claim he has asserted against the Defendant, Formel D” pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). Doc. 93. The court acknowledged Mr. Barnes's voluntary dismissal. Doc. 100. Because Mr. Barnes's claims against Formel D have been dismissed with prejudice, see Docs. 93 & 100, Formel D's pending motion to dismiss Mr. Barnes's claims is DENIED as moot.