*1 This matter is before the Court on the following: (1) a motion to dismiss or in the alternative motion for emergency protective order filed by Defendants Shoazim Rakmanov and Trucking Experts, LLC [ECF 48; ECF 50]; (2) a motion for sanctions filed by Plaintiffs Pauline and Joseph Demarco [ECF 54]; and (3) a motion to voluntarily dismiss Defendants Ryder Integrated Logistics, Inc. (hereafter, Ryder), National Liability & Fire Insurance Company (hereafter, National), and Old Republic Insurance Company (hereafter, Old Republic) [ECF 82]. For the following reasons, including those stated by the Court during the May 25, 2021 hearing, Rakmanov and Trucking Experts' motion is DENIED; Plaintiffs' motion for a voluntary dismissal is GRANTED; and Plaintiffs' motion for sanctions is GRANTED.

I. BACKGROUND

On October 13, 2018, Plaintiffs were traveling southbound on I-285 in Fulton County, Georgia, when a tractor-trailer driven by Rakmanov—and owned by Trucking Experts—collided with Plaintiffs' vehicle.[1] Plaintiffs allege they have sustained various forms of physical and emotional pain and suffering as a result of the wreck.[2] National is an insurance carrier that issued a policy to Trucking Experts.[3]

On September 11, 2020, Plaintiffs initiated this action in the State Court of Fulton County, Georgia.[4] Defendants removed on October 14.[5] On March 17, 2021, the Court held a hearing on a discovery dispute between the parties concerning Rakmanov and Trucking Experts' failure to respond to discovery requests.[6] During that hearing, the Court learned that—despite representing their interests by signing pleadings and filings, propounding discovery requests, engaging an expert, and affirmatively participating in the litigation through other means—legal counsel representing Rakmanov and Trucking Experts has never actually met, spoken to, or otherwise communicated with his clients. According to legal counsel, at some point after the vehicle collision, Rakmanov and the principals of Trucking Experts left the United States. Legal counsel believes that Rakmanov resides in Uzbekistan and the principals of Trucking Experts resides in Lithuania. At the conclusion of the March 17 hearing, the Court ordered Rakmanov and Trucking Experts to fully respond to Plaintiffs' pending discovery requests no later than April 2, 2021.[7] The Court also reminded legal counsel of his professional obligation to withdraw if he could not communicate with his clients. Finally, the Court permitted Plaintiffs to seek sanctions in the event Rakmanov or Trucking Experts did not comply with the discovery order.

On April 1, Rakmanov and Trucking Experts filed a “Motion to Dismiss or in the Alternative Motion for Emergency Protective Order.”[8] According to Rakmanov and Trucking Experts, the claims against them should be dismissed—or alternatively they should not be required to respond to Plaintiffs' discovery requests—because they were never properly served. Seven days later, Plaintiffs filed their first motion for sanctions.[9] Plaintiffs aver that Rakmanov and Trucking Experts have violated the Court's discovery order by again failing to respond to the outstanding discovery requests. As a remedy, Plaintiffs requested that the Court strike any pleading filed by Rakmanov and Trucking Experts, enter a default judgment against them as to liability, and schedule a damages hearing.

*2 On May 25, the Court heard argument from the parties on those motions.[10] During that hearing, legal counsel for Rakmanov and Trucking Experts again conceded that he has never communicated with his clients. Perhaps more troubling, despite making numerous affirmative representations on their behalf, legal counsel acknowledged that he did not know if Rakmanov or Trucking Experts were even aware of this action. At the conclusion of the hearing, the Court denied Rakmanov and Trucking Experts' motion and granted Plaintiffs' motion. After National raised concerns with the entry of a default judgment against Rakmanov and Trucking Experts, the Court decided to take the appropriate remedy under advisement. The Court directed the parties to submit supplemental briefing on the issue.

On June 4, Plaintiffs filed their supplemental brief.[11] Six days later, Plaintiffs filed a separate motion to voluntary dismiss all Defendants in this action except Rakmanov and Trucking Experts.[12] Defendants have since filed various responses to those submissions.[13] The Court addresses each pending motion in turn.

II. DISCUSSION

A. Rakmanov and Trucking Experts' Motion to Dismiss or in the Alternative Motion for Emergency Protective Order

Rakmanov and Trucking Experts argue Plaintiffs failed to properly serve them in this action. “Service of process is a jurisdictional requirement: a court lacks jurisdiction over the person of a defendant when that defendant has not been served.” Pardazi v. Cullman Med. Ctr., 896 F.2d 1313, 1317 (11th Cir. 1990). “In actions removed from state court, the sufficiency of service of process prior to removal is determined by the law of the state from which the action was removed.” Moore v. McCalla Raymer, LLC, 916 F. Supp. 2d 1332, 1339 (N.D. Ga. 2013) (quoting Rentz v. Swift Transp. Co., 185 F.R.D. 693, 696 (M.D. Ga. 1998)). “After removal, the sufficiency of service of process is determined according to federal law,” which means that “any defects in service may be cured under Rule 4, and the issue of waiver of the defense of insufficient service of process is governed under Rule 8(c) and 12(h) of the Federal Rules of Civil Procedure.” Rentz, 185 F.R.D. at 696 (citations omitted).

Plaintiffs attempted to serve Rakmanov pursuant to Georgia's Nonresident Motorist Act, O.C.G.A. § 40-12-1, et seq. That statute requires a plaintiff to serve a nonresident motorist by delivering a copy of the complaint to the Georgia Secretary of State and is sufficient:

O.C.G.A. § 40-12-2. Because the “statute is in derogation of common law,” it “must be strictly construed and fully complied with before a Georgia court may obtain jurisdiction over the nonresident.” Tate v. Hughes, 255 Ga. App. 511, 512 (2002).

On September 24, 2020, the Georgia Secretary of State issued a Certificate of Acknowledgment indicating that Plaintiffs served it with process as to Rakmanov on September 18.[14] That same day, Plaintiffs filed the Certificate of Acknowledgment on the docket.[15] Plaintiffs submit evidence showing they mailed Rakmanov a copy of the complaint—through both certified mail and overnight delivery—to his last-known address located in Los Angeles, California.[16] Plaintiffs obtained that address by performing a skip trace.[17] The overnight delivery was signed for by an “R. RINA.”[18] Plaintiffs received a return receipt as to the certified mailing with “SR C-19” on the signature line.[19] Based on this unrefuted evidence, the Court finds Plaintiffs strictly complied with the terms of O.C.G.A. § 40-12-1.

*3 Rakmanov, nonetheless, argues through counsel that service was improper because he did not actually reside at the Los Angeles address. At the outset, the Court notes the fallacy of this argument; legal counsel cannot possibly verify the accuracy of this representation because he has never communicated with Rakmanov. Put another way, there is no way legal counsel can affirm in good faith that Rakmanov did not reside at the Los Angeles address at the time Plaintiffs attempted service. As a consequence, there is no affidavit in the record from Rakmanov disputing his residency or Plaintiffs' evidence to the contrary. This key fact distinguishes Rakmanov's cited case that found service improper under the Nonresident Motorist Act. See Nolan v. Jowers, 280 Ga. App. 815, 817 (2006) (finding service improper because the “copy of a certified mail return receipt ... [was] signed by someone other than [defendant], and [defendant] averred in his affidavit that he did not reside at that address.”).

To support his argument, Rakmanov instead submits two contrary affidavits. The first is from a private investigator averring that he spoke with Gulnoza Rakmanov—purportedly Shoazim Rakmanov's ex-wife—who told the investigator that Shoazim Rakmanov no longer resides with her, but she believes he lives in Uzbekistan.[20] The second affidavit is from a different private investigator who purportedly traveled to the Los Angeles address and spoke to two individuals—(1) a man in the security office named “Aldo” and (2) the property manager, Ana Aguilar—both of whom told the private investigator that they were not familiar with Rakmanov.[21] The Court does not find these affidavits overcome Plaintiffs' direct evidence showing it complied with the letter of O.C.G.A. § 40-12-1. Further, there is no requirement that Rakmanov actually receive a copy of the complaint or even notice of the action. See Tate, 255 Ga. App. at 512. Thus, the Court finds that Plaintiffs properly served Rakmanov.

Plaintiffs attempted to serve Trucking Experts pursuant to the Georgia Motor Carrier Act, O.C.G.A. § 40-1-117(a). According to that statute, every nonresident motor carrier is required to designate and maintain an agent in Georgia upon whom service of process may be made. Id. If the nonresident motor carrier fails to do so, it “shall be conclusively deemed to have designated the Secretary of State ... as such agent.” Id. As a consequence:

Id. Put another way, three steps are required to perfect service on a nonresident motor carrier that has not designated an agent for service in Georgia: (1) the plaintiff serves two copies of process on the Georgia Secretary of State; (2) the Georgia Secretary of State acknowledges such service; and (3) the Georgia Secretary of State sends a copy to the nonresident motor carrier's address—if known—by registered or certified mail or overnight delivery, return receipt requested.

Here, Trucking Experts did not maintain a registered agent for service in Georgia. On September 25, 2020, the Georgia Secretary of State issued a Certificate of Acknowledgment certifying that Plaintiffs served it with process as to Trucking Experts on September 22.[22] That Certification of Acknowledgment affirmed that the Georgia Secretary of State “forwarded by registered mail or certified mail, return requested” the process to Trucking Expert's address.[23] As such, Plaintiffs strictly complied with O.C.G.A. § 40-1-117(a).

*4 Trucking Experts nonetheless argues Plaintiffs did not perfect service because they did not file a proof of service showing that the Georgia Secretary of State actually mailed and delivered the process to its address. The Court does not agree with that interpretation. The statute does not require a plaintiff to file such a proof of service. The plain, unambiguous language only requires the Georgia Secretary of State to mail process by certain means to the nonresident motor carrier's address. The unrefuted Certificate of Acknowledgment—which Plaintiffs filed on the docket while this action remained pending in the state court—shows that exact process transpired. The further filing of a return receipt showing actual delivery is not an element of acquiring jurisdiction over a nonresident motor carrier that failed to designate an agent for service. Georgia law instead permits service through the Georgia Secretary of State. Thus, the Court finds that Plaintiffs properly served Trucking Experts.

Even assuming, arguendo, Plaintiffs did not properly serve Rakmanov or Trucking Experts, the Court finds they have nonetheless waived the right to assert this defense. A party may waive a service of process defense by failing to assert it in a pre-answer motion or responsive pleading. Fed. R. Civ. P. 12(h). A party may also waive that defense—even if previously reserved in an answer—based on its litigation conduct. See, e.g., Vax-D Med. Techs., LLC v. Texas Spine Med. Ctr., 485 F.3d 593, 597 (11th Cir. 2007); Poole v. Dhanraj Amrit, Jungle Trans, LLC, No. 1:17-cv-05511-LMM, 2018 WL 6380792, at *4 (N.D. Ga. Aug. 6, 2018); BankUnited, N.A. v. TNP Enters., LLC, No. 3:16-cv-31-TCB, 2017 WL 3531389, at *4 (N.D. Ga. June 30, 2017). See also 5C Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 1391 (3d ed. Supp. June 2021) (“[A] party can be held to have waived a defense listed in Rule 12(h)(1) through conduct, such as extensive participation in the discovery process or other aspects of the litigation of the case even if the literal requirements of Rule 12(h)(1) have been met.”).

Here, Rakmanov and Trucking Experts raised the service issue as an affirmative defense in their Answer filed in the state court on October 12, 2020.[24] And in their initial disclosures filed on November 13 in this Court, Rakmanov and Trucking Experts stated that “[f]or First and Second Defense, these Defendants' counsel has not seen evidence of proper service of process.”[25] That constituted the only mention of a service issue until Rakmanov and Trucking Experts filed their motion to dismiss on April 1, 2021. To the contrary, they (or, more accurately, their legal counsel whom Rakmanov and Trucking Experts have never met) repeatedly acted contrary to this defense by extensively participating in this litigation.

For example, the notice of removal stated that “[a]ll Defendants whom Plaintiffs properly served with the Summons and Complaint consent to the removal of this civil action.”[26] The notice of filing the notice of removal showed that Rakmanov and Trucking Experts consented.[27] Rakmanov and Trucking Experts later participated in a Rule 26(f) conference and joint preliminary report and discovery plan without raising improper service.[28] Specifically, in the joint preliminary report and discovery plan, the parties marked “No” to the question of: “Is there any question regarding this court's jurisdiction?”[29] Moreover, Rakmanov and Trucking Experts have liberally engaged in other aspects of this action. This includes propounding discovery, joining a motion to dismiss a separate Defendant[30] and a motion to extend scheduling order deadlines,[31] as well as retaining an expert. Rakmanov and Trucking Experts did not challenge service at any point until the day before they were required to respond to Plaintiffs' discovery requests per the Court's March 17 Order.[32]

*5 Even though Rakmanov and Trucking Experts raised a lack of service defense in their answer, several district courts in this circuit have found waiver under similar circumstances. See Poole, 2018 WL 6380792, at *4 (holding that the defendant waived a lack of service defense by “fail[ing] to raise [it] at multiple later stages of the case over a period of six months,” but “participat[ing] in a Rule 26(f) conference and fil[ing] a Joint Preliminary Report and Discovery Plan,” as well as “engag[ing] in six months of discovery on the merits” without raising the defense); BankUnited, 2017 WL 3531389, at *5 (holding the defendant waived a failure of service defense because it “participated in an early scheduling conference, collaborated with the other parties to complete the joint preliminary report, filed and served initial disclosures, and served discovery objections and responses” without contesting service).

The Court agrees with the reasoning of those cases. Rakmanov and Trucking Experts have waived any service defense through the conduct of their legal counsel in this litigation. Therefore, their motion to dismiss or for a protective order is denied for this additional reason.

B. Plaintiffs' Motion for Voluntary Dismissal

Plaintiffs seek to voluntarily dismiss their claims against National, Old Republic, and Ryder. National opposes that motion.[33] According to National, its dismissal would cause substantial prejudice by foreclosing its ability to litigate the merits of Plaintiffs' claims.

Plaintiffs' motion invokes Rule 21. As a threshold matter, the Court does not agree that Rule 21 is the appropriate vehicle. By its express terms, Rule 21 governs the misjoinder and nonjoinder of parties: “On motion or on its own, the court may at any time, on just terms, add or drop a party.” Fed. R. Civ. P. 21. Put another way, the rule operates “to preserve diversity jurisdiction by dropping a nondiverse party not indispensable to the action under [Rule 19].” Fritz v. Am. Home Shield Corp., 751 F.2d 1152, 1154 (11th Cir. 1985). See also Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 832 (1989) (“[I]t is well settled that Rule 21 invests district courts with authority to allow a dispensable nondiverse party to be dropped at any time.”).

Plaintiffs here are not employing Rule 21 to preserve diversity jurisdiction. There is no assertion of common citizenship among the parties. Rather, Plaintiffs seek to dismiss all claims against a subset of Defendants. Under this posture, Rule 41(a) appears to be the correct mechanism. See Klay v. United Healthgrp., Inc., 376 F.3d 1092, 1106 (11th Cir. 2004) (“Rule 41 allows a plaintiff to dismiss all of his claims against a particular defendant.”). See also Cramer v. Beiser, No. 3:13-cv-262-J-39JRK, 2018 WL 3417114, at *1 (M.D. Fla. July 13, 2018) (“Because the parties seek a dismissal with prejudice as to all claims against [one defendant], the Court finds the more appropriate authority is grounded in Rule 41(a)(2), not Rule 21.”).

Under Rule 41(a), a plaintiff may voluntarily dismiss an action without court intervention if: (1) the notice is filed prior to an opposing party serving an answer or motion for summary judgment or (2) all parties that have appeared in the case sign a stipulation of dismissal. Fed. R. Civ. P. 41(a)(1). If neither condition is present, the case may only be dismissed pursuant to a court order. Fed. R. Civ. P. 41(a)(2). Unless otherwise stated, such a dismissal is without prejudice. Id.

*6 National has filed an Answer.[34] Plaintiffs have not submitted a stipulation containing the signature of each party consenting to its dismissal. Therefore, the Court's focus is on Rule 41(a)(2). Under that rule, a plaintiff does not enjoy a voluntary-dismissal-without-prejudice as a matter of right. Fisher v. Puerto Rico Marine Mgmt., Inc., 940 F.2d 1502, 1502 (11th Cir. 1991). But it remains a matter committed to the “broad discretion” of the district court. Arias v. Cameron, 776 F.3d 1262, 1268 (11th Cir. 2015) (citing Pontenberg v. Boston Sci. Corp., 252 F.3d 1253, 1255 (11th Cir. 2001)).

Relief should normally be granted “unless the defendant will suffer clear legal prejudice, other than the mere prospect of a subsequent lawsuit, as a result.” Goodwin v. Reynolds, 757 F.3d 1216, 1219 (11th Cir. 2014) (emphasis omitted). See also Arias, 776 F.3d at 1268 (“The purpose of Rule 41(a)(2) is primarily to prevent voluntary dismissals which unfairly affect the other side, and to permit the imposition of curative conditions.”) (quoting McCants v. Ford Motor Co., Inc., 781 F.2d 855, 856 (11th Cir. 1986)). The crucial question is whether “the defendant [would] lose any substantial right by the dismissal.” Pontenberg, 252 F.3d at 1255 (citing Durham v. Fla. East Coast Ry. Co., 385 F.2d 366, 368 (5th Cir. 1967)). The Court's ultimate task is to “weigh the relevant equities and do justice between the parties in each case.” Id. (quoting McCants, 781 F.2d at 857). See also Fisher, 940 F.2d at 1503 (“[W]hen exercising its discretion in considering a dismissal without prejudice, the court should keep in mind the interests of the defendant, for Rule 41(a)(2) exists chiefly for protection of defendants.”).

National contends its dismissal from this case would result in clear legal prejudice by depriving it of the ability to fully defend its interests. The Court does not agree. National issued a policy of insurance to Trucking Experts. As a general rule, a plaintiff cannot assert “a direct action against the liability insurer of the party who allegedly caused the damage unless there is an unsatisfied judgment against the insured or it is specifically permitted either by statute or a provision in the policy.” Hartford Ins. Co. v. Henderson & Son, Inc., 258 Ga. 493, 494 (1988). As an exception, Georgia law allows a direct action against an insurance carrier that insures a motor carrier. O.C.G.A. § 40-2-140(d)(4). Although not entirely consistent, many Georgia courts have characterized the legal status of an insurance carrier made a party to litigation pursuant to O.C.G.A. § 40-2-140 as more akin to a surety. See Waldon v. ACE Am. Ins. Co., No. 1:16-cv-1608-AT, 2017 WL 3000040, at *3 (N.D. Ga. Mar. 21, 2017) (“When joined pursuant to [the direct action statute], the insurer is not, in reality, a separate party for purposes of liability, but, rather, is equivalent to a provider of a substitute surety bond, creating automatic liability in favor of a third party who may have a claim for damages for the negligence of the motor common carrier.”) (quoting McGill v. Am. Trucking & Transp., Ins. Co., 77 F. Supp. 3d 1261, 1265 (N.D. Ga. 2015); Progressive Cas. Ins. Co. v. Bryant, 205 Ga. App. 164, 165, 421 S.E.2d 329, 330 (1992)). But see Hammonds v. Gray Transp., Inc., 371 F. Supp. 3d 1340, 1351 (M.D. Ga. 2019) (“[A]n insurance carrier is distinct from the issuer of a surety bond because a surety bond is plainly not the same as an insurance contract.”). The distinction is important; if considered a surety, an insurance carrier's defenses could be limited in a potential future suit. See Drill S., Inc. v. Int'l Fid. Ins. Co., 234 F.3d 1232, 1235 (11th Cir. 2000) (in the default judgment context, holding “the general rule that has emerged is that a surety is bound by any judgment against its principal, default or otherwise, when the surety had full knowledge of the action against the principal and an opportunity to defend”).

*7 But these concerns are not germane here. Plaintiffs sued National under § 40-2-140 as Trucking Experts' insurance carrier. National does not argue it is an improper party or not subject to the purview of that statute. Rather, perhaps owing to the muddled procedural history of this case, Plaintiffs now wish to willingly relinquish their statutory right to pursue their direct claims against both National and Trucking Experts in the same action. And National clings to O.C.G.A. § 40-2-140 in an effort to stay in the case. This role-reversal is unique, as “[t]he state motor carrier acts were enacted to protect members of the general public against injuries caused by the negligence of a Georgia motor carrier.” Sapp v. Canal Ins. Co., 288 Ga. 681, 682 (2011) (emphasis added). Put another way:

Nat'l Indem. Co. v. Lariscy, 352 Ga. App. 446, 449–50 (2019). See also Miller v. Harco Nat. Ins. Co., 274 Ga. 387, 391 (2001) (“The intent of this state's motor carrier laws is that the insurer is to stand in the shoes of the motor carrier and be liable in any instance of negligence where the motor carrier is liable.”) (punctuation omitted).

Given this posture, the Court does not find that National will lose any clear legal right through a dismissal without prejudice. To the contrary, National may assert any coverage or policy defense in a subsequent lawsuit. As summarized by one court, if “an insurer joined under the direct action statutes ... were permitted to exit a case before judgment, there would not be automatic liability in favor of the third party who succeeded in its claim against the insured motor carrier. This would hold true even when the insurance carrier acknowledged its responsibilities under the insurance contract.” McGill v. Am. Trucking & Transp., Ins. Co., 77 F. Supp. 3d 1261, 1266 (N.D. Ga. 2015) (emphasis added). See also id. (“Once the insurance carrier is joined under the direct action statutes, the insurance carrier must remain in the case until final judgment or until it is later dismissed by the plaintiff or the court.”) (emphasis added). To the extent Plaintiffs may gain some tactical advantage over National to be wielded in a subsequent lawsuit, the Eleventh Circuit has rejected such contentions, finding them insufficient to show prejudice. See McCants, 781 F.2d at 857. Therefore, Plaintiffs' motion for a voluntary dismissal is granted.

C. Plaintiffs' Motion for Sanctions

Pursuant to the above, only Rakmanov and Trucking Experts remain as Defendants. Plaintiffs request the Court sanction these Defendants for failing to respond to discovery by striking the Answers and entering a default judgment as to liability. Rule 37 permits a district court to impose sanctions on a party that “fails to obey an order to provide or permit discovery.” Fed. R. Civ. P. 37(b)(2). The purpose of such sanctions is “to prevent unfair prejudice to the litigants and insure the integrity of the discovery process.” Gratton v. Great Am. Commc'ns, 178 F.3d 1373, 1374 (11th Cir. 1999). Among the options for an appropriate remedy, the district court may “strike pleadings in whole or in part” or “render[ ] a default judgment against the disobedient party.” Fed. R. Civ. P. 37(b)(2)(A). See also Buchanan v. Bowman, 820 F.2d 359, 361 (11th Cir. 1987) (holding that the federal rule governing “sanctions used when a party fails to cooperate in discovery, allows the court to strike out pleadings and render default judgment against the disobedient party”).

*8 In general, a default judgment is “a drastic remedy which should be used only in extreme situations.” Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir. 1985). In the context of Rule 37, it should only be invoked “as a last resort, when less drastic sanctions would not ensure compliance with the court's orders.” Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1542 (11th Cir. 1993). The key to such a sanction is a finding of a “willful or bad faith failure to obey a discovery order.” Id. Noncompliance with a “discovery order caused by simple negligence, misunderstanding, or inability to comply will not justify a Rule 37 default judgment or dismissal.” Id. (collecting cases). Nevertheless, the Court is not required to institute less harsh penalties in the first instance if it would be a fruitless endeavor; “Rule 37 does not require the vain gesture of first imposing those ineffective lesser sanctions.” Malautea, 987 F.2d at 1544. This is true notwithstanding the potential merit of the disobedient party's defense. Id. (“Discovery orders must be obeyed even by those foreseeing ultimate success in the district court.”) (quoting United States v. $239,500 in U.S. Currency, 764 F.2d 771, 773 (11th Cir. 1985)). At bottom, a district court “enjoy[s] substantial discretion in deciding whether and how to impose sanctions under Rule 37.” Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1366 (11th Cir. 1997).

The crucial issue underlying this entire dispute is the concession from Rakmanov and Trucking Experts' legal counsel that he has met, spoken, or communicated in any way with his purported clients. This has not, however, stopped legal counsel from repeatedly making affirmative representations on their behalf without their knowledge. This includes signing pleadings and dispositive motions, responding to written discovery requests, taking positions on the merits of Plaintiffs' claims, and engaging an expert. And legal counsel pursued this course of action without disclosure to the Court, which remained unaware of the arrangement until prompted by Plaintiffs during the March 17, 2021 discovery conference. Perhaps most problematic for purposes of this Order, the Federal Rules require legal counsel to certify that he undertook a reasonable investigation to ensure any discovery response was complete and correct to the best of his knowledge, information, and belief, as well as that any objection is appropriately grounded in fact. Fed. R. Civ. P. 26(g). See also In re Delta/AirTran Baggage Fee Antitrust Litig., 846 F. Supp. 2d 1335, 1349–51 (N.D. Ga. 2012). Legal counsel has not fulfilled these obligations.

The Court concludes that legal counsel for Rakmanov and Trucking Experts engaged in sanctionable conduct by violating the Court's discovery order entered on March 17, 2021. To date, neither Defendant has fully responded to even the most basic discovery requests, all the while their legal counsel was propounding his own. This has severely hampered Plaintiffs' ability to prosecute the merits of their claims. What is more, since Rakmanov and Trucking Experts have never actually participated in this action—and their legal counsel is wholly unable to locate or communicate with them—any less severe sanction than a default judgment would not meaningfully advance this litigation or assuage the harm suffered by Plaintiffs.[35] Therefore, Plaintiffs' motion for sanctions is granted and they are entitled to a default judgment as to liability against Rakmanov and Trucking Experts.[36]

III. CONCLUSION

*9 Rakmanov and Trucking Experts' motion to dismiss or in the alternative motion for emergency protective order [ECF 48; ECF 50] is DENIED; Plaintiffs' motion for sanctions [ECF 54] is GRANTED; and Plaintiffs' motion for a voluntary dismissal [ECF 82] is GRANTED. The claims asserted against National, Old Republic, and Ryder are DISMISSED WITHOUT PREJUDICE. The Clerk is DIRECTED to strike the Answers filed by Rakmanov and Trucking Experts [ECF 2]. The Clerk is further DIRECTED to enter default judgment as to liability against Rakmanov and Trucking Experts. The Court will enter a subsequent order scheduling a hearing as to Plaintiffs' alleged damages.

SO ORDERED this the 13th day of August 2021.

ECF 1-1, ¶¶ 11–13.

Id. ¶¶ 24–26.

Id. ¶ 50.

See generally id.

ECF 1.

ECF 46.

Id.

ECF 48. Rakmanov and Trucking Experts filed an amendment to their motion the next day [ECF 50].

ECF 54.

ECF 80.

ECF 81.

ECF 82.

ECF 83–89.

ECF 1-3, at 174.

Id. at 175–78.

Id. at 176–80.

ECF 59-4.

ECF 1-3, at 180.

ECF 59-3.

ECF 50-4.

ECF 50-10.

ECF 59-5.

Id.

ECF 2.

ECF 19.

ECF 1, ¶ 13.

ECF 1-5.

See ECF 23.

Id. at 5.

See ECF 35 (joint motion to dismiss Defendant Ace American Insurance Company)

ECF 72.

See ECF 46.

ECF 88. In their motion, Plaintiffs indicated that Old Republic and Ryder consented to the claims against them. On June 11, 2021, those Defendants filed a document confirming their consent [ECF 83, at 2]. Subsequently, all other Defendants have indicated their consent to the dismissal of Old Republic and Ryder [ECF 87, at 2; ECF 88, at 1 n.1]. Since all parties appear to be in agreement, the claims against Old Republic and Ryder are dismissed without prejudice.

ECF 4.

National argues a default judgment should not be entered based on the general rule that, “when defendants are similarly situated, but not jointly liable, judgment should not be entered against a defaulting defendant if the other defendant prevails on the merits.” Gulf Coast Fans, Inc. v. Midwest Elecs. Importers, Inc., 740 F.2d 1499, 1512 (11th Cir. 1984). Pursuant to the above discussion, the Court has dismissed National from this suit.

Although not raised by Plaintiffs, the Court notes that, in addition to Rule 37, a district court may sanction a party for litigation misconduct under its inherent power. Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1306 (11th Cir. 2009). This includes striking pleadings and entering a default judgment. See In re Sunshine Jr. Stores, Inc., 456 F.3d 1291, 1306 (11th Cir. 2006). Similar to Rule 37 sanctions, “[t]he key to unlocking a court's inherent power is a finding of bad faith.” Eagle Hosp., 561 F.3d at 1306. “[T]he inherent-powers standard is a subjective bad-faith standard.” Purchasing Power, LLC v. Bluestem Brands, Inc., 851 F.3d 1218, 1223 (11th Cir. 2017). Based on the above, there is ample evidence that legal counsel for Rakmanov and Trucking Experts have engaged in bad faith conduct. Thus, sanctions under the Court's inherent power are equally appropriate.