ALLEN L. MCMURRAY, on behalf of himself and all others similarly situated, Plaintiff, v. FORMEL D, Defendant Case No.: 2:19-cv-00548-AMM United States District Court, N.D. Alabama, Southern Division Filed March 30, 2021 Counsel Charity Gilchrist-Davis, Law Office of Gilchrist-Davis LLC, Birmingham, AL, Lee David Winston, Roderick Twain Cooks, Winston Cooks, LLC, Birmingham, AL, for Plaintiff. Josh C. Harrison, Morgan Pike Epperson, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Birmingham, AL, Stephen E. Giles, Pro Hac Vice, Employers Law SC, LLC, Simpsonville, SC, Thomas A. Bright, Pro Hac Vice, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Greenville, SC, for Defendant. Manasco, Anna M., United States District Judge ORDER ON DEFENDANT FORMEL D'S PENDING MOTIONS *1 This case is before the court on Defendant Formel D's four pending motions: (1) Motion to Dismiss Opt-In Plaintiffs Who Failed to Respond to Discovery, Doc. 82, as supplemented, Doc. 116, (2) Motion to Dismiss Joseph Beal and Motion to Compel Opt-In Plaintiffs Joseph Beal, Damian Hart, Brandon Underwood, and Derrick Barnes to Appear for Depositions, Doc. 98, (3) Motion to Strike and Dismiss Untimely Opt-Ins Alton Manderson and Ahmed Amor Alharthi, Doc. 99, and (4) Motion for Discovery Sanctions Based on Destruction of Evidence by Opt-In Plaintiffs Walter Beverly and Antonio Rodgers, Doc. 103. The plaintiffs have filed written responses to each motion. Docs. 85, 110–12. For the reasons explained below, Formel D's Motion to Dismiss Opt-In Plaintiffs Who Failed to Respond to Discovery, Docs. 82 & 116, is GRANTED, Motion to Dismiss Joseph Beal and Motion to Compel Opt-In Plaintiffs Joseph Beal, Damian Hart, Brandon Underwood, and Derrick Barnes to Appear for Depositions, Doc. 98, is GRANTED IN PART and DENIED IN PART, Motion to Strike and Dismiss Untimely Opt-Ins Alton Manderson and Ahmed Amor Alharthi, Doc. 99, is GRANTED, and Motion for Discovery Sanctions Based on Destruction of Evidence by Opt-In Plaintiffs Walter Beverly and Antonio Rodgers, Doc. 103, is GRANTED IN PART and DENIED IN PART. 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. The notice provided that the consent form “must be postmarked or received via fax within sixty (60) days from the date of this Notice.” Doc. 43-1. Plaintiffs' counsel asserts that they “issued notice to the potential collective action plaintiffs” on January 23, 2020. Doc. 64 ¶ 7. Approximately forty-five individuals have since filed opt-in forms. Doc. 64 ¶¶ 7–8; Docs. 72, 83, 92. The parties assert that the opt-in period closed on March 23, 2020. Doc. 64 ¶ 7. 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 provided that discovery was 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 “ha[d] not entered an order compelling Mr. Mann to participate in discovery, the violation of which might implicate Rule 37.” Doc. 67 at 4. *2 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 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 an 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 nonresponsive 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. 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. On January 15, 2021, the court entered an order awarding Formel D “reasonable expenses, including attorney's fees, caused by the [plaintiffs'] failure” to comply with the court's previous discovery order, and directing the nonresponsive opt-in plaintiffs “to serve completed, signed, and rule-compliant discovery responses without any objections on or before February 1, 2021,” and 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 February 1, 2021.” Doc. 108 at 22–23. The court warned that “[f]ailure to timely and fully comply with this order will expose [the nonresponsive] 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.” Id. at 23. The court reserved ruling on Formel D's request for dismissal, Doc. 82, pending the nonresponsive opt-in plaintiffs' compliance with that order and previous discovery orders, and ordered Formel D “to file any necessary supplement to its pending motion ... on or before February 8, 2021,” Doc. 108 at 1, 20. On February 8, 2021, Formel D filed its Notice of Supplementation to Its Motion to Dismiss Opt-In Plaintiffs Who Failed to Respond to Discovery, requesting that the court issue an order dismissing with prejudice the remaining eleven nonresponsive opt-in plaintiffs who did not comply with the court's discovery orders (the “Opt-In Plaintiffs”). Doc. 116. In addition to its pending motion to dismiss the Opt-In Plaintiffs, Formel D has filed three other pending motions. First, on December 30, 2020, Formel D filed a motion to dismiss opt-in plaintiff Joseph Beal for failure to prosecute his claims, or alternatively to compel Mr. Beal to appear for deposition, and a motion to compel opt-in plaintiffs Damien Hart, Brandon Underwood, and Derrick Barnes to appear for deposition. Doc. 98. Formel D also seeks reimbursement for costs and fees incurred in filing this motion and in preparing for and attending the depositions of Mr. Beal, Mr. Hart, Mr. Underwood, and Mr. Barnes. Id. ¶ 12. On January 20, 2021, the plaintiffs filed their response in opposition to Formel D's motion to dismiss Mr. Beal and request for an award of attorney's fees. Doc. 110 ¶¶ 2, 5–9. The plaintiffs do not object to the issuance of an order compelling the depositions of Mr. Beal, Mr. Hart, and Mr. Underwood. Id. ¶¶ 4, 9. Further, plaintiffs assert that the motion to compel Mr. Barnes to appear for his deposition is moot because Mr. Barnes has voluntarily dismissed with prejudice his wage claim. Id. ¶ 3. On January 22, 2021, Formel D filed its reply. Doc. 113. *3 Second, on December 31, 2020, Formel D filed a motion to strike and dismiss the untimely notices of consent to join as opt-in plaintiffs for Alton Manderson and Ahmed Amor Alharthi. Doc. 99. On January 21, 2021, the plaintiffs filed their response in opposition to the motion to strike and dismiss Mr. Manderson and Mr. Alharthi's claims. Doc. 112. On January 25, 2021, Formel D filed its reply. Doc. 115. Third, on January 6, 2021, Formel D filed a motion for discovery sanctions against opt-in plaintiffs Walter Beverly and Antonio Rodgers for the destruction of evidence. Doc. 103. On January 20, 2021, the plaintiffs filed their response in opposition to the motion for discovery sanctions against Mr. Beverly and Mr. Rodgers. Doc. 111. On January 22, 2021, Formel D filed its reply. Doc. 114. II. ANALYSIS The court analyzes in turn each of Formel D's four pending motions. A. Motion To Dismiss Opt-In Plaintiffs Who Failed To Respond To Discovery Formel D moves to dismiss with prejudice the Opt-In Plaintiffs for their failure to comply with the court's discovery orders. Doc. 116. The court's previous discovery orders directed ten of the Opt-In Plaintiffs to serve signed discovery responses without any objections, and Mr. Vance to serve rule-compliant amended answers to Formel D's request for admissions, all by a certain date. Docs. 78 & 108. Formel D alleges that the Opt-In Plaintiffs “did nothing in response to either of this Court's Orders.” Doc. 116 at 5 (emphasis in original). Specifically, Formal D informs the court that (1) four of the Opt-In Plaintiffs “failed to respond at all to Formel D's written requests,” (2) six of the Opt-In Plaintiffs “originally served responses with improper objections [and] did not respond to either of the Court's Orders,” and (3) Mr. Vance “did not respond to the Court's Order requiring [that] he ‘serve rule-compliant amended answers to Formel D's request for admission.’ ” Id. at 3 (emphasis in original). Under Rule 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. *4 Formel D informs the court that the following four Opt-In Plaintiffs have not served any responses to Formel D's outstanding discovery requests: Ray C. Mann, Jr. Christopher Williams Damien Gaines Kelvin Lewis Doc. 117. Further, Formel D informs the court that the following six Opt-In Plaintiffs have not served signed responses without objections to Formel D's outstanding discovery requests: Clarence Ashley, III Willis Black, II Paul Jacob Erwin Joseph Beal Reggie Bernard Ray Samuel Anderson Id. Finally, Formel D informs the court that Charlie Vance has not served amended answers to Formel D's request for admissions. Id. Formel D asserts that these Opt-In Plaintiffs “had ample time to respond to Formel D's written discovery requests,” as Formel D “served written discovery requests on the [Opt-In] Plaintiffs ... as early as December 6, 2019 and as late as June 12, 2020.” Doc. 116 ¶ 1. Formel D further asserts that the court “has twice ordered [the Opt-In] Plaintiffs to serve rule-compliant responses to Formel D's written discovery,” but the Opt-In Plaintiffs “did not comply with th[e] Order[s]” or offer any justification for such failure. Id. ¶¶ 2–3. Formel D recounts that the court has previously imposed monetary sanctions on the plaintiffs for their failure to comply with discovery orders. Id. ¶ 4; see Doc. 108 at 20–21. Further, Formel D asserts that in each of its discovery orders, the court “explicitly warned [the Opt-In] Plaintiffs that failing to comply could lead to sanctions,” but “[d]espite these clear warnings, and despite the Court imposing [monetary] sanctions, [the Opt-In] Plaintiffs once again disregarded this Court's Orders,” and “[a]s such, these Plaintiffs' claims should be dismissed with prejudice.” Doc. 116 ¶ 5. Finally, Formel D asserts that the Opt-In Plaintiffs' “failure to provide responses prejudices [its] ability to defend itself in this lawsuit and ability to timely move for decertification, and slows the discovery process.” Id. at 5. Further, Formel D asserts that the Opt-In Plaintiffs “have made it clear that they will not follow the Federal Rules of Civil Procedure or this Court's Orders.” Id. ¶ 8. Formel D further asserts that “even after being ordered to pay Formel D's fees, these Plaintiffs still ignored the Court's order, which shows lesser sanctions did not suffice.” Id. (emphasis in original). Accordingly, Formel D argues that the Opt-In Plaintiffs' claims should be dismissed with prejudice for their continued failure to follow the court's orders. Id. Formel D argues that Eleventh Circuit precedent supports dismissal with prejudice of the Opt-In Plaintiffs because “courts have found that lesser sanctions would not suffice” where, “as here, plaintiffs have been repeatedly forewarned that dismissal is possible for noncompliance; repeatedly ignored those warnings; provided no justifiable reason; and provided no evidence of inability to comply with orders.” Id. ¶¶ 6–7 (citing Aztec Steel Co. v. Fla. Steel Corp., 691 F.2d 480 (11th Cir. 1982); Malautea, 987 F.2d 1536; Lyle v. BASF Chemistry, Inc., 802 F. App'x 479 (11th Cir. 2020); Fortson v. City of Baldwin, 699 F. App'x 906 (11th Cir. 2017); and Shortz v. City of Tuskegee, 352 F. App'x 355 (11th Cir. 2009)). *5 In its previous order reserving ruling on Formel D's pending motion to dismiss, Doc. 108, the court analyzed each of the cases cited in Formel D's supplement, Doc. 116. The court found that each of the cases cited in the parties' briefing affirm dismissal or default judgment 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, and/or after giving multiple warnings that the court would dismiss the plaintiffs' complaint if they did not comply with federal rules, court rules, and the court's discovery order, see Fortson, 699 F. App'x at 907–908. Here, the Opt-In Plaintiffs have been afforded between nine and fifteen months to serve signed, rule-compliant responses to Formel D's discovery requests but have not done so. Doc. 116 ¶ 1. Further, the Opt-In Plaintiffs have failed to comply with two court orders compelling such responses. Id. The court warned the Opt-In Plaintiffs on at least two occasions that failure to comply with its discovery orders may expose them to sanctions—the second warning explicitly providing that “[f]ailure to timely and fully comply with this order will expose [the Opt-In 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.” Doc. 108 at 23. The Opt-In Plaintiffs have not provided a compelling reason for their failure to comply with the court's discovery orders. Because the Opt-In Plaintiffs failed to provide a compelling reason for noncompliance, and because their responses remain noncompliant after being afforded ample opportunity to amend, the court finds that the Opt-In Plaintiffs have willfully failed to comply with the court's discovery orders. See Shortz, 352 F. App'x at 359–60 (“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.”). Further, the court finds that the Opt-In Plaintiffs' noncompliance has been prejudicial to the defendant's ability to defend itself in this lawsuit and to timely move for decertification, and has impeded the discovery process. See Doc. 116. The court also finds that a lesser sanction than dismissal with prejudice of the Opt-In Plaintiffs' claims pursuant to Rule 37(b) would not suffice, as the court extended their deadlines to respond twice, gave them multiple warnings, and imposed monetary sanctions, but the Opt-In Plaintiffs still have not complied with the court's discovery orders. Consistent with controlling precedent and its previous warnings, Formel D's supplemented motion to dismiss, Docs. 82 & 116, is GRANTED,[1] and the claims of the eleven remaining noncompliant Opt-In Plaintiffs are DISMISSED WITH PREJUDICE. Further, pursuant to Rule 37, those plaintiffs are ORDERED to pay the “reasonable expenses, including attorney's fees, caused by the failure” to comply with the court's orders. 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. B. Motion To Dismiss Joseph Beal And Motion To Compel Opt-In Plaintiffs Joseph Beal, Damian Hart, Brandon Underwood, And Derrick Barnes To Appear For Depositions *6 Under Rule 41(b), Formel D moves to dismiss opt-in plaintiff Joseph Beal for failure to prosecute his claims, or alternatively to compel Mr. Beal to appear for deposition. Doc. 98. Under Rule 37(d)(1), Formel D moves to compel opt-in plaintiffs Damien Hart, Brandon Underwood, and Derrick Barnes to appear for deposition. Id. Further, under Rule 37(a)(5), Formel D seeks reimbursement for costs and fees incurred in filing this motion and in preparing for and attending the depositions of Mr. Underwood, Mr. Beal, Mr. Barnes, and Mr. Hart. Id. ¶ 12. Mr. Barnes and Mr. Beal have been dismissed from this action. See supra at p. 13; Docs. 93 & 100. Accordingly, Formel D's motion to dismiss Mr. Beal and alternative motion to compel his deposition testimony is DENIED AS MOOT. Likewise, Formel D's motion to compel Mr. Barnes's deposition testimony is DENIED AS MOOT. Further, under Rule 37(d), “[t]he court where the action is pending may, on motion, order sanctions if: (i) a party ... fails, after being served with proper notice, to appear for that person's deposition.” Fed. R. Civ. P. 37(d)(1)(A). A motion for sanctions pursuant to Rule 37(d) “must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action.” Fed. R. Civ. P. 37(d)(1)(B). Further, under Rule 37(d), a party's failure to answer or respond “is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c).” Fed. R. Civ. P. 37(d)(2). The types of sanctions afforded under Rule 37(d) include: “(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; or (vi) rendering a default judgment against the disobedient party.” Rule 37(b)(2)(A)(i)–(vi). Further, “[i]nstead of or in addition to these sanctions, the court must require the party failing to act, 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(d)(3). On December 2, 2020, Formel D noticed the depositions of Mr. Hart (for December 14, 2020) and Mr. Underwood (for December 15, 2020). Doc. 98 ¶ 2; Doc. 98-1 at 2–7. Neither Mr. Hart nor Mr. Underwood appeared for their depositions. Doc. 98 ¶ 3; Doc. 98-2 at 2–15. Formel D requests an order compelling Mr. Underwood to appear for depositions by Zoom on January 8, 2021 at 9:00 a.m. CST. Doc. 98 ¶ 10. Further, Formel D requests an order compelling the plaintiffs' counsel “to report to the Court a date certain that the state will permit [Mr.] Hart to participate in a remote deposition” by “no later than 12:00 CST on January 7, 2021.” Id. ¶ 11. The plaintiffs do not oppose the motion to compel the depositions of Mr. Hart and Mr. Underwood. Id. ¶ 1; Doc. 110 ¶ 4. Formel D's motion is brought pursuant to Rule 37(d)(1), which rule permits the court to order sanctions if a party fails to appear for their deposition after being properly notified. See Fed. R. Civ. P 37(d)(1)(A)(i). Accordingly, although the motion is styled as a motion to compel, see Doc. 98, the court will construe it as a motion for sanctions. As is required under Rule 37(d)(1), Formel D certified that it has conferred with the plaintiffs in an effort to resolve the discovery issue without court action. Id. ¶ 1; Doc. 94. at 1. Indeed, Plaintiffs' counsel did not, id., and does not, Doc. 110 ¶ 9, object to Formel D's request for an order compelling the depositions of Mr. Hart and Mr. Underwood. Although Formel D's request for an order compelling Mr. Hart and Mr. Underwood to attend their properly-noticed depositions is not specifically included in the list of sanctions the court may impose under Rule 37(d)(3), the plaintiffs do not object to the imposition of such sanction. *7 Because the specific depositions deadlines that Formel D requests in its motion for an order compelling Mr. Hart and Mr. Underwood to appear for depositions have passed, see Doc. 98 ¶¶ 10, 11, Formel D's motion to compel is DENIED as to those requested deadlines. But because the parties agree that entry of an order compelling Mr. Hart and Mr. Underwood to appear for depositions is an appropriate sanction for their failure to appear to their properly noticed depositions, Formel D's motion for an order to compel their attendance for depositions is GRANTED. Counsel for Formel D is DIRECTED to serve counsel for Mr. Hart and Mr. Underwood with proper written notice of their depositions in accordance with Rule 30(b) as soon as practicable, stating a time and place of the depositions. Mr. Hart and Mr. Underwood are DIRECTED to appear for deposition at a time and place to be noticed by Formel D's counsel. If necessary to provide the plaintiffs with reasonable written notice of their depositions, the parties may request a limited extension of the discovery period for the sole purpose of taking Mr. Hart's and Mr. Underwood's depositions. Further, pursuant to Rule 37(a)(5), Formel D also “seeks reimbursement for the reasonable expenses incurred in making this motion, including attorneys' fees.” Doc. 98 ¶ 12. The plaintiffs oppose Formel D's request for attorney's fees. Doc. 110 ¶¶ 5–9. Under Rule 37(a)(5), the court must require payment of reasonable expenses only if it grants a motion to compel pursuant to Rule 37(a). Here, Formel D did not file a motion to compel pursuant Rule 37(a). Accordingly, Formel D's request for reimbursement for reasonable expenses pursuant to Rule 37(a)(5) is DENIED. However, Rule 37(d)(3) requires that “in addition to these sanctions, the court must require the party failing to act, 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(d)(3). Neither Mr. Hart nor Mr. Underwood provided a substantial justification for their failure to appear at their noticed depositions. Accordingly, Formel D is entitled to reimbursement of the reasonable expenses, including attorney's fees, incurred in making its motion to compel as to the depositions of Mr. Hart and Mr. Underwood. 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 court advises Mr. Hart and Mr. Underwood that they are required to provide discovery, including their own depositions, to Formel D in accordance with the Federal Rules of Civil Procedure and that, if they fail to comply with this order or any future order of the court, they may be subject to further sanctions, which likely will include dismissal of their claims. C. Motion To Strike And Dismiss Untimely Opt-Ins Alton Manderson And Ahmed Amor Alharthi Formel D moves to strike the consent forms of and dismiss from the action opt-in plaintiffs Alton Manderson And Ahmed Amor Alharthi because they “seek to join this FLSA collective action over nine months after the opt-in period closed.” Doc. 99. Mr. Manderson and Mr. Alharthi oppose Formel D's motion and request that the court allow them to participate in this action. Doc. 112. Mr. Manderson and Mr. Alharthi do not dispute that they filed their consent forms after the opt-in period closed, and as an explanation for the untimely filing they “offer that 2020 was a tumultuous year.” Id. ¶¶ 1–2. “FLSA collective actions require potential class members to notify the court of their desire to opt in to the action.” Anderson v. Cagle's, Inc., 488 F.3d 945, 950 n.3 (11th Cir. 2007). But the FLSA “does not specify when a person must opt-in to a collective action, rather, the deadline is set by the court.” Bolden v. Birmingham Bd. of Educ., No. 2:07-CV-00482-LSC, 2010 WL 11561535, at *3 (N.D. Ala. Aug. 27, 2010) (internal quotation marks omitted). Further, the FLSA does not “provide a standard under which a court should consider whether to include opt-in plaintiffs whose consent forms are filed after the court-imposed deadline has passed,” but “courts have generally decided the question by balancing various combinations of the following factors: (1) whether ‘good cause’ exists for the late submissions; (2) prejudice to the defendant; (3) how long after the deadline passed the consent forms were filed; (4) judicial economy; and (5) the remedial purposes of the FLSA.” Id. (internal quotation marks omitted). *8 Mr. Manderson and Mr. Alharthi missed this court-approved deadline to opt in to this lawsuit by approximately nine months, see Doc. 92, but the only explanation for their late submissions is that last year “was a tumultuous year for all Americans,” Doc. 112. This vague explanation, without more, does not demonstrate that good cause exists for the late submissions. Indeed, this explanation applies with equal force to the opt-in plaintiffs who joined the case on time. Further, Formel D asserts that even though the court extended the discovery deadline to March 22, 2021, Doc. 109, it would be prejudiced by allowing Mr. Manderson and Mr. Alharthi to join the lawsuit nine months after the opt-in period closed because Formel D “only has two months to conduct discovery regarding these two opt-in plaintiffs, including an agreed-upon 45-day period for responses.” Doc. 115 ¶ 2. The court finds that allowing Mr. Manderson and Mr. Alharthi to join the lawsuit very late, nearly a year and a half after discovery began and with only two months left until the extended discovery cutoff, would prejudice Formal D, and unfairly so. Finally, although judicial economy may be served by the inclusion of more plaintiffs in a single action, it may be harmed by including plaintiffs who filed opt-in consent forms long after the deadline because the defendant is provided “insufficient time to conduct discovery and other related pretrial matters.” Geter v. Galardi S. Enterprises, Inc., No. 14-21896-CIV, 2015 WL 2384068, at *11 (S.D. Fla. May 19, 2015). And although “Congress intended the FLSA to be broadly remedial and humanitarian, ... and that collective actions benefit the plaintiffs by allowing them to pool resources and pursue claims that they could hardly be expected to pursue individually, ... the court must balance the benefits of lowered cost and supposedly increased judicial efficiency against the potential detriment to the defendant and potential for judicial inefficiency.” Briggins v. Elwood TRI, Inc., 882 F. Supp. 2d 1256, 1279 (N.D. Ala. 2012) (internal citations and quotation marks omitted). Here, the remedial purpose of the FLSA does not outweigh the significant detriment to Formal D if it were required to address claims from plaintiffs that were added only two months before the extended discovery cutoff. See Geter, 2015 WL 2384068, at *11. Because Mr. Manderson and Mr. Alharthi have not carried their burden to establish good cause for their significant tardiness, Formel D would be prejudiced, and the remedial purposes of the FLSA would be hampered, the overall balance of the factors weighs in favor of striking the Mr. Manderson and Mr. Alharthi's consent forms and dismissing these plaintiffs from this action. Accordingly, Formel D's motion, Doc. 99, is GRANTED. Mr. Manderson and Mr. Alharthi's consent forms, Doc. 92, are STRICKEN and their claims are DISMISSED WITHOUT PREJUDICE. D. Motion For Discovery Sanctions Based On Destruction Of Evidence By Opt-In Plaintiffs Walter Beverly And Antonio Rodgers Formel D “moves for discovery sanctions against opt-in plaintiffs Walter Beverly and Antonio Rodgers for their destruction of time records identified by Beverly and Rodgers as their documentary evidence supporting their wage and hour claims against Formel D.” Doc. 103 at 1. Specifically, Formel D requests that the court “[p]rohibit Beverly or Rodgers from testifying about the content of their destroyed records,” and “[i]ssue an adverse inference order that the time reflected on the Beverly and Rodgers' destroyed records matches Formel D's time records maintained in the ordinary course of business.” Id. at 13. 1. Antonio Rodgers *9 The Eleventh Circuit has defined “spoliation” as “the destruction of evidence or the significant and meaningful alteration of a document or instrument.” Tesoriero v. Carnival Corp., 965 F.3d 1170, 1184 (11th Cir. 2020) (quoting Green Leaf Nursery v. E.I. DuPont De Nemours & Co., 341 F.3d 1292, 1308 (11th Cir. 2003)). “Because spoliation is an evidentiary matter, federal law governs the imposition of spoliation sanctions.” Id. (internal quotation marks omitted). Rule 37(e) addresses the failure to preserve Electronically Stored Information (“ESI”) and provides that: If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment. Fed. R. Civ. P. 37(e). The Advisory Committee's notes to the 2015 Amendment of Rule 37(e) provide that under Rule 37(e)(1), “[i]n an appropriate case, it may be that serious measures are necessary to cure prejudice found by the court, such as forbidding the party that failed to preserve information from putting on certain evidence, permitting the parties to present evidence and argument to the jury regarding the loss of information, or giving the jury instructions to assist in its evaluation of such evidence or argument, other than instructions to which subdivision (e)(2) applies.” Id. The notes also provide that Rule 37(e)(2) “limits the ability of courts to draw adverse inferences based on the loss of information ..., permitting them only when a court finds that the information was lost with the intent to prevent its use in the litigation.” Id. However, “[n]egligent or even grossly negligent behavior does not logically support [such] inference[s].” Id. Mr. Rodgers testified that, in addition to Formel D's time clock, he kept track of his work hours by recording them in an application on his phone called “Time Tracker.” Doc. 103 ¶ 12. Mr. Rodgers testified that around March of 2020, he disposed of the phone because the screen broke. Id. ¶14. Mr. Rodgers filed his opt-in consent form on June 8, 2019, which form was signed by him on March 27, 2019, Doc. 11, but Mr. Rodgers threw away his phone containing his time records in March of 2020. Doc. 103 ¶ 14. Therefore, Mr. Rodgers disposed of this evidence approximately a year after he was notified of and consented to join this litigation. Formel D asserts that Mr. Rodgers's “lack of explanation or justification for destroying the records can only be construed as bad faith.” Doc. 103 at 13. Mr. Rodgers repeatedly testified that he does not understand how or why he would ask anyone to retain the information on his phone after the screen had “blacked out.” Doc. 103-2 at 45–47. Whether Mr. Rodgers acted with the intent to deprive Formel D of the time records contained in an application on his phone is a close question. On the one hand, Mr. Rodgers expresses that he does not understand how or why he would “ask anyone if [he] could save or retain the time information that was on [his] phone,” Doc. 103-2 at 45–47, suggesting that Mr. Rodgers did not dispose of the information in bad faith. On the other hand, as early as March of 2019, Mr. Rodgers executed a consent form to join this lawsuit in which he alleges that Formel D did not compensate him for all of his overtime hours, suggesting that Mr. Rodgers knew or should have known that the time records contained in an application on his phone would probably be used in this litigation. Doc. 11. Because there is some evidence that could support a finding that Mr. Rodgers acted in bad faith, yet the record does not smack of bad faith, Formel D's request for an adverse inference order is DENIED. *10 However, the analysis for imposing sanctions under Rule 37(e) does not end with a denial of an adverse-inference instruction. Under Rule 37(e)(1), “upon finding prejudice to another party from loss of information,” the court may impose lesser sanctions. The court has “discretion to determine how best to assess prejudice in particular cases” and is authorized “to employ measures ‘no greater than necessary to cure the prejudice.’ ” Fed. R. Civ. P. 37(e)(1) advisory committee note to 2015 Amendment. Accordingly, the court will consider Formel D's request for lesser sanctions under Rule 37(e)(1). Under Rule 37(e)(1), “[t]he court must address three preliminary questions before determining whether sanctions should be imposed under the Rule's subsections.” AXIS Ins. Co. v. Terry, No. 2:16-CV-01021-JHE, 2018 WL 9943825, at *5 (N.D. Ala. Apr. 23, 2018). The court must determine whether (1) the party had a duty to preserve the ESI at issue; (2) the ESI was lost because the party failed to take reasonable steps to preserve it; and (3) the ESI evidence cannot be restored or replaced through additional discovery. Id. “If the answer to each question is ‘yes,’ ... the analysis proceeds ... to determine whether there is prejudice.” Id. First, in the Eleventh Circuit, a party has a duty to preserve evidence when litigation is “pending or reasonably foreseeable.” Oil Equip. Co. Inc. v. Mod. Welding Co. Inc., 661 F. App'x 646, 652 (11th Cir. 2016); accord AXIS Ins. Co., 2018 WL 9943825, at *6. Mr. Rodgers joined this lawsuit on June 8, 2019, so his duty to preserve relevant evidence was triggered at least as early as that date. See supra at p. 23. Mr. Rodgers's duty to preserve this evidence thus arose before he threw away his phone that contained his time records in March of 2020. Doc. 103 ¶ 14. Accordingly, the court finds that Mr. Rodgers had a duty to preserve the information at issue. Second, the Advisory Committee's notes to the 2015 Amendment of Rule 37(e) provide that, when considering the reasonableness of a party's preservation efforts, “[t]he court should be sensitive to the party's sophistication with regard to litigation in evaluating preservation efforts; some litigants, particularly individual litigants, may be less familiar with preservation obligations than others who have considerable experience in litigation.” Fed. R. Civ. P. 37(e) advisory committee note to 2015 Amendment. Even considering that Mr. Rodgers is an individual litigant and likely less familiar with preservation obligations, the court finds that Mr. Rodgers did not take reasonable steps to preserve the information on his phone. In fact, Mr. Rodgers took affirmative steps to dispose of such information (i.e., throwing away the “blacked out” phone containing the information). Third, Formel D asserts that there “is no alternative source for the [lost] information.” Doc. 103 at 11. The plaintiffs do not deny that assertion. See Doc. 111. In fact, the plaintiffs likewise assert that “there are presumably no alternative sources from which to obtain these materials.” Id. at 17. Because the parties do not dispute that there are no alternative sources for the lost information, the court finds that the evidence cannot be restored or replaced through additional discovery. Because each of the three threshold questions are answered in the affirmative, the court must determine whether the loss of information prejudices the other party. See Fed. R. Civ. P. 37(e)(1). Formel D asserts that it will be prejudiced by the loss of the information contained on Mr. Rodgers's phone because Mr. Rodgers “intend[s] to testify that the hours reflected on [his] destroyed time records are different than Formel D's time records,” but Formel D “does not have the opportunity to examine the records, determine the accuracy of the records, or cross-examine [Mr. Rodgers] on the time records.” Doc. 103 at 9. Formel D further asserts that “it is possible that the [destroyed] records undermine or contradict [Mr. Rodgers's] position[ ] in this litigation and instead support facts and defenses asserted by Formel D,” and that the destruction of evidence central to a party's claim or defense unquestionably prejudices the other party. Id. at 10. In a footnote to their responsive briefing, the plaintiffs assert in passing that the issue of prejudice is not present here. Doc. 111 at 20 n.2. The court finds that Mr. Rodgers's destruction of the electronic records of his hours worked prejudices Formel D. *11 Based on these findings and pursuant to the text of Rule 37(e), Mr. Rodgers is prohibited from arguing or offering evidence that his version of events was corroborated by the records of his hours worked contained in his Time Tracker application on his phone, which evidence he disposed of and did not provide to Formel D. 2. Walter Beverly A district court has “broad discretion” to impose sanctions as part of its “inherent power to manage its own affairs and to achieve the orderly and expeditious disposition of cases.” Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005). Sanctions for spoliation of evidence are intended to accomplish two objectives: “prevent unfair prejudice to litigants and to insure the integrity of the discovery process.” Id. “As sanctions for spoliation, courts may impose the following: (1) dismissal of the case; (2) exclusion of expert testimony; or (3) a jury instruction on spoliation of evidence which raises a presumption against the spoliator.” Flury, 427 F.3d at 945; accord Oil Equip. Co. Inc., 661 F. App'x at 652–53. An adverse inference may be drawn from a party's spoliation of evidence “only when the absence of that evidence is predicated on bad faith.” Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997); accord Tesoriero, 965 F.3d at 1184. Bad faith “in the context of spoliation, generally means destruction for the purpose of hiding adverse evidence.” Tesoriero, 965 F.3d at 1184 (internal quotation marks omitted). “Mere negligence is not enough, for it does not sustain an inference of consciousness of a weak case.” Vick v. Tex. Emp't Comm'n, 514 F.2d 734, 737 (5th Cir. 1975);[2] accord Tesoriero, 965 F.3d at 1184. Mr. Beverly's conduct is similar to Mr. Rodgers, but Mr. Beverly disposed of physical evidence, not ESI. Nevertheless, under its inherent authority, the court finds that a similar result is appropriate for Mr. Beverly's failure to preserve relevant information. Mr. Beverly testified that, in addition to Formel D's time clock, he kept track of his work hours by writing them down on a piece of paper. Doc. 103-1 at 61:6–8. He maintained this practice after this lawsuit was filed in April of 2019. Id. at 64:20–66:16, 96:24–97:6. Mr. Beverly testified that he disposed of the paper containing his written self-tracked work hours, and explained that he did so because there was “[n]o need to keep the paper when [Formel D] ha[s] the records on [the] Dayforce [application].” Id. Mr. Beverly consented to this lawsuit on June 14, 2019, Doc. 13, but even after joining the lawsuit, Mr. Beverly threw away his written hours for July, August, and September 2019, Doc. 103-1 at 64:20–66:16, 96:24–97:6. Accordingly, the court finds that Mr. Beverly disposed of relevant evidence after he was notified of and consented to join this litigation. Similar to Mr. Rodgers, the court acknowledges that the evidence regarding whether Mr. Beverly acted with the intent to deprive Formel D of the time records written on a piece of paper is inconclusive. On the one hand, Mr. Beverly expresses that he thought it was unnecessary to preserve the paper because Formel D had the time records on its Dayforce application, suggesting that Mr. Beverly did not dispose of the information in bad faith. On the other hand, as early as June of 2019, Mr. Beverly consented to join this lawsuit in which he alleges that Formel D did not compensate him for all of his overtime hours, suggesting that Mr. Beverly likely knew or should have known that the time records contained on that piece of paper would be used in this litigation. Although Mr. Beverly's explanation for the disposal of the sheet of paper does not reflect that his conduct certainly was in bad faith or for the purpose of hiding adverse evidence, it does show more than mere negligence. Accordingly, Formel D's request for an adverse inference order is DENIED. *12 District courts have found that the lesser sanctions permitted under Rule 37(e)(1) were sufficient when considering whether to impose sanctions under the court's inherent authority. See AXIS Ins. Co., 2018 WL 9943825, at *9, *12 (prohibiting the party who failed to preserve certain recordings from offering evidence that her version of events was corroborated by any recording made by her prior to the date of their destruction and not produced to the movant). Other district courts have imposed monetary sanctions for the destruction of physical evidence when it “is better suited to handl[e] the misconduct at issue.” Jarvis v. TaylorChandler, LLC, No. 2:17-CV-396-ALB, 2020 WL 4820713 (M.D. Ala. Aug. 19, 2020). Applying federal law for imposing spoliation sanctions, the court finds that although the sheet of paper Mr. Beverly used to write down his hours worked each day was relevant to this litigation, it appears that Formel D has its own records of Mr. Beverly's hours from its Dayforce application. Accordingly, the disposal of the sheet of paper containing Mr. Beverly's written hours has not totally prevented Formel D's ability to assert a defense in this action based on its recorded number of hours worked by Mr. Beverly. Requiring Formel D to proceed without Mr. Beverly's sheet of paper containing his written work hours is not fundamentally unfair, as Formel D can determine the hours he worked through other sources, including the records on its Dayforce application. Finally, the court finds that a lesser sanction than entering an adverse inference order will be sufficiently effective. The court finds that there is no reason to treat Mr. Beverly's disposal of physical time records differently from Mr. Rodgers's disposal of electronic time records. Accordingly, under the court's inherent authority, Mr. Beverly is prohibited from arguing or offering evidence that his version of events was corroborated by the sheet of paper he used to write down his hours worked each day, which evidence he disposed of and did not provide to Formel D. Accordingly, Formel D's motion for sanctions is GRANTED IN PART and DENIED IN PART. The motion is DENIED as to the specific sanction requested by Formel D of “[i]ssu[ing] an adverse inference order that the time reflected on the Beverly and Rodgers' destroyed records matches Formel D's time records maintained in the ordinary course of business.” Doc. 103 at 13. The motion is GRANTED as to the imposition of the lesser sanction of prohibiting Mr. Beverly and Mr. Rodgers from arguing or offering evidence that their version of events were corroborated by the records that they destroyed and did not provide to Formel D. III. CONCLUSION For the reasons explained above, Formel D's Motion to Dismiss Opt-In Plaintiffs Who Failed to Respond to Discovery, Docs. 82 & 116, is GRANTED, Motion to Dismiss Joseph Beal and Motion to Compel Opt-In Plaintiffs Joseph Beal, Damian Hart, Brandon Underwood, and Derrick Barnes to Appear for Depositions, Doc. 98, is GRANTED IN PART and DENIED IN PART, Motion to Strike and Dismiss Untimely Opt-Ins Alton Manderson and Ahmed Amor Alharthi, Doc. 99, is GRANTED, and Motion for Discovery Sanctions Based on Destruction of Evidence by Opt-In Plaintiffs Walter Beverly and Antonio Rodgers, Doc. 103, is GRANTED IN PART and DENIED IN PART. DONE and ORDERED this 30th day of March, 2021. Footnotes [1] 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 motion to dismiss was previously denied as moot as to Mr. Barnes's claims, Doc. 108. [2] See Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc) (adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981).