                                                           [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT               FILED
                            ________________________    U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                               June 8, 2007
                             Nos. 06-14013 & 06-15016       THOMAS K. KAHN
                              Non-Argument Calendar             CLERK
                            ________________________

                        D. C. Docket No. 05-61126-CV-KMM

CHERYL BERNSTEIN,
and all others similarly situated,


                                                                     Plaintiff,

CHRIS KLEPPIN,

                                                    Interested Party-Appellant,

                                     versus

BOIES, SCHILLER & FLEXNER LLP,
a professional association,

                                                           Defendant-Appellee,

STRATEGIC LEGAL RESOURCES, INC.,
a New York corporation,
STRATEGIC LEGAL RESOURCES, LLC,
a New York limited liability company,

                                                                   Defendants.
                           ________________________

                   Appeals from the United States District Court
                       for the Southern District of Florida
                         _________________________

                                   (June 8, 2007)

Before BLACK, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

      Chris Kleppin, an attorney proceeding pro se, appeals the district court’s

order sanctioning him pursuant to 28 U.S.C. § 1927. Those sanctions arose from

Kleppin’s conduct during his representation of Cheryl Bernstein in an overtime pay

dispute against Boies, Schiller & Flexner, LLP (BSF). We hold that the district

court did not abuse its discretion in sanctioning Kleppin.

                                          I.

       The conduct for which Kleppin was sanctioned grew out of a July 14, 2005

pretrial order that shortened the time period for Kleppin and BSF’s attorneys to

submit a joint scheduling report. Under the local rules for the Southern District of

Florida a joint scheduling report would have been due by October 22, 2005.

However, under time frame set forth in the district court’s July 14, 2005 order, the

report was required to be filed by September 23, 2005. The pretrial order also

placed on Kleppin the responsibility of delivering a copy of the order to BSF’s



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attorneys. Kleppin failed to do that.

      The parties did not file a joint scheduling report before the court-imposed

deadline. Although Kleppin forwarded a proposed scheduling report and a draft

scheduling order to BSF’s counsel on August 16, 2005, the proposed report made

no mention of the September 23 deadline, and there were no other efforts to

complete the report before the deadline. The only evidence that the parties even

discussed the report before the deadline is Kleppin’s statement that they did.

Apparently, the parties began sincere negotiations over the joint scheduling report

on October 11, 2005, but those negotiations became moot when they learned that

on that same day the district court had dismissed the case without prejudice

because of their failure to meet the September 23 deadline.

      If Kleppin’s errors had been limited to his failure to forward the July 2005

order and to abide its deadlines, he probably would not have been sanctioned. His

campaign for sanctions began in earnest on October 19, 2005, when he filed a

motion to reinstate the case. In that motion he stated that he had been sending

letters and emails about the joint scheduling report to BSF’s attorneys since August

16, 2005, and that he had also made numerous attempts to contact them by

telephone during that same time period. He stated that they did not meet the

court’s original due date for filing the report because both parties mistakenly



                                          3
believed that it was not due until October 23, 2005. In the motion to reinstate he

also stated that, as required by local rules, he had attempted to contact BSF’s

attorneys about the motion to reinstate, but that they had failed to respond to his

phone calls, emails, and letters. Therefore, he had no choice but to file the motion

without first conferring with opposing counsel. Kleppin concluded his motion by

certifying that he had attempted to call BSF’s attorneys before filing it, but that he

had not received any response. The motion did not mention, however, that the

only documented communication with BSF’s attorneys about it was a voice mail

that Kleppin had left at 6:53 p.m. on October 19, 2005—the same day he dropped

the motion into the district court’s night box.

      On October 31, 2005, the district court denied Kleppin’s motion to reinstate,

but noted that it would allow the parties to move to reopen the case after they filed

a joint scheduling report. Shortly thereafter the parties resumed negotiating the

terms of a joint scheduling report.

      However, on November 10, 2005, Kleppin again visited the district court’s

night drop box, this time filing a unilateral scheduling report, a statement of

reasons for the unilateral scheduling report, another motion to reopen the case, and

a motion for sanctions against BSF’s attorneys for failing to cooperate. He argued

that he filed the second unilateral report only after BSF’s showed a lack of



                                           4
responsiveness to his good faith efforts to produce a joint scheduling report. But

the record demonstrates that the parties were actively negotiating the terms of the

report on the day he filed the unilateral report in the district court’s night drop box.

In fact, the parties did actually file a joint scheduling report the following day,

November 11, 2005. After the joint scheduling order was filed, the district court

reopened the case, denied Kleppin’s motion for sanctions, and denied as moot

Kleppin’s motion to reopen.

      On November 23, 2005, BSF filed a motion for sanctions against Kleppin

pursuant to 28 U.S.C. § 1927. The district court held a hearing on BSF’s motion

on January 26, 2006, with BSF seeking sanctions against Kleppin for unreasonable

and vexatious conduct in connection with: (1) his failure to forward the July 2005

pretrial order; (2) his misrepresentation of the circumstances surrounding his

October 19, 2005 motion to reinstate; and (3) his filing of a unilateral scheduling

report and motion for sanctions on November 10, 2005, just one day before the

parties filed a joint scheduling report.

      In response Kleppin argued that: (1) he had not sent them a copy of the July

15, 2005 pretrial order because one of BSF’s attorneys had told him that BSF had

downloaded the document from the district court’s PACER system; (2) the failure

to meet the original deadline for submitting a joint scheduling report was due to



                                            5
mutual error, because both parties mistakenly thought that the report was due on

October 22, 2005—the day it would have been due under the time frame set forth

by the local rules; and (3) he had attempted to confer with BSF’s counsel before

filing his motions on October 19 and November 10, 2005, but BSF’s attorneys

were unresponsive.

      On February 2, 2006, the district court issued an order sanctioning Kleppin.

The district court found that he had (1) not complied with the July 19, 2005 pretrial

order because he never forwarded a copy of it to BSF’s attorneys; (2) offered no

evidence to support his assertion that defense counsel had told him that the pretrial

order had been downloaded from PACER; (3) offered no documentary evidence to

support his claim that he had attempted to confer with defense counsel before filing

the October 19, 2005 motion to reinstate; and (4) filed the unilateral scheduling

order on November 10, 2005, despite the progress that was being made on the joint

scheduling order. Based on those findings, the district court determined that

Kleppin had exhibited unreasonable and vexatious conduct that “multiplied the

proceedings . . . and warrants sanctions under 28 U.S.C. § 1927.” On May 23,

2006, an order was entered awarding $16,087.50 in fees and costs to BSF as a

sanction against Kleppin.

      On May 17, 2006, Kleppin filed a motion pursuant to Federal Rule of Civil



                                          6
Procedure 60(b) for reconsideration of the February 2, 2006 sanctions order. As

part of that motion Kleppin included documentary evidence that he did not produce

at the January 26, 2006 sanctions hearing. That evidence consisted of the

following: (1) phone logs that, according to Kleppin, constitute evidence that he

attempted to confer with BSF’s attorneys about the joint scheduling order before

the September filing deadline expired, and before he filed his motion to reinstate

on October 19, 2005; (2) an email allegedly demonstrating that BSF had mis-

calendared the deadline for filing the joint scheduling report; (3) the message pad

of Kleppin’s secretary, which allegedly shows he attempted to confer with BSF’s

attorneys before he filed his October 19 motion to reinstate the case, and his

November 10 motion to reopen the case; (4) an affidavit from Kleppin’s secretary

stating that if anyone had called Kleppin at his office about the scheduling report,

she would have recorded it on the message pad; and (5) a statement from Kleppin

that BSF had refused to grant him access to its billing and PACER download

records. Kleppin asserts that access to those BSF records would have allowed him

to establish that BSF had indeed downloaded the district court’s July 2005 pretrial

order from PACER.

      Kleppin concedes that he failed to produce these items as evidence at his

sanctions hearing. In his motion to reconsider, Kleppin asserted that he did not



                                          7
bring that evidence to the sanctions hearing, because he thought that he would be

able to adequately defend himself against BSF’s motion for sanctions by

questioning the two BSF attorneys with whom he had negotiated the scheduling

report. To Kleppin’s surprise, those attorneys did not come to the hearing, but

instead another attorney who had been working on the case represented BSF. The

two attorneys who Kleppin assumed would be at the hearing did, however, submit

declarations pursuant to 28 U.S.C. § 1746 stating that they had never told Kleppin

that any attorney from BSF had downloaded the July 2005 pretrial order from

PACER.

      Before the district court ruled on the merits of Kleppin’s motion to

reconsider, the parties reached a settlement agreement on the underlying litigation.

As part of that agreement, the parties petitioned the district court to vacate all prior

orders in the case, including the order sanctioning Kleppin. In addition, BSF

agreed to waive the monetary sanctions against Kleppin and further agreed not to

oppose any potential appeal that Kleppin might bring on the sanctions issue.

      On July 5, 2006, the district court tentatively approved the terms of the

settlement agreement, except for the provision that the sanctions against Kleppin

be vacated. The district court also denied as moot all pending motions in the case,

including Kleppin’s motion for reconsideration.



                                            8
                                           II.

                                           A.

       Kleppin now appeals both the district court’s February 2, 2006 order, which

imposed the sanctions against him, and the district court’s July 5, 2006 order,

which denied as moot his motion for reconsideration. We will address his appeal

of the February 2, 2006 order first, and in doing so will consider only the evidence

that was before the court when it entered that order.

       Kleppin disputes several of the district court’s findings. He argues that his

failure to forward the July 2005 pretrial order to BSF’s counsel was simply a

mistake on his part and that it did not contribute to the parties’ failure to file the

joint scheduling report before the court-imposed deadline, because both of the

parties erroneously assumed that the report was not due until October 23, 2005. He

further maintains that, contrary to the district court’s finding, he was told by an

attorney for BSF that he did not need to forward a copy of the pretrial order to

BSF’s counsel because BSF had already downloaded the order from PACER.

       Regarding the motion to reinstate the case that he filed on October 19, 2005,

Kleppin argues that the district court incorrectly determined that he had not

attempted to confer with counsel for BSF. To support that argument, Kleppin has

submitted telephone records that he did not submit to the district court during his



                                            9
sanctions hearing. According to Kleppin those telephone records demonstrate that

he did not misrepresent the circumstances surrounding the filing of the October 19,

2005 motion to reinstate.

      Kleppin also attacks the district court’s finding that he failed to properly

confer with opposing counsel before he filed a unilateral scheduling order on

November 10, 2006. As evidence he points to a letter he drafted on November 4,

2005, explaining his intent to file a unilateral order if a joint report was not agreed

upon by November 7, 2005.

      Finally, Kleppin argues that the district court placed an improper burden of

proof upon him at the sanctions hearing. In his brief he asserts that the district

court simply accepting BSF’s allegations and declarations as true, while rejecting

his oral explanations and demanding documentary evidence to support his

defenses.

                                           B.

      We review a district court’s decision regarding sanctions for an abuse of

discretion. See Byrne v. Nezhat, 261 F.3d 1075, 1105 (11th Cir. 2001). A court

abuses its discretion when it fails to apply the correct legal standard, does not

follow correct procedures in making the determination, or bases an award upon

factfindings that are clearly erroneous. Cordoba v. Dillard’s, Inc., 419 F.3d 1169,



                                           10
1180 (11th Cir. 2005).

      A district court can sanction any attorney who “multiplies the proceedings in

any case unreasonably and vexatiously.” 28 U.S.C. § 1927. “We have consistently

held that an attorney multiplies proceedings ‘unreasonably and vexatiously’ within

the meaning of the statute only when the attorney’s conduct is so egregious that it

is ‘tantamount to bad faith.’” Amlong & Amlong, P.A. v. Denny’s, Inc., 457 F.3d

1180, 1190 (11th Cir. 2006) (quoting Avirgan v. Hull, 932 F.2d 1572, 1582 (11th

Cir. 1991)).

      [I]t is clear from the statutory language and the case law that for
      purposes of § 1927, bad faith turns not on the attorney’s subjective
      intent, but on the attorney’s objective conduct. The term
      “unreasonably” necessarily connotes that the district court must
      compare the attorney’s conduct against the conduct of a “reasonable”
      attorney and make a judgment about whether the conduct was
      acceptable according to some objective standard. The term
      “vexatiously” similarly requires an evaluation of the attorney’s
      objective conduct.

Id. (citations omitted). “[O]bjectively reckless conduct is enough to warrant

sanctions even if the attorney does not act knowingly and malevolently.” Id. at

1192. However, “negligent conduct, standing alone, will not support a finding of

bad faith under § 1927—that is, an attorney’s conduct will not warrant sanctions if

it simply fails to meet the standard of conduct expected from a reasonable

attorney.” Id. at 1193.



                                         11
      There are four reasons why the district court did not abuse its discretion by

finding that Kleppin’s conduct had unreasonably multiplied the proceedings in this

case. First, Kleppin mischaracterized his attempts to confer with opposing counsel

before filing his October 19, 2006 motion to reinstate. In that motion he wrote that

he had fulfilled the local rules’ requirement to attempt to confer with counsel for

BSF before filing the motion and that he had not received a response. Yet, the only

evidence of any attempt to confer with BSF that was before the district court at the

sanctions hearing is a voice mail that Kleppin left at 6:53 p.m. on the same night he

filed the motion in the district court’s drop box.

      Second, Kleppin filed a unilateral scheduling report on November 10, 2005,

alleging that BSF’s counsel was not cooperating in the preparation of a joint

scheduling order. But as the district court found, the parties were actively

discussing the scheduling report when Kleppin made his unilateral filing. In fact,

the parties filed a joint scheduling report the very next day after Kleppin’s “after

hours” filing of the unilateral scheduling report. And Kleppin did not withdraw his

unilateral report or its accompanying motion for sanctions.

      Third, other than the draft proposed scheduling report that he forwarded to

BSF on August 15, 2005, Kleppin offered no evidence to demonstrate that he had

attempted to work with BSF’s counsel to devise a joint scheduling report before



                                           12
the September 23, 2005 deadline passed. Even if we credit Kleppin’s assertion that

he simply overlooked the deadline set forth in the July 2005 pretrial order, it was

reckless on his part to do so. And fourth, despite the fact that the district court

ordered him to forward a copy of the July 2005 pretrial order to BSF, Kleppin

never complied with that order. Regardless of what he was told by BSF’s

attorneys, he could and should have simply complied with the district court’s

instructions by sending a copy of the order to them by mail or by fax.

      Given the evidence that was submitted to the district court at the sanctions

hearing, Kleppin’s argument that the court did not require BSF to carry its burden

of proof is without merit. BSF pointed to Kleppin’s numerous filings and offered

unsworn declarations, which Kleppin did not rebut with substantive evidence.

Because of Kleppin’s misleading and unnecessary filings, both BSF and the district

court were forced to spend additional time and resources on this case. Therefore,

we cannot say that the district court abused its discretion in sanctioning Kleppin.

                                          III.

      We turn now to the second issue Kleppin raises in this appeal: the district

court’s denial of his motion to reconsider. Kleppin contends that the court erred in

denying his motion to reconsider because (1) the evidence he submitted with that

motion establishes that he should not have been sanctioned and (2) the attorney



                                           13
who represented BSF at the sanctions hearing misled the court as to the scope of

her involvement in the case and made other false statements about Kleppin’s

conduct.

      We review the denial of a motion to reconsider only for an abuse of

discretion. See Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1231 (11th

Cir. 2002). We “may affirm the district court ‘on any ground that appears in the

record, whether or not that ground was relied upon or even considered by the court

below.’” Rowell v. BellSouth Corp., 433 F.3d 794, 797–98 (11th Cir. 2005)

(citation and quotation marks omitted).

      The problem with Kleppin’s second contention is one of timing. Even if we

assume that the district erred when it denied Kleppin’s motion for reconsideration

as moot, he has “failed to allege, much less show,” that any of the evidence that he

submitted with his motion to reconsider—for instance, his telephone records and

the affidavit of his secretary—was either unavailable or not discussed during his

sanctions hearing. Mays v. United States Postal Service, 122 F.3d 43, 46 (11th

Cir. 1997) (“[W]here a party attempts to introduce previously unsubmitted

evidence on a motion to reconsider, the court should not grant the motion absent

some showing that the evidence was not available during the pendency of the

motion.”). On the contrary, the evidence was available, but Kleppin did not collect



                                          14
and produce it. He knew what the sanctions hearing was about and knew what

evidence could provide the best defense on his behalf. Furthermore, a review of

the sanctions hearing transcript indicates that the statements by BSF’s attorney that

she had been involved with this case from the beginning were not

misrepresentations, as alleged by Kleppin. For those reasons, we cannot say that

the district court abused its discretion.

      AFFIRMED.




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