UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-1152

MARK BAKER, 

 Plaintiff - Appellant, 

 v. 

BOOZ ALLEN HAMILTON, INC., 

 Defendant - Appellee. 

No. 08-2321

MARK BAKER, 

 Plaintiff - Appellee, 

 v. 

BOOZ ALLEN HAMILTON, INC., 

 Defendant - Appellant. 

Appeals from the United States District Court for the District 

of Maryland, at Greenbelt. Roger W. Titus, District Judge. 

(8:06-cv-00889-RWT) 

Argued: October 28, 2009 Decided: December 28, 2009 

Before MICHAEL, Circuit Judge, HAMILTON, Senior Circuit Judge, 

and Jane R. ROTH, Senior Circuit Judge of the United States 

Court of Appeals for the Third Circuit, sitting by designation. 
Affirmed by unpublished per curiam opinion. 

ARGUED: Kathleen Joanna Woody, Silver Spring, Maryland, for 

Appellant/Cross-Appellee. Stephen William Robinson, 

MCGUIREWOODS, LLP, McLean, Virginia, for Appellee/CrossAppellant. ON BRIEF: David L. Greenspan, MCGUIREWOODS, LLP, 

McLean, Virginia, for Appellee/Cross-Appellant. 

Unpublished opinions are not binding precedent in this circuit. 

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PER CURIAM: 

 Mark Baker (Baker) brought this diversity action against 

Booz Allen Hamilton, Inc. (BAH), alleging several negligence 

claims arising from the alleged sexual assault of Baker by a BAH 

employee. The district court granted summary judgment in favor 

of BAH. Following this ruling, BAH moved for sanctions, which 

the district court denied. Baker appeals the district court’s 

summary judgment ruling, and BAH cross-appeals the district 

court’s sanctions ruling. We affirm. 

I 

 BAH is a management consulting firm with over 19,000 

employees on six continents. In 1995, BAH commenced work for 

the United States Agency for International Development as a 

contractor on its project for the development and implementation 

of an effective bankruptcy system in Kazakhstan and Kyrgyzstan 

(the Bankruptcy Project). 

 On or about October 1, 1995, BAH entered into a one-year 

contract with Baker’s mother, Kathleen Woody (Woody), in which 

Woody agreed to provide consulting services as an independent 

contractor, serving as “Chief of Party” to the Bankruptcy 

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Project. (J.A. 70).1 As Chief of Party, Woody was responsible 

for supporting the development of legislation to allow 

bankruptcy laws to function in Kazakhstan and Kyrgyzstan. She 

was also responsible for supervising expatriate staff and 

reporting to her supervisors, who were located at BAH’s offices 

in McLean, Virginia. 

 In October 1995, Woody traveled with her then-ten-year-old 

son to Almaty, Kazakhstan to begin working on the Bankruptcy 

Project. Woody’s primary work station was in Almaty, where she 

resided with her son in an apartment, but she also made frequent 

trips to the Bankruptcy Project’s Bishkek, Kyrgyzstan office. 

During these trips to Bishkek, Woody would bring her son, and 

the two would reside at the apartment of Vera Haugh, who worked 

for the Bankruptcy Project in Bishkek. On occasion, Woody’s 

responsibilities took her away from both Kazakhstan and 

Kyrgyzstan, and on these occasions, Baker would stay with Haugh. 

 In Bishkek, Woody also had contact with another Bishkekbased BAH employee working on the Bankruptcy Project, Brian 

Davenport (Davenport). Davenport’s primary job duties were to 

“deal with the non-legal, non-lawyer required aspects of 

performance and scope work under the [Bankruptcy Project’s] task 

 1

 Woody’s compensation package covered certain expenses for 

her son during his year-long stay in Kazakhstan, including his 

airfare to and from Kazakhstan and his school tuition. 

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order.” (J.A. 81). Davenport reported to Woody for “scope of 

work issues related to the task order itself,” but generally 

reported to a Virginia-based BAH employee. Id.

 Baker produced evidence that portrays Davenport as an 

angry, disgruntled, and sometimes explosive employee. For 

example, Dr. Igor Klyuchnikov, Deputy Chief of Party on the 

Bankruptcy Project, described Davenport as an “angry and 

sometimes physically and emotionally abusive person.” (J.A. 

474). He personally observed Davenport “yelling at and 

threatening staff, kicking furniture and throwing objects.” Id. 

Some of the Kyrgyz nationals complained to Dr. Klyuchnikov, and 

he received one complaint that Davenport slapped an employee.2

 Woody testified that, between the months of January and 

March 1996, she had repeated discussions with her BAH 

supervisors concerning Davenport’s “explosive” behavior, 

complaining in general about Davenport’s “[s]lapping, throwing, 

shouting, screaming, [and] yelling.” (J.A. 257, 268).3 She 

indicated the major catalysts for Davenport’s behavior were his 

 2

 Baker also personally observed Davenport slap an employee 

across the face. 

3

 Haugh testified that Davenport had a “bad temper,” but was 

not the type of person who would assault someone. (J.A. 383). 

Rather, “he’s the type that would throw things off his desk, 

yell and scream, maybe stamp his feet . . . and slam doors.” 

Id.

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wife’s desire to divorce him and his desire to return to work in 

the United States. 

 Davenport also on occasion got angry with Baker. For 

example, on a three-hour car ride from Almaty to Bishkek in 

December 1995, Baker was playing a game with the hired driver 

and perhaps acting a little rambunctiously. At one point, 

Davenport (who was sitting in the front seat with the driver) 

turned to Baker (who was sitting next to Woody in the backseat), 

pointed his finger at him, and said, raising his voice, “if I 

don’t get my REM [(Rapid Eye Movement)] sleep I’m going to 

explode.” (J.A. 323). Moreover, at a New Year’s Eve party, 

about three months before the alleged sexual assault, in a 

threatening tone, Davenport told Baker he was going to “get” 

him. (J.A. 287). 

 On April 6, 2006, Baker brought this negligence action 

against BAH in the Circuit Court for Montgomery County, 

Maryland.4 BAH removed the case to the United States District 

Court for the District of Maryland. On March 9, 2007, Baker 

filed an amended complaint. The amended complaint alleges that 

[i]n or about March of 1996, while performing her 

duties as hereinabove described in the country of 

Kyrgyzstan, the Plaintiff, then a minor, who was 

residing with his mother overseas, was raped and 

 4

 Because of Baker’s age, the statute of limitations was 

tolled under Maryland law. 

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sodomized and threatened not to tell his mother by an 

employee of BOOZ ALLEN who was known or in the 

exercise of reasonable care should have been known to 

BOOZ ALLEN as a person with serious emotional 

disorders who had previously requested of BOOZ ALLEN 

that he be returned to the United States as a result 

of said emotional disorders. 

(J.A. 32-33). Although not named in the amended complaint, 

Davenport is the BAH employee who allegedly sexually assaulted 

Baker. Davenport vehemently denies the allegations, but BAH 

concedes for purposes of summary judgment we must assume that 

Davenport engaged in such conduct. According to Baker, the 

alleged sexual assault occurred while he was staying with Haugh 

at a time when Woody was away on business in Moscow. During 

this time, Davenport lured Baker to his own apartment in Bishkek 

and sexually assaulted him.5

 Based on the allegations in the amended complaint, Baker 

claimed that BAH was negligent because it: (1) “[f]ailed to 

adequately consider the reports” that Davenport was suffering 

from emotional disorders which were likely to result in a sexual 

assault; (2) “[f]ailed to foresee” that Davenport’s actions 

against Baker would be carried out; (3) “[f]ailed to warn” or 

provide notice to Woody of Davenport’s emotional disorders; and 

 5

 Baker did not report the sexual assault to his mother. 

Rather, he disclosed the sexual assault to his therapist some 

time in early 1997. According to Baker, he did not disclose the 

sexual assault to Woody because, at the time, he “didn’t trust 

anybody.” (J.A. 207). 

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(4) “[f]ailed to provide” Baker with adequate security. (J.A. 

33). 

 On July 30, 2007, BAH filed a motion for summary judgment. 

On December 19, 2007, the district court held a hearing on the 

motion. At the conclusion of the hearing, the district court 

granted the motion. On January 16, 2008, BAH filed a motion for 

sanctions, which the district court denied on October 31, 2008. 

Baker filed a timely notice of appeal, and BAH filed a timely 

notice of cross-appeal. 

II 

 Baker claims that the district court erred when it granted 

summary judgment in favor of BAH on his negligence claims. More 

specifically, he claims there are issues of fact regarding BAH’s 

liability for the negligent hiring, retention, and supervision 

of Davenport. 

 In a diversity action, the law of the forum court governs 

the substantive issues and federal law governs the procedural 

issues. Dixon v. Edwards, 290 F.3d 699, 710 (4th Cir. 2002). 

Thus, Maryland’s choice of law rules govern. Id.; Wells v. 

Liddy, 186 F.3d 505, 521 (4th Cir. 1999). Maryland applies the 

lex loci delicti rule in tort cases. Philip Morris, Inc. v. 

Angeletti, 752 A.2d 200, 230 (Md. 2000). Under that rule, when 

a tort occurs in another state, the substantive rights of the 

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parties, even though they are domiciled in Maryland, are to be 

determined by the law of the state in which the alleged tort 

took place. Id. A tort occurs “where the injury was suffered, 

not where the wrongful act took place.” Johnson v. Oroweat 

Foods Co., 785 F.2d 503, 511 (4th Cir. 1986) (applying Maryland 

law). 

 Baker’s alleged injuries were suffered in Kyrgyzstan, the 

site of the sexual assault. Thus, Kyrgyz law applies, provided 

the requirements of Rule 44.1 of the Federal Rules of Civil 

Procedure are met. See Ferrostaal, Inc. v. M/V Sea Phoenix, 447 

F.3d 212, 216 (3d Cir. 2006) (noting that where a party fails to 

carry its burden of proving foreign law under Rule 44.1, the 

forum law should apply); cf. The Hoxie, 297 F. 189, 190 (4th 

Cir. 1924) (noting, in pre-Rule 44.1 case, that forum law 

applies unless the party seeking to use foreign law establishes 

that foreign law differs from forum law). 

 Federal Rule of Civil Procedure 44.1 controls 

determinations of foreign law in federal court. It provides: 

A party who intends to raise an issue about a foreign 

country’s law must give notice by a pleading or other 

writing. In determining foreign law, the court may 

consider any relevant material or source, including 

testimony, whether or not submitted by a party or 

admissible under the Federal Rules of Evidence. The 

court’s determination must be treated as a ruling on a 

question of law. 

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Fed. R. Civ. P. 44.1. Rule 44.1 provides courts with broad 

authority to conduct their own independent research to determine 

foreign law but imposes no duty upon them to do so. See Carey 

v. Bahama Cruise Lines, 864 F.2d 201, 205 (1st Cir. 1988) 

(“[Rule] 44.1 empowers a federal court to determine foreign law 

on its own, but does not oblige it do so.”). Thus, the party 

claiming foreign law applies carries both the burden of raising 

the issue that foreign law may apply in an action and the burden 

of proving foreign law to enable the district court to apply it 

in a particular case. Cf. Whirlpool Fin. Corp. v. Sevaux, 96 

F.3d 216, 221 (7th Cir. 1996) (holding that party waived 

conflicts of law issue because it failed to fulfill its 

obligation under Rule 44.1 “to provide the district court with 

‘reasonable notice’ of his intention to raise an issue of 

foreign law”). Where a party fails to satisfy either burden, 

the district court should apply the forum state’s law. 

Ferrostaal, 447 F.3d at 216. 

 In order to meet its burden of proving Kyrgyz law, BAH 

proffered the July 25, 2007 declaration of a Kyrgyz lawyer, 

Tatiana Ivaschenko. In her declaration, Ivaschenko stated that 

Baker’s claims were without merit under Kyrgyz law, opining: 

[A] legal entity shall be responsible for its 

employee’s actions or inactions, if that employee has 

caused harm to third parties in the course of the 

performance of his or her employment obligations. . . 

. 

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Even if an employee were to cause harm to a third 

party in the course of performance by that employee of 

his or her employment obligations, an employer shall 

not be liable for its employee’s actions or inactions 

unless the predicate act[s], which must have resulted 

in criminal sanctions, [were] completed upon the 

employer’s order and control. . . . 

In the Kyrgyz Republic, the civil courts will not 

examine a claim for damages for buggery (defined as 

sodomy) unless the fact of buggery has been 

established in a criminal procedure . . . . 

* * * 

In sum, the legislation of the Kyrgyz Republic as of 

1996 contains provisions, according to which, an 

employer is only liable for damages ca[u]sed by its 

employee to a third party only in the course of 

performance by such employee of his/her employment 

obligations or official duties. An employer cannot be 

held responsible for a criminal act (i.e., buggery) 

committed by the employee, unless the act is completed 

following the order of the employer and under the 

employer’s control. Thus, Booz Allen Hamilton Inc. 

cannot be held liable for the facts alleged in the 

Amended Complaint. 

(J.A. 409-10). 

 In its decision granting BAH’s motion for summary judgment, 

the district court, out of an abundance of caution, held that 

Baker could not prevail under Kyrgyz (the locus of Baker’s 

injuries), Maryland (the forum state), or Virginia law (where 

decisions concerning Davenport’s employment were made). Baker 

claims that Maryland law should apply because BAH failed to meet 

its burden of proving Kyrgyz law and, therefore, Maryland law, 

as the forum state’s law, applies. In particular, he claims 

that the statutes referenced in the Ivaschenko declaration are 

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not controlling and, in any event, do not fully explain the 

breadth of Kyrgyz law. 

 We need not decide whether the district court erred in 

examining Baker’s claims under Kyrgyz law. This is so because, 

even accepting Baker’s invitation to apply Maryland law, Baker’s 

negligence claims fail. 

 The district court rejected Baker’s negligence claims under 

Maryland law, principally concluding that Baker failed to 

establish that any negligent conduct by BAH proximately caused 

Baker’s injuries. In so concluding, the district court 

observed: 

I’ve received no information in this record that would 

support a conclusion that Booz Allen was on notice 

that this employee had a proclivity or a high risk of 

committing sexual attacks of any nature, much less 

violent attacks. All I do have is some incidents of 

obnoxious behavior--two instances of slapping someone, 

and bitter complaints by the plaintiff’s mother to her 

employer that this man should be sent home. 

(J.A. 543). 

 Under Maryland law, a plaintiff alleging a negligence claim 

must demonstrate “(1) that the defendant had a duty to protect 

the plaintiff from injury, (2) that the defendant breached that 

duty, (3) that the plaintiff suffered actual injury or loss, and 

(4) that the defendant’s breach of duty proximately caused the 

loss or injury.” Pendleton v. State, 921 A.2d 196, 204 (Md. 

2007). 

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 In the negligent hiring, retention, and supervision 

context, an employer has the duty to use reasonable care to 

select employees competent and fit for the work assigned to them 

and to refrain from retaining the services of an unfit employee. 

Henley v. Prince George’s County, 503 A.2d 1333, 1341 (Md. 

1986). The class of persons intended to be protected by the 

imposition of this duty necessarily includes those members of 

the public who would reasonably be expected to come in contact 

with the employee in his performance of his duties. Id. 

 Proximate cause “involves a conclusion that someone will be 

held legally responsible for the consequences of an act or 

omission.” Peterson v. Underwood, 264 A.2d 851, 855 (Md. 1970). 

To be a proximate cause for an injury, “the negligence must be 

1) a cause in fact, and 2) a legally cognizable cause.” 

Hartford Ins. Co. v. Manor Inn of Bethesda, Inc., 642 A.2d 219, 

230 (Md. 1994) (citation and internal quotation marks omitted). 

 Causation-in-fact concerns the threshold inquiry of 

“whether defendant’s conduct actually produced an injury.” 

Peterson, 264 A.2d at 855. When two or more independent acts 

bring about an injury, as alleged here by Baker, causation-infact may be found if it is more likely than not that the 

defendant’s conduct was a substantial factor in producing the 

plaintiff’s injuries. Pittway Corp. v. Collins, 973 A.2d 771, 

787 (Md. 2009). 

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 Once causation-in-fact is established, the proximate cause 

inquiry turns to whether the defendant’s negligent actions 

constitute a legally cognizable cause of the plaintiff’s 

injuries. Id. This part of the causation analysis requires us 

to consider whether the actual harm to the plaintiff falls 

within a general field of danger that the defendant should have 

anticipated or expected. Stone v. Chicago Title Ins. of Md., 

624 A.2d 496, 500 (Md. 1993). Legal causation is a policyoriented doctrine designed to be a method for limiting liability 

after cause-in-fact has been established. Pittway, 973 A.2d at 

787. The question of legal causation most often involves a 

determination of whether the injuries were a foreseeable result 

of the defendant’s negligent conduct. Id. at 788. Other public 

policy considerations that may play a role in determining legal 

causation include the remoteness of the plaintiff’s injury from 

the defendant’s negligence and the extent to which the injury is 

out of proportion to the defendant’s culpability. Id. Simply 

put, the defendant is not liable if it appears highly 

extraordinary and unforeseeable that the plaintiff’s injuries 

occurred as a result of the defendant’s alleged tortious 

conduct. Id.

 In our view, the injury in this case (sexual assault) 

simply was not a reasonably foreseeable injury arising from the 

alleged negligent hiring, retention, and/or supervision of 

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Davenport. The injury suffered by Baker was criminal sexual 

assault. Baker argues that this sexual assault was a 

foreseeable result of Davenport’s “explosive” behavior in the 

workplace. We disagree. Without question, Davenport’s demeanor 

at work was offensive. Slapping fellow employees is deplorable. 

However, BAH reasonably can assume that an employee who has 

slapped fellow employees on occasion will not sexually assault 

the child of an independent contractor of BAH. Therefore, BAH 

could not reasonably anticipate that Davenport’s behavior was an 

inevitable prelude to sexual assault if his actions did not 

clearly and unmistakably threaten particular criminal activity 

that would have put a reasonable employer on notice of an 

imminent risk of harm to a victim. Slapping a fellow employee 

simply does not inexorably lead to criminal sexual assault. 

 It does not follow that every time an employee slaps 

another employee the employer has to fire the aggressor out of 

fear that the employee might rape another employee or person. 

But this is exactly what Baker is seeking this court to hold. 

Such a holding would undoubtedly tear the concept of proximate 

cause from its moorings. Accordingly, the district court did 

not err when it concluded that Baker’s negligence claims failed 

under Maryland law. 

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III 

 BAH appeals the district court’s denial of its motion for 

sanctions. BAH sought sanctions under Rule 11 of the Federal 

Rules of Civil Procedure and 28 U.S.C. § 1927. BAH claims that 

sanctions were appropriate because: (1) Baker did not conduct an 

adequate pre-filing investigation; and (2) Baker refused to 

abandon his negligence claims after it was clear he had no 

chance of success. We review the district court’s grant or 

denial of a motion for sanctions for an abuse of discretion. 

Chaudhry v. Gallerizzo, 174 F.3d 394, 410 (4th Cir. 1999). 

 Under Rule 11, “a complaint containing allegations 

unsupported by any information obtained prior to filing, or 

allegations based on information which minimal factual inquiry 

would disprove, will subject the author to [Rule 11] sanctions.” 

In re Kunstler, 914 F.2d 505, 516 (4th Cir. 1990). Moreover, 

Rule 11 empowers the district court to sanction a party or 

lawyer for insisting on a position after it is no longer 

tenable. Morris v. Wachovia Securities, Inc., 448 F.3d 268, 279 

(4th Cir. 2006). 

 Section 1927 provides in relevant part: 

Any attorney . . . who so multiplies the proceedings 

in any case unreasonably and vexatiously may be 

required by the court to satisfy personally the excess 

costs, expenses, and attorneys’ fees reasonably 

incurred because of such conduct. 

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28 U.S.C. § 1927. The Supreme Court has recognized that § 1927 

“does not distinguish between winners and losers, or between 

plaintiffs and defendants.” Roadway Express, Inc. v. Piper, 447 

U.S. 752, 762 (1980). Moreover, “[t]he statute is indifferent 

to the equities of a dispute and to the values advanced by the 

substantive law.” Id. Instead, the statute is “concerned only 

with limiting the abuse of court processes.” Id. For this 

reason, a court considering the propriety of a § 1927 award must 

focus “on the conduct of the litigation and not on its merits.” 

DeBauche v. Trani, 191 F.3d 499, 511 (4th Cir. 1999). 

 BAH claims that Baker falsely alleged in his complaint 

that: (1) Davenport had serious emotional disorders; (2) 

Davenport had previously requested that he be returned to the 

United States as a result of the disorders; (3) BAH failed to 

consider reports of Davenport’s disorders; and (4) the sexual 

assault was caused by Davenport’s disorders. BAH also claims 

that the frivolous nature of Baker’s claims became all the more 

apparent following Baker’s deposition. Finally, BAH takes issue 

with the manner in which Woody handled certain aspects of the 

case. 

 In this case, the district court did not abuse its 

discretion in denying BAH’s motion for sanctions. Baker 

presented evidence that Davenport was far from a model employee, 

one capable of committing deplorable acts, including slapping 

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employees. Given his propensity for slapping employees and 

committing other unruly acts in the workplace, it was not 

objectively unreasonable for Baker to claim that Davenport 

suffered from emotional disorders and that said disorders 

proximately caused the sexual assault of Baker. Finally, we 

have reviewed Woody’s conduct and conclude that the district 

court acted well within its discretion when it decided to 

decline to sanction her either under Rule 11 or § 1927. 

IV 

 For the reasons stated herein, the judgment of the district 

court is affirmed. 

AFFIRMED