                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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/Cross-
Appellant.    ON BRIEF: David L. Greenspan, MCGUIREWOODS, LLP,
McLean, Virginia, for Appellee/Cross-Appellant.


Unpublished opinions are not binding precedent in this circuit.




                              - 2 -
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




                                          - 3 -
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 Bishkek-

based       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.



                                           - 4 -
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.



                                          - 5 -
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.



                                           - 6 -
     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).



                                        - 7 -
(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

                               - 8 -
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.




                                    - 9 -
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.                              . .
       .

                                            - 10 -
     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


                                  - 11 -
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).


                                       - 12 -
         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-in-

fact     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).

                                              - 13 -
       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 policy-

oriented 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

                                                - 14 -
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.




                                           - 15 -
                                           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.



                                          - 16 -
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

                                        - 17 -
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




                                       - 18 -
