Mark Baker v. Booz Allen Hamilton, Inc., No. 08-1152 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1152 MARK BAKER, Plaintiff - Appellant, v. BOOZ ALLEN HAMILTON, INC., Defendant - Appellee.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. - 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. of BAH. The district court granted summary judgment in favor Following this ruling, BAH moved for sanctions, which the district court denied. summary judgment ruling, Baker appeals the district court s and court s sanctions ruling. BAH cross-appeals the district We affirm. I BAH is a management consulting employees on six continents. the United States Agency firm with over 19,000 In 1995, BAH commenced work for 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 - 3 - Party to the Bankruptcy Project. for (J.A. 70). 1 supporting the As Chief of Party, Woody was responsible development of legislation to allow bankruptcy laws to function in Kazakhstan and Kyrgyzstan. She was and also responsible for supervising expatriate staff 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. responsibilities took her away from On occasion, Woody s 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 Davenport (Davenport). deal with the on the Bankruptcy Project, Brian Davenport s primary job duties were to 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. Baker angry, produced disgruntled, example, Dr. Bankruptcy sometimes 474). evidence Igor and described physically and personally portrays sometimes Klyuchnikov, Project, He that explosive Deputy Chief Davenport emotionally observed Id. as abusive Davenport Davenport as employee. of Party an For on angry person. yelling an the and (J.A. 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, supervisors she had concerning repeated discussions Davenport s with explosive her BAH 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 explode. about REM [(Rapid (J.A. 323). three months Eye Movement)] sleep I m going to Moreover, at a New Year s Eve party, before the alleged sexual assault, in a threatening tone, Davenport told Baker he was going to get him. (J.A. 287). On against April BAH Maryland. 4 6, in 2006, the Baker Circuit brought Court this for negligence Montgomery action County, BAH removed the case to the United States District Court for the District of Maryland. filed an amended complaint. On March 9, 2007, Baker 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 Rather, he disclosed the sexual time in early 1997. According to sexual assault to Woody because, anybody. (J.A. 207). sexual assault to his mother. assault to his therapist some Baker, he did not disclose the at the time, he didn t trust - 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. Liddy, 186 F.3d 505, 521 (4th Cir. 1999). lex loci delicti rule in tort cases. Angeletti, 752 A.2d 200, 230 (Md. 2000). Id.; Wells v. Maryland applies the Philip Morris, Inc. v. 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 determinations of foreign law in federal court. 44.1 controls 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. v. Bahama Cruise Lines, 864 F.2d 201, 205 (1st See Carey 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. F.3d 216, 221 conflicts of (7th law Cf. Whirlpool Fin. Corp. v. Sevaux, 96 Cir. issue 1996) (holding because it that failed party to waived fulfill its obligation under Rule 44.1 to provide the district court with reasonable notice foreign law ). the district of his intention to raise an issue of Where a party fails to satisfy either burden, 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 Tatiana Ivaschenko. 25, 2007 declaration of a Kyrgyz lawyer, In her declaration, Ivaschenko stated that Baker s claims were without merit under Kyrgyz law, opining: [A] legal entity shall be responsible for employee s actions or inactions, if that employee caused harm to third parties in the course of performance of his or her employment obligations. . - 10 - its has the . . 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 examining Baker s claims under Kyrgyz law. court erred in 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. 1986). Prince George s County, 503 A.2d 1333, 1341 (Md. 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 omission. responsible for the consequences of an act or 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 whether defendant s concerns conduct Peterson, 264 A.2d at 855. the actually threshold produced inquiry an of injury. 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). - 13 - Once causation-in-fact is established, the proximate cause inquiry turns to constitute a injuries. Id. to consider whether legally the defendant s cognizable cause negligent of the actions plaintiff s This part of the causation analysis requires us 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. 787. Pittway, 973 A.2d at 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 Id. Simply appears highly out of proportion to the defendant s culpability. put, the defendant extraordinary and occurred as a conduct. is not our result view, the of the injury that if the it Id. In unforeseeable liable plaintiff s defendant s in this case injuries alleged tortious (sexual assault) simply was not a reasonably foreseeable injury arising from the alleged negligent hiring, retention, - 14 - and/or supervision of 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. at work was offensive. However, BAH Without question, Davenport s demeanor Slapping fellow employees is deplorable. 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 imminent risk of harm to a victim. employer on notice of an 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 abandon pre-filing his investigation; negligence chance of success. claims and after (2) it was Baker refused to he no clear had 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 unsupported by 11, any a complaint information containing obtained prior to allegations 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). Rule 11 lawyer empowers for tenable. the insisting district on a court position to sanction after it is Moreover, a party no or longer 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. U.S. 752, 762 (1980). Roadway Express, Inc. v. Piper, 447 Moreover, [t]he statute is indifferent to the equities of a dispute and to the values advanced by the substantive law. Instead, the statute is concerned only Id. 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 that: claims (1) that Baker Davenport had falsely alleged serious in emotional his complaint 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 discretion in case, the denying district BAH s court motion for did not abuse sanctions. its Baker presented evidence that Davenport was far from a model employee, one capable of committing deplorable acts, including slapping - 17 - employees. Given committing other objectively suffered his propensity unruly unreasonable from emotional for slapping the workplace, acts in for Baker disorders employees it was and not to claim that Davenport 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 -

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