A Lacrosse Story?

Christopher T. Swanenburg A former All-Ivy League goaltender at Yale University
The 1990 Yale team also included Midfielder Jon Reese ’90 and Goalie Tony Guido ’90. Reese, the most decorated of all Yale players, who received the 1990 Lt. Don C. McLaughlin, Jr. Memorial Award as the nation’s top midfielder. He was a three-time first-team All-Ivy pick, the 1990 Ivy and New England Player of the Year and Yale’s career leader in points (200) and goals (162). Reese, whose 82 goals his senior season are still an NCAA record, was a 1990 All-American, was named to the NCAA Silver Anniversary Team and became a U.S. Lacrosse Hall of Fame inductee in 2011.
Tony Guido, one of the best-known goalies in the history of the program earned the 1990 Ensign C.M. Kelly Jr. Memorial Award as the top goaltender in Division 1. Guido helped the Elis earn three Ivy titles while playing in three NCAA Tournaments and whose achievements at Yale were remarkably similar to Swanenburg’s bio posted on the Capital Lacrosse website earlier this year.
For lacrosse aficionados the 1990 championship also has special significance as the NCAA ordered Syracuse to vacate the championship title for rules infractions.

Swanenburg
Capital Lacrosse also operates a lacrosse camp hosted on the campus of Virginia Tech. Fees range from $405 for a commuter option to $545 for the residential option. The camp includes Anthony “Tony” Lepore and Matt Schroeder as assistant directors for the camps. Tony Lepore was directing the men’s lacrosse program at Northern Virginia Community College and has since moved to a volunteer assistant coaching position at Marymount. LePore came to NOVA after spending 10 years coaching at Stonewall Jackson High School in Manassas. He will continue as a social studies teacher at Stonewall Jackson. During his time at Stonewall, LePore guided the lacrosse team to two district championships and six regional playoff berths. LePore coached the program’s first All-Americans and many players have gone on to play lacrosse at the NCAA level. The News & Messenger named LePore the boy’s lacrosse all-area Coach of the Year in 2011. LePore played collegiate lacrosse at The Citadel from 1996 to 1999. He then played at The State University of New York at Geneseo from 1999 to 2000 while earning a graduate degree in secondary education. Matt Schroeder is the Head Coach for Virginia Tech Men’s Lacrosse, a club sport at Virginia Tech that competes in Division I of the Men’s Collegiate Lacrosse Association (MCLA) under the South East Lacrosse Conference (SELC). Prior to becoming an NCAA Division I lacrosse program, the University of Richmond Men’s Lacrosse Team competed in the MCLA and regularly played Virginia Tech.
“Today, in addition to the Commonwealth Lacrosse Camp, Capital Lacrosse proudly sponsors the Colonial Challenge and Summer Celebration lacrosse tournaments and the Peninsula Patriots lacrosse All-Star travel teams. The tournaments have quickly become two of the top events in the state while the Patriots have expanded to five teams in just three years of play. All of these offerings continue the tradition of excellence that has become associated with the Capital Lacrosse brand.” Capital Lacrosse Website

Swanenburg v. Boward
Swanenburg listed several college and high school coaches as having information related to his case as well as about 7-8 others that are connected with the Hampton Roads Chapter of US Lacrosse. Among those listed was Richard Blovad, who according to Swanenburg, invited him to participate with HRLax and allegedly had a disagreement with Boward in December of 2011. Blovad had been the Boys High School Commissioner for Hampton Roads Lacrosse in 2012 and apparently left the position before the 2013 season. In the two cases against Boward, Swanenburg involved multiple coaches and players from the lacrosse world and even resorted to allegedly serving subpoenas to players on the practice field at CNU.
According to documents filed in the case, Swanenburg also accused Boward of using sophisticated anonymous posting techniques to post defamatory statements on the lacrosse website laxpower.com to mask his identity and according to documents filed in the case was able to bounce internet traffic from Germany and off the coast Somalia. That contention was later rebuffed by Boward’s attorney as pure speculation and possibly the result of paranoid delusion in a brief in reply to plaintiff’s opposition to defendant’s motion for sanction. Swanenburg also apparently waged an extensive letter writing campaign to local politicians including Governor Bob McDonnell as well as members of the CNU Board of Visitors according to court documents filed in the case.
- Somali Off-Coast Internet Site?

Voluntary Nonsuit
Immediately before defendant called his first witness in the first defamation case, plaintiff, Swanenburg, through counsel, moved the court to nonsuit his case prompting defense counsel to object to the nonsuit motion and move for sanctions against Swanenburg and his attorney. That trial is effectively over now that the judge has granted Swanenburg’s motion for nonsuit. Effectively, a nonsuited case is one in which the plaintiff moves to withdraw from the case and in some cases can refile later. In this case the plaintiff has ended a case that he filed preventing the defendant from presenting his case. According to an article written by Richard G. Moore in the University of Richmond Law Review a voluntary nonsuit is a potent weapon for the plaintiff and has long been the subject of controversy and debate in Virginia. The article points out that the effect of a voluntary nonsuit is unduly burdensome to defendants and the judicial system. The article suggests that nonsuiting may be favorable to the plaintiff but inequitable to the defendant and as such basically leaves the case undecided.

Opinion/Commentary
So that’s where the defamation case is today, basically undecided after almost three years of litigation, attorney’s fees, filing fees, and court costs leaving many to wonder why the case was even filed in the first place. In a letter written by the judge to both attorneys on June 4, 2012, the judge states, “I am still concerned about the status of law concerning the requirement of a factually false statement as a predicate for defamation. While the plaintiff has the burden of proof in that regard, in this case the plaintiff has admitted the most significant statement by the defendant is “true”.” That letter was written denying defendant’s motion for summary judgement in the defamation case which makes this case even more confusing since Swanenburg effectively filed (2) complaints against Boward: for defamation and the other for tortious inteferrence with Swanenburg’s business expectancy.
“Elephant in the room” Sadly, at it’s core this entire case appears to stem from Swanenburg’s departure from CNU to the extent that the judge in the case refers to it as the “elephant in the room” and suggests that this case probably would never have happened if not for Swanenburg’s departure from CNU.
Swanenburg through his attorney filed the second suit when according to documents filed in the court that Boward was allegedly publishing that Swanenburg was fired for calling people the n-word. After reading 1000’s of pages of documents filed in this case including Swanenburg’s notes, complaints, interrogatories, depositions, and emails it appears as though Swanenburg embarked on an obsessive campaign to get Boward in a way that is reminiscent of the 1995 movie Get Shorty. He contacted dozens of people including one of Boward’s assistant coaches who had left CNU after deposing him under subpoena near his home in Northern Virginia.
Caution: Swanenburg’s pleading below contains graphic language and what most if not all would consider reprehensible and offensive language
Second Nonsuit
In January of 2014 Swanenburg filed an amended complaint for his Tortious Interference suit this time adding some new allegations including a shrine in Boward’s office that included sandals and a visor characterized as “Swanenburg-Spontaneous Combusted” and also calling Swanenburg a name after a court proceeding. The basic theme of the amended complaint is that Boward was now responsible for declining enrollment in Swanenburg’s lacrosse business.

Defamation per quod
Based on the oral arguments presented by Boward’s defense team at the hearing on June 24, 2014 it seems likely that if this case goes forward it will proceed as a defamation per quod case and not defamation per se as it is conceivable that the ability to proceed as a defamation per se was not established in the jury trial and as a matter of law Swanenburg will have to proceed as a defamation per quod case. The major difference between per quod and per se will be that Swanenburg will have to prove actual damages in per quod where in a per se case damages would be presumed. Additionally, Swanenburg’s second defamation complaint against Boward alternatively pleads “they constitute ordinary defamation or defamation per quod.”
- used a word in the presence of others that is regarded to be reprehensibly offensive in our society and using that word in public could probably get you fired in virtually every college and university in America;
- his employment at CNU was effectively terminated in March of 2010 and could not be attributable to Boward.
Swanenburg appears to be left with one argument and that is whether or not Boward publicized to a third party that he was “fired” and he will undoubtedly argue as he has throughout these proceedings that “fired” is a falsity because CNU did not oppose his unemployment benefits. According to a letter that Swanenburg wrote, the university had offered him a severance of $8,724, which Swanenburg refused. The letter appears to be a response to the university denying his request for a board hearing. Ironically, he apparently does not plead that according to the same letter, he was given a no trespass statement from CNU, that included all public areas of the CNU campus, the Ferguson Center, Panera Bread, and other retail outlets across the street from the main campus as those facilities are also CNU property. He apparently makes that “fired” argument despite the fact that he admits that he was asked to resign as if being asked or forced to resign is not the same as being “fired”. The date of the letter is significant since it is essentially the same day that Swanenburg alleges that Boward spoke with Vic Goeller. Swanenburg also states in the letter that he has been left with no choice other than taking legal action against the university and some of it’s representatives. Most importantly, Swanenburg’s position was probably considered an “at-will” employment agreement, not a contract. As such, CNU as his employer can essentially terminate his employment without having to give a reason. Virginia is an employment-at-will state; this means the employer may terminate any employee at any time, for any reason, or for no reason.
As a matter of opinion, Boward’s one and only alleged statement or comment appears to be at a minimum either true, substantially true, or not provably false and if in fact there were damages in this case they are potentially either self-inflicted or those that are not attributable to Boward.
Most importantly, Swanenburg has testified “from that one comment, I can’t prove it.” (suffered any damages) Swanenburg Excerpted Testimony
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Disclaimer: This is not the actual case file
Amendment I to the US Constitution: An Overview
Defamation Cases Summarized By Injury Attorney Brien Roche
Final Commentary
A lot of time and energy went it to researching this article to and understand that something is incredibly wrong here. Arguably, when we end up suing each other, something is wrong somewhere and the party suing is attempting to redress some act that was committed, either intentionally, recklessly, or negligently that caused the party suing to incur damages. But incredibly, this litigation has now lasted for over three years at great expense to all involved including the court system and damages are not apparent. What is apparent is that there is something wrong here.
So what is wrong?
“Out of the Fog”, an information site and support group offering help to family members and loved-ones of people who suffer from personality disorders, some Personality-Disordered individuals will use the legal system as a proxy to continue their abuse, harassment or conflict with someone through groundless lawsuits, meritless proceedings and spurious legal action and those with Personality Disorders are drawn towards conflict and will use litigation as a tool to sustain conflict or support a need to feel powerful.
As for a legal perspective, conceivably two of the most instructive cases are Northern Virginia Real Estate v. Martins and Christ v. Flinthill Communications.
Ironically, as in Swanenburg’s first case, in Martins, the defendants moved to strike the plaintiffs’ evidence at the close of the plaintiffs’ case-in-chief but, before the trial court ruled on the defendants’ motion to strike, the plaintiffs moved to nonsuit, and the trial court granted the plaintiffs’ motion to nonsuit as against all defendants. In Martins, the trial court ultimately granted sanctions and ordered the plaintiff and their attorney to pay over $250,000 to the defendants. The court denied sanctions in Swanenburg’s first case against Boward.
In Christ, the defendant’s motion for sanction was granted. Defendants were awarded over $880,000 plus additional costs. In this case the plaintiff essentially forced the defendant to incur excessive costs for improper purposes. In Swanenburg’s second case, the defendant essentially dropped their motion for sanctions in exchange for Swanenburg’s voluntary nonsuit with prejudice.
In both Martins and Christ, the court determined that the plaintiffs and their attorneys had violated Virginia Code § 8.01–271.1 which provides that, every pleading, written motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name; and the signature of an attorney or party constitutes a certificate by him that (i) he has read the pleading, motion, or other paper, (ii) to the best of his knowledge, information and belief, formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and (iii) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
The statute further provides that if this rule is violated, the court “shall impose” an appropriate sanction upon the attorney, a represented party, “or both,” and that such sanctions may include reasonable attorney’s fees. Code § 8.01–271.1.
Foundations and the Current Law of Sanctions in Virginia
by L. Steve Emmert & R. Lee Livingston
Foundations and the Current Law of Sanctions in Virginia is very instructive on sanctions in Virginia. The study notes an apparent reluctance by the courts to punish lawyers on advocacy that borders on overzealousness.
Traveling Road Show
Maybe more amazing about Swanenburg’s actions are that they apparently are not limited to Boward. Swanenburg was also a non-party witness in another defamation case in the local area involving youth lacrosse. In that case the plaintiff sought $1,000,000 in compensatory damages and $350,00 in punitive damages. Even more amazing, or maybe not is the fact that his attorney represented the plaintiff in that case as well. What is probably not amazing is the fact that the defendant in the case adamantly disputes Swanenburg’s finely crafted version of a telephone conversation.
The Case Against Lawyers
In Catherine Crier’s The Case Against Lawyers, published in 2002, the author makes some poignant and timely points in chapter 10 of her book entitled The Trouble with Lawyers
- we have no “loser pays” provision wherein the plaintiff must pay the cost of litigation if he or she loses, whereas in Britain, the the practice has been instituted with great success
- ridiculous suits may seem “entertaining” but they clog the courts
- if losing plaintiffs had to pay the other side’s fee a large number would disappear from the docket
- Traditionally, lawyers were officers of the court who zealously represented clients within legal and ethical boundaries
- the interests of justice were paramount, intentionally misleading a jury or using discovery to wear down an opponents pocketbook was degrading to the lawyer as well as unethical
- jure up creative and nuisance filings, to line their own pockets
Catherine Crier also quotes Justice Sandra O’Connor when the honorable justice noted that lawyers have become “business partners of plaintiffs in seeking large-dollar recoveries rather than objective servants of the law” and further noted “…the untoward consequences they are creating within our profession are many.”
D.Hayden Fisher 
Fisher has been widely publicized in the Richmond media as a partner in the FW Sullivan’s Restaurants, Lady N’awlins Cajun Cafe, Jorges Cantina, (closed) and the Uptown Market & Deli, all located in Richmond as well FW Sullivan’s in Fredericksburg which recently closed.
According to a Richmond BizSense, Jorge’s Cantina, a restaurant at 2526 Floyd Ave. in Richmond owned by Jake Crocker, Hayden Fisher, and Jose Garcia, is closed. According to published sources, the property’s landlord has gone to court to try to collect damages of about $30,000 for unpaid rent. Bandazian & Hughes, the real estate firm that manages the Jorge’s Cantina property has changed the locks and the property is up for sale or lease. A unlawful detainer hearing was scheduled for October 22, 2014 in Richmond District Court Civil presumably for the property, and according to court records the summons was returned “Not found/Unserved” which had been requested by a Richmond area law firm Lafayette, Ayers & Whitlock, PLC. Essentially, an Unlawful Detainer is effectively a demand to turn over property that is being held unlawfully and the court can enter a judgement for all amounts due.
According to a Richmond media report, both Jorge’s and Uptown Market & Deli were the victims of burglaries in September 2013 and according to the same media report, thieves apparently stole approximately $3,000 from Uptown Market & Deli in June of the same year.
In September 2013, Fisher and partner Jake Crocker opened F.W. Sullivan’s Canal later changing the name Haxall Point in the Troutman Sanders Building in Richmond, VA. According to media reports the restaurant and it’s owners have been served with a lawsuit related to a $50K loan on the restaurant.
US Bankruptcy Court
D. Hayden Fisher, Swanenburg’s attorney filed his own petition for Chapter 13 Bankruptcy on August 3, 2011, Case No.:11-34998, converting it twice to other chapters before converting back to Chapter 13 before moving to dismiss his bankruptcy case on the eve of his confirmation hearing. According to documents filed in the case Fisher faced opposition to his bankruptcy confirmation and moved to dismiss his own case over two years after filing it. He is now enjoined from filing bankruptcy in any US Bankruptcy court for a period of two years.
Virginia State Bar Disciplinary Action
Douglass Hayden Fisher Fisher Clarke, PLLC PO Box 7321 Richmond, Virginia 23221 VSB Docket No. 13-032-094098
- Sharon P. Scott v. Office of Human Affairs et al Newport News Circuit Court Case No.: CL1100246V-04 DISMISSED WITH PREJUDICE
- Swanenburg v. Thomas William Elliott Newport News Circuit Case No. : CL1203999V-04 DISMISSED WITH PREJUDICE
- Bryant v. First Baptist Church Civil Action No. 4:11cv110
- Simms v. Fedex Ground Package Systems Civil Action No.: 3:11-CV-745
- King v. Lumber Liquidators Civil Action No.: 3:10-cv-838
- Meyer v. Boddie-Noell Enterprises, Inc. d/b/aHardee’s Civil Action No.:3:10cv386 DISMISSED WITH PREJUDICE
- Cretella v. Kuzminski Civil Action No.: 3:08-CV-109, Plaintiff sought $200,000 Compensatory, $200,000 Punitive and the Jury awarded $265,000, Court remitted to $53,000.
- Abbas v. MCV, Health Sciences Division of Virginia Commonwealth University Civil Case.:3:13CV147 , Case was appealed to Virginia Court of Appeals. Fisher stated on behalf of his client that an online application constituted a contract between his client and MCV. DISMISSED Appealed to US Court of Appeals, 4th Circuit DISMISSED
- MT Technologies v. Nolte, et al Richmond City Circuit Case No.:CL09002485-00 Case involves conspiracy, tortious interference, multi-million dollar jury award, case was heard by the Supreme Court of Virginia June 2012, Opinion by Justice Donald W. Lemons Record No. 111490, reversed and remanded on liability and damages. Multi-million dollar verdict for the plaintiffs. The case has now been heard a second time in the Supreme Court of Virginia and Reversed and Remanded again. In oral arguments heard before the Supreme Court on April 13, 2015, Fisher argued that Appellant did not have any evidence and “they had to try and cheat to win”. The jury trial award in this case is $6.6 Million plus prejudgement interest bringing the total to over $ 8,000,000. Jeffrey M. Summers argued for the Appellant.
- Deavers v. Vasquez, District Court, Eastern District of Virginia, Civil Action No. 3:2014CV365-HEH Plaintiff seeking $1,000,000 Compensatory, $350K Punitive against Spotsylvania County Sherriff. Plaintiff’s attorney held in contempt of court for failure to appear for hearing and fined $250 DISMISSED WITHOUT PREJUDICE
- Captain Buzzy’s Beanery v. Churchill Association et al, No. CL13005314 confidential settlement on at least one party, DISMISSED WITH PREJUDICE on others. Complaint plead Tortious Interference with Contract or Expectancy and Statutory Conspiracy seeking $3,000,000 compensatory $350,000 in punitive damages. Reported in the media that the defendants actions are privileged 1st Amendment and Noerr-Pennington Doctrine , Essentially, the defendant’s activities to oppose the granting of a license is a protected activity and not subject to civil liability.
Civil suit in Richmond City Circuit, Captain Buzzy’s Beanery v. Churchill Association et al, No. CL13005314, Richmond coffee shop owner against the neighborhood association that allegedly acted with improper purpose in preventing the coffee shop owner from obtaining a Special Use Permit (SUP) to sell beer and wine and stay open an extra hour a day. The case includes a flying flowerpot, coffee beans, a hijacked non-profit, statutory conspiracy, and tortious interference with business expectancy. Some would say this case is chock full o’nuts.
Ironically, the “bullet-proof complaint now appears to have been amended twice which may mean it really was not “bullet-proof” or at the very minimum having more lives than the proverbial cat. A hearing in this case was scheduled for December 5, 2014 and it appears as though an order of dismissal with prejudice has already been granted to at least three of the defendants and a settlement order is now seemingly in pendency as a motion to enforce the settlement was filed on October 6, 2014.
Since taking over as the Christopher Newport Men’s Lacrosse in the middle of the 2010 season,Todd Boward has helped the Captains make steady improvements, highlighted by the program’s historic 2013 campaign. In over three full seasons as head coach, Boward stands as the team’s all-time winningest coach after compiling a 23-32 overall record. He also guided Christopher Newport to its first NCAA Tournament appearance in 2013. During the 2013 campaign, Boward’s squad rolled off an 8-8 mark during the regular season and earned a Pool B berth in the Tournament as one of the nation’s top independent programs. Although the Captains succumbed to No. 4 Stevenson in the first round, CNU established itself as one of the region’s up-and-coming teams.
Prior to taking the reins of the program, Boward was also the squad’s first full-time assistant coach and helped guide the team to identical 8-7 marks in 2008 and 2009. He also served as CNU’s Offensive Coordinator before taking over as head coach midway through the 2010 season.
In 2014 the Captain’s finished with an impressive 10-6 record, and 4-4 in the Capital Athletic Conference. On April 2, 2014 the Captains defeated 10 time NCAA Division III Champions Salisbury in overtime by a score of 8-7 at home. The Captains down 7-4 near the end of the third period fought back to win a historic game against a nationally ranked opponent for the first time in the lacrosse program history. With Boward at the helm the Captains have improved from 6-9 season in 2012, 8-9 in 2013, and 10-6 in 2014. In the four years that Boward has been the head coach the Captains record is 31-32. A native of Baltimore, Maryland, he came to Christopher Newport with extensive head coaching experience. Boward was named the Central Collegiate Lacrosse Association Coach of the Year after taking the helm of the Indiana men’s lacrosse program in 2005. During his season with the Hoosiers, he led the team to an impressive 10-6 mark. Prior to joining the collegiate ranks, he was also a successful high school coach. During his career, Boward was the head coach at both Christchurch and Forest Park. While at Forest Park, he served as an assistant before taking over as head coach and leading the Bruins to three Cardinal District Championship games. A former lacrosse player at Frostburg State, Boward later served in the United States Army after graduating and rose to the rank of major before retiring in 2001. Coach Boward no-doubt is greatly appreciative of all of the support that he has received and continues to receive from friends, family and all the “Supporters of Coach Boward”
The poll presented below apparently suggests that those who voted overwhelmingly disagree with Swanenburg’s actions. Purely from a public relations point of view and as a matter of opinion, it could be suggested that Swanenburg’s actions are not likely to beneficial to his reputation and by extension the reputation of his attorney.
Public apologies for using the n-word
‘Top Gear’ host Jeremy Clarkson begs forgiveness amid n-word uproar
Justin Bieber apologizes for racial slur joke
Interesting article: Avoid a bad lawyer: 7 tips By Michelle Collins
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Bloggers = Media for First Amendment Libel Law Purposes
by on January 17, 2014 in Freedom of Speech