A Lacrosse Story?

A Lacrosse Story?

Already read the article, click through to the updates

Christopher T. Swanenburg A former All-Ivy League goaltender at Yale University

Christopher T. Swanenburg, a native of Monkton, Md., is a 1990 graduate of Yale University, where he earned All-Ivy and All-New England honors as a goalie. He finished his Yale career having recorded the third highest single-season save percentage in school history and ranks among the school’s all-time leaders in career saves and save percentage. In 1986, as a high school senior, he led Dulaney High School to the Maryland state championship. Swanenburg was a member of three Ivy League Championship squads and led the Bulldogs to their first modern-day NCAA Tournament appearance in 1988. The 1990 team, on which he was a senior, advanced to the NCAA Division I Final Four. Updated to reflect changes and deletions from Capital Lacrosse website.

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 began his coaching career as an assistant at Goucher College. According to Swanenburg’s website, he played an instrumental role in developing the Gophers’ club program to Division III status before moving onto Radford and the Capital Lacrosse website states that he  had a similarly positive effect as a Division I coach, significantly impacting the programs at both Radford and Stony Brook. While at Stony Brook, Swanenburg helped coach the Seawolves to their first-ever NCAA Division I Tournament appearance in 2002.

Under his tutelage, the team was ranked among the nation’s top defensive units and recorded upset wins over UMBC and Albany. At Radford, where he held his first head coaching job, the Highlanders became one of the most improved programs in the country and recorded unlikely wins over programs such as Ohio State, Stony Brook, Lehigh and Villanova. Swanenburg also successfully developed four future professional lacrosse players, including NLL Rookie of The Year Blaine Manning and perennial NLL All-Pro Lewis Ratcliff.

Prior to Marymount, Swanenburg spent the previous two seasons as the top assistant at NCAA Division I playoff participant Stony Brook University. There he handled the majority of recruiting and scouting duties as well as serving as the Seawolves’ defensive coordinator and goalie coach. During his first season, the 2001 campaign, the Seawolves improved on consecutive five-win seasons to 7-7 and were ranked as high as #21 nationally.

Before joining Stony Brook, Swanenburg served as the head coach at Division I Radford University for seven seasons. He resigned from his place with the Highlanders after the school’s decision to stop sponsoring men’s lacrosse. Under his guidance, the program Radford improved from 50th to 30th in the nation and was recognized in a study by US Lacrosse and LaxPower as one of the most improved teams in Division I.  Swanenburg left Radford as the winningest coach in school history and as the only one to post a winning season at the Division I level.

Chris Swanenburg was introduced November 3, 2005 as the first-ever men’s lacrosse coach at Christopher Newport University. He arrived at CNU after three years at Marymount University and with 15 years of college coaching experience.  Swanenburg was terminated by CNU on March 30, 2010 and “remains the all-time-winningest coach in CNU history and the only head coach to have ever led the team to a winning season.” Amended Complaint, Case Number: CL1300801T-01, ¶6 and although Swanenburg was terminated by CNU he remains “a highly respected and accomplished teacher of lacrosse related tournaments, camps and events.” Amended Complaint, Case Number: CL1300801T-01, ¶6  

Today Swanenburg is the Director of Capital Lacrosse and the sole member of Capital Lacrosse, LLC. Amended Complaint, Case Number: CL1300801T-01, ¶2

Capital Lacrosse runs a tournament team called the Peninsula Patriots, as well as also running a lacrosse camp and the Colonial Challenge, (scheduled to be held on November 16, 2014) and Summer Celebration, (scheduled to be held June 20, 2015),  Lacrosse Tournaments at the Warhill Sports Complex which is operated by James City County Parks & Recreation., VA. Sponsor’s listed on the website include Busch Garden’s, Brine, and Water Country, USA. Swanenburg also appears to enjoy a significant relationship with Hampton Roads Lacrosse and in 2012 he was listed on the HRLax website as Director, Boys Coaches Training.  HRLax appears to share a significant role in the two Williamsburg area lacrosse tournaments that Swanenburg promotes through Capital Lacrosse. HRLax currently provides a listing Capital Lacrosse on their website along with other programs which ultimately serves as a qualified endorsement of the Peninsula Patriots Lacrosse team run by Capital Lacrosse. The tournaments draw teams from the Baltimore- Washington Area, North Carolina, Maryland, and Richmond. Tournament fees range from $850 to $950 per team and includes 5 boys divisions, U11, U13, U15,  JV, and Varsity. In previous years, Hampton Roads Lacrosse has provided logistical support for the tournaments and shared in the concession revenue generated at the tournaments.

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 was terminated by CNU on March 30, 2010 season and in June 2011, almost a year after leaving, he filed a lawsuit against his former Assistant Coach and now Head Coach Todd Boward in Newport News Circuit Court. Swanenburg later filed a second suit against Boward  and another suit against a former player’s father. In the complaint against the player’s father, Swanenburg plead, among other things, “Falsely accusing Plaintiff of causing his son to be injured by pressuring a team doctor to clear his son to play with a broken arm (implying Plaintiff pressured a doctor into compromising a player’s medical safety by allowing him to play with a broken arm against the doctor’s medical advice), resulting in serious knee injuries; Falsely accusing Plaintiff of denying Defendant Elliot’s son the opportunity to be examined by a physician following a serious knee injury; Falsely accusing Plaintiff of requiring his son to return to practice after suffering an asthma attack.” The suit against the player’s father was upended quickly when it was essentially dismissed by the judge.

The lawsuits seem to stem from a halftime incident in March 2010 at Guilford College when according to documents filed in the case Swanenburg is alleged to have used a racial epithet to describe the music that was being played at the game. Swanenburg contends in his suit that Todd Boward falsely publicized that Swanenburg was fired for using the n-word and has tainted him in the college lacrosse community, effectively preventing him from attaining another coaching position. According to documents filed in the case, Swanenburg had applied for over 90 coaching positions and was not considered for any of the coaching jobs. Swanenburg sued for $5,000,000 in compensatory damages and $350,000 in punitive damages and was represented by D. Hayden Fisher of Fisher-Clarke, PLLC. 

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?

Sanctions, essentially punishment, are relatively rare for attorneys but are generally brought when lawyers file pleadings that are not grounded in fact and/or interposed, or filed for improper purpose to cause financial burden on the opposing party.  In 2013 a Charlottesville attorney and his client received a sanction for over $700,000 in a wrongful death case in which they actually won initially receiving an award by the jury an amount in excess of over $10,000,000. The judge later reduced the award by about $4,000,000 but the attorney and the client were ordered to pay $540, 000 and $180,000 respectively to the defendants. The attorney was later referred to the Virginia State Bar  and according to various media reports had his license suspended.

Swanenburg and his attorney have survived the sanctions when the Hon. Timothy S. Fisher, Circuit Court Judge denied defendants motion for sanctions. The judge also granted the plaintiff’s motion to nonsuit. Essentially the trial ended at the conclusion of plaintiff’s evidence at trial when defendant’s counsel moved to strike the evidence and enter summary judgement on the defendants behalf. Despite finding that the plaintiff had failed to prove a claim for defamation per se, the Court denied defendants motion to strike.  Read the Judge’s Letter

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.

Probably what is the most confusing about Swanenburg’s legal actions is trying to figure out if Swanenburg is suing Boward for costing him his job, telling a third-party why he lost his job, causing declining enrollment in Capital Lacrosse, or preventing Swanenburg from getting a job. In a hearing opposing the sanction, Swanenburg’s attorney and Rockstar Rated Bartender, D. Hayden Fisher argued that Swanenburg filed the suit to bring a legal conclusion to his situation and if not for the court system he would have little or no recourse except to challenge Boward to a duel or to take the law into his own hands. During that proceeding, Swanenburg blurted out that “he threatened to kill my wife” apparently a reference to Boward, which prompted the judge to deliver a stern admonishment threatening Swanenburg with jail.

“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.

So why file a suit over one year after he left CNU? According to documents filed when he, Swanenburg, became aware that Boward allegedly told another coach that he was fired for using the n-word in June 2010. Swanenburg left CNU in March 2010 almost three months before Swanenburg’s alleged discovery that Boward told a high school coach (Vic Goeller) at a summer tournament that Swanenburg was fired for using the n-word. Apparently, according to testimony in the case, Boward was on a recruiting visit on behalf of CNU when a conversation started with Goeller related to rumors of the controversy at CNU involving Swanenburg. Goeller testified at the trial that he had heard from others that Swanenburg had been fired for using the n-word prior to his conversation with Boward on June 24, 2010. According to court documents the only alleged defamatory statement by Boward was made on June 24, 2010 nearly three months after Swanenburg left CNU. The first complaint against Boward was filed 363 days later.

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.

Whether or not Swanenburg used the n-word in front of multiple people and was later fired is probably no longer in dispute. If it happened at least one person that knows for sure, that person is Christopher Swanenburg.  It now appears that he has chosen to wage a litigious battle apparently not for the purpose of proving that he did nothing wrong but essentially for punishing Boward for not getting another college coaching job after his termination from CNU. Essentially, the only people who can attest to whether he used a racial epithet to characterize the music being played at Guilford College in March 2010 were players and coaches on the team and most importantly Swanenburg himself. Many would say that most people would agree that the world is round although few have actually seen it so we will leave it to the opinions of the reader as to whether or not Swanenburg actually “uttered” the n-word. 

Swanenburg’s answers to the defendant’s first set of interrogatories are the some of the most illustrative of  his position.

In a civil action, an interrogatory is a list of questions one party sends to another as part of the discovery process. The recipient must answer the questions under oath. Because attorneys may help their clients answer interrogatories, interrogatory responses tend to be more finely crafted than answers to deposition questions.

Caution: Swanenburg’s pleading below contains graphic language and what most if not all would consider reprehensible and offensive language

So how does somebody losing their job for allegedly, potentially or effectively admitting to using a racial epithet end up costing others 100’s of thousands of dollars in legal fees? Swanenburg’s attorney went to Virginia Military Institute and on to Law School at Washington and Lee, Swanenburg to Yale, and Boward to Frostburg State and then on to a distinguished career in the US Army, rising to the rank of major, protecting and defending our collective rights including Swanenburg’s right to file numerous lawsuits and at this point failing to prevail in any of them.

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.

At a hearing on March 27, 2014 Boward’s attorney argued once again for sanctions essentially arguing that Swanenburg and his attorney were filing a frivolous lawsuit.

In April of  2014 Swanenburg’s second suit (Tortious Interference) against Boward was brought to an end when Swanenburg non-suited with prejudice effectively bringing this particular case to an end after nearly three years of litigation. With prejudice essentially means that Swanenburg cannot file an amended complaint in this case.  “I ask for this”

Incredibly, in February of 2014 Swanenburg filed a second defamation suit against Boward seeking $500,000 in compensatory damages and $350,000 in punitive damages. Effectively, it’s really not a second suit but an amended version of the first defamation suit that he nonsuited preserving his right to refile.  In June of 2014 Swanenburg and his attorney appeared at a hearing to again bring the defamation back to a jury trial. Ironically, the regenerated defamation suit appears to now contend that Boward is directly responsible for declining enrollment in Swanenburg’s Capital Lacrosse business. Swanenburg’s original defamation suit sought $5,000,000 in compensatory damages and after moving to nonsuit that case at trial he is now demanding 1/10th of the amount possibly suggesting that as a result of presenting his case at trial that his claim is now worth less than the original amount of $5,000,000.

After being granted a nonsuit in the first trial he is now requesting to bring the case back to a jury. In this newest case which is essentially a defamation case similar to the first defamation case that Swanenburg through his attorney non-suited, Swanenburg appears to argue elements that were contained in the previous defamation and tortious interference cases.  At the hearing on June 24, 2014 Boward’s defense team presented oral arguments to demurrer the case and the judge is likely to rule soon on whether the case will go forward. A demurrer is a dispositive motion whereby the judge will basically accept as true the facts plead by the plaintiff in the complaint but decides on the legal sufficiency of the complaint. In non legal terms, if a judge determines that plaintiff does not make a legally sufficient case he can essentially throw the case out of court.

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.”

Conceivably, Swanenburg’s latest key point of attack in his actions against Boward is probably not whether or not he used the n-word since he effectively admitted under oath in his interrogatory that he used that word. Effectively, he argues interchangeably that Boward told Vic Goeller that he, Swanenburg was either fired for using the n-word or calling people the n-word but denies that he was “fired” or involuntarily terminated because of it. Swanenburg seems to attach what appears to be damages to the alleged statement by Boward. In some pleadings he appears to argue that Boward’s allegedly defamatory statement caused him to lose his job despite the fact that the statement was not claimed to have been made until three months after his departure from CNU.

In other pleadings Swanenburg appears to plead that the alleged statement prevented him from getting another coaching position, yet in other pleadings he apparently argues that Boward’s alleged statement was causing his lacrosse business to suffer. Effectually, some of  those alleged damages were plead in a previous action against Boward as part of his tortious interference case. Swanenburg nonsuited that case in the pendency of a Motion for Sanctions that both he and his attorney were facing and the judge granted his Motion for Nonsuit with Prejudice after Boward withdrew his Motion for Sanctions.

Regardless of whether or not this latest action goes to trial it appears that all of the previous proceedings have effectively weeded out most of the issues at great expense to the parties involved as well as the court system. It apparently boils down to whether or not Swanenburg was actually “fired” for using the n-word. What appears to be undisputed now is that he, Swanenburg,

1. 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;
2. 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

Disclaimer: This is not the actual case file

Amazingly, Boward seems to be relatively unaffected by the relentless barrage of Swanenburg and his attorney. His steadfast determinism and focus is probably a direct result of his military experience in the US Army. For those that have not served, determinism, honor, respect, integrity, and personal courage are potentially elusive values.  Boward is a leader and leaders focus on leading others to accomplish the mission in the face of adversity. Boward appears to be  totally focused on his mission towards building a great men’s lacrosse program at CNU not only focusing on wins but building a culture of character on the team. Equally as important, the Captains lacrosse team is leading academically, and  not only in their conference in GPA and graduation rates but, leading in the NCAA. 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” 

Already read the article, skip to the updates

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?

Legal analysts as well as those in the mental health profession are probably those best suited to answer that question. From a psychological perspective, the entities listed below probably offer the most instructive rationale.

According to Psych Central, the focus of the delusion is often on some injustice that must be remedied by legal action. The affected person may engage in repeated attempts to obtain satisfaction by appeal to the courts and other government agencies. Psych Central has been noted in dozens of international publications, including The New York Times, The Wall Street Journal, The Los Angeles Times, Newsweek, TIME, U.S. News & World Report, The Washington Post, USA Today, USA Weekend, The Village Voice, Business Week, and Forbes.

“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’s website boasts that he “has tried more than 250 jury trials and thousands of cases in federal and state courts throughout Virginia and beyond”. A quick check of court records for the US Court Eastern District lists Fisher as an attorney in roughly 37 cases dating back to 2000 while the Western District lists him as an attorney in 5 cases. To be clear, the Virginia Court System is complex, with over 120 Circuit Courts, General District Courts in 32 districts, Juvenile and Domestic Courts in 32 districts, Virginia Court of Appeals, and the Supreme Court of Virginia. Having tried more than 250 jury trials would be about 20 jury trials per year for the last 14 years is an impressive record for any law firm but even more impressive when one considers that Fisher is essentially a one or two person firm. Fisher has also been widely publicized in the Richmond media as a partner in the FW Sullivan’s Restaurants, Lady N’awlins Cajun Cafe, Jorges Cantina, and the Uptown Market & Deli, all located in Richmond as well FW Sullivan’s in Fredericksburg which recently closed.

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 

On January 30, 2014, the Virginia State Bar Third District Subcommittee, Section II, issued a public reprimand with terms to Douglass Hayden Fisher for violating professional rules that govern diligence, communication, safekeeping property, and declining or terminating representation. This was an agreed disposition of misconduct charges.

Cases in which Fisher has represented the plaintiff:

• 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.

Todd Boward

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

Terms And Conditions Of Use

All content provided for this article is for informational/educational purposes only and should not be relied upon for legal advice.  The writer makes no representations as to the accuracy or completeness of any information, although the  information has been carefully researched and every effort has been made to insure the accuracy of the information presented, it is possible that there are errors. if you discover an error please send an email to questions@swanenburg.info

The author will not be liable for any errors or omissions in this information nor for the availability of this information. The owner will not be liable for any losses, injuries, or damages from the display or use of this information. This terms and conditions is subject to change at anytime with or without notice.

Interesting Reading

Bloggers = Media for First Amendment Libel Law Purposes 

by Eugene Volokh @VolokhC on January 17, 2014  in Freedom of Speech

 Obsidian Finance Group v. Cox (9th Cir. Jan. 17, 2014

A Quick Thought on Bloggers, Opinion, and Today’s Ruling from the Ninth Circuit Posted January 17th, 2014 by Jeff Hermes @DMLPBerkman

Join the Blue Ribbon Online Free Speech Campaign!