A Lacrosse Story?


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On October 21, 2014 a hearing was held on the defendant’s Motion for Sufficiency challenging Requests for Admission submitted by Swanenburg through his attorney to the defendant’s requests for admission. Essentially, Requests for Admission are a part of the discovery process leading up to trial whereby one party serves upon the other a list of questions effectively forcing the other party to either admit or deny the questions presented.   If the party requesting the admissions determines that the answers are not sufficient they can move the court to force the other party to answer or present objections, in essence filing a motion to compel answers to the questions in the form of admit or deny. Apparently, Swanenburg through his Rockstar Rated Bartender / Attorney, D. Hayden Fisher, had either objected to some of the questions or entered admissions denying elements that he could not deny since he had already admitted some of the questions through prior testimony, pleadings, or depositions.

In common terms, Boward through his attorney effectively asked the court to compel Swanenburg to answer the questions sufficiently. Boward’s attorney, Frank A. Edgar, Jr. delivered a very succinct argument related to his motion for sufficiency focused on the legal issues as defined by the Rules of the Supreme Court of Virginia. Pertinent to this case would be to compel Swanenburg to admit or deny that he used the n-word and if he denied it having already admitted it in previous testimony or pleadings the defense could file a motion for sufficiency. The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this Rule, it may order either that the matter is admitted or that an amended answer be served.

The Hon. Timothy S. Fisher then heard from Swanenburg’s attorney D. Hayden Fisher. Fisher did not seem to argue any objections or legal issues but instead seemingly focused all of his time complaining about this blog and it’s author suggesting that facts related to these public proceedings would end up online. At one point in the hearing Fisher waved around what appeared to be a printed copy of the blog. Understanding that blogs are not always easy to print, we have now included a download button that will make that process easier for anyone wishing to download and print this article.

Effectively, Fisher attempted to persuade the court that Swanenburg had a valid objection preventing him from answering the requests for admissions because his answers would end up on this blog. The judge appeared to have little or no interest in Fisher’s internet objection and essentially left the courtroom allowing Swanenburg and Fisher to amend their answers with Boward’s attorneys. Essentially, it appears that Swanenburg’s attorney attempted to use this blog as an objection not to answer the Requests for Admission conceivably because his answers could or would be detrimental to his case.

During the hearing Fisher did not appear to argue that anything published here was untrue but appeared to be alleging that the blog was published for improper purpose although he never seemed to state what Swanenburg’s issue was with it’s publication or what it had to do with the requests for admission. He did complain that the facts of this case were publicized on this website including opinion letters written by the judge.  Judge Fisher was seemingly not interested in hearing Fisher’s complaining about this blog and effectively ordered Fisher and his client to answer the requests for admission.

Lawyers have a problem with words and people have a problem with lawyers.

Ironically, this is not the first time that Fisher has included some element of the media into this case and others. In Swanenburg’s complaint against Thomas Elliot, the CNU player’s father that he sued, numerous references to prominent local sportscaster, John Castleberry, were plead in the complaint. Swanenburg’s complaint against Elliott seems to include Castleberry to allege that Elliot published known falsities to Castleberry who in turn published those falsities to CJ Woollum, the legendary CNU Athletic Director who passed away in February of 2013. That case was Dismissed with Prejudice. Earlier that same year, Fisher filed a $10,000,000 lawsuit on behalf of Newport News City Councilwoman Sharon Scott and Fisher allegedly made numerous representations about the case to the Daily Press. Ultimately that case was also Dismissed with Prejudice but all of the publicity probably helped gain him at least one new client on the peninsula.

In legal proceedings the documents entered into the court record are filed at the court clerks office and anyone can access those documents freely and print them for a fee per page. The facts are that everything that happens in a public courtroom is completely public unless a judge orders otherwise. Recently a federal judge in the Eastern District of Pennsylvania offered this opinion with respect to a request to have certain documents sealed from public view, “Like a feline with escapist tendencies, this dispute has inspired many metaphors,” Pratter wrote in her opinion. “Bells have rung, dogs barked, horses bolted from barns and cats scurried out bags and up trees. Toothpaste has been irreversibly evicted from its tubular abode and the egg scrambled. A document supposed to have been seen by just a few has now been blasted into cyberspace where, we know, nothing ever dies.” excerpt from a decision by U.S. District Judge Gene E.K. Pratter of the Eastern District of Pennsylvania

Swanenburg made an elective choice when he commenced public proceedings so as a matter of friendly advice we offer the following:

“If you can’t stand the heat, get out of the kitchen.”
Harry S. Truman

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UPDATED November 13, 2014

An Order issued by the Honorable Timothy S. Fisher on the October 21, 2014 hearing has been entered which effectively states that Boward’s motion had been decreed moot as the Plaintiff, Swanenburg through is attorney has amended most of the contested answers from denied to admitted. Moot essentially means that since Swanenburg has amended his answers to Requests for Admission that there is no need for the court to rule on each of the requests individually. Arguably, potentially, conceivably, upon knowledge and belief as a matter of opinion by a lay person who is not a lawyer, the significance of this order is that Swanenburg has now admitted under oath most of, if not all, of the disputed facts of this case. Essentially, Swanenburg amended his answers to admitted on (10) of the requests.

  • Swanenburg has now admitted that he uttered the n-word on March 3, 2010;
  • and admitted that he uttered the word in front of members of the team, Boward, and a female athletic trainer on March 3, 2010;
  • and admitted, at least in part, that he was fired for uttering the word in front of the team;
  • and admitted that Boward is in no way responsible for his utterance of the word on March 3, 2010;
  • and admitted that he did not suffer any damages from the alleged statement made to Goeller on June 24, 2010.

A Motion for Summary Judgment is a motion that asks the court to rule as a matter of law that the moving party (Boward) is entitled to judgment without the necessity of a trial.  The motion hinges on a showing that there are no material facts in dispute so the judge should rule on the case since it involves only matters of law.  The typical way for a party to show that there are no facts in dispute is to provide evidence that has been obtained under oath. In this case, Swanenburg’s admissions on the Requests for Admissions to the material facts seem to have effectively set the stage for a Summary Judgment that can effectively end this case by a ruling from the judge.

Boward’s attorney, Frank A. Edgar, Jr. has now filed a very comprehensive Motion for Summary Judgment. The brief as written is comprehensive to the degree and legal specificity that it resembles a opening brief to the Supreme Court of Virginia complete with numerous citations of cases and effectively is a study of defamation. One of the most notable cases cited in the brief is a case of local interest WEBB v. VIRGINIAN–PILOT MEDIA COMPANIES, LLC,  Record No. 122024, Decided: January 10, 2014 by the Supreme Court of Virginia. Essentially, in non-legal parlance the significance of that case and the Supreme Court decision essentially states that defamation based on implications drawn from a true statement cannot prevail. In the case the court struck a $3,000,000 award and the Supreme Court of Virginia affirmed that ruling.

A hearing has been scheduled for December 3, 2014, 1:30 pm in Courtroom 2 of the Newport News Circuit Court.

In summary, Boward through his attorney, moves that he is entitled to judgment as a matter of law on Swanenburg’s sole remaining claim in his complaint because:

  1. Swanenburg has admitted that the implications he alleges arise from three literally true Statements are also true;
  2. Swanenburg has not claimed and indeed, has admitted he cannot claim, that the Statements and the implications allegedly arising therefrom have damaged his reputation;
  3. Swanenburg has admitted that he sustained no special damages, or any damages at all, as the direct and proximate result or the implications he alleges arise therefrom;
  4. Swanenburg’s claim in the case that he was not fired for using the word “#@*%^” contradict his pleadings of fact in his lawsuit against Elliott filed in this Court in 2012; and
  5. the implications that Swanenburg alleges arise from the three literally true Statements are not defamatory as either not provably false, constitutionally protected opinion, or rhetorical hyperbole.

Boward is moving the Court for summary judgment in his favor on Swanenburg’s Complaint, and respectfully requests that this Court enter an Order granting summary judgment in his favor and against plaintiff Swanenburg, dismissing this case with prejudice, and awarding Boward his costs and any and all such further relief to which he may be entitled.

Swanenburg through his attorney will now have the opportunity to file a brief in opposition to the Motion for Summary Judgement and that will more than likely be followed by a brief in reply from Boward. Based on recent filings at the court, it appears as though there will a lot of “paper flying” between now and December 3, 2014 when the summary judgement hearing will be conducted in Newport News.

  • In the event that Summary Judgment is not granted, a trial date has been set for March 30, 2015. Ironically that date would mark the five year anniversary of Swanenburg’s termination from CNU.

Latest filings in this case as of November 12, 2014 include what appears to be a Motion in Limine, filed by Swanenburg. Typically, a Motion in Limine is the name commonly given a pretrial motion that attempts to prevent the offer of, or reference to, specific evidence or other matter in the presence of the jury. As a matter of opinion given the significant amount of evidence that has already been offered throughout these proceedings it would be hard to speculate on what Swanenburg and his attorney are moving to exclude but it is probably fair to assume that it is not favorable to his case. It is possible that he is seeking to exclude witnesses to the events that led to his dismissal from CNU and potentially players that were present at the event. Upon knowledge and belief, if this case goes to trial, Swanenburg will testify that he did not utter the n-word as an original thought but merely quoted it referring to lyrics related to the music that was being played at the event.

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UPDATE: December 5, 2014

On December 3, 2014 a hearing was held in Newport News Circuit Court in the case Swanenburg v. Boward. The hearing was scheduled to hear oral arguments on Defendant’s Motion for Summary Judgment in which Boward is moving the Court to Dismiss the last remaining case against him by Swanenburg. A Motion for Summary Judgment is a motion that asks the court to rule as a matter of law that the moving party (Boward) is entitled to judgment without the necessity of a trial.  At the last hearing, Swanenburg’s admissions on the Requests for Admissions to the material facts appear to effectively set the stage for this Summary Judgment.

The Motion for Summary Judgment was replied to in an Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment by Swanenburg  through his attorney, D. Hayden Fisher prior to the hearing.

The hearing, for the most part was effectively a lecture on Defamation Law and specifically Defamation per quod eloquently delivered by Boward’s attorney, Frank A. Edgar, Jr. and Mr. Edgar delivered a comprehensive legal argument citing almost a dozen cases.

One of the cases cited, Massie v. Firmstone, 134 Va. 450, 462, 114 S.E. 652, 656 actually dates back to 1922.  The significance of that case with respect to the Motion for Summary Judgment is essentially that a party having already provided testimony that harms his case and then attempts to introduce contradictory evidence or asks to have their testimony disregarded. In it’s simplest terms, a party, in this case Swanenburg;  in reference to the statements he has made are binding upon him and he cannot rely on evidence in contradiction to his own testimony to strengthen his own case. In even simpler terms, he cannot ask that his case be made stronger than it is.

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Supreme Court of Virginia

Mr. Edgar also cited a case of local interest that was decided in the Supreme Court of Virginia in January of 2014; Phillip D. WEBB v. VIRGINIAN–PILOT MEDIA COMPANIES, LLC.; Record No. 122024. The relevance here is that implications drawn from literally true statements cannot be extended by innuendo beyond the meaning of the actual statement. In that case Phillip Webb was an assistant principal at a Virginia High School. Phillip’s son and another student got in some trouble and the Virginia Pilot reported on the disparity of the punishment that each boy had received. The Pilot published an article that reported that one boy seemed to receive less severe punishment than the other while stating that the boy who received the lesser punishment was the son of a High School Assistant Principal. The article did not expressly imply that Phillip’s son had received preferential treatment because of his father’s position, but Phillips sued the Pilot for defamation ultimately prevailing in a jury trial and being awarded a multi-million dollar award before it was struck by the judge in granting the Pilot’s Motion to Strike. The case was heard by the Supreme Court of Virginia and the Supreme Court affirmed the lower court decision, which granted the defendant’s Motion to Strike, and dismissed a $3,000,000 compensatory award.

What is conceivably most important about the Motion for Summary Judgment is that Swanenburg has absolutely admitted that the n-word came out of his mouth in the presence of the CNU Men’s Lacrosse Team and a female trainer on March 3, 2010; and the use of that word was a “contributing factor” in his firing by CNU on March 30, 2010. More importantly, these are the same issues that were in existence when Swanenburg filed his first lawsuit on June 23, 2011. Conceivably, Swanenburg’s sole remaining argument is that the implications that come from a literally true statement are his reasoning to proceed to trial. Obviously, Bowards’s lawyer disagrees.

Swanenburg’s attorney responded to the argument by essentially stating that they did not agree to amend their answers on the Requests for Admission which was the subject of the last hearing. The Honorable Timothy S. Fisher had already entered an Order effectively stating that the Plaintiff had consented to amend his answers from Denied to Admitted on the Requests for Admission. Fisher’s argument was that he and has client had not agreed to amend those answers. That contention does not seem to be supported by anyone in attendance at the hearing or the transcript from the proceeding.

At issue for Fisher was specifically two of the requests that pertained to damages #21 and #22,  in which Swanenburg admitted on Requests for Admission

  • #21 “Admit that no damages to you at all came out of the statements you allege Boward made to Goeller on June 24, 2010” and;
  • #22 ” Admit that you did not suffer any damage from the Alleged Statements mad to Goeller on June 24, 2010.”.

Fisher argued that he and has client did not agree to amend those answers from Denied to Admitted which is essentially tantamount to accusing Boward’s attorney of being dishonest and was addressed sternly later in the hearing.

Swanenburg’s attorney spent the remainder of his argument focused on Virginia Model Jury Instructions related to damages resulting from defamation in an apparent attempt to argue that a jury should decide on whether or not Swanenburg had any damages. Fisher also relied on a familiar theme that has emerged throughout these proceedings by referencing “Don’t Stop Believing” a song by Journey in a continuing argument that Swanenburg did not say the n-word as an original thought but he said the n-word to draw a contrast between “Don’t Stop Believing” and the lyrics that were part of a song that had been playing earlier at Guilford College on March 3, 2010.

Also at issue in this hearing was a Motion in Limine in which Swanenburg sought to exclude testimony from some or all those present when Swanenburg used the n-word at the Guilford College game on March 3, 2010 and was subsequently terminated from CNU on March 30, 2010. The Honorable Timothy S. Fisher denied that motion without hearing oral argument and also stated that he would try to deliver a decision on the Motion for Summary Judgment by “next week” after asking Swanenburg’s attorney “What’s left of your case?” earlier in the hearing.

Stay tuned and Don’t Stop Believing!

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Opinion & Commentary

In studying and reporting on this case as well as the previous cases that Swanenburg has filed since his termination at CNU it is hard to understand how this case can continue. The expenses have to be enormous, not only the legal expenses of the parties, but those of the court. Swanenburg, has essentially not prevailed in any of his actions against Boward or those against a parent of one of the players. In the case against the parent he essentially faked a punt when he appealed the judge’s decision to the Supreme Court of Virginia and then failed to perfect the appeal by following through.

This last remaining legal action is effectively an extension of a case that Swanenburg through his attorney effectively quit at halftime preventing the other side the opportunity to score.  Imagine watching a big game and one team is losing at halftime and they call a time-out and don’t return to finish the game until next year. Worse yet, when they show up to play the game they insist on a different set of rules and they want to overturn all of the replay calls that went against them in the first half of the first game.

As a matter of opinion, what is most disheartening about this situation is that everyday we see real life examples of people who have real damages and we don’t see them piling on the lawsuits.

Swanenburg admits that he has “no damages” and through his attorney contends that he should be given a second opportunity to persuade a jury that he is entitled to an award. As a matter of fact, his attorney has plead in his Opposition to Summary Judgment that a jury should be given an opportunity to award him nominal damages. Nominal damages are a small amount of money awarded to a plaintiff in a lawsuit to show he/she was right but has suffered no significant losses. Nominal damages are awarded to vindicate a right or claim of the plaintiff, giving the plaintiff, in effect, a moral victory. Nominal damages may be, for instance, an award of one dollar. An award of nominal damages is intended as an affirmation that the type of conduct the defendant engaged in should not be permitted.

So maybe Swanenburg has effectively conceded that all he wants now is a “moral victory” which seems to be extraordinarily disingenuous since his original suit asked for $5,000,000 in compensatory damages.

What if Swanenburg tells someone that he used the n-word and was fired because of it,  can he sue himself?

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

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