A Lacrosse Story? “Don’t Stop Believing”

Posted: December 5, 2014 in HRLax, Updates to "A Lacrosse Story?"
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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. Swanenburg’s attorney, D.Hayden 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 made to Goeller on June 24, 2010.”.

Fisher argued that he and his 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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