Posts Tagged ‘lacrosse’

Brooks Picture

Anthony Brooks – Cobbs Creek, VA

On July 8th & 9th, 2014 a two-day jury trial was conducted, The Plaintiff, Anthony Brooks filed suit after he was reported to Child Protection Services for suspected sexual abuse and was suing for $1,000,000 in compensatory damages and $350,000 in punitive damages against Mark Moreno and his son Michael.
The following instructions were delivered to the jury on day two of the trial by the Hon. Marc Jacobson, Ret.
First Instruction: The plaintiff contends the defendant Mark Moreno made the following defamatory statements to Christopher Swanenburg on April 28, 2012. During a general telephone conversation stated plaintiff, quote, had taken photos of boys’ crotches, end of quote, and could be resigning. Trial Transcript Day 2

Next instruction: Your verdict must be based on the facts as you find them and on the

law contained in all of these instructions. The plaintiff contends that defendant Mike Moreno made the following defamatory statement to Sherry Hamel on April 28, 2012, quote, you don’t fucking know what’s going on, Ethan came to me at Wednesday’s practice and told me that Coach Brooks had taken inappropriate pictures of him in his compression shorts when the boys were changing into their uniform and called the plaintiff a pedophile and a pervertTrial Transcript Day 2
  • On the first instruction the Jury found in favor of the Plaintiff, Anthony Brooks against Mark Moreno.
  • On the next instruction the Jury found in favor of the Defendant, Mike Moreno.
Essentially, the Jury decision means that they did not believe what Michael Moreno said was false. Michael Moreno never denied making the statement which essentially means that a jury of Brook’s peers believed that Brooks did take inappropriate pictures of a player in his compression shorts. As a matter of fact, the minor signed a sworn affidavit after he turned 18 years old, the affidavit was precluded from the trial by the judge in a pretrial conference.
Mr. Moreno adamantly denied the statement attributed to him by Christopher Swanenburg. Mark Moreno contends that the statement offered by Swanenburg was a finely crafted false statement constructed by Swanenburg and his attorney to instigate a lawsuit. Swanenburg throughout his litigation in Newport News always seemed to have a problem with the truth.
In April 2015, Swanenburg lost his fourth and final lawsuit related to his termination from Christopher Newport University in which he sued his former assistant coach and the parent of one of the players. On June 25, 2015 Judge Timothy S. Fisher, the trial judge who presided over Swanenburg’s nearly four years of litigation wrote “This is about as unfortunate course of litigation as I have had the opportunity to observe and it appears to achieved absolutely nothing.”
The Moreno’s represented themselves, Brooks was represented by D.Hayden Fisher of Richmond, VA. Fisher  who also represented Christopher Swanenburg in multiple lawsuits related to his termination from Christopher Newport University. Swanenburg failed to prevail in any of the (4) suits that he filed and the last case was settled by a jury that found in favor of the defendant.  Hayden Fisher is the same lawyer who filed a writ to have the confessed murderer of a VCU coed released from prison in 2008. The confessed murderer left the body of his victim wrapped in plastic and duct tape near a public beach in Matthews County. According to published reports, Fisher had not been requested or retained by anyone to file the action but conceivably did so to bring media attention to himself.


So now Brooks thinks that he is deserving of a $250,000 award from a jury. The judgement is a small price to pay when one considers the potential devastation that Brooks could have caused as a result of his apparent predatory tendencies. How can a 67 year-old man justify walking around a partially clothed minor with a camera in his hand and say that he was only checking the lighting on a perfectly sunny day?
The jury decision for Brooks against Mark Moreno apparently has more to do with whether he “could” or “would” be resigning considering the fact that the same jury found in favor of Mike Moreno.
So that’s it, Brooks made the players of a high school lacrosse team refer to him as “creepy” and “weird” because more than likely he is a pervert who either did or attempted to take photos of partially clothed minors and a jury of his peers did not believe that to be false. The Moreno’s defended and protected those players despite the personal risks, they did not hide behind lawyers, they did not settle, and they never folded to the threats and tactics of a disreputable publicly reprimanded sleazy attorney.   Brooks, Swanenburg and their despicable lawyer Hayden Fisher apparently fabricated this lawsuit not to clear Brooks’ name but to profit from it. For Hayden Fisher it’s just a way to collect fees, for Swanenburg it’s just a way to fuel his ego by finding a way to get even with anybody that opposes him, and for Brooks it’s just plain perverted stupidity.

swanenburg, colonial challenge, williamsburg lacrosse, williamsburglax

Chris Swanenburg arrived on the lacrosse scene in Hampton Roads when he was introduced November 3, 2005 as the first-ever men’s lacrosse coach at Christopher Newport University. Swanenburg arrived at CNU after three years at Marymount University and 15 years of college coaching experience.

Prior to Marymount, Swanenburg spent the previous two seasons as the top assistant at Stony Brook University. Before joining Stony Brook, Swanenburg served as the head coach at Radford University and resigned from his position with the Highlanders following the school’s decision to discontinue sponsoring men’s lacrosse.

Prior to joining Radford, Swanenburg served as an coaching assistant at Goucher College after graduating from Yale. Swanenburg was a senior at Yale on the 1990 Yale team which 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.

On March 30, 2010 Swanenburg was terminated as the head coach of the CNU Men’s Lacrosse Team. In July of that same year his former assistant coach Todd Boward was named as the Head Coach of the Men’s Lacrosse Team at CNU. Unlike his predecessor, Boward did not come from the so-called elitist bastion of college lacrosse, Boward, a retired US Army Major, earned his college degree from Frostburg State University with the help of an ROTC scholarship. After retiring from the US Army in 2001, Boward began coaching high school lacrosse teams and ultimately found a college opportunity in Indiana to coach a college club team. Boward came to Virginia to coach at Christchurch School in Urbanna, Virginia before taking the assistant coaching job at CNU. Since taking over as the Head Coach at CNU the program has flourished both on an off the field. Boward has brought a blue collar work ethic to the program and his leadership has enabled the team to assemble not only a great group of players but a top notch coaching staff that continues to rack up accolades both on and off the field.

The Sad Saga Begins

March 2010

Swanenburg is terminated on March 30, 2010 as the Head Coach of CNU Lacrosse in close proximity to his use of a morally reprehensible racist term at Guilford College on March 3, 2010.

June 2011

Over a year after Swanenburg’s termination from CNU, Boward was served with his first lawsuit naming him as a defendant. Swanenburg sought $5,000,000 from Boward claiming that Boward had defamed him by telling another coach that Swanenburg was terminated for using a racially offensive word at a college lacrosse game on March 3, 2010. The case went to trial in August of 2013 and Swanenburg through his attorney effectively withdrew midway through the trial by nonsuiting.

December 2012

Swanenburg filed a $1,000,000 suit against a former player’s father for allegedly interfering with his earning expectancies as well as participating in a conspiracy with local sportscaster, John Castleberry and CNU’s Athletic Director, CJ Woollum to get him fired from his coaching job at CNU. That suit was ended quickly by the court. Swanenburg appealed that ruling to the Supreme Court of Virginia but ultimately never followed through on the appeal.

February 2013

Swanenburg filed a $3,000,000 suit against Boward. In that suit Swanenburg was in effect claiming that Boward was also interfering with Swanenburg’s earning expectancies. The case effectively met it’s end in April of 2014 when Swanenburg effectively dropped the suit through a nonsuit in the pendency of sanctions that had the potential of costing him and his attorney a lot of money.

February 2014

Swanenburg refiled his his original $5,000,000 suit this time asking for $500,000. This suit has some resemblance to the original suit but also looks like a mixture of Swanenburg’s first and second suit against Boward. The case has seen numerous hearings in which Boward’s defense has effectively eviscerated the complaint essentially bringing the case down to a simple defamation action as opposed to a far more complex defamation per se action.

March 2015 

The case goes to trial on March 30, 2015 in the Newport News Circuit Court. It now appears that most of the questions of law have now been decided, the case will proceed as defamation per quod in which Swanenburg will now effectively ask a jury to find as a matter of fact that Boward’s alleged literally true statements have caused Swanenburg damages and most importantly that Boward is liable for those damages. Those damages are likely to be that Swanenburg is angry and upset because Boward allegedly told Vic Goeller, High School Lacrosse Coach that Swanenburg used the n-word implying that he was fired by a CNU as a result.

colonial challenge, williamsburg lacrosse, colonial challenge

Trial Primer / Commentary

The trial will most likely be preceded by a continuation of pretrial motions and arguments from last week’s hearing. The motions will likely include Boward’s motion for Summary Judgement in which Boward, through his attorney, Frank A. Edgar Jr., is effectively asking the court to rule as a matter of law to dismiss the case against him and rule in his favor and award costs.

Throughout the course of the week several documents have been submitted to the court including another extensive brief submitted by Boward’s attorney essentially arguing that Swanenburg cannot proceed in an action where he does not plead damages or elevate his case by contradicting his previous testimony and admissions.

One might also expect to see a lot of pre-trial arguments related to witnesses, trial exhibits, and  jury voir dire since it was argued last week that Swanenburg’s publicly reprimanded attorney, D. Hayden Fisher missed the filing deadline set forth by the scheduling order and/or local court rules. Fisher actually was held in Contempt of Court in August 2014 (unrelated case) possibly indicating that his case load is so heavy that he missed the deadline.  If in fact, Fisher missed a deadline that Swanenburg believes ultimately weakens his case it is likely that Swanenburg will complain to the Virginia State Bar related to diligence and competency and will disclose all fees paid to Fisher. According to the Virginia Rules of Professional Conduct Rule 1.15 (a) All funds received or held by a lawyer or law firm on behalf of a client, other than reimbursement of advances for costs and expenses, shall be deposited in one or more identifiable escrow accounts maintained at a financial institution in the state in which the law office is situated…and; 1.15 (e) Record-Keeping Requirements, Required Books and Records. As a minimum requirement every lawyer engaged in the private practice of law in Virginia, hereinafter called “lawyer,” shall maintain or cause to be maintained, on a current basis, books and records which establish compliance with Rule 1.15(a) and (c). Given that Swanenburg has conceivably been paying Fisher for hundreds of billable hours those records could be voluminous.

D. Hayden Fisher is no stranger to controversy having once again survived sanctions in a Richmond case involving a recently imprisoned Richmond personal assistant who sued Boyd Tinsley, violinist for the Dave Matthews Band in Richmond Circuit Court. According to court records, Getty “Andy” Rothenberg filed a $10,000,000 lawsuit against Tinsley earlier this month that contained lascivious accusations about Tinsley which Tinsley claims are “outrageous and false” and a failed attempt at extortion.  Rothenberg was Tinsley’s personal assistant and was convicted of embezzling more than a million bucks from Tinsley.  It has been reported that Tinsley’s lawyers asked for sanctions in a 150 page filing within hours after the complaint was filed against Fisher and Rothenberg claiming that Fisher “ghost-wrote” the complaint. The swiftness of the sanctions more than likely indicates that the complaint had been delivered to Tinsley before it was filed in an apparent attempt by Rothenberg to force Tinsley into a settlement. The fact that Fisher was named in the sanction would indicate that Fisher did have a legal relationship with Rothenberg and at least one report suggested that Fisher was actively working to negotiate a pre-filing settlement which many people refer to as legal thuggery or extortion. The motion for sanction reportedly pleads that since January 2014, Rothenberg has been threatening to file the suit and alert the media unless Tinsley paid Rothenberg a multimillion-dollar settlement. Fisher opposed the sanctions and on March 18, 2015 the judge in the case refused to grant the motion for sanctions and also ordered that the complaint be amended. The amended complaint is expected to be filed on March 30, 2015 according to published sources.

Jury selection will undoubtedly be an interesting aspect of this trial given the nature of the case and the fact that Swanenburg admits to using a repugnantly racist word with some additional vulgarities. Contrary to popular belief the real goal of jury selection is not to pick unbiased jurors, the real goal is to select those jurors who are biased towards your position. The attorneys in this case have more than likely developed a theme for the trial and will be trying to select jurors that will buy into their theme.

Opening arguments will probably be the most interesting component of this trial. Fisher will be tasked with trying to win over a jury and convince them that although his client used a morally reprehensible term and that as a matter of technicality that he was not fired because of it, Boward should be held liable. The challenge for Boward’s attorney seems a lot less daunting in so far as his main job will be to persuade the jury that as a matter of common sense, not law, that someone should not be liable for the stupidity of another.

No Smokin’ GunThere is not likely to be a smokin’ gun or gloves that don’t fit in this trial. This is a civil trial, not a criminal trial. Swanenburg not only must prove by clear and convincing evidence (among many other prima facie elements) that the reasonable implication of Boward’s alleged literally true statements is substantially false, but also that he actually sustained special damages as a direct and proximate result of the three literally true statements Boward allegedly made to Vic Goeller on June 24, 2010.

Swanenburg has already admitted that he used a morally offensive/reprehensible racist term and was “at least in part” fired because of it. His main goal appears to be to demonstrate that there is a direct and proximate cause of Boward’s statements to his state of mind almost three months after being terminated by CNU when he allegedly discovered what Boward told Goeller. It’s probably a given that Swanenburg was still angry and upset when he filed his first suit against Boward and allegedly told Goeller the truth which was dramatically different than Swanenburg’s account. Swanenburg’s account was probably a lot more like he was fired over politics, or that a benefactor player parent or influential person got him fired because their son wasn’t getting enough playing time.

The closest anyone will get to a smokin’ gun will be if evidence or testimony elicited in the trial miraculously establishes that Swanenburg is simply a fine, upstanding, stellar, pillar of the community coach whose only purpose for using the n-word was to educate his players on the difference between words you can say, sing, or publish and those that you can’t. Beyond that Swanenburg could convince the local community that he is fit to be a role model and leader of boys and young men capable of good judgement generally not offensive/reprehensible, not an outright racist, or  a liar. The real smokin’ gun in this case could be discovering that Swanenburg and his attorney have an ounce of integrity between them or any integrity at all.

Trial Begins March 30, 2015

 Opening arguments began at 1:00 pm.

Day 1 Trial included testimony from a number of witnesses including Vic Goeller, Shane Allen, Kevin Righi, Danny Huston, CNU Human Resource Director Lori Westphal, Local Sportscaster John Castleberry, and most notably Chrs Swanenburg.

In what can best be described as an extreme embarrassment for Swanenburg and his attorney Hayden Fisher, appeared to be the testimony of Lori Westphal, CNU Human Resources Director who testified that she was not present when Swanenburg was fired on March 30, 2010. There also does not appear to be any evidence to indicate that she had been subjected to deposition prior to the trial.

Swanenburg’s attorney had previously argued that she was present in pretrial arguments and the fact that she testified in front of the jury that she was not there when he was fired did not appear to sit well with the trial judge. Westphal has been the Human Resources Director at CNU since 2007 and it appeared as though Swanenburg’s attorney wanted to elicit testimony from her that would prove that Swanenburg was not fired for using the n-word. Given the fact that she was not present would indicate that she can not state exactly why he was fired or more importantly that he was not fired for using the n-word which now appears to be the entire theme of Swanenburg’s case against his former assistant, Head Coach Todd Boward. Swanenburg had stated in an interrogatory that she was present on March 30, 2010 when he was asked to resign and was fired when he refused. That pleading was entered in court records in the discovery stage in his actions against Boward.

Swanenburg’s Testimony 

Swanenburg testifies that he was brought to CNU to build a team that would not have the “bad boy” image referring to the Duke lacrosse incident in apparent attempt to suggest that somehow he was personally given the mission to single handedly clean up the image of lacrosse. Swanenburg claims that he was personally tasked by CNU President Paul S. Trible, Jr. to build a team that would defy the “bad boy” image of lacrosse.

For anyone that is not familiar with the so called “Duke incident”, all of the players were completely exonerated from false allegations of sexual assault that created an over the top reaction by the college, the district attorney, and the majority of the media. Recently, the media has made comparisons between the Duke incident and the Rolling Stones article that alleges a rape incident at a fraternity at the University of Virginia. Charlottesville Police have now thoroughly investigated those allegations and have concluded that there is no evidence that prove that they occurred.  Although much of the news media had labeled the University of Virginia Rolling Stones story as dubious it is important to note that few in the media ever questioned the validity of the Duke allegations with the exception of Meghan Kelly of Fox News.

Swanenburg further testified that he used the n-word and other vulgarities of a sexual nature in front of the team and Lacy Norsiden, female athletic trainer as a teaching moment. In a familiar theme throughout this saga he claims that he was merely quoting the words of a song that had been playing at halftime at Guilford College on March 3, 2010. Both he and his attorney have claimed that the song immediately after that song was “Don’t Stop Believing” by Journey although they have never named the song that contains the lyrics that Swanenburg claims he was merely quoting to draw a comparison between what was more appropriate. He says repeatedly that he is not a racist, that he chose his college roommate who was African American, that he played basketball in the mean streets of New York with black people, and that he and his son were the only white people on a local recreational basketball team. Listening to that part of his testimony could have had many believing that he grew up on the means streets of the Bronx,  that he costarred with Wesley Snipes in the movie “White Men Can’t Jump”, that Spike Lee is his best friend, and Al Sharpton is his frequent guest for Sunday dinner.

Swanenburg’s seemed to be extremely agitated when he was cross-examined by Boward’s lead attorney Frank Edgar. Swanenburg accused Mr. Edgar of  “trickery” when questioned about his previous admissions to using the n-word and admitting “at least in part” that he was fired because of it.  The majority of his cross-exam had few objections from Swanenburg’s attorney and was essentially put on hold by the judge to be resumed on day 2.

March 31, 2015

Trial is expected to resume at 10:00 am with a continuation of the cross examination of Chris Swanenburg.

Boward’s attorney, Frank A. Edgar, Jr. rested the case today on the emotional testimony of Tom Elliott, the father of Alex Elliott, a former lacrosse player that Swanenburg recruited to play on the team. Mr. Elliott revealed on the stand that he had also been sued by Swanenburg in 2012. In that suit, Mr. Elliott was sued for $1,000,000 when Swanenburg discovered that Mr. Elliott had complained of Swanenburg’s behavior to the Athletic Director at CNU. The suit was quickly upended and dismissed with prejudice in May 2013.

April 1, 2015

The trial is expected to resume at 11:00 am today. Swanenburg’s attorney is expected to bring Swanenburg back to the stand as a rebuttal witness. “Rebuttal witnesses are very common in civil litigation.  At the conclusion of the defendant’s case, the plaintiff may choose to call rebuttal witnesses for the purpose of rebutting something that was brought up anew during the defendant’s case,” according to  lawyer Brien Roche. Mr. Roche also writes, “As a general rule, the extent to which a Trial Judge allows rebuttal testimony is within the sound discretion of that Judge.  What that means is that it is unlikely that the Judge’s decision on that issue is going to be reversed by an Appellate Court unless it is determined by the Appellate Court that the Trial Judge abused his/her discretion.” That is a very important point, since the trial judge in this case has already stated that he will keep this case moving. In non-legal terms, Swanenburg’s attorney Hayden Fisher is bringing Swanenburg back to the stand to attempt to contradict some testimony or evidence that had been presented by the defense.

In closing arguments, Swanenburg’s attorney, Hayden Fisher essentially attempted to cast Coach Boward as a person who would do anything to get Swanenburg’s job and told the jurors that Boward had not presented any evidence to prove that he had not defamed Swanenburg. Fisher also argued that Boward had no support from anyone at CNU and that no adults testified on his behalf. Fisher further argued that Boward had told at least one person that he wanted to get a shotgun and shoot Swanenburg. That argument drew a strong objection from Boward’s attorney and a stern warning from the judge.

Boward’s attorney, Frank A. Edgar, Jr. in his closing argument focused on the facts of the case and argued that it was Swanenburg who had to prove that Boward had defamed Swanenburg.Mr. Edgar, effectively argued that Swanenburg did not deserve anything from Boward and that he Swanenburg should be held to his own testimony and admissions.

In one of the lighter moments of the trial, Mr. Edgar in response to Fisher’s closing argument, told the jury that if was as if Fisher had just let 1,000 mice loose in the courtroom and he Edgar was not about to chase them all.  Fisher potentially missed a huge opportunity to object since there were only at most, 999 still scurrying around the court at the conclusion of his closing argument or so it seemed.

Boward Wins, Swanenburg Loses!

On April 1, 2015, after nearly 3 hours of deliberation the jury returned a verdict for Todd Boward effectively ending Swanenburg’s Sad Saga. When the verdict was announced, Swanenburg appeared visibility upset and quickly left the courtroom with his attorney, D. Hayden Fisher.

Peter Dujardin, Daily Press provided exclusive coverage in a pair of articles published on March 31, and April 1, 2015 in the Daily Press.

Jury Sides with Current CNU Lacrosse Coach in Defamation Case, April 1, 2015, Daily Press, by Peter Dujardin

Former CNU Lacrosse Coach Says Current Coach Defamed Him, March 31, 2015, Daily Press, by Peter Dujardin

Related Posts

Swanenburg’s Sad Saga Ends!

Hanging on by a Thread

A Lacrosse Story?

A Lacrosse Story? Updates

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.
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. These terms and conditions are subject to change at anytime with or without notice.

March 24, 2015

hayden fisher, swanenburg, colonial challenge, williamsburg lacrosse,

Christopher Swanenburg appeared today with his lawyer D. Hayden Fisher in Newport News Circuit Court in what is likely to be his final public hearing before going to trial on March 30, 2015. Swanenburg has embarked on a continuing legal saga against Todd Boward, his former assistant coach of the Christopher Newport University Men’s Lacrosse Team. Swanenburg’s relentless and largely unsuccessful legal campaign has now lasted for almost 4 years and now finally appears to be approaching an end. Ironically the trial date marks Swanenburg’s fifth anniversary of his termination as the Head Coach of the Men’s Lacrosse Team at CNU.

At it’s core, Swanenburg admittedly used a morally reprehensible racist term in the presence of the lacrosse team, a female trainer, and the assistant coaching staff at a lacrosse game at Guilford College in March of 2010 and was subsequently terminated as the head coach of CNU lacrosse. It is important to note that it has not been plead that anyone directly called Swanenburg a racist despite the belief that people who throw that repugnant word around generally are racists.

So what did Swanenburg say at Guilford College on March 3, 2010 that he claims he was not fired for?

According to court documents, Swanenburg actually deposed 5 of his former players, each recalled Swanenburg’s statement at Guilford being different than what Swanenburg claims he said:

  1. “Oh, and we’ve got to listen to this motherf.. n*##^! music”
  2. “This is a lot better than the motherf.. n*##^! shit”
  3. “This is a lot better than that f…ing n*##^! shit music that was on before”
  4. “This is a lot different than that motherf-ing NS . . . Motherf… n*##^! shit”
  5. “that the music was better than the n*##^! music playing before”.

Swanenburg pleads, Plaintiff’s [Swanenburg] Answers to Defendants First Set Interrogatories, that what he actually said was “This is a hell of a lot more appropriate than the shit before that was full of n*##*!, mother f…, suck my d… and eat my p……”. Swanenburg was terminated from CNU on March 30, 2010. and admits that he was terminated ” at least in part” because of the statement.

Approximately, one year after his termination Swanenburg filed a $5,000,000 lawsuit against Todd Boward for telling another coach that he (Boward) didn’t tell him (Swanenburg) to go around using/calling people the n-word implying that Swanenburg was fired for using the n-word. The statement is literally true because Swanenburg has admitted that Boward didn’t tell him to go around calling people the n-word.  Swanenburg is essentially now arguing that even if he did use the n-word and that Boward could not know if he was fired for using the n-word so therefore; if he told someone that Swanenburg was fired for using the n-word, it would be false and therefore defamatory.

The case has zigged and zagged for quite some time now with Swanenburg saying that he didn’t really use the word and that he could not have been fired because of it. In a zig he says he merely quoted the word to bring attention to the inappropriate lyrics of a song being played at Guilford, in a zag he pleads that he could not of been fired because of it since he was able to collect unemployment.

At today’s hearing his attorney, D. Hayden Fisher attempted to introduce a document that he alleged was from the Virginia Attorney General, Mark R. Herring claiming it is some substantive proof that Swanenburg was not fired from CNU. It would appear as though if such a document does exist it will not likely be admitted as an exhibit because of the scheduling order of the trial or at a minimum it is irrelevant since Swanenburg has already admitted to being terminated from CNU. For the record, Attorney General Mark R. Herring was not at the hearing but he was in Williamsburg to celebrate the 20th Anniversary of Triad in Virginia an OAG-coordinated program helps empower Virginia seniors to keep themselves safe. 

Effectively, this case is often referred to Defamation 2, but is in effect a refiling of Swanenburg’s first defamation case against Boward which he effectively quit in the middle of the trial by moving to non-suit. This refiled complaint has largely been eviscerated by order of the judge as a result pretrial motions in August 2014. What is most significant about the August 2014 order is that the case has to proceed on a Defamation per Quod basis requiring Swanenburg to prove actual damages. Even more damaging to Swanenburg’s case are his own admissions both in testimony and Request for Admissions that he has not sustained any damages and to using the n-word and effectively being terminated from CNU because of it.

The hearing today was originally scheduled by Swanenburg’s attorney late last year as essentially a pretrial hearing. Subsequently, the defense had requested a scheduled hearing a few weeks ago that was unfortunately canceled due to a snow storm. Frank A. Edgar, Jr., Boward’s lead attorney seized today’s hearing as an opportunity to effectively keep the case from going to trial. As usual, Mr. Edgar delivered his arguments in a professorial manner, clicking off point after point even providing some charts to emphasize his argument. Mr. Edgar cited numerous cases and essentially made the point that Swanenburg can do nothing to elevate his case to a level above his prior testimony and admissions. Effectively, Mr. Edgar’s argument is that without damages there is nothing for a jury to decide and Swanenburg has admitted that he has no damages and nor does he plead any in his complaint.

Swanenburg’s Admitted Answers to Request for Admissions
  1. He used the word “n*##^!” on March 3, 2010;
  2. Boward was in no way responsible for his  use of the word “n*##^!;”
  3. He  was fired by CNU on March 30, 2010;
  4. He was fired by CNU, at least in part, because he used the word “n*##^!” on March 3, 2010;
  5. “No damage to him at all came out of Boward’s Alleged Statements;
  6. He “did not suffer any damage from the Alleged Statements.”

Swanenburg through his attorney was apparently attempting to introduce witnesses and evidence to contradict his own sworn admissions. His argument was met with swift opposition from Boward’s attorney.

Mr. Edgar also informed the court that he had recently attended a deposition in Lynchburg conducted by the plaintiff that required him to spend all day traveling for a deposition that lasted a little more than five minutes. Based on arguments presented at the hearing it is likely that Boward will likely ask the court to force Swanenburg to pay all costs associated with that deposition. 

The Honorable Timothy S. Fisher ultimately ruled that the case would go to trial, but not without some strongly worded cautions for Swanenburg and his attorney. Judge Fisher actually excused himself from the bench on two separate occasions to allow Fisher time to reconsider his seemingly nonsensical and ridiculous arguments. The judge went on to say, “This saga is a disaster” and “hanging by a thread” referring to Swanenburg’s case and reminding Swanenburg that he will have to “pass the red face test” standing in front of a jury of his peers. The “red faced test” is for Swanenburg to sit in front of the jury and tell them that he used the n-word but he was not fired because of it thereby making Boward responsible for the damages that he does not have.

So on March 30, 2105 a jury trial will commence in the case of Swanenburg v. Boward. There will possibly be a teleconference later this week between the judge and the attorneys to discuss some final pretrial matters but as of this writing the case will proceed to trial. Stay Tuned


Maybe it’s time for Swanenburg and his attorney to stroll to the nearest 7-11 for a Big Gulp and a bag of chips and then find a park bench where they can sit and contemplate their case. At a minimum, they should get a dose of reality and move out of the fantasy land that they seem to be living in. Although it is possible that a jury could find in Swanenburg’s favor it is probably more likely that the trial will end in a manner that is not favorable to them opening the door for a malicious prosecution case and/or sanctions.

At a very minimum their antics are a mockery of the legal system which in part is designed to serve justice to those who deserve it. In civil matters, the legal system is designed to redress losses or damages sustained by a party who may or may not be entitled to an equitable remedy.

What is the equitable remedy that Swanenburg is seeking?

Many would suggest that Swanenburg is not really seeking any remedy but has pursued these actions for no other reason than to punish Boward for losing his coaching job at CNU. One possible reason for Swanenburg’s actions is most likely attributable to his own personality disorder and he is obsessed with using this litigation to support his need to feel powerful. One of the most compelling examples of his obsession is a letter that he wrote to then Governor Bob McDonnell nearly three years after his termination from CNU. In his letter, Swanenburg states that his former assistant coach “threatened to kill both my wife and me” and other allegations that have never been substantiated. That letter actually followed a letter, written in October 2012 to the board of visitors which makes many of the same allegations in which Swanenburg repulsively evokes the tragedies at Virginia Tech and the University of Virginia to gain more attention. In defense of his lawyer, many of Swanenburg’s actions including these letters seem to be in direct contravention of any sound legal advise and many of the pleadings in the litigation seem to have been authored by Swanenburg himself including the most recent complaint. One of the most compelling examples of a document entered into the court that appears to be written by Swanenburg is Plaintiff’s [Swanenburg] Answers to Defendants First Set Interrogatories.

Swanenburg’s Letter to Gov. Bob McDonnell

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.

The Letter Black – Hanging On By A Thread

The Movie:  Hanging by a Thread 

Review Summary

“Master of disaster” Irwin Allen was so confident of his talents in 1979 that he actually thought he could stretch out a suspense tale for a full 200 minutes. Originally telecast in two parts, Allen’s Hanging by a Thread concerns a group of friends and tourists, trapped in a sightseeing tram that dangles precariously over a yawning chasm. You might start yawning as well during the film’s entirely dispensable flashback sequences. The “suspense” scenes themselves aren’t bad, permitting an all-star cast (Sam Groom, Patty Duke Astin, Joyce Bulifant,

Donna Mills, Burt Convy et. al.) to alternate between screaming and looking terrified. Hanging by a Thread was first broadcast on May 8 and 9, 1979. ~ Hal Erickson, Rovi credit NY Times

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.
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. These terms and conditions are subject to change at anytime with or without notice.

Coaches are Mandated Reporters Part II

hrlax, blovad, swanenburg, lax, williamsburg

Beginning in January 2012, Anthony Brooks, Mark Moreno, and Michael Moreno, (Mark Moreno’s oldest of three sons),  were coaches on a high school boy’s lacrosse club team that was part of Hampton Roads Lacrosse League (HRLAX). In addition to being a coach, Mr. Moreno (Mark) was also the Vice President of York Lacrosse Club, Inc. (YLC) which was formed in January 2012 to fund and develop a boys high school club team to compete within the Hampton Roads Lacrosse league. The entire Moreno family had been huge proponents of building a boy’s high school club team in the Williamsburg area and earlier that year had received an email from Jim Old, President, Hampton Roads Lacrosse in May 2011 outlining the formation of a York / Williamsburg Boys High School Club team.

(HRLax), a 501(c)(3) Corporation, whose stated purpose is to provide a youth lacrosse experience in the Hampton Roads geographical region. Hampton Roads Lacrosse collects membership dues for US Lacrosse (USL), The National Governing Body of Lacrosse. In addition to collecting membership dues for US Lacrosse, HRLax also collects a participation fee from members to administer league operations and provide certification for coaches. Teams that participate within the league were required to play (10) scheduled games within the league.

Prior to the formation of the team, Mr. Moreno was invited by the Director of Development, HRLax, to a formation meeting in York County to encourage the development of the new boys’ team in York County. The team was to include players from Williamsburg and York County and Mr. Moreno was urged by those present to serve as President of the new club. Mr. Moreno declined the offer to be the club’s president and was unanimously elected as Vice President. At that time the Moreno’s were introduced to Mr. Brooks who had offered to serve as head coach for the newly formed team.

In the months that followed Mr. Moreno and his son Michael received Level 1 coaching certifications from US Lacrosse to assist Mr. Brooks with the team. Michael worked directly with Mr. Brooks both at games and practices as an assistant coach. Michael and Mr. Brooks appeared to have enjoyed a good working relationship and were very successful in developing this first year team. Both the Moreno’s enjoyed a very positive experience with Mr. Brooks.

Mr. Moreno attended board meetings, worked on promoting and marketing fundraising campaigns, acquired the team uniforms, and developed the team’s website, Facebook, Blog, and Twitter. Mr. Moreno was focused on the welfare of the players and focused on safety to include proper hydration, concussion awareness, and abuse and injury prevention. Mr. Moreno provided Gatorade coolers and ice for hydration and basically attended to the sideline activities and did not actively coach the games or practices.

Mr. Moreno routinely worked to create awareness for the team to enhance fundraising and participation through social media, the team’s website, and a blog. Before the season started, Mr. Moreno coordinated and scheduled a lacrosse clinic that included the coaching staff from the University of Richmond Men’s Lacrosse Team, River City Lacrosse, Play in School, and Elkins Sport Performance of Richmond, VA. Mr. Moreno also encouraged the scheduling of a scrimmage with Walsingham Academy in Williamsburg which was later played. Mr. Moreno enlisted area restaurants to help support the team and created some cross-promotions that essentially created traffic and goodwill for the restaurants and awareness for the team.

On or about April 20, 2012, Mr. Moreno was contacted by the head coach of Christchurch School Boy’s Lacrosse Team, inviting the YLC team to play a scrimmage game with the Christchurch JV team in Urbana, VA. Mr. Moreno sent an email message to Mr. Brooks who approved of the game and also pointed out that there were some potential conflicts with the proposed Friday. Subsequently, Mr. Moreno learned that a majority of both team’s players were required to take SAT tests on Saturday morning. Mr. Moreno rescheduled the scrimmage game to Saturday afternoon to address all conflicts and communicated the game through Facebook, Blog, Twitter, Slideshare, and the team website even naming the game the “Rappa Riva Lax Classic” and coordinating with a local restaurant to sponsor a BBQ dinner after the game.

On Friday, April 28, 2012 immediately following a game Mr. Brooks gathered players and parents for some after game remarks and then invited Mr. Moreno to address the group. Mr. Moreno addressed the group promoting the upcoming Christchurch game and all in attendance were genuinely excited. Mr. Brooks interrupted Mr. Moreno telling him that he could not be at the game because he had to work. Mr. Moreno quietly acknowledged his objection and dismissed the group to avoid any controversy in front of the players and parents after the game. Mr. Moreno admits to being surprised with Mr. Brooks’ objection given that the game was widely publicized and that Brooks had already approved the scheduling of the game. Mr. Moreno elected to call Mr. Brooks after leaving the game to discuss the apparent misunderstanding.

In the ensuing phone conversation Mr. Moreno stated that he considered Mr. Brooks as a retired service member and had no knowledge that he worked outside of his volunteer activities on the team and could not be present for a game a week later. Mr. Moreno stated that the conflict was unintentional, and apologized to Mr. Brooks and stated to Mr. Brooks was not the only certified coach on the team and that the scrimmage game could be played without his attendance. Mr. Moreno ultimately agreed that the scrimmage game could either be rescheduled or canceled and concluded the phone call.

Shortly thereafter, Michael Moreno advised Mr. Moreno that some players on the team had directly told him that the coach had made some of them feel “creepy” and “weird”. When Michael asked them to elaborate on why they felt that way, Michael told Mr. Moreno that the players related that Brooks;

  1. had taken pictures of one of the players in his compression shorts
  2. had photographed another in urinated shorts

Mr. Moreno immediately contacted a US Lacrosse Official outside of the immediate area for advice on what should be done. The official told Mr. Moreno that he had to report the allegations but was not sure to whom it should be reported.

blovad, lacrosse, hrlax, swanenburg, swanenberg

Richard J. Blovad

The following morning, Saturday, April 29, 2012, Mr. Moreno received a text message from Richard Blovad, then Boys High School Commissioner, HRLAX,  telling him that Mr. Brooks was complaining about the Christchurch scrimmage game. Mr. Moreno immediately called Blovad to ask what the issue was regarding the game. Mr. Blovad advised that he saw no reason why the game could not be played and that he did not understand Brooks’ objection considering that there were two other coaches available for the game. At the end of that part of the conversation Mr. Moreno asked Blovad a hypothetical question related to suspected sexual abuse by a coach. Blovad immediately disengaged from the call prompting Mr. Moreno to call Blovad again. Mr. Blovad did not answer. Mr. Blovad has subsequently denied that any references to suspected abuse were discussed on that call and recently testified that he first heard one of the allegations from Christopher Swanenburg. Blovad also works directly with Swanenburg as a coach for the Patriots tournament team operated by Swanenburg.

swanenberg, swanenburg, hrlax, lax, patriots, lacrosse

Christopher T. Swanenburg

Mr. Moreno then contacted Chris Swanenburg, then Director of Boys’ Coaches Training for HRLax and after approximately 25 to 30 minutes of discussion related to summer travel team opportunities Mr. Moreno asked Swanenburg a hypothetical question related to suspected sexual abuse. The question he asked was “what do you do if you have a coach taking pictures of a kid in his compression shorts?” Swanenburg only acknowledged the question by telling Mr. Moreno about an incident that he had witnessed where a player was knocked to the ground by a coach never responding to the hypothetical question that Mr. Moreno had asked.  Swanenburg has had numerous lawsuits related to his termination at CNU and is represented by D. Hayden Fisher.  At the time of the call Mr. Moreno did not have any knowledge that Swanenburg had lawsuits pending in Newport News and did not discover that fact until almost eight months after the call. The call ended shortly thereafter and Swanenburg promptly sent an email to Mr. Moreno attaching participation documents for Capital Lacrosse.

swanenburg, colonial challenge, capital lacrosse

The Patriots Lacrosse program participates in summer tournaments and is owned and directed by Mr. Swanenburg. Swanenburg sent an email to Brooks on Thursday, May 3, 2012,  almost one week after the conversation, and only  after Swanenburg’s attorney D. Hayden Fisher had sent an email to Brooks asking for “exact words”. Swanenburg’s purported version of the conversation only occurs after his attorney is apparently engaged by Brooks and Mr. Moreno adamantly disputes Swanenburg’s finely crafted version of the conversation.

In his email Swanenburg states: “On Saturday, April 28 Mark Moreno called me on my cell phone at 9:33 am. The phone call lasted 35 minutes and 13 seconds. Almost the entire conversation was spent discussing miscellaneous lacrosse topics. After around 33 minutes on the phone Mark mentioned to me that you (Anthony Brooks) had taken photos of boys crotches and that you were going to be resigning. I don’t recall his exact words and I’m not certain if he actually said boy or boys. I am, however, 100% certain that he accused you of photographing at least one boy’s crotch and that you were going to be resigning. Upon hearing Mark’s accusation, I may have said something like “I am sorry to hear that” or “that’s too bad” and told him that I had to get to watching my daughter’s lacrosse game. I asked no follow-up questions and the call ended shortly thereafter.”

Later that day, Mr. Moreno became aware that the Team Statistician and Scorekeeper, Shari Hamel circulated an email to the parents and players stating that because of the disagreement over the Christchurch scrimmage game that the Moreno’s were trying to remove Mr. Brooks from his coaching duties. Mr. Moreno responded to Hamel telling her that her information was incorrect and that Brooks was disseminating false information about the game. Immediately thereafter, Mr. Moreno received a call from one of the players that had reported the allegations to Michael. The player called Mr. Moreno and related to Mr. Moreno that he had been contacted by Brooks and that Brooks was now offering him a captain spot in the upcoming playoff game.

Mr. Moreno became very concerned that Brooks was now allegedly contacting one of the players that had related allegations about Brooks as well as being present when the other players shared their allegations with Michael. Mr. Moreno sent an email to the other board members requesting an emergency meeting and to remove Brooks from the team immediately. Mr. Moreno subsequently received an email from Crystal Clark, President YLC stating that she was not going to take any actions. Mr. Moreno followed with another email telling her that this was a serious situation and that action needed to be taken immediately. Clark refused to schedule an emergency meeting despite being told in a subsequent telephone call that there were allegations of suspected sexual abuse.

That evening, Michael Moreno called Shari Hamel, team statistician, in response to the email that she was now circulating,  stated “you don’t f**** know what’s going on, Player 1 came to me at Wednesday’s practice and told me that Coach Brooks had taken inappropriate pictures of him in his compression shorts when the boys were changing into their uniforms.”

At 11:08 pm that evening, Richard Blovad, High School Boys Commissioner, Hampton Roads Chapter of US Lacrosse,  sent an email to all players and parents of YLC announcing that all team activities were suspended. At 11:59 pm on the same evening Blovad sends the following email to Mr. Brooks:

“I’ll call you tomorrow!! I am doing everything I can do to shut the Marino’s [sic] up and they are causing quiet [sic] the problem for me.”

Blovad, called Michael Moreno the next day to ask about the allegations and the call lasted about 5 minutes and Blovad only called Michael after Michael had called him requesting him to do so. Michael related the allegations and approximately four hours later Blovad reinstated the team stating that he had conducted an investigation. He reinstated Brooks and subsequently removed the Moreno’s from the league. Blovad never contacts Mr. Moreno after the suspension of the team on Saturday night despite the fact that he admits that he received his “first” information from Swanenburg at approximately 9:00 pm Saturday night.

On Monday morning, Blovad sends an email to the Mark and Michael Moreno essentially removing them from the league citing that they had either not reported the incidents in a timely manner or did not provide information as to what happened or what players were involved.

The following night, YLC conducted a practice in which Mr. Moreno’s youngest son Thomas was expelled from the team as well as one of the players who had reported allegations to Michael Moreno. A third player who had also reported the allegations against Mr. Brooks was threatened with expulsion but not expelled. Later that evening the player authored an email in which he said the following, “wow f*** this, apparently our opinions don’t matter and won’t change anything. Apparently, I was almost kicked off?? What the f***?, Brooks told the team that I quit because I went to talk to Charlie Turner, volunteer coach, with the other concerned players. Brooks has destroyed his own reputation and I have lost all respect for him, Blovad, and Ms. Hamel.”

The following morning, now convinced that Blovad has not reported the alleged abuse to proper authorities, Mr. Moreno placed a call to the abuse hotline giving only his name and the allegations electing initially not to give the names of the players. Subsequently, after being requested to do so, Mr. Moreno provided the hotline operator with names of the alleged victims. Mr. Moreno was contacted by an investigator approximately an hour after placing the call to the hotline, requesting to interview Mr. Moreno concerning the allegations of suspected sexual abuse. Mr. Moreno offered to travel with Michael Moreno to meet with the investigator. The Moreno’s were interviewed for about an hour at the York/Poquoson Department of Social Services. The Moreno’s were advised that the allegations were reportable and that they had fulfilled their duties as mandated reporters. Mr. Moreno was contacted later in the week by the investigator requesting some additional information, which he provided.

Later that week the Moreno family received a hand delivered letter from Jim Old, President of HRLax that they were now “barred” from all HRLax events, games, practices, etc. That letter was delivered prior to the conclusion of the Department of Social Services investigation. The letter does not cite any specific reasons other than to state “due to your attendance at practices”.  Mr. Moreno then contacted US Lacrosse to inform them that he and has family were now the targets of retaliation for fulfilling their duties as mandated reporters.

On May 7, 2012, Mr. Moreno was contacted by the investigator who informed him that the investigation had concluded and the finding was “unfounded”. The investigator specifically told Mr. Moreno that he had met his obligations under the law as a mandated reporter. According to A Guide For Mandated Reporters In Recognizing and Reporting Child Abuse and Neglect a finding of unfounded is one in which “The investigation reveals insufficient evidence that abuse or neglect occurred. This finding does not necessarily mean that abuse or neglect did not occur, but that the evidence was not sufficient for a founded disposition.”

Anthony Brooks v. Michael Moreno, et al Case No: CL12-4935 York/Poquoson Circuit Court

On August 28, 2012 the Moreno’s were served with Plaintiff’s Complaint alleging two counts of Defamation per se. After nearly two years of discovery and litigation a two-day jury trial was held on July 8th & 9th in which the jury found in favor of the defendant Michael Moreno, and against Mark Moreno in favor of the Plaintiff Anthony Brooks.

Trial Transcript Day 1

Trial Transcript Day 2

swanenburg, d.hayden fisher, fisher, hayden fisher

Supreme Court of Virginia

Petition for Appeal to the Supreme Court of Virginia 

Brief in Opposition to Petition for Appeal

Mr. Moreno has now filed a Petition for Appeal to the Supreme Court of Virginia and  contends that he should have been immune from civil liability as a result of his lawful reporting of suspected sexual abuse and further contends that the Plaintiff in this case never proved that Mr. Moreno acted with actual malice. In order to prove actual malice the Plaintiff needed to prove that the alleged statement to Christopher Swanenburg was knowingly false.

Mr. Moreno believes as a matter of opinion that this lawsuit was instigated for improper purpose by Christopher Swanenburg and D. Hayden Fisher, his attorney. Swanenburg and his attorney have essentially prosecuted a series of legal actions in Newport News for nearly 4 years making numerous claims and have thus far have failed to prevail in any of them. Upon knowledge and belief, Swanenburg’s email account of the phone conversation is a finely crafted false statement and his subsequent testimony at trial was either factually false, evasive, or both.

Both Michael and Mark Moreno represented themselves in this case electing to withdraw from counsel in the early stages of the case.

Mr. Moreno has now begun the appeal process to the Supreme Court of Virginia and is asking for your help. If you are associated with a non-profit that exists to protect children and have access to legal resources, we need your help. Mr. Moreno is now scheduled to appear before a writ panel hearing at the Supreme Court of Virginia on March 31, 2015 at 1:00 pm.

Hampton Roads Lacrosse Coaches Meeting Presentation.

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.
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. These terms and conditions are subject to change at anytime with or without notice.

A Lacrosse Story?


Click here for A Lacrosse Story?

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

swanenburg, colonial challenge, lacrosse, williamsburglax

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.