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Fluor Says Bombing Case Could Be ‘Undone’ Without Judge Switch

May 28, 2021, 3:52 PM

Fluor Corp. asked a federal judge to reconsider her decision not to transfer an Afghanistan bombing lawsuit to another judge in the same district because of a conflict of interest, asserting that it will preserve the matter for appeal if the transfer doesn’t happen.

“It bears repeating that the refusal to transfer this case creates the very real risk that the entire litigation could ultimately be undone,” Fluor told the U.S. District Court for the District of South Carolina in its Thursday motion for reconsideration.

The court should “alleviate the risk entirely rather than keep this case and risk having this litigation upended over an avoidable issue,” Fluor said.

The plaintiff in this case, Winston Hencely, sued in February 2019 alleging Fluor didn’t do enough to stop a suicide bombing attack in 2016. Other related cases filed with the court this year—now 13—were also assigned to Judge Bruce H. Hendricks.

Hendricks transferred those cases to Judge Joseph Dawson III, on May 3 because of a presumed conflict, but kept the Hencely case.

Hendricks denied Fluor’s motion to transfer the Hencely case in a May 12 text order, stating there was no conflict of interest from an attorney and niece-by-marriage who was working on the transferred cases.

Hendricks said there was no close relationship with the attorney, and that transferring the case after two years would be highly inefficient.

Fluor’s reconsideration motion here said Hendricks didn’t fully consider a conduct rule requiring mandatory disqualification if a person within the third degree of relationship with the judge is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding.

Hendricks improperly relied on a subjective analysis of the per se conflict instead of confronting the mandatory nature of the rule, Fluor said.

Fluor also argued all the cases are related under local civil rules, which encourage the handling of similar cases by the same judge.

The district court’s policy regarding assignment of related cases also encourages preservation of judicial resources and equal treatment of all parties, Fluor said.

“Where different judges handle related (or, as here, identical) matters, parties could receive disparate treatment,” Fluor said.

Nexsen Pruet LLC, Trey Gowdy Law Firm LLC, Hartline Barger LLP, and Covington & Burling LLP represented Fluor.

The case is Hencely v. Fluor Corp., D.S.C., No. 19-cv-489, motion for reconsideration 5/27/21.

To contact the reporter on this story: Daniel Seiden in Washington at dseiden@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com

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