Kastroll v. Wynn Resorts, Ltd., No. 2:09-cv-02034-LDG-LRL, 2010 WL 3829398 (D. Nev. Sept. 23, 2010).

Ahh Vegas. Always something new and interesting. Even by way of legal argument.

The plaintiff, Kastroll, brought a class action suit in federal court asserting that defendant, Wynn Las Vegas, breached its common law duty to provide a reasonably safe workplace to its employees by failing to take reasonable measures to protect its employees from secondhand smoke. The plaintiff named as potential class members all employees of Wynn who were, are, or in the future will be exposed to unsafe levels of second-hand smoke. 

Wynn argued that because Nevada was Wynn’s principal place of business, former and future Wynn employees lacked Article III standing requisite to constitute proper members of Kastroll’s proposed class, and more than two-thirds of Wynn’s current employees (including Kastroll) were citizens of Nevada. Wynn filed a motion to dismiss the complaint contending that CAFA’s “home-state controversy” exception required the District Court to decline to exercise jurisdiction over this action. Wynn also argued that Kastroll’s claims were legally insufficient because Wynn has no duty under Nevada law to protect its employees from secondhand smoke.   

That’s right. The plaintiff wanted to be in federal court and the defendant wanted to be in state court. Not the typical line-up in a CAFA related case. But hey, this is Vegas. You can imagine that Steve Wynn who employs many a Nevada resident might prefer to be in state court. Also, they elect state court judges in Nevada. I would think Mr. Wynn might be the sort to contribute to various political causes in his home state. I am not suggesting anything untoward, it’s just that a man whose business is gambling is going to place his bets where he has the better odds.

With that intriguing intro, the CAFA part of this case ended up being a bust, for now anyway. The Court remarked that although Wynn raised novel issues in his arguments, it was a premature stage to determine the proper scope of Kastroll’s proposed class. Accordingly, the Court concluded that it would further entertain these arguments during later stages of this action. For the same reason, the Court declined to strike Kastroll’s class allegations. 

As for the non-CAFA matters, Wynn argued that he could not be made liable to his employees for allowing patrons to smoke freely in a place where the law specifically says that they can.  The Court remarked that Wynn’s argument ignored the potentially intricate interrelationship between the state staute and common law duties.  Construing the allegations in the light most favorable to the plaintiff, the Court concluded that Wynn failed to establish "to a certainty" that Katroll "would not be entitled to relief under any set of facts that could be proved."