Kastroll, et als. V. Wynn Resorts

).  In a proposed class action, plaintiff Kanie Kastroll, who works in the gaming area at Wynn Las Vegas, alleges that she “is continually exposed to second-hand smoke” and suffers negative health effects because of that exposure.  Kastroll also alleges that the “management at Wynn Las Vegas forbids dealers in the gaming area to designate certain tables as ‘smoke-free,’” and that “employees are also forbidden by Wynn Las Vegas to request that any customer blow smoke away from the table or ask that customers move their ashtrays.”  The complaint seeks “an order enjoining the Defendant to take reasonable measures to protect its employees from second-hand smoke.”  The compliant alleges that the Defendant has failed to provide a safe workplace and has breached its statutory duty (Nevada Revised Statutes (N.R.S.) 618.375) to provide a safe workplace.  See Green, S., “Strip Resort Sued Over Second-hand Smoke,” Las Vegas Sun, October 21, 2009; Miller, V. “Wynn Employee, Tired of Dealing with Smoke, Sues,” Las Vegas Review Journal, October 22, 2009; and Green, S., “Wynn Seeks Dismissal of Second-hand Smoke Suit,” Las Vegas Sun, December 13, 2009.   On September 24, 2010, the U.S. District Court denied the defendant’s motion to dismiss.  The court rejected Wynn’s argument that the plaintiff’s claims are insufficient because it has no duty to protect its employees from secondhand smoke. “Construing the allegations in the light most favorable to the plaintiff, Wynn has failed to establish ‘to a certainty’ that Kastroll ‘would not be entitled to relief under any facts that could be proved,’” the court held.  See Green, S., “Casino Dealer’s Suit Over Smoking Dangers at Wynn Moves Forward,” Las Vegas Sun, October 14, 2010.

On February 6, 2013, the U.S. District Court, at 2013 U.S. Dist. LEXIS 16778, granted the Defendant’s motion for summary judgment, ruling that the home-state controversy exception to the Class Action Fairness Act (CAFA) applies to this case.  Under that exception, a district court shall decline to exercise jurisdiction under 28 U.S.C. sec. 1332(d)(2) over a class action in which 1) two-thirds or more of the members of all proposed plaintiff classes in the aggregate are citizens of the State in which the action is originally filed and 2) the primary defendants are citizens of the State in which the action was originally filed.  Here, the lone defendant is based in Nevada and more than 99 percent of the proposed plaintiffs are residents of Nevada.

Ltd., (U.S.D.C., D. Nev. 2009).