Kanie Kastroll v. Wynn Resorts Ltd., et al.

Filing 25

ANSWER to 1 Complaint, filed by Resorts LTD. Wynn. Certificate of Interested Parties due by 10/18/2010. Discovery Plan/Scheduling Order due by 11/22/2010.(Pisanelli, James)

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PISANELLI BICE 3883 Howard Hughes Parkway, Suite 800 Las Vegas, Nevada 89169

James J. Pisanelli, Esq., Bar No. 4027 [e-mail] Debra L. Spinelli, Esq., Bar No. 9695 [e-mail] Jarrod L. Rickard, Esq., Bar No. 10203 [e-mail]

PISANELLI BICE PLLC

3883 Howard Hughes Parkway, Suite 800 Las Vegas, Nevada 89169 Telephone: [phone] Facsimile: 702.214.2100 Attorneys for Defendants Wynn Las Vegas, LLC dba Wynn Las Vegas and Wynn Resorts, Ltd. UNITED STATES DISTRICT COURT DISTRICT OF NEVADA KANIE KASTROLL, on her own behalf and on behalf of all others similarly situated, Plaintiff, v. WYNN RESORTS, LTD., a Nevada corporation d/b/a WYNN LAS VEGAS, Defendant. CASE NO. 2:09-cv-02034-LDG-LRL

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ANSWER

Defendant Wynn Las Vegas, LLC dba Wynn Las Vegas, erroneously named in this action as Wynn Resorts, Ltd. (hereinafter "Wynn" or "Wynn Las Vegas"),1 hereby responds to the Complaint filed by Plaintiff Kanie Kastroll ("Plaintiff") as follows: NATURE OF ACTION 1. Paragraph 1 of Plaintiff's Complaint alleges facts proper for an expert opinion.

Therefore, Wynn is currently without sufficient knowledge or information to form a belief as to

To the extent Plaintiff intentionally named Wynn Resorts, Ltd., this Answer is filed on its behalf as well. 1

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PISANELLI BICE 3883 Howard Hughes Parkway, Suite 800 Las Vegas, Nevada 89169

the truth or falsity of the allegations contained in Paragraph 1 of Plaintiff's Complaint and therefore denies the same. 2. In answering Paragraph 2 of Plaintiff's Complaint, Wynn is without sufficient

knowledge or information to form a belief as to the truth or falsity of the allegations regarding other Las Vegas casinos, and therefore denies the same, and denies any and all remaining allegations therein. 3. Wynn denies the allegations in Paragraph 3 of Plaintiff's Complaint. EFFECTS OF SECOND-HAND SMOKE 4. Paragraph 4 of Plaintiff's Complaint alleges facts proper for an expert opinion.

Therefore, Wynn is currently without sufficient knowledge or information to form a belief as to the truth or falsity of the allegations contained in Paragraph 4 of Plaintiff's Complaint and therefore denies the same. 5. Paragraph 5 of Plaintiff's Complaint alleges facts proper for an expert opinion.

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Therefore, Wynn is currently without sufficient knowledge or information to form a belief as to the truth or falsity of the allegations contained in Paragraph 5 of Plaintiff's Complaint and therefore denies the same. 6. Paragraph 6 of Plaintiff's Complaint alleges facts proper for an expert opinion.

Therefore, Wynn is currently without sufficient knowledge or information to form a belief as to the truth or falsity of the allegations contained in Paragraph 6 of Plaintiff's Complaint and therefore denies the same. 7. Paragraph 7 of Plaintiff's Complaint alleges facts proper for an expert opinion.

Therefore, Wynn is currently without sufficient knowledge or information to form a belief as to the truth or falsity of the allegations contained in Paragraph 7 of Plaintiff's Complaint and therefore denies the same. PARTIES 8. Wynn is without sufficient knowledge or information to form a belief as to the

truth or falsity of the allegations contained in Paragraph 8 of Plaintiff's Complaint and therefore denies the same. 2

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PISANELLI BICE 3883 Howard Hughes Parkway, Suite 800 Las Vegas, Nevada 89169

9.

In answering Paragraph 9 of Plaintiff's Complaint, Wynn admits that

Wynn Resorts, Ltd. is a corporation created and operating under the laws of the State of Nevada, and denies any and all remaining allegations therein. JURISDICTION AND VENUE 10. 11. 12. Wynn denies the allegations in Paragraph 10 of Plaintiff's Complaint. Wynn denies the allegations in Paragraph 11 of Plaintiff's Complaint. Paragraph 12 of Plaintiff's Complaint calls for a legal conclusion, to which no

admission or denial is required. To the extent a response is required, Wynn denies the same. GENERAL ALLEGATIONS 13. 14. 15. 16. 17. Wynn admits the allegations in Paragraph 13 of Plaintiff's Complaint. Wynn admits the allegations in Paragraph 14 of Plaintiff's Complaint. Wynn admits the allegations in Paragraph 15 of Plaintiff's Complaint. Wynn admits the allegations in Paragraph 16 of Plaintiff's Complaint. In answering Paragraph 17 of Plaintiff's Complaint, Wynn admits that employees

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in the gaming area generally work eight hour shifts, but denies any and all remaining allegations therein. 18. In answering Paragraph 18 of Plaintiff's Complaint, Wynn admits that its dealers

in the gaming area are not authorized to designate tables as "smoke free." Dealers are required to forward any patron request for a non-smoking table to a Casino Service Team Lead who may, under certain conditions, designate a table as non-smoking. Wynn denies any and all remaining allegations of Paragraph 18. 19. In answering Paragraph 19 of Plaintiff's Complaint, Wynn admits that its

employees are instructed not to direct guests regarding their smoking or ashtrays or to fan their hands at a guest's tobacco smoke. However, should a guest purposefully direct smoke toward a dealer, the dealer may communicate such action to a Casino Service Team Lead who is then authorized to ask the guest to redirect their smoke. allegations of Paragraph 19. Wynn denies any and all remaining

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PISANELLI BICE 3883 Howard Hughes Parkway, Suite 800 Las Vegas, Nevada 89169

20.

In answering Paragraph 20 of Plaintiff's Complaint, Wynn admits that it requests

that dealers not protest smoking by guests if they are in a smoking area of the casino. Additionally, Wynn may counsel dealers who express that the habits or actions of a guest are in any way negative to them. However, should a dealer witness or experience behavior by a guest that is counter to the policies and ethics of Wynn, such behavior should be immediately brought to the attention of a Casino Service Team Lead or Casino Manager who will then take appropriate action toward the guest. Paragraph 20. 21. In answering Paragraph 21 of Plaintiff's Complaint, Wynn admits that it will bring Wynn denies any and all remaining allegations of

cigars or cigarettes to a guest depending on their level of play but only at that guest's request. Wynn also admits that it provides ashtrays within the gaming area and matchbooks with Wynn's logo emblazoned on the cover. Wynn denies any and all remaining allegations of Paragraph 21. 22. 23. 24. 25. Wynn denies the allegations in Paragraph 22 of Plaintiff's Complaint. Wynn denies the allegations in Paragraph 23 of Plaintiff's Complaint. Wynn denies the allegations in Paragraph 24 of Plaintiff's Complaint. In answering Paragraph 25 of Plaintiff's Complaint, Wynn admits that it permits

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outside parties to make anti-smoking information available to its employees in the office containing Wynn's benefits department. Wynn denies any and all remaining allegations of Paragraph 25. 26. Wynn denies the allegations in Paragraph 26 of Plaintiff's Complaint. ALLEGATIONS AS TO NAMED PLAINTIFF 27. 28. 29. 30. Wynn admits the allegations in Paragraph 27 of Plaintiff's Complaint. Wynn admits the allegations in Paragraph 28 of Plaintiff's Complaint. Wynn denies the allegations in Paragraph 29 of Plaintiff's Complaint. In response to Paragraph 30 of Plaintiff's Complaint, Wynn repeats its answers to

Paragraphs 13 through 26 of Plaintiff's Complaint as though fully set forth herein.

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PISANELLI BICE 3883 Howard Hughes Parkway, Suite 800 Las Vegas, Nevada 89169

31.

Wynn is without sufficient knowledge or information to form a belief as to the

truth or falsity of the allegations contained in Paragraph 31 of Plaintiff's Complaint and therefore denies the same. 32. Wynn is without sufficient knowledge or information to form a belief as to the

truth or falsity of the allegations contained in Paragraph 32 of Plaintiff's Complaint and therefore denies the same. CLASS CERTIFICATION ALLEGATIONS 33. Wynn is without sufficient knowledge or information to form a belief as to the

truth or falsity of the allegations contained in Paragraph 33 of Plaintiff's Complaint and therefore denies the same. 34. 35. 36. 37. 38. Wynn denies the allegations in Paragraph 34 of Plaintiff's Complaint. Wynn denies the allegations in Paragraph 35 of Plaintiff's Complaint. Wynn denies the allegations in Paragraph 36 of Plaintiff's Complaint. Wynn denies the allegations in Paragraph 37 of Plaintiff's Complaint. Wynn denies the allegations in Paragraph 38 of Plaintiff's Complaint. COUNT I FAILURE TO PROVIDE A SAFE WORKPLACE (By Plaintiff individually and on behalf of the Class) 39. Wynn repeats its answers to Paragraphs 1 through 38 of Plaintiff's Complaint as

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though fully set forth herein. 40. Paragraph 40 of Plaintiff's Complaint calls for a legal conclusion, to which no

admission or denial is required. To the extent a response is required, Wynn denies the same. 41. 42. 43. Wynn denies the allegations in Paragraph 41 of Plaintiff's Complaint. Wynn denies the allegations in Paragraph 42 of Plaintiff's Complaint. Wynn denies the allegations in Paragraph 43 of Plaintiff's Complaint.

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COUNT II BREACH OF STATUTORY DUTY TO PROVIDE A SAFE WORKPLACE (N.R.S. 618.375) (By Plaintiff individually and on behalf of the Class) 44. Wynn repeats its answers to Paragraphs 1 through 43 of Plaintiff's Complaint as

though fully set forth herein. 45. Paragraph 45 of Plaintiff's Complaint calls for a legal conclusion, to which no

admission or denial is required. To the extent a response is required, Wynn denies the same. 46. Paragraph 46 of Plaintiff's Complaint merely recites the language of

N.R.S. 618.375 with the omission of "or her" in the phrase "to his or her employees" in N.R.S. 618.375(1). Thus, no admission or denial is required. 47. 48. 49. Wynn denies the allegations in Paragraph 47 of Plaintiff's Complaint. Wynn denies the allegations in Paragraph 48 of Plaintiff's Complaint. Wynn denies the allegations in Paragraph 49 of Plaintiff's Complaint. AFFIRMATIVE DEFENSES 1. 2. 3. this Court. 4. 5. 6. 7. 8. 9. 10. Plaintiff cannot meet the class certification requirements. Plaintiff's allegations concern conduct specifically permitted under Nevada law. Plaintiff has failed to allege a duty under Nevada law. Plaintiff has assumed the risk. Plaintiff's claims are barred by the doctrine of estoppel. Plaintiff's claims are barred by the doctrine of waiver and release. Plaintiff's claims against Wynn are barred in whole or in part by Plaintiff's failure Plaintiff fails to state a claim upon which relief can be granted. This Court lacks subject matter jurisdiction over Plaintiff's claims. Past and future Wynn employees lack standing to assert claims against Wynn in

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to take reasonable steps to mitigate, reduce, or diminish the damages allegedly sustained. Any recovery is accordingly barred or diminished. 6

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11.

Plaintiff's claims are barred by unclean hands.

Wynn reserves the right to (a) rely upon such other affirmative defenses as may be supported by the facts to be determined through full and complete discovery, and (b) voluntarily withdraw any affirmative defense. WHEREFORE, having fully answered Plaintiff's Complaint, Wynn respectfully demands judgment in its favor as follows: 1. That Plaintiff's Complaint against be dismissed with prejudice, with Plaintiff

taking nothing thereby; 2. 3. 4. proper. DATED this 8th day of October, 2010. That Wynn be awarded its costs incurred herein; That Wynn be awarded its reasonable attorneys' fees incurred herein; and That Wynn be awarded such other and further relief as the Court deems just and

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PISANELLI BICE PLLC
By: /s/ James J. Pisanelli James J. Pisanelli, Esq., #4027 Debra L. Spinelli, Esq., #9695 Jarrod L. Rickard, Esq., #10203 3883 Howard Hughes Parkway, Suite 800 Las Vegas, Nevada 89169

Attorneys for Defendants Wynn Las Vegas, LLC dba Wynn Las Vegas and Wynn Resorts, Ltd.

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