Defendants also move to dismiss Larsen's claim that Defendants have deprived him of equal protection of the laws in that other judges who qualified for lifetime benefits who were later removed from office under circumstances similar to his own continue to receive state-paid medical benefits. In support of dismissal, Defendants maintain that Larsen has failed to allege membership in a protected class which would afford him protection under the equal protection clause. The equal protection clause does not, however, prohibit only governmental actions that differentiate between "suspect" or "quasi-suspect" classes of individuals. Whether or not a plaintiff is a member of a suspect class determines the appropriate standard to be applied in evaluating the legitimacy of the state's actions. See Envirotech Sanitary Systems, Inc. v. Shoener, 745 F. Supp. 271, 280 n.11 (M.D. Pa. 1990) (Conaboy, J.). Lack of membership in a protected class does not, however, relieve the government of the obligation to act reasonably in differentiating between groups of similarly situated individuals. Thus, since Larsen's equal protection claim involves neither the deprivation of a fundamental right nor discrimination based on a suspect classification, the court will ultimately evaluate his claims under the rational relationship test. Palmer by Palmer v. Merluzzi, 868 F.2d 90, 96 (3d Cir. 1990). Determination of whether Defendants acted reasonably in depriving Larsen of his right to receive lifetime medical benefits as compared with other similarly situated individuals is inappropriate at this stage in the litigation and Defendants' motion to dismiss this claim will be denied.
(6) PHSA Claims
In parts III (b) and (c) of the amended complaint, Larsen asserts that the Supreme Court Defendants, Defendant Administrative Office of the Courts, and Defendants Sobolevitch and Frankfurter have denied him benefits under the Public Health Services Act ("PHSA"), 42 U.S.C. §§ 201 et seq., 42 U.S.C. §§ 300bb-1 et seg. 42 U.S.C. § 300bb-(2) of the PHSA requires state and local government group health plans to provide continuation coverage for eighteen months to certain individuals upon termination of their employment. Such coverage must consist of coverage identical to the coverage provided under the group health plan to current employees. Larsen claims that Defendants have wrongfully denied him coverage pursuant to section 300bb(2) and that their decision to do so was unconstitutionally motivated by his prior statements regarding Justices Cappy, Zappala, and Chief Justice Nix. Defendants argue that Larsen was removed from office based on "gross misconduct, an express exception to the PHSA's requirement that state and local governments permit employees to pay a premium and participate in group health insurance for eighteen months after termination. 42 U.S.C. § 300bb-3(2). Furthermore, Defendants argue that even if Larsen prevailed on his section 300bb-1 claim, his claims are moot because the Eleventh Amendment prohibits the court from granting Larsen anything other than preliminary injunctive relief. Defendants opine that this would be outside the court's powers since any entitlement Larsen may have had to continued health care coverage would have expired on November 3, 1995.
In response, Larsen argues that he was not convicted for conduct relating to his position as a supreme court justice and, therefore, his case is distinguishable from the cases cited by Defendants in support of dismissal.
See Burke v. American Stores Employee Benefit Plan, 818 F. Supp. 1131 (N.D. Ill. 1993) (employee's termination for improper use of promotional materials constitutes gross misconduct and COBRA's provisions not triggered); Adkins v. United Int'l Investigative Services, Inc., No. C:91-0087 BAC, 1993 WL 345186 (N.D. Cal. March 27, 1993) (security guard's termination of employment for leaving post while on duty constituted gross misconduct under COBRA); Karby v. Standard Products Co., NO. 3:90-2918-17, 1992 WL 333931 (D.S.C. June 22, 1992) (employee's false statements on conflict of interest disclosure form and theft of company property constitutes gross misconduct); Avina v. Texas Pig Stands, Inc., No. SA-88-CA-13, 1991 WL 458848 (W.D. Tex. Feb. 1, 1991) (employee's termination for irregularities in handling cash, invoice irregularities and failure to improve performance of one of defendant's stores constitutes gross misconduct).
The court is not prepared at this juncture to make a definitive determination as to whether Larsen's convictions constitute gross misconduct within the meaning of sect ion 300bb -3(2), although it is likely that the court will ultimately conclude that this is so. The relevant question in determining whether Larsen committed gross misconduct is not merely whether he abused his position as a supreme court justice, but whether he committed acts of misconduct as an employee of the Commonwealth generally. Larsen was convicted on two counts of conspiracy to obtain possession of controlled substances. In order to effectuate his crimes, he directed his staff employees to secure prescription drugs in their names and had them pay for the prescriptions using their National Prescription Administrators ("NPA") cards. NPA "is a drug benefit program administered by the NPA on behalf of the state judiciary for its employees." Commonwealth v. Larsen, 682 A.2d at 786 n.2. Had Larsen carried out his unlawful acts without the assistance of state employees under his employ or the judiciary's benefit program, the court might be more likely, once it reached the issue, to conclude that his criminal activity was unrelated to his employment.
The court need not, however, decide this issue at the present time for two reasons. First, if Larsen succeeds on his claim that Defendants have improperly revoked his right to receive lifetime medical benefits his PHSA claim will become moot. Second, the Senate impeached Larsen for improper ex parte communication with an attorney who had cases pending before the supreme court. This offense clearly constitutes gross misconduct relating to his employment and his position as a supreme court justice. If Larsen is unsuccessful on his claims that the Senate Defendants committed constitutional errors in the impeachment process, the impeachment verdict will stand. This would provide an independent basis for finding that Larsen is ineligible for PHSA continuation coverage and would moot his claims.
H. Senate Defendants' Motion Pursuant to Rule 41(b)
The Senate Defendants have moved to recover the costs of Larsen's previously dismissed commonwealth court action pursuant to Federal Rule of Civil Procedure 41(b). Rule 41(b) states:
If a plaintiff who has once dismissed an action in any court commences an action based upon, or including the same claim against the same defendants, the court may make such order for the payment of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order.
Fed. R. Civ. P. 41(d). The decision whether to stay an action and impose costs pursuant to Rule 41(d) is within the broad discretion of the trial court. 5 Moore's Federal Practice P 41.16 at 41-185 (2d ed. 1996) (citing cases). "The purpose of the rule is to prevent the maintenance of vexatious law suits and to secure, where such suits are shown to have been brought repetitively, payment of costs of prior instances of such vexatious conduct." United Transp. Union v. Maine Central R.R. Co., 107 F.R.D. 391, 392 (D. Me. 1985).
The court will deny Defendants' motion. Although several of the claims Larsen asserts in the present action are similar to ones he raised before the commonwealth court, the two cases are hardly identical. As the court has already noted in its discussion regarding the applicability of the Rooker-Feldman doctrine, many of the claims that Larsen raises in the instant case are ones that arose out of the impeachment proceedings and, therefore, could not have been raised at the time he filed suit in commonwealth court. Additionally, in the commonwealth court action, Larsen sought primarily preliminary injunctive relief. Here, he seeks permanent injunctive relief after a full hearing on the merits of his amended complaint. See United Transp. Union, 107 F.R.D. at 393. Also, given the fact that the political question doctrine may have prohibited Larsen from asserting many of his claims against the Senate Defendants in state court, the court does not find his decision to file suit in federal court unreasonable or motivated by any improper purpose." Id.
(I) Senate Defendants' Motion to Strike Portions of the Amended Complaint
Pursuant to Federal Rule of Civil Procedure 12(f), the Senate Defendants argue that the court should dismiss paragraphs twenty-two, twenty-five, thirty-five, sixty, and sixty-one of the amended complaint. Rule 12(f) permits the court to strike "any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). The paragraphs Defendants move to strike address the allegations made by Larsen in his petitions for disqualification and recusal regarding Justices Zappala and Cappy and Chief Justice Nix.
It is within the court's discretion to strike portions of the complaint which technically fall within the ambit of Rule 12(f). North Penn Transfer, Inc. v. Victaulic Co. of America, 859 F. Supp. 154, 158 (E.D. Pa. 1994). "Motions to strike . . . are not favored and usually will be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties, or if the allegations confuse the issues." Id. (internal quotations omitted).
The allegations contained in the paragraphs which Defendants move to strike relate to Larsen's First Amendment claims against the Senate Defendants which the court has declined to dismiss. These portions of the amended complaint allege facts which address the nature and substance of Larsen's allegations regarding various justices of the Pennsylvania Supreme Court, thus supporting his claim that these statements are entitled to First Amendment protection. Furthermore, the facts alleged in these paragraphs are matters of public record. Accordingly, the court does not find that Defendants will be prejudiced by their inclusion in the amended complaint. The court will deny the motion to strike.
(J) JCB Defendants' Motion for Sanctions
The JCB has moved for the imposition of sanctions pursuant to Rule 11 against Larsen and his counsel. The underlying premise upon which the JCB Defendants base their motion, is the frivolity of Larsen's claims against them. The court, however, will abstain from hearing these claims and makes no finding as to the meritoriousness of Larsen's allegations against the JCB. As presented to the court, the JCB Defendants' motion would require the court to address the merits of Larsen's claims. Such an undertaking would be inappropriate in light of the court's decision to abstain. Moreover, the court does not find that its decision to abstain indicates such frivolity on Larsen's or his counsel's behalf in filing suit in federal court to warrant the imposition of sanctions in this case. The JCB Defendants are not prohibited from renewing their motion at a later stage in the proceeding.
The court will enter an order in accordance with the foregoing discussion.
SYLVIA H. RAMBO, Chief Judge
Middle District of Pennsylvania
Dated: February 28, 1997.
In accordance with the accompanying memorandum of law, IT IS HEREBY ORDERED THAT:
(1) The motion to dismiss of the Senate of Pennsylvania is GRANTED.
(2) The motion to dismiss of the Supreme Court of Pennsylvania is GRANTED.
(3) The motion to dismiss of the Court of Judicial Discipline is GRANTED.
(4) All claims asserted against the Senate, Supreme Court and Court of Judicial Discipline in their personal capacities are DISMISSED.
(5) All claims against the individual Senate Defendants in their personal capacities are DISMISSED.
(6) All claims against the individual members of the Court of Judicial Discipline in their official and personal capacities are DISMISSED.
(7) All claims against the individual members of the Judicial Conduct Board in their official capacities are DISMISSED.
(8) All claims asserted in parts II(a) and (b) of the complaint against the individual members of the Supreme Court in their official and personal capacities are DISMISSED.
(9) All claims asserted in paragraphs fifty-eight (58) (a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), (1), (m), (p), (q), and paragraph fifty-nine (59) against the Senate Defendants in their official capacities are DISMISSED. The claims asserted in paragraphs fifty-eight (58) (n) and (o) stand.
(10) Plaintiff's claims that he possessed a liberty interest in his job as a supreme court justice are DISMISSED.
(11) All claims asserted in paragraph fifty-five (55) are DISMISSED.
(12) All claims asserted in paragraph fifty-seven (57) are DISMISSED.
(13) The individual Senate Defendants motion to dismiss Plaintiff's claim that the Senate Defendants violated his First Amendment right in deciding to pursue impeachment proceedings against him contained in part I(b) of the complaint is GRANTED.
(14) The Senate Defendants' motion pursuant to Rule 41(b) is DENIED.
(15) The Senate Defendants' motion to strike portions of the complaint is DENIED.
(16) The Judicial Conduct Board Defendants' motion for sanctions is DENIED.
(17) Plaintiff's motion to strike portions of the Judicial Conduct Board Defendants' brief and exhibits supporting their motion for sanctions is DENIED as moot.
(18) Plaintiff's request for oral argument is DENIED.
(19) All other relief otherwise requested by Defendants and not specifically referenced in this order is DENIED.
(20) Defendants shall respond to Plaintiff's motion for partial summary judgment within sixty days from the date of this order.
SYLVIA H. RAMBO, Chief Judge
Middle District of Pennsylvania
Dated: February 28, 1997.