The town of Oak Bluffs and the law firm of Reynolds, Rappaport, Kaplan, and Hackney defeated a multicount federal lawsuit brought by John and Susan Zarba. The Zarbas, pro se litigants who had battled the town in Land Court and won favorable rulings on a boundary dispute and a parking dispute, failed to convince U.S. District Court Judge Leo Sorokin that any of the nine counts in their suit were valid. Lawyers from the town’s insurance firm working in conjunction with lawyers for Reynolds, Rappaport, upended the complaint on motions to dismiss. In his 11-page decision, Judge Sorokin found numerous occasions where the Zarbas hadn’t met the standard for the elements of law they wished to employ.
The Zarbas’ allegations, originally filed June 2019 and amended in January, included lack of due process, “aiding and abetting fraud,” and “under the color of state law to intentionally deprive the plaintiffs of their federal constitutional property rights,” among others. All were dismissed. Another allegation was that the Zarbas didn’t receive equal protection under the law. With numerous references to case law, Judge Sorokin also found the Zarbas failed to meet the threshold for that allegation.
“As a threshold matter,” he wrote, “the First Circuit has expressly cautioned against entertaining Equal Protection suits arising from local case[s] … Indeed, “[i]f disgruntled permit applicants could create constitutional claims merely by alleging that they were treated differently from a similarly situated applicant, the correctness of virtually any state permit denial would become subject to litigation in federal court … The present case epitomizes the dangers that the First Circuit sought to avoid. Here, plaintiffs have failed to allege any facts about ‘similarly situated’ property owners, let alone any facts as to how such owners were treated differently than plaintiffs.” Judge Sorokin noted that one example of case law, Freeman v. Town of Hudson, held that “‘plaintiffs failed to state an Equal Protection claim when they did no ‘more than point to nearby parcels in a vacuum, and leave it to the municipality to disprove conclusory allegations that the owners of those parcels are similarly situated …’ Nor do plaintiffs’ conclusory references to Ms. Zarba’s status as ‘a women builder’ [sic] resuscitate their claim. Where, as here, plaintiffs have provided no factual allegations about ‘similarly situated’ applicants, nor any nonconclusory allegations about differential treatment on the basis of a protected characteristic, an Equal Protection claim does not lie …”
Oak Bluffs town administrator Robert Whritenour said, “Tthe decision comes as no surprise. We felt the litigation was unfortunate, and not appropriate from the start. We’re very happy this unfortunate chapter has come to an end.”
Michael Goldsmith, director of Reynolds, Rappaport, Kaplan, and Ron Rappaport, founder of the firm, didn’t respond to emails seeking comment.
When the case was first filled, Rappaport wrote, “This case has no merit. That said, anyone is entitled to file a lawsuit, even those who are not represented by counsel.”
“We’re appealing,” Susan Zarba said. “We’re taking it to the First Circuit appellate court.