Zarbas lose in federal court

This Oak Bluffs guesthouse, which was the subject of land court and superior court cases, was central to the Zarbas' federal complaint. — Rich Saltzberg

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.

 

 

 

7 COMMENTS

  1. Unless you are well versed in the law, acting as a ‘pro se’ litigant vs any government entity diminishes the chance of prevailing. The lawyers always have the advantage using unlimited taxpayer funds to fight the case. What works representing yourself in small claims court against a contractor won’t work against big law firms. If the Zarbas feel there are grounds for a lawsuit, then consider retaining an attorney willing to take the case on a contingency basis. If an attorney won’t take the case, it would appear there isn’t a high enough probability of prevailing to put in the time since they don’t get paid their share if they lose.

  2. An Equal protection claim in federal court must state, on its face, that the plaintiff is part of a “protected class,” of which the Supreme Court has laid out several in the years after the 14th Amendment was added to the Constitution. Suffice it to say that “disgruntled guest house builders” are not a protected class. The Zarbas need to stop wasting the town’s money. I suspect they are acting pro se because every lawyer they approached has explained the law to them and they don’t like the answer.

    • Not true. A very pretogiois law firm advised the Xarbas they had a clear win. Damages are always nebulous so most lawyers would not take on this case in a contingency basis. Pro se is smart as you are only wasting time, not money, if you lose. I hope this Judge was not biased as I felt the Zarbas were severely abused by the Town and others. Good luck in the appeal

  3. I said they would sell and were just in it for the money long before the initial case was resolved.I have been proven correct. These people seem to me to be at best amoral and at worst intentionally misleading officers of the court. Please, for the sake of everyone, just go away!

  4. If they are pro se how are they wasting the towns money.? Its their money. the town doesnt have to waste its own money. The town wasted a lot of money harassing the Zarbas.

    • The town is not pro se, they have to spend taxpayers dollars on lawyers to defend the town.
      I thought that a worldy guy like you would know all about that stuff.

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