Federal District Court Opinions

Plaintiff, v. GATHEROO, LLC and WARECORP, Defendants. Civil
Action. No. 06-10440-PBS. United States District Court, D.
Massachusetts. June 9, 2006



The plaintiff, Gather, Inc. (“Gather”), has brought this
action for trademark infringement against Gatheroo, LLC
(“Gatheroo”) and Warecorp. Gather moved for a preliminary
injunction on March 10, 2006. Despite having been given
notice, the defendants failed to appear or file papers in
opposition. On April 4, 2006, after briefing and argument,
the court (Saris, D.J.) found that this court had personal
jurisdiction over the defendants based on the record
produced by the plaintiff, that Gather had established a
likelihood of success on its claim of a violation of the
Lanham Act, 15 U.S.C. § 1125(a), and that there was
a likelihood that Gather would suffer irreparable harm
absent equitable relief. Consequently, the court issued a
preliminary injunction enjoining Gatheroo “from using the
term `Gatheroo’ or any term incorporat[ing] `gather’ in
any Page 2 trade name, service mark, trademark, domain
name, metatag, or any other use to promote goods or
services, until further order of this Court.” (Docket No.

In response to the injunction, the defendants have moved
to dismiss the action on the grounds that this court lacks
personal jurisdiction over them. Since any injunction
issued in the absence of jurisdiction would be void, the
defendants also have moved to vacate the injunction.[fn1]
See United Elec., Radio & Mach. Workers of Am. v. 163
Pleasant St. Corp., 960 F.2d 1080, 1084 (1st Cir. 1992)
(“Pleasant St. I”) (absent personal jurisdiction,
preliminary injunction and contempt orders are void since
court would not have had authority to enter the orders).
For the reasons detailed herein, this court finds that there
is personal jurisdiction over the defendant Gatheroo, but
no personal jurisdiction over Warecorp. Therefore, this
court recommends to the District Judge to whom this case is
assigned that the “Defendants’ Motion to Dismiss for Lack
of Personal Jurisdiction and to Vacate Preliminary
Injunction” (Docket No. 45) be DENIED as to Gatheroo, LLC
and ALLOWED as to Warecorp. Page 3


Standard of Review of Record

“On a motion to dismiss for want of in personam
jurisdiction, Fed.R.Civ.P. 12(b)(2), the plaintiff
ultimately bears the burden of persuading the court that
jurisdiction exists.” Mass. Sch. of Law at Andover, Inc. v.
Am. Bar Ass’n, 142 F.3d 26, 34 (1st Cir. 1998), and cases
cited. Where, as here, the court elects to dispose of a
motion to dismiss for lack of personal jurisdiction without
holding an evidentiary hearing, the court applies a “prima
facie” standard of review pursuant to which the plaintiff
must “demonstrate the existence of every fact required to
satisfy both the forum’s long-arm statute and the Due
Process Clause of the Constitution.” United Elec. Radio &
Mach. Workers of Am. v. 163 Pleasant St. Corp, 987 F.2d 39,
43-44 (1st Cir. 1993) (“Pleasant St. II”) (quotations and
citation omitted). Under this standard, the court will look
to the facts alleged in the pleadings and the parties’
supplemental filings, including affidavits. Sawtelle v.
Farrell, 70 F.3d 1381, 1385 (1st Cir. 1995);
Ticketmaster-NY, Inc. v. Alioto, 26 F.3d 201, 203 (1st Cir.
1994). The court will “take specific facts affirmatively
alleged by the plaintiff as true (whether or not disputed)
and construe them in the light most congenial to the
plaintiff’s jurisdictional claim.” Mass Sch. of Law, 142
F.3d at 34. It will then “add to the mix facts put forward
by the defendants, to the extent that they are
uncontradicted.” Id. Notwithstanding the liberality of this
approach, the court will not “credit conclusory allegations
or draw farfetched inferences.” Ticketmaster-NY, 26 F.3d at
203. Page 4


The relevant facts, set forth in the light most favorable
to the plaintiff’s jurisdictional claim, are as follows.
Plaintiff, Gather, Inc. (“Gather”), is a Delaware
corporation with a place of business in Massachusetts.
(Compl. (Docket No. 1) at ¶ 4). At its website,
gather.com, Gather “provides the capability for members to
search for other members based on common interests, join
and host groups organized by common interests, create
individual member profiles, upload and store digital
photographs and images, upload and manage documents, and
contribute to group message boards.” (Id. at ¶ 20).

Gather acquired the gather.com domain name by assignment
on February 17, 2005. (Id. at ¶ 9). On that date,
Gather also applied to register the “gather” and
“gather.com” marks with the United States Patent and
Trademark Office. (Id. at ¶¶ 11-12). Shortly
thereafter, beginning on March 2, 2005, web content was
available to the public at gather.com. (Id. at ¶ 18).
By May 10, 2005, Gather had posted a welcome message on its
website and news of Gather’s services had appeared on two
additional websites. (Id. at ¶¶ 23-24).
Finally, on May 20, 2005, the “alpha” launch of the
gather.com website took place at a private Internet
location. (Id. at ¶ 22).

Defendants Gatheroo, LLC, (“Gatheroo”) and Warecorp are
Minnesota entities with places of business in Minnesota.
(Id. at ¶¶ 5-6). Neither Gatheroo nor
Warecorp has any assets, business licenses, or offices in
Massachusetts. (Affidavit of Christopher Dykstra (“Dykstra
Aff.”) (Docket No. 41) at ¶¶ 3-8 & 16-21).
Because the defendants are Page 5 legally distinct
entities, the relevant facts related to each defendant will
be discussed separately.

Gatheroo, LLC

Defendant Gatheroo was formed in May, 2005, to provide
online “community organization and lifestyle management
tools” free of charge. (Dykstra Aff. at ¶ 2).
Michael Milkovich, an employee of both Gatheroo and
Warecorp, registered the gatheroo.com domain name on May
19, 2005, and Gatheroo was incorporated on June 16, 2005.
(Compl. at ¶¶ 26-27).

Visitors to gatheroo.com may search for groups located in
a particular state, including Massachusetts. (Affidavit of
Deirdre E. Sanders (“Sanders Aff.”) (Docket No. 55) at
¶ 9). These groups are formed by individual
gatheroo.com members at their option. (Dykstra Aff. at
¶ 11). To become a member of gatheroo.com, a user
must complete an online registration form. (Id.). The
registration process requires that the user accept
Gatheroo’s terms of service. (Sanders Aff. at ¶ 4).
After submitting a registration form, the user receives an
email from gatheroo.com containing a hyperlink through
which registration may be confirmed. (Id. at ¶ 5).
When a new member follows this link, he or she is directed
to a website containing links to groups and members from
his or her home state; for example, a Massachusetts member
is presented with a page that “displays links to
Massachusetts groups and members.” (Id. at ¶ 8).
Page 6

At the time the complaint was filed, four members from
Massachusetts were registered at gatheroo.com, and as of
April 25, 2006, seven Massachusetts members were
registered. (Dykstra Aff. at ¶ 11). Two of the
current Massachusetts members are associated with the
plaintiff (one is a lawyer with plaintiff counsel’s law
firm and the other is a software architect employed by the
plaintiff). (Id. at ¶ 12). Two Massachusetts groups
have also registered at gatheroo.com, although both groups
were formed after the present action was commenced. (Id. at
¶ 13).

In addition to registering individual members and groups,
Gatheroo also solicits advertisers at gatheroo.com.
(Affidavit of Michael M. Yamauchi (“Yamauchi Aff.”) (Docket
No. 13) at ¶ 7). This solicitation is available to
Massachusetts residents. Id. Gatheroo is at its early
stage, and has not yet generated any revenues from any

When Gatheroo selected its name, its president was “not
aware of any public announcement stating that Gather was
forming an online social networking business.” (Dykstra
Aff. at ¶ 9). However, on August 29, 2005, plaintiff
notified defendants by letter of their infringement.
(Compl. at ¶ 35). Subsequently, in a September 7,
2005, email to the President and CEO of American Public
Media Group, who is also the Chairman of Gather, the
co-founder of Gatheroo stated that Gatheroo was “creating a
startup to rival gather.com, the Boston based social
networking site.” (Affidavit of William H. Kling (“Kling
Aff.”) (Docket No. 4) at Exhibit A). Thus, Gatheroo was
Page 7 clearly aware of the existence of gather.com at an
early stage in its creation, and had expressed its
intention of competing with gather.com., a Boston-based

According to the complaint, Gatheroo’s website contains
embedded codes known as metatags, which are recognized by
Internet search engines, and which “increase the likelihood
that users searching with a search engine will receive
gatheroo.com as a `hit’ when searching for one of the terms
in the metatags.” (Compl. at ¶ 30). Gatheroo’s
metatags include the terms “gather,” “meetup,” and
“civicspace,” all of which are associated with online
communities which are competitors of Gatheroo. (Id. at
¶ 31).


Defendant Warecorp is a “software and web services
consulting company.” (Dykstra Aff. at ¶ 15).
Warecorp does not do business in Massachusetts. (Id.).
However, it operates at the same Minnesota address as
Gatheroo (Compl. at ¶¶ 5 & 6) and has several
principals in common with Gatheroo, including Christopher
Dykstra. (See Dykstra Aff. at ¶ 1). Furthermore,
Warecorp has stated on its website that it “create[d]”
Gatheroo. (Affidavit of Susan W. Maffei (“Maffei Aff.”)
(Docket No. 9) at ¶ 22). Finally, although Warecorp
does not own the domain name gatheroo.com or provide any
services at gatheroo.com, Warecorp advertises on its own
website that it has done work for Gatheroo and provides a
link to gatheroo.com. (Dykstra Aff. at ¶¶
22-23). Page 8

Procedural History

When Gather filed its complaint in the present action on
March 10, 2006, it also brought a motion for preliminary
injunction, seeking to enjoin defendants from any use of
the terms “gatheroo” and “gather” to promote their
services. Defendants did not appear at a hearing on the
motion, and an injunction was issued on April 4, 2006.
(Docket No. 14). As part of the injunction, the defendants
were ordered to file a report within thirty days detailing
the manner in which they had complied with the injunction.

After the lawsuit was filed, Gatheroo posted the complaint
and other court documents on its website, along with
comments it referred to as “our side of the story.”
(Affidavit of Susan W. Maffei (“Maffei Aff.”) (Docket No.
29) at ¶ 4). However, it did not post the injunction
or otherwise give its users notice of the injunction.

The parties have been engaged in negotiations at various
times since Gather sent its first letter to Gatheroo on
August 29, 2005. (Affidavit of John L. DuPr?© (“DuPr?© Aff.”)
(Docket No. 6) at ¶¶ 5-10). However, the
parties’ assessments as to how serious such negotiations
have been differ greatly. In any event, between April 13
and 20, 2006, following the entry of the preliminary
injunction order, the parties engaged in negotiations. As
part of these negotiations, on or about April 20, 2006,
Gatheroo announced on its website that it was going to
change its name. (Affidavit of Dean C. Eyler (“Dean Aff.”)
(Docket No. 45) at ¶ 3). Nevertheless, the
gatheroo.com website continued in operation, and continued
to contain multiple uses of the term “gatheroo,” as well as
to include “gather” as one of the website’s metatags.
(Maffei Aff. (Docket No. 29) at ¶ 3). Page 9
Indeed, Gatheroo expanded the services offered at its
website to include a number of new upgrades. (Id. at
¶ 5). On April 21, 2006, Gather filed a motion for

On May 4, 2006, Gatheroo filed its report pursuant to the
preliminary injunction order. Therein, Gatheroo stated that
it had “undertaken the process of selecting a new mark” and
referred to Gatheroo’s announcement on gatheroo.com that it
intended to change its name. (Defs.’ Resp. to Order at
1-2). On or about June 1, 2006, Gatheroo announced on its
weblog that it would change its name to Zanby
(gatheroo.blogspot.com). However, gatheroo.com continues to
operate with its multiple references to gatheroo.


A. Personal Jurisdiction — Generally

In order to exercise personal jurisdiction over a
defendant, the court must find sufficient contacts between
the defendant and the forum to satisfy both the state’s
long-arm statute and the due process clause of the
Fourteenth Amendment. Sawtelle, 70 F.3d at 1387;
Ticketmaster-NY, 26 F.3d at 204. Massachusetts’ long-arm
statute, Mass. Gen. Laws. ch. 223A, § 3 (2000),
authorizes jurisdiction over the person (including
corporations) to the limits allowed by the federal
Constitution. See Daynard v. Ness, Motley, Loadholt,
Richardson & Poole, P.A., 290 F.3d 42, 52 (1st Cir. 2002)
(“the Supreme Judicial Court of Massachusetts has
interpreted the state’s long-arm statute `as an assertion
of jurisdiction over the person to the limits allowed by
the Constitution of the United States.'”) (quoting
`Automatic’ Sprinkler Corp. of Am. v. Seneca Foods Corp.,
Page 10 361 Mass. 441, 443, 280 N.E.2d 423, 424 (1972)).
“[W]hen a state’s long-arm statute is coextensive with the
outer limits of due process, the court’s attention properly
turns to the issue of whether the exercise of personal
jurisdiction comports with federal constitutional
standards.” Sawtelle, 70 F.3d at 1388. It is appropriate,
therefore, for the court to “sidestep the statutory inquiry
and proceed directly to the constitutional analysis. . . .”
Daynard, 290 F.3d at 52. See also Callahan v. Harvest Bd.
Int’l, 138 F. Supp. 2d 147, 157-58 (D. Mass. 2001).

Due process requires the court to determine whether the
defendant has maintained “certain minimum contacts” with
the forum state “such that the maintenance of the suit does
not offend `traditional notions of fair play and
substantial justice.'” Int’l Shoe Co. v. Washington, 326
U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95 (1945)
(quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S. Ct.
339, 343, 85 L. Ed. 278 (1940)). Accordingly, “[t]he
accepted mode of analysis for questions involving personal
jurisdiction concentrates on the quality and quantity of
the potential defendant’s contacts with the forum.”
Phillips Exeter Acad. v. Howard Phillips Fund, Inc., 196
F.3d 284, 288 (1st Cir. 1999). “Jurisdiction is proper . .
. where the contacts proximately result from actions by the
defendant himself that create a substantial connection with
the forum State.” Asahi Metal Indus. Co., Ltd. v. Superior
Court of Cal., Solano County, 480 U.S. 102, 109, 107 S. Ct.
1026, 1030, 94 L. Ed. 2d 92 (1987) (quotations and citation
omitted). Page 11

The court may exercise two types of personal jurisdiction
— general or specific. “General jurisdiction `exists
when the litigation is not directly founded on the
defendant’s forum-based contacts, but the defendant has
nevertheless engaged in continuous and systematic activity,
unrelated to the suit, in the forum state.'” Mass. Sch. of
Law, 142 F.3d at 34 (quoting Pleasant St. I, 960 F.2d at
1088). “Specific jurisdiction exists when there is a
demonstrable nexus between a plaintiff’s claims and a
defendant’s forum-based activities, such as when the
litigation itself is founded directly on those activities.”
Id. There is no claim here that this court may exercise
general jurisdiction over either Gatheroo or Warecorp.
Therefore, the court must determine whether it may exercise
specific jurisdiction over the defendants.

B. Specific Jurisdiction Analysis — Gatheroo

Under the law of this Circuit, the court must employ a
three-part analysis to determine whether there are
sufficient contacts to exercise specific personal
jurisdiction over a defendant. See Sawtelle, 70 F.3d at
1388-89. “An affirmative finding on each of the three
elements of the test is required to support a finding of
specific jurisdiction.” Phillips Exeter Acad., 196 F.3d at
288. First, the court must decide whether the claim
underlying the litigation directly “relates to or arises
out of the defendant’s contacts with the forum.” Id. This
“relatedness requirement” “focuses on the nexus between the
defendant’s contacts and the plaintiff’s cause of action.”
Ticketmaster-NY, 26 F.3d at 206. It ensures that the
defendant will not be subject to personal jurisdiction
unless its contacts with the forum state caused the alleged
harm. See id. at 207. Page 12

Second, the court must determine whether the defendant’s
contacts with the forum “`represent a purposeful availment
of the privilege of conducting activities in the forum
state, thereby invoking the benefits and protections of
that state’s laws and making the defendant’s involuntary
presence before the state’s courts foreseeable.'” Sawtelle,
70 F.3d at 1389 (quoting Pleasant St. I, 960 F.2d at 1089).
“[T]he cornerstones upon which the concept of purposeful
availment rest are voluntariness and foreseeability.” Id.
at 1391. Voluntariness exists when a defendant deliberately
has engaged in significant activities within the forum, but
not when the defendant’s contacts with the forum are
“random, fortuitous, or attenuated” or result solely from
“the unilateral activity of another party or a third
person.” Burger King Corp. v. Rudzewicz, 471 U.S. 462,
475-76, 105 S. Ct. 2174, 2183-84, 85 L. Ed. 2d 528 (1985)
(internal quotations and citations omitted). Foreseeability
exists when the defendant’s conduct and connection with the
forum state is such that the defendant “should reasonably
anticipate being haled into court there.” Id. at 474, 105
S. Ct. at 2183 (internal quotation and citation omitted).
See also Sawtelle, 70 F.3d at 1393.

Finally, if the first two parts of the test for specific
jurisdiction are fulfilled, the court must determine whether
the exercise of personal jurisdiction is reasonable in
light of the so-called “Gestalt factors.” Sawtelle, 70 F.3d
at 1394. This requires the court to consider “(1) the
defendant’s burden of appearing; (2) the forum state’s
interest in adjudicating the dispute; (3) the plaintiff’s
interest in obtaining convenient and effective relief; (4)
the judicial system’s interest in obtaining the most
effective resolution of the Page 13 controversy; and (5)
the common interests of all sovereigns in promoting
substantive social policies.” Id. Even when the lawsuit
arises out of the defendant’s purposefully generated
contacts with the forum, therefore, the court may decline
to exercise personal jurisdiction if doing so would be
unreasonable and fundamentally unfair. See Burger King,
471 U.S. at 476-78, 105 S. Ct. at 2184-85; Ticketmaster-NY,
26 F.3d at 209-10.

1. Relatedness

There is no serious dispute that the “relatedness” element
of the jurisdictional analysis has been satisfied in the
instant case. Where, as here, the claimed harm arose out of
the publication of a website in Massachusetts which
allegedly caused harm to Gather in Massachusetts, this
element has been met. See, e.g., No. Light Tech., Inc. v.
No. Lights Club, 97 F. Supp. 2d 96, 106 (D. Mass. 2000)
(where trademark infringement and related claims all arose
from the defendants’ publication of a website in
Massachusetts, relatedness element has been satisfied);
Hasbro, Inc. v. Clue Computing, Inc., 994 F. Supp. 34, 44
(D. Mass. 1997) (where “cause of action arises from an
alleged trademark infringement concerning a Web site that
is continuously available to Massachusetts residents and
causing tortious injury in Massachusetts to [plaintiff
trademark owners]” the claims “relate directly from the
defendant’s contact with the state”).

2. Purposeful Availment

The most contentious issue in this case is whether the
“purposeful availment” element has been met. As is inherent
in cases involving products on the Internet, there is a
tension between the immense, widespread, audience which can
be reached and the Page 14 requirement “that only those
defendants that willingly and purposefully avail themselves
of the benefits of a state will be brought to court there.”
Id. at 44-45. In the instant case, the facts are not in
dispute. Where the parties differ significantly is in their
characterization of those facts. However, this court finds,
after careful analysis, that the issue is not, in fact,
that close. The undisputed facts establish that this court
has personal jurisdiction over Gatheroo, while it does not
have personal jurisdiction over Warecorp.

The parties agree that the leading case relating to
personal jurisdiction in a trademark infringement case
involving an Internet company is Zippo Manuf. Co. v. Zippo
Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997). There,
the court concluded after a review of the available case
law and commentaries that “the likelihood that personal
jurisdiction can be constitutionally exercised is directly
proportionate to the nature and quality of commercial
activity that an entity conducts over the Internet.” Id. at
1124. Thus, the court described the appropriate “sliding
scale” analysis as follows:

At one end of the spectrum are situations where a
defendant clearly does business over the Internet. If the
defendant enters into contracts with residents of a
foreign jurisdiction that involve the knowing and repeated
transmission of computer files over the Internet, personal
jurisdiction is proper. At the opposite end are situations
where a defendant has simply posted information on an
Internet Web site which is accessible to users in foreign
jurisdictions. A passive Web site that does little more
than make information available to those who are
interested in it is not grounds for the exercise [of]
personal jurisdiction. The middle ground is occupied by
interactive Web sites where a user can exchange
information with the host computer. In these cases, the
exercise of jurisdiction is determined by examining the
level of interactivity and commercial nature of the
exchange of information that occurs on the Web site. Page
15 Id. (internal citations omitted). The parties all
place the gatheroo.com site as being in the middle of the
Zippo analysis, although the plaintiff argues that it may
fall within the active range as well. The defendants
contend, however, that gatheroo.com is simply an
interactive site, without the additional factors which
would establish that Gatheroo purposefully availed itself
of the privileges of conducting business in Massachusetts.
This court disagrees with the defendants’ assessment of
the facts.

The Gatheroo website clearly is not simply a passive site
with information equally available to all who visit the
site. Rather, the website involves “contacts that
illustrate purposeful availment of the privilege of
conducting commercial activity in the forum —
contacts that tie the defendant to a particular state, not
those that merely link with equal strength the defendant to
all states.” JB Oxford Holdings, Inc. v. Net Trade, Inc.,
76 F. Supp. 2d 1363, 1367 (S.D. Fla. 1999) (adoping the
rationale of Zippo). Users must complete registration forms
and must accept Gatheroo’s terms of service. Gatheroo then
sends an email to the user containing a hyperlink through
which registration may be confirmed. Once registered, users
are directed to information about their specific state so,
for example, Massachusetts members are expressly given
links to Massachusetts groups and Massachusetts members.
Gatheroo also solicits advertisers at gatheroo.com, which
solicitations are available to its Massachusetts users. By
accepting members from Massachusetts, communicating
directly with Massachusetts users, providing information
specifically about Massachusetts to Massachusetts users,
and soliciting advertisement Page 16 revenue from its
users, including those in Massachusetts, among other
things, Gatheroo has “purposefully availed” itself of doing
business in Massachusetts.

Gatheroo argues that it only has a few users in
Massachusetts, that these users are not really serious
customers, and, therefore, that these minimal contacts are
simply fortuitous and are insufficient to establish
jurisdiction. See generally Defs. Mem. (Docket No. 46) at
12-14. This court does not agree. While the site may not be
fully operational, and Gatheroo may only be at the stage
where it is collecting customers with the goal of
attracting advertising revenue in the future, the record
still establishes that Gatheroo has been communicating with
its Massachusetts users, and has been soliciting their
continued business. The fact that the business may not be
fully operational does not preclude the court from
exercising jurisdiction. See Maritz, Inc. v. Cybergold,
Inc., 947 F. Supp. 1328, 1333-34 (E.D. Mo. 1996) (discussed
in Zippo, 952 F. Supp. at 1124-25) (where defendant put up
a website to promote its upcoming Internet service, and was
encouraging users to add their addresses to a mailing list
to be used when the service was operational, the defendant
was actively soliciting business so as to establish
personal jurisdiction even though no revenues had yet been

The instant facts are analogous to those in Zippo, where
the court found personal jurisdiction. As the Zippo court
held in language applicable to the instant case:

Here, [defendant] Dot Com argues that its contacts with
Pennsylvania residents are fortuitous because
Pennsylvanians happen to find its Web site or heard about
its news service elsewhere and decided to subscribe. This
argument misconstrues the concept of fortuitous contacts
embodied in [World-Wide Volkswagen Corp. Page 17 v.
Woodson, 444 U.S. 286, 100 S. Ct. 559, 62 L. Ed. 2d 490
(1980)]. Dot Com’s contacts with Pennsylvania would be
fortuitous within the meaning of World-Wide Volkswagen if
it had no Pennsylvania subscribers and an Ohio subscriber
forwarded a copy of a file he obtained from Dot Com to a
friend in Pennsylvania or an Ohio subscriber brought his
computer along on a trip to Pennsylvania and used it to
access Dot Com’s service. That is not the situation here.
Dot Com repeatedly and consciously chose to process
Pennsylvania residents’ applications and to assign them
passwords. Dot Com knew that the result of these contracts
would be the transmission of electronic messages into
Pennsylvania. The transmission of these files was entirely
within its control. Dot Com cannot maintain that these
contracts are “fortuitous” or “coincidental” within the
meaning of World-Wide Volkswagen. When a defendant makes a
conscious choice to conduct business with the residents of
a forum state, “it has clear notice that it is subject
to suit there.” World-Wide Volkswagen, 444 U.S. at 297,
100 S. Ct. at 567. Dot Com was under no obligation to sell
its services to Pennsylvania residents. It freely chose to
do so, presumably in order to profit from these
transactions. If a corporation determines that the risk of
being subject to personal jurisdiction in a particular
forum is too great, it can choose to sever its connection
to the state. Id. If Dot Com had not wanted to be
amenable to jurisdiction in Pennsylvania, the solution
would have been simple — it could have chosen not
to sell its services to Pennsylvania residents.

Zippo, 952 F. Supp. at 1126-27. For the same reasons that
Dot Com was subject to the jurisdiction of the Pennsylvania
courts, Gatheroo is subject to the jurisdiction of the
Massachusetts courts. See also Hasbro, Inc., 994 F. Supp.
at 44-45 (where defendant company purposefully directed its
Internet advertising to all states and did nothing to avoid
Massachusetts, represented that it had a major client in
Massachusetts, and encouraged and enabled all users of its
site, including those in Massachusetts, to send email to
the company, “[t]he nature and quality of commercial
activity that [the defendant] conducted over the Internet
satisfies the `purposeful availment’ due process test.”).
Page 18

The facts presented in the instant case are readily
distinguishable from the cases on which Gatheroo relies.
For example, but without limitation, in JB Oxford Holdings,
Inc., 76 F. Supp. 2d at 1367, the websites at issue were
“clearly directed at the seventeen states in which [the
defendant] is registered to do business” which did not
include Florida, the state in which suit had been brought.
Since the defendant had prohibited the sale of its services
to Florida residents, it could not have been found to have
purposefully availed itself of the benefits of doing
business in that state. Id. No such limitation is found in
Gatheroo’s site. In Comer v. Comer, 295 F. Supp. 2d 201,
209-210 (D. Mass. 2003), a Kentucky law firm’s website,
which made no mention of it doing business in
Massachusetts, and the firm’s listing in the general
Martindale-Hubbell directory of lawyers nationwide, were
found to be insufficient to bestow jurisdiction in
Massachusetts. Comer reflected the end of the spectrum
defined in Zippo where the Internet was used as a passive
advertising tool. Gatheroo, which is actively soliciting
users of its website, communicating with its users, linking
different users with others from the same state, and
communicating directly with those who register at its site,
cannot similarly portray its Internet site.

Finally, the defendants rely on Swarovski Optik No. Am.
Ltd. v. Euro Optics, Inc., C.A. No. 03-090ML, 2003 WL
22014581 (D.R.I. Aug. 25, 2003). There, the defendant
operated a website through which customers anywhere in the
world “could” purchase goods, but had not made any sales to
any customer in Rhode Island. Id. at *1. Finding that “Euro
Optics was not directly targeting its web site to Rhode
Island by sending Page 19 emails, for example, to Rhode
Islanders or stating anywhere on its web site that it has a
unique connection to Rhode Island” and that there had been
no “knowing interaction” with residents of Rhode Island
since no sales had been made, the Swarovski court concluded
that there was no personal jurisdiction in Rhode Island.
Id. at *8. See also Hearst Corp. v. Goldberger, No. 96 Civ.
3620 (PKL) (AJP), 1997 WL 97097, at *11-12 (S.D.N.Y. Feb.
26, 1997) (if defendant had made a sale through the
Internet, there would have been jurisdiction, but where
there had been no sales, and the Internet website was found
to be analogous to an advertisement in a national
publication, no personal jurisdiction found). In sharp
contrast, by the time suit was brought in the instant case,
Gatheroo had sent emails to Massachusetts residents, had
several Massachusetts users who had accepted Gatheroo’s
terms and conditions, and had established links which were
directed specifically to Massachusetts users. The facts in
the instant case establish that Gatheroo has purposefully
availed itself of the privilege of conducting business in

This court also finds significant, but not controlling,
the fact that Gatheroo expressly stated that it was
intending to compete with gather.com, “the Boston based
social networking site.” This direct targeting of a
Massachusetts-based company, while not in and of itself
sufficient to establish jurisdiction, is clearly further
evidence that Gatheroo “should anticipate being haled into
court in Massachusetts.” Venture Tape Corp. v. McGills
Glass Warehouse, 292 F. Supp. 2d 230, 233 (D. Mass. 2003)
(“while the mere existence of an interactive website might
not be enough to establish personal Page 20 jurisdiction
of McGills in a randomly chosen East Coast state, McGills’
alleged misuse of trademarks belonging to a Massachusetts
company is enough to constitute minimum contacts for the
purposes of establishing personal jurisdiction.”). The
facts presented establish that Gatheroo was aware of
gather.com and knew that the rival company with a similar
name was Boston based. These facts, coupled with the
contacts described above, make Gatheroo’s involuntary
presence before the Massachusetts’ courts “foreseeable.”
Phillips Exeter Acad., 196 F.3d at 292. See also Digital
Equip. Corp. v. Altavista Tech., Inc., 960 F. Supp. 456,
470 (D. Mass. 1997) (“when ATI posted a Web-site which over
time more and more mirrored the site of a Massachusetts
corporation, arguably in violation of Digital’s trademark
rights and the licensing agreement, a site that plainly
would attract Massachusetts residents, and did so, it . . .
should have anticipated being haled into a Massachusetts
court to answer for its acts.”); No. Light Tech., Inc., 97
F. Supp. 2d at 107 (where defendant provided links for users
interested in posting information on defendant’s website as
well as those who wanted to advertise, defendant’s knew
that their allegedly infringing website was entering
Massachusetts, and defendant had tried in the past to do
business with the Massachusetts-based plaintiff, defendant
had “expressed an intention to do business in
Massachusetts” so that the exercise of jurisdiction was

3. Gestalt Factors

Finally, the Gestalt factors establish that the exercise
of jurisdiction over Gatheroo is reasonable and fair in the
instant case. Thus, considering the first factor —
the burden Page 21 on the defendant in appearing —
while it would undoubtedly be inconvenient for Gatheroo, it
certainly would not be impossible, especially in light of
“modern technology” which “allows for easier communication
between the states[.]” Hasbro, Inc., 994 F. Supp. at 45.
Moreover “this factor is only meaningful where a party can
demonstrate some kind of special or unusual burden.” Id.
(quoting Pritzker v. Yari, 42 F.3d 53, 64 (1st Cir. 1994)).
No such showing has been made in the instant case.

The second Gestalt factor — the forum state’s
interest in adjudicating the dispute — warrants
having the case heard in Massachusetts. The Commonwealth
has an interest in ensuring that its business’ trademarks
are not infringed. Hasbro, Inc., 994 F. Supp. at 45.
Obviously, the third Gestalt factor, that being the
plaintiff’s interest in obtaining convenient and effective
relief, weighs in favor of maintaining the litigation in
Massachusetts where the plaintiff’s witnesses and other
relevant evidence are located. The fourth Gestalt factor is
the judicial system’s interest in resolving this matter.
This fact is generally considered “a wash” where, as here,
even if the case is dismissed in Massachusetts “it is
unlikely that the parties will be able to resolve the
dispute without judicial intervention in some forum.” Id.
at 46. Under such circumstances, “[t]he most efficient path
for the judicial system, then, is to move forward with the
lawsuit in the present forum.” Id. The final factor is the
interests of all sovereigns in promoting substantive social
policies. In the instant case, this factor does not weigh
in favor of any one forum over another. Page 22

In sum, while it may be somewhat inconvenient for the
defendants to litigate in Massachusetts, that fact is not
conclusive, nor is the inconvenience overwhelming. Where
the other Gestalt factors all weigh in favor of
Massachusetts, the assertion of jurisdiction by this court
is reasonable.

C. Specific Jurisdiction Analysis — Warecorp

Gather argues that this court has jurisdiction over
Warecorp because Warecorp states on its website that it
“create[d]” Gatheroo. (Maffei Aff. (Docket No. 29) at
¶ 22). In addition, Gather argues that because
Warecorp and Gatheroo share an address and have several
principals in common, Warecorp exerts more than normal
control over Gatheroo. This court finds, however, that
these conclusory allegations are not supported by the
record, and that this court lacks personal jurisdiction
over Warecorp.

In support of its argument, Gather analogizes the
relationship between Warecorp and Gatheroo to that between
a parent corporation and a subsidiary corporation. To be
certain, a court may have jurisdiction over a parent
corporation if the amount of control exercised by the
parent is “greater than that normally associated with
common ownership and directorship.” Donatelli v. Nat’l
Hockey League, 893 F.2d 459, 466 (quoting Hargrave v.
Fibreboard Corp., 710 F.2d 1154, 1160 (5th Cir. 1983).
However, “[w]here the affairs of the corporations are not
so intertwined as to demonstrate that the two corporations
are, in reality, a single entity, the parent cannot be held
responsible on an alter-ego theory.” Am. Home Assurance Co.
v. Sport Maska, Inc., 808 F. Supp. 67, 73 (D. Mass. 1992).
Page 23

In the instant case, no parent-subsidiary relationship
exists, and there is no evidence that Warecorp exercises
excessive control over Gatheroo. Warecorp (a general
partnership) and Gatheroo (a limited liability corporation)
are legally separate entities, and “disregard of separate
corporate entities is the exception, not the rule.” Id.
Moreover, for purposes of jurisdiction, even “[c]ommon
ownership coupled with common management of two or more
corporations will not give rise to liability of one
corporation for the acts of another without additional
facts indicating the existence of an agency or similar
relationship.” Sigros v. Walt Disney World Co., 129 F.
Supp. 2d 56, 70 (D. Mass. 2001). In the present action,
Gather has failed to plead sufficient facts to establish an
agency relationship between Warecorp and Gatheroo that
would justify extending this Court’s jurisdiction over
Warecorp. Although Warecorp and Gatheroo share a common
principal place of business, the record does not indicate
that they have totally common ownership and management,
only that they have several principals in common. Moreover,
there is no evidence that Warecorp exercised “pervasive”
control over Gatheroo. The fact that Warecorp claims to
have “created” Gatheroo is insufficient to establish alter
ego liability. The plaintiff has not alleged sufficient
facts to establish jurisdiction over Warecorp. See Noonan
v. Winston Co., 135 F.3d 85, 94 (1st Cir. 1998), and cases


For the reasons detailed herein, this court finds that
there is personal jurisdiction over the defendant Gatheroo,
but no personal jurisdiction over Warecorp. Therefore,
this Page 24 court recommends to the District Judge to
whom this case is assigned that the “Defendants’ Motion to
Dismiss for Lack of Personal Jurisdiction and to Vacate
Preliminary Injunction” (Docket No. 45-1) be DENIED as to
Gatheroo, LLC and ALLOWED as to Warecorp.[fn2]

[fn1] In addition, the defendants have filed a motion to
remove the default entered against them and the plaintiff
has filed a motion for the entry of a default judgment. The
plaintiff also has filed a motion for contempt. These
motions are the subject of separate orders of this court.

[fn2] The parties are hereby advised that under the
provisions of Fed.R.Civ.P. 72 any party who objects to
these proposed findings and recommendations must file a
written objection thereto with the Clerk of this Court
within 10 days of the party’s receipt of this Report and
Recommendation. The written objections must specifically
identify the portion of the proposed findings,
recommendations or report to which objection is made and
the basis for such objections. The parties are further
advised that the United States Court of Appeals for this
Circuit has repeatedly indicated that failure to comply
with this Rule shall preclude further appellate review. See
Keating v. Sec’y of Health & Human Servs., 848 F.2d 271,
275 (1st Cir. 1988); United States v. Valencia-Copete, 792
F.2d 4, 6 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford
Motor Co., 616 F.2d 603, 604-605 (1st Cir. 1980); United
States v. Vega, 678 F.2d 376, 378-79 (1st Cir. 1982); Scott
v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); see also
Thomas v. Arn, 474 U.S. 140, 153-54, 106 S. Ct. 466, 474,
88 L. Ed. 2d 435 (1985). Accord Phinney v. Wentworth
Douglas Hosp., 199 F.3d 1, 3-4 (1st Cir. 1999); Henley
Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir. 1994);
Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir.
1998). Page 1