1

The plaintiffs also invoke diversity jurisdiction, but

their amended complaint identifies PFIP, LLC and Pla-Fit

Franchise, LLC as simply “Limited Liability Companies duly

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

PFIP, LLC and

Pla-Fit Franchise, LLC

v. Civil No. 08-271-JL

Opinion No. 2009 DNH 059

You-Fit, Inc.,

You-Fit One, Inc. and

Rick Berks

O R D E R

The plaintiffs, PFIP, LLC and Pla-Fit Franchise, LLC, have

sued Rick Berks and two entities in which he has an ownership

interest, alleging trademark infringement and false designation

of origin in violation of the Lanham Act, 15 U.S.C. §§ 1051 et

seq., copyright infringement under the Copyright Act, 17 U.S.C.

§§ 100 et seq., and state-law claims of breach of contract,

misappropriation of trade secrets, and violations of the Consumer

Protection Act, N.H. Rev. Stat. Ann. (“RSA”) § 358-A. The

defendants have moved to dismiss certain claims in favor of

arbitration and to dismiss the others for want of personal

jurisdiction or, in the alternative, to transfer them to the

District Court for the Middle District of Florida. This court

has subject-matter jurisdiction under 28 U.S.C. §§ 1331 (federal

question) and 1367 (supplemental jurisdiction).1

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 1 of 49
organized by the laws of the State of New Hampshire, having a

principal place of business” within the state. For purposes of

diversity jurisdiction, however, a limited liability company does

not have the citizenship of its place of formation or business,

but of each of its members. Pramco, LLC ex rel. CFSC Consortium,

LLC v. San Juan Bay Marina, Inc., 435 F.3d 51, 54-55 (1st Cir.

2006). Because the plaintiffs have not alleged the citizenship

of any of the members of PFIP, LLC or Pla-Fit Franchise, LLC, the

court cannot determine whether they are diverse from the Florida

citizens named as defendants. 

2

As discussed infra, certain provisions of the franchise

agreement bound Berks personally.

2

In objecting to the defendants’ motion, the plaintiffs

relied principally, though not exclusively, on a forum selection

clause in a franchise agreement between Pla-Fit and a corporation

(not named as a defendant here) in which Berks formerly held an

ownership interest. Because Berks no longer holds this interest,

however, the court held a pre-hearing telephone conference to

request additional briefing on whether the forum selection clause

continues to bind him.2 After submitting this briefing, the

plaintiffs announced that they still wanted to present the

testimony of live witnesses, including Berks himself, in support

of their argument for personal jurisdiction. So the court held

an evidentiary hearing, where the plaintiffs’ presentation

focused on a theory of personal jurisdiction they had not raised

in their prior filings: that Berks subjected himself to

jurisdiction here through a year-long series of telephone

conversations with Chris Rondeau, the plaintiffs’ chief

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 2 of 49
3

operations officer, which allegedly comprised a conscious effort

to steal the plaintiffs’ trade secrets so Berks could make use of

them in operating a competing business in Florida through two new

corporations he was planning on forming. Those corporations are

named as defendants here. 

Based on the evidence and arguments received at the hearing,

and the parties’ written submissions, the defendants’ motion to

dismiss for lack of personal jurisdiction is granted, their

request to dismiss certain claims in favor of arbitration is

denied, and their request to transfer the case to Florida is

denied as moot, for the reasons explained in detail infra.

I. Applicable legal standard

As the plaintiffs recognize, they bear the burden of showing

personal jurisdiction over the defendants. See, e.g., Hannon v.

Beard, 524 F.3d 275, 279 (1st Cir.), cert. denied, 126 S. Ct. 726

(2008). This court has three different standards at its disposal

for deciding personal jurisdiction: the prima facie standard,

the preponderance of evidence standard, and an intermediate

likelihood standard. See Boit v. Gar-Tec Prods., Inc., 967 F.2d

671, 675-77 (1st Cir. 1992). Under the prima facie standard,

which is “[t]he most commonly used method,” the court simply

“accepts properly supported proffers of evidence by a plaintiff

as true” in determining whether jurisdiction exists. Id. at 675. 

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 3 of 49
3

It is unclear whether the plaintiffs truly mean Berks’s

“credibility” as a witness or his character as a person but, as

4

Furthermore, the court construes this evidence in the light most

favorable to the existence of jurisdiction and considers any

facts adduced by the defendant only insofar as they are not

contradicted by the plaintiff’s proof. See Mass. Sch. of Law at

Andover, Inc. v. Am. Bar Ass’n, 142 F.3d 26, 34 (1st Cir. 1998).

Importantly, though, even the prima facie standard does not

require the court, blindly, “to credit conclusory allegations or

draw farfetched inferences” advanced by the plaintiff. Id.

(internal quotation marks omitted).

Under the prima facie approach, “the district court acts not

as a factfinder but as a data collector,” unable to resort to

credibility determinations or other “differential factfinding.” 

Foster-Miller, Inc. v. Babcock & Wilcox Can., 46 F.3d 138, 145

(1st Cir. 1995). Here, while the parties have briefed and argued

the jurisdictional issue under the prima facie standard, the

plaintiffs have nevertheless invited the court to base its

jurisdictional ruling, at least in part, on what they cast as

Berks’s lack of credibility. Using the prima facie standard,

however, assessing a defendant’s credibility is neither

permissible nor necessary, because the plaintiff’s version of

events controls in the case of a conflict with the defendant’s

version, as just discussed.3

 Here, the plaintiffs’ version of

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 4 of 49
discussed infra, neither factor helps their case here. 

4

Because the parties were provided a hearing to introduce

evidence in support of their positions on the jurisdictional

question, the court could apply one of the other standards. See

Foster-Miller, 46 F.3d at 146. Since the court of appeals has

generally discouraged using those standards, however--and neither

side has asked the court to do so--the court will simply apply

the prima facie standard which, in any event, imposes the

lightest burden on the plaintiffs. See id. at 145-48.

5PFIP now simply acts as the licensor of the trademark and

other intellectual property; PFIP’s sole member, Pla-Fit, acts as

the franchisor.

5

events includes the affidavits filed with their objection to the

motion, the joint statement of stipulated facts submitted at the

court’s direction, and the testimony they adduced at the

hearing.4

 The following facts are drawn from those sources, as

well as, again, the defendants’ evidentiary submissions insofar

as they do not contradict those of the plaintiffs.

II. Background

Berks has owned and operated gyms in south Florida for

nearly thirty years. In the early going, he became embroiled in

a dispute with PFIP, a New Hampshire-based company that

franchised gyms, over the ownership of the trademark “Planet

Fitness.”5

 At that point, “Planet Fitness” was the name of three

gyms owned and operated by Planet Fitness Enterprises (“PFE”), a

Florida corporation of which Berks was the president and majority

(though not sole) shareholder. This dispute was resolved, at

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 5 of 49
6

least temporarily, when PFE and PFIP entered into a 2002

settlement agreement, inter alia, assigning all of PFE’s rights

in the “Planet Fitness” mark to PFIP in exchange for $75,000 and

an exclusive license to use the mark in a specified region of

south Florida that encompassed the location of PFE’s existing

“Planet Fitness” gyms.

PFIP nevertheless went on to open several franchises in that

region under the name “PF Fitness.” Around the same time, PFIP

and PFE began discussing potential business deals, including

PFIP’s purchasing PFE’s gyms, Berks’s becoming a PFIP franchisee,

or the parties’ launching a joint marketing campaign. During

these discussions, Berks remained in Florida, but directed a

number of communications to PFIP in New Hampshire; for their

part, the plaintiffs sent representatives, including Rondeau, to

tour PFE’s clubs in Florida.

After the parties failed to reach a deal, PFIP filed suit in

this court against PFE and Berks, as well as three companies he

had formed to the lease the premises for PFE’s three “Planet

Fitness” gyms (collectively, the “PFE defendants”), in this court

on June 30, 2004. PFIP alleged that, notwithstanding the

agreement, these defendants were infringing on its trademarks and

copyrights and violating its rights under New Hampshire law. 

This court dismissed the action for lack of personal jurisdiction

over the defendants. PFIP, LLC v. Planet Fitness Enters., Inc.,

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 6 of 49
6After five years, the territory shrinks further,

encompassing only the seven-mile radius around each of the

defendants’ gyms then operating under the “Planet Fitness” marks.

7

2004 DNH 159. PFIP then refiled the case in Florida state court,

where the defendants asserted counterclaims arising out of the

operation of several PFIP franchises in south Florida under the

“Planet Fitness” mark.

The parties resolved this litigation by entering into a

settlement and license agreement on March 14, 2006. In this

agreement, which superseded the 2002 settlement agreement, each

party released all claims against the other “arising out of any

purported act or omission occurring prior.” The PFE defendants

agreed, in essence, to limit the scope of their exclusive license

to use the “Planet Fitness” mark: they could now do so only in

two south Florida counties, and the existing PFIP franchises

would be allowed to continue operating there, with PFIP paying a

monthly royalty to PFE for each.6 The PFE defendants further

agreed to “use reasonable efforts to utilize Trademarks, colors,

signage, and other features” in their gyms operating under the

“Planet Fitness” mark to maintain consistency with the appearance

of other “Planet Fitness” gyms. To this end, the agreement

granted the PFE defendants access to PFIP’s franchise materials,

which they agreed to keep confidential. The agreement also

provided that, if the PFE defendants opened a gym as a PFIP

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 7 of 49
8

franchisee outside their newly designated territory but inside

their formerly designated territory, the initial franchise fee

ordinarily due would be waived.

As anticipated by this provision, Seven B-Fit, Inc.--a

Florida corporation owned, at the time, half by Berks and half by

another individual--entered into a franchise agreement with

plaintiff Pla-Fit on June 2, 2006, authorizing Seven B-Fit to

operate a “Planet Fitness” franchise at a Miami location. Berks

signed the agreement both as president of Seven B-Fit and in his

individual capacity as its “Owner”--a defined term discussed in

more detail infra. Berks also personally signed a guarantee of

Seven B-Fit’s obligations under the franchise agreement, a

document containing “Investor Personal Covenants Regarding

Confidentiality and Non-Competition,” and a “Side Agreement”

acknowledging, in essence, that the 2006 settlement and license

agreement remained in force notwithstanding the franchise

agreement. All of these documents were executed by Berks (in

whichever capacity) in Florida, during a visit there by Rondeau.

Because many of the franchise agreement’s particular

provisions are important to the court’s analysis of the motion

before the court, they will be discussed in detail infra. 

Briefly, however, PFIP agreed to provide Seven B-Fit with

specified assistance, e.g., training, consulting, and materials,

including an “Operations Manual,” and to allow Seven B-Fit to use

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 8 of 49
7

While Pla-Fit’s vice president of franchising characterized

this training as including “critical information,” the plaintiffs

proffered nothing more on the subject. Berks, for his part,

testified that both he and the trainees considered the training a

“complete waste of time.”

9

“Planet Fitness” and other specified marks, including a

“distinctive building design and color scheme,” for the purpose

of operating a “Planet Fitness” gym in accordance with a number

of specified “Methods of Operation.” Seven B-Fit agreed to pay

PFIP a monthly royalty in proportion to its membership dues and

to submit to various other conditions.

Around the time the franchise agreement was signed, two

Seven B-Fit employees traveled to New Hampshire, where they

received training from the plaintiffs on certain operational

matters over a two-day visit.7 Pla-Fit also sent some of the

materials contemplated by the franchise agreement, including the

operations manual, followed by a series of correspondence on

marketing and related matters, to Seven B-Fit in Florida. Berks

recalled that he received some of this information in the form of

e-mail messages, which he largely disregarded because he was not

involved in the day-to-day workings of the franchise. He

likewise stated that he has never read the operations manual,

though he has looked at it. Berks, in fact, testified that he

left the operations of Seven B-Fit’s gym to its co-owner, and has

visited the facility only three or four times.

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 9 of 49
10

Rondeau testified that, after Pla-Fit and Seven B-Fit

entered into the franchise agreement, he was attending a meeting

of Planet Fitness franchisees in Florida when Berks approached

him and expressed interest in the plaintiffs’ “add-a-friend”

program. So Rondeau invited Berks to call him in New Hampshire,

beginning what Rondeau describes as a series of “quite frequent,

sometimes weekly and daily” telephone conversations between the

men that lasted nearly one year. In these calls, according to

Rondeau, they would discuss “everything that’s operational and

consistent with running a Planet Fitness Club,” including

branding, signage, marketing programs, staffing, equipment

selection, and the like.

Executing the “Planet Fitness” concept, Rondeau explained,

requires calibrating each of these elements to attract and retain

the desired clientele, i.e., casual gym users as opposed to

serious bodybuilders. While Rondeau testified that he considered

this information to be confidential, he struggled to articulate

why, particularly in light of the fact that much of what he

described was readily observable to any visitor to a “Planet

Fitness” club, e.g., its overall appearance, the mix and

arrangement of equipment, and special features like the “lunk

alarm” (which is triggered by an employee whenever an overeager

patron grunts, dramatically drops a free weight, or otherwise

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 10 of 49
8Rondeau also had difficulty explaining what counsel for the

plaintiffs sought to characterize as their “formula” for sizing a

particular club to a particular market. Under repeated

questioning from the plaintiffs’ counsel on this subject, Rondeau

continually referred to aspects of a club’s physical plant, like

the heating and cooling system and parking lot, which would not

seem to fit the traditional concept of “trade secrets.”

11

behaves in a “lunkish” fashion, thus acting as a deterrent).8

Rondeau did explain, echoing the arguments of counsel for the

plaintiffs, that they had, through trial and error over several

years, struck upon the “recipe” for effectively combining these

elements into the “Planet Fitness” concept, and that they

consider this “recipe” a trade secret.

Berks sold his interest in Seven B-Fit to one of its

employees, Roger Julianelli, in approximately January 2008. 

PFIP, having been notified of the deal beforehand, did not ask

Berks to sign any documents in connection with the transfer,

including the agreement binding an outgoing owner of the

franchisee to certain covenants, contemplated by Article 14.4.9

of the franchise agreement.

Berks has since started another chain of gyms in south

Florida, “You Fit,” acting through another Florida corporation,

You-Fit, Inc. Berks formed You-Fit in May 2007, eleven months

after signing the franchise agreement and while he still

maintained an ownership interest in Seven B-Fit. You-Fit now

operates gyms in St. Petersburg and Largo, Florida, and plans to

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 11 of 49
9

Defendant You-Fit One, Inc., holds the lease for the St.

Petersburg facility.

12

open another gym, in Bradenton, Florida, by this summer.9 Berks

is the majority shareholder and president of You Fit, Inc.; his

daughter is the only other shareholder. Though Berks alone made

all the decisions on how to set up the “You Fit” gyms, his

daughter handles their day-to-day operations. The gyms have been

marketed only to consumers within their immediate vicinity,

principally through a mass mailing sent to every customer within

a three-mile radius--though the plaintiffs claim that the

materials infringe what they anticipate will be their registered

copyright in similar materials. No New Hampshire resident is a

member of any of the “You Fit” clubs.

According to Rondeau, the physical layout of the “You Fit”

gyms closely resembles that of a “Planet Fitness” facility,

including the selection and arrangement of the equipment and the

color scheme. The plaintiffs claim that this, as well as the

gyms’ use of the phrases “You Belong” and “30 Minute Express

Workout,” amounts to trademark infringement and false designation

of origin in violation of the Lanham Act and RSA 358-A, as well

as breach of the franchise and license agreements. 

The plaintiffs further allege that, in setting up and

operating the gyms, Berks has made use of the alleged trade

secrets he extracted from Rondeau during their series of

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 12 of 49
10Rondeau explained that, while the plaintiffs and their

franchisees were achieving success by catering to the casual gym

user, their competitors who remained focused on serious

weightlifters--as Berks had been prior to his involvement with

the plaintiffs, according to Rondeau--were failing by comparison.

13

conversations in 2006. When Rondeau was specifically asked what

confidential information he believes Berks has appropriated into

the You Fit facilities, however, he said, “It’s really hard to

tell . . . . It’s a secret recipe, it’s coaching and it’s knowhow and it’s consulting on what you do when, where, and how.” 

Rondeau acknowledged, in fact, that he knew of no basis for

believing that Berks was misappropriating the plaintiffs’ trade

secrets other than the success he had recently been achieving,

coupled with the difference in “culture” between Berks’s newer

You Fit clubs and his older clubs.10

Berks, for his part, testified that he based his decisions

on how to set up and run the You Fit facilities on his own

experience in the fitness industry, rather than on anything he

learned from the plaintiffs in particular. Berks acknowledged,

however, that You Fit’s pricing is similar to PFIP’s--including

the use of a “Lime Card” pricing program that mirrors PFIP’s

“Black Card” program--but also pointed out that PFIP’s prices are

publicly available. Berks also admitted that he used the same

supplier as PFIP for certain equipment for the You Fit

facilities, including a “step-up” device used as part of the “30-

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 13 of 49
14

Minute Workout” routine, and that he did not know of any clubs

besides his You Fit ones and PFIP’s that used a traffic light to

time that routine. But Berks also testified that the “30-Minute

Workout” is “in one form or another pretty big in the health club

industry,” and Rondeau acknowledged that the identity of the

plaintiffs’ supplier was not confidential.

In July 2008, PFIP commenced this action against Berks, You

Fit, Inc., and You Fit One, Inc. (another Florida corporation,

also owned by Berks and his daughter, that holds the lease for

the St. Petersburg facility). PFIP’s amended complaint asserts

nine numbered counts:

• trademark infringement in violation of the Lanham Act,

15 U.S.C. § 1125(a)(1)(a) (Count 1);

• false designation of origin in violation of the Lanham 

Act, 15 U.S.C. § 1125(a)(1)(a) (Count 2);

• copyright infringement in violation of the Copyright 

Act, 17 U.S.C. § 106 (Count 3);

• unfair or deceptive trade practices in violation RSA 

358-A (Count 4);

• breach of the franchise agreement (Count 5);

• misappropriation of trade secrets in violation of RSA 

350-B (Count 6);

• unjust enrichment (Count 7);

• breach of the settlement and license agreement (Count 

8); and

• specific performance of the settlement and license 

agreement (Count 9).

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 14 of 49
15

III. Analysis

As mentioned at the outset, the defendants have moved to

compel arbitration of the plaintiffs’ claim for misappropriation

of their trade secrets, invoking the franchise agreement’s

arbitration clause, and to dismiss all other claims for lack of

personal jurisdiction or to transfer them to the Middle District

of Florida. The defendants argue that Berks lacks the minimum

contacts with New Hampshire sufficient to subject him to personal

jurisdiction here on the plaintiffs’ claims, and that the You-Fit

entities--whose gyms are marketed only to consumers in their

immediate vicinity in Florida, and have never transacted business

with anyone here--have no contacts with this forum at all. As

for the forum selection clause in the franchise agreement, the

defendants say that, at most, the clause applies to claims

against Berks which arise out of the agreement itself and,

regardless, any such claims should be dismissed as subject to the

agreement’s mandatory arbitration clause.

As also mentioned at the outset, the plaintiffs’ response to

these arguments has changed over time. They initially argued

that, contrary to the defendants’ view, the forum selection

clause provided for jurisdiction over Berks on all their claims,

while the arbitration clause applied only to two of their

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 15 of 49
11The plaintiffs also argued that Berks had waived his right

to arbitration because “at no time since Berks received notice of

the dispute has [he] demanded that the claims be submitted for

arbitration,” citing a letter from Berks’s counsel. This letter,

however, unequivocally invoked the arbitration clause, demanding

that Pla-Fit comply with it by providing “sufficient notice of

the dispute to allow informal negotiation to take place”; as the

letter also pointed out, the clause mandates arbitration only in

the event the informal negotiation process fails. The plaintiffs

further argued that, in response to the complaint, “Berks filed

his motion to dismiss for lack of personal jurisdiction rather

than a demand for arbitration,” but the motion quite clearly asks

for dismissal of any claims under the franchise agreement

“pending arbitration.” As explained infra, Berks can no longer

invoke the arbitration clause because he is no longer a party to

the franchise agreement, so the plaintiffs’ argument that Berks

waived his arbitration rights is moot, and since the defendants

have not challenged the good-faith basis for this argument the

court need not address the issue further.

16

claims.11 In the alternative, they contended that Berks had

sufficient contacts with New Hampshire to subject him to

jurisdiction here regardless of the forum selection clause,

alleging that he had set up the “You Fit” gyms based on

“information he learned from [the plaintiffs] and materials [the

plaintiffs] provided Berks since 2006. All of this material and

information was provided from New Hampshire.” The plaintiffs

also argued that the court should disregard the corporate form of

the You-Fit entities by imputing Berks’s actions to them for

purposes of the jurisdictional analysis.

The plaintiffs did not, however, raise the series of

telephone calls between Berks and Rondeau in either their

principal objection or sur-reply or, for that matter, in their

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 16 of 49
17

supplemental briefing on whether the choice-of-forum clause from

the franchise agreement continued to bind Berks despite the sale

of his interest in the franchisee, Seven B-Fit, prior to any of

the actionable conduct alleged in the amended complaint. Again,

that jurisdictional theory was not advanced until the hearing on

the motion to dismiss, when the plaintiffs’ counsel explained

that, in preparing, he had located “another witness”--who turned

out to be his clients’ chief operating officer, Rondeau.

This court ordinarily does not consider theories raised for

the first time at a motion hearing. See, e.g., Doe v.

Friendfinder, Inc., 540 F. Supp. 2d 288, 304 n.19 (D.N.H. 2008).

Because the defendants did not object on that basis, however,

even when specifically given the opportunity to do so, the court

will consider the theory here (insofar as it can given the

minimal supporting briefing or authority from the plaintiffs, as

discussed infra). But first, the court will address what, until

the hearing began, it had considered the crucial issue in

deciding the defendants’ motion to dismiss: whether the forum

selection clause continues to bind Berks. 

A. The forum selection and arbitration clauses

It is well-settled that “contractual forum-selection clauses

. . . ‘are prima facie valid and should be enforced unless

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 17 of 49
12A number of cases hold that a forum selection clause in a

contract can bind non-parties who nevertheless have some

connection to the contractual relationship, such as affiliate

companies who tendered the allegedly insufficient performance,

see Holland Am. Line Inc. v. Wärtsillä N. Am., Inc., 485 F.3d

450, 456 (9th Cir. 2007); Am. Patriot Ins. Agency, Inc. v. Mut.

Risk Mgmt., Ltd., 364 F.3d 884, 889 (7th Cir. 2004), or third

party-beneficiaries, Coastal Steel Corp. v. Tilghman Wheelabrator

Ltd., 709 F.2d 190, 201-03 (3d Cir. 1983), overruled on other

grounds by Lauro Lines v. Chasser, 490 U.S. 495 (1989). But

these and like cases are not implicated here, where a contracting

party, Pla-Fit, has sued a defendant whose only relationship to

the contract, as an owner of the counterparty, terminated before

the litigation or, indeed, the alleged conduct giving rise to the

plaintiffs’ claims. If Pla-Fit were suing Berks for actions he

took on behalf of Seven B-Fit while he still owned the company,

in contrast, the choice-of-forum clause would very likely still

apply to him despite an intervening transfer of ownership. See,

e.g., Manetti-Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509, 511

(9th Cir. 1988). But that is not the nature of the plaintiffs’

claims and, in any event, they do not argue that Berks is bound

by the clause on any basis other than the language of the

franchise agreement itself. 

18

enforcement is shown by the resisting party to be “unreasonable”

under the circumstances.’” Silva v. Encyclopedia Britannica,

Inc., 239 F.3d 385, 386 (1st Cir. 2001) (quoting M/S Bremen v.

Zapata Off-Shore Co., 407 U.S. 1, 10 (1972)). The question here,

however, is whether the choice-of-forum clause is still

“contractual” as to Berks, who was a party to the franchise

agreement only in his capacity as an owner of the franchisee,

Seven B-Fit, and sold that ownership interest some time before

the plaintiffs brought this suit against him.12 The court rules

that Pla-Fit cannot invoke the forum selection clause against

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 18 of 49
19

Berks, and he cannot invoke the arbitration clause against PlaFit, by virtue of the sale of his interest in Seven B-Fit.

This ruling is dictated by the text and structure of the

franchise agreement. The parties to the agreement itself are

Pla-Fit and Seven B-Fit, though certain provisions also bind

Seven B-Fit’s “Owners,” i.e., anyone who “has a direct or

indirect legal or beneficial ownership interest” in the

corporation, or “Principal Owners,” i.e., anyone who “has a ten

percent or greater interest” in the corporation (parenthetical

omitted). There is no dispute that, at the time the franchise

agreement was signed, Berks was both a “Principal Owner” and an

“Owner” under the agreement.

One of the provisions that applies, by its terms, to

“Owners” is the “Consent to Jurisdiction” clause, Article 19.14:

Subject to [the arbitration clause], you and your

Owners agree that we may institute any action against

you or your Owners in any state or federal court of

general jurisdiction in New Hampshire and you (and each

Owner) irrevocably submit to the jurisdiction of such

courts and waive any objection you (or he or she) may

have to the either the jurisdiction of or venue in such

courts.

The agreement defines “you” (and like second person pronouns) as

Seven B-Fit, the franchisee.

There can be no question, then, that this provision applies

to both Seven B-Fit and its “Owners.” The problem for the

plaintiffs is that Berks no longer fits that description, because

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 19 of 49
13Because both sides have relied solely on New Hampshire law

in making their contractual interpretation arguments, the court

applies that law here, without deciding whether New Hampshire law

applies to that or any other aspect of this case. 

20

he no longer “has a direct or indirect legal or beneficial

ownership interest” in the corporation. The plaintiffs’ sole

support for their view that the provision nevertheless continues

to bind Berks is its inclusion of the word “irrevocably.” 

Because Berks was an “Owner” at the time he assented to the forum

selection clause, the argument goes, he thereby submitted himself

“irrevocably” to the jurisdiction of this court, i.e., without

regard to whether he has since ceased to be an “Owner.”

In the court’s view, that is not the proper operation of the

“Consent to Jurisdiction” clause, particularly in light of the

other provisions of the franchise agreement spelling out the

continuing obligations of an “Owner” after he transfers his

interest in the franchisee. As the plaintiffs point out, a court

must interpret the disputed provisions of a contract by reading

the agreement as a whole. See, e.g., Glick v. Chocorua

Forestlands Ltd. P’ship, 157 N.H. 240, 248 (2008).13 The

agreement as a whole makes clear that an outgoing owner of a

franchisee retains only specified obligations to Pla-Fit, and

that the forum selection clause is not among them.

As the plaintiffs acknowledge, a transfer of ownership in

the franchisee is specifically provided for by Article 14,

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 20 of 49
21

entitled “Transfer.” This section prohibits such a transfer

without Pla-Fit’s “prior written approval,” which it promises to

give subject to a number of conditions. In relevant part, these

conditions, specifically, Article 14.4.9, provide that the

“transferring Owners have executed an agreement in favor of [PlaFit] agreeing to be bound, commencing on the effective date of

the transfer, by the restrictions contained in Articles 17.2,

17.3, and 17.4 as if [the] agreement had terminated.” Those

Articles, all effective upon termination or expiration of the

agreement, require that the franchisee, in essence (1) cease

using Pla-Fit’s trademarks, (2) cease using its “Confidential

Information,” and (3) refrain from engaging in a “Competitive

Business” within certain geographic areas.

As noted supra, there is no evidence that Berks ever signed,

or was asked to sign, the “agreement to be bound” contemplated by

Article 14.4.9. Because the court has not been asked to decide

the consequence of that fact, however, it has assumed, for the

purpose of this motion only, that Berks is nevertheless bound as

if he had executed such an agreement because the franchise

agreement makes doing so a condition of Pla-Fit’s approval of a

transfer. The provision still poses two problems to the

plaintiffs’ reading of the choice-of-forum clause.

First, the provision indicates that the franchise agreement

treats a transfer of ownership as different from the termination

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 21 of 49
14Likewise, a forum selection clause survives termination if

it expressly provides that it does. See, e.g., Weingard v.

Telepathy, Inc., No. 05-2024, 2005 WL 2990645, at *3 (S.D.N.Y.

Nov. 7, 2005).

15Some courts have held that “forum selection clauses are

enforceable even when the relevant agreement has been terminated

so long as the substance of the action is related to the original

agreement.” Gessler v. Sobieski Destylarnia S.A., 2007 WL

1295671, at *4 (S.D.N.Y. May 3, 2007) (citing cases); see also,

e.g., Tex. Source Group, Inc. v. CCH, Inc., 967 F. Supp. 234, 238

(S.D. Tex. 1997). The plaintiffs do not rely on this line of

22

or expiration of the agreement. This is noteworthy because the

agreement also provides, “All of [Pla-Fit’s] and your (and your

owners’ and affiliates’) obligations which expressly or by their

nature survive the expiration or the termination of this

Agreement will continue in full force and effect notwithstanding

its expiration or termination.” Had the agreement terminated or

expired, then, Berks would still be bound by the “Consent to

Jurisdiction” clause because it survives those events “by [its]

nature,” as a number of courts have held. See, e.g., Allied

Sound, Inc. v. Dukane Corp., 934 F. Supp. 272, 275 (M.D. Tenn.

1996); Advent Elecs., Inc. v. Samsung Semiconductor, Inc., 709 F.

Supp. 843, 846 (N.D. Ill. 1989); Deep Water Slender Wells, Ltd.

v. Shell Int’l Exploration & Prod., Inc., 234 S.W.3d 679, 691

(Tex. App. 2007).14

Because the franchise agreement did not terminate, however,

these cases--and the provision that, by default, the parties’

obligations survive termination--do not apply here.15 Instead,

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 22 of 49
authority--or any authority--in support of their reading of the

forum selection clause, but the court notes that those cases

appear to rest on the assumption (stated or unstated) that the

parties to the agreement intended the forum selection clause to

survive termination. See, e.g., Tex. Source Group, 967 F. Supp.

at 237. Here, as discussed at length, the agreement indicates

that the parties did not intend the choice-of-forum clause to

bind former “Owners.”

23

Berks’s sale of his interest in Seven B-Fit triggered a separate

provision of the agreement requiring Berks to assent (as this

court assumes he did) to continue to honor particular obligations

he had as an “Owner” notwithstanding the sale. But, in the

second problem for the plaintiffs’ reading, these obligations do

not include the forum selection clause. See DVDPlay, Inc. v. DVD

123 LLC, 930 So. 2d 816, 819-20 (Fla. Dist. Ct. App. 2006)

(ruling that termination of agreement did not lift its forum

selection clause because the agreement listed the clause among

the provisions that survived termination); Forum Corp. of N.A. v.

Moore Corp. Ltd., No. 01-701, 2001 WL 755823, at *2 (Mass. Super.

Ct. May 23, 2001) (same); cf. Oldlaw Corp. v. Allen, No. 07-1070,

2007 WL 2772697, at *4 (C.D. Ill. Sept. 24, 2007) (ruling that,

where the termination clause provided that “neither Party shall

have any further obligation to the other except for any

obligation accruing prior to the date of termination,” the forum

selection clause applied to claims accruing pre-termination).

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 23 of 49
24

Thus, under the interpretive principle that the inclusion of

certain things implies the exclusion of other like things, see,

e.g., Howe v. Howe, 87 N.H. 338 (1935), the inclusion of Articles

17.2, 17.3, and 17.4 among those provisions to which an outgoing

Owner must agree to be bound implies that the forum selection

clause is not similarly binding. See Thome v. Layne Energy

Sycamore, LLC, No. 05-2244, 2006 WL 1488895, at *2 (D. Colo. May

30, 2006) (ruling that the forum selection clause “was clearly

terminated by” contractual language that “called for termination

of the entire agreement (except as otherwise provided)” where the

agreement did not otherwise provide).

Like Article 14.4.9, the “Investor Personal Covenants

Regarding Confidentiality and Non-Competition” that Berks signed

as an appendix to the franchise agreement further indicate that,

when the parties intended to bind outgoing Owners to particular

provisions of the agreement, they specifically provided for it. 

As the plaintiffs themselves point out, the franchisee and its

Owners agree through these covenants that, in relevant part,

“while you and they have a legal and beneficial ownership

interest in Franchisee and thereafter” those parties will take a

variety of measures to safeguard Pla-Fit’s “Confidential

Information” (emphasis added). So, if the Owners’ commitment to

the forum selection clause were also meant to outlive their time

as “Owners,” one would expect that clause to contain language

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 24 of 49
16The plaintiffs read the clause broadly not only as to whom

it applies, but what: in their view, it “literally cover[s] ‘any

action’ that could arise, including any future . . . action that

could arise from the dealings between Berks and PFIP and PlaFit.” The court’s independent research revealed some support for

this view in the case law. See, e.g. Stephens v. Entre Computer

Ctrs., Inc., 696 F. Supp. 636, 638 (N.D. Ga. 1988) (interpreting

“any action” to include claims that “arise either directly or

25

expressly to that effect, just as one finds in this provision of

the “Investor Covenants” and Article 14.4.9 of the agreement. 

Moreover, as the defendants noted at the hearing, the

covenants provide that PFIP may enforce them “in any court of

competent jurisdiction,” rather than specifically in New

Hampshire. Since the covenants are the only part of the

franchise agreement that specifically sets forth the duties of a

former owner--again, Article 14.4.9 contemplates only that an

outgoing Owner will execute a further agreement containing

certain additional obligations, excluding consent to jurisdiction

here--the fact that the covenants authorize suit “in any court of

competent jurisdiction” further suggests that the choice-of-forum

clause in the agreement itself applies only to current Owners.

When the forum selection clause is read together with the

other provisions of the franchise agreement, then, the clause

simply cannot bear the significance the plaintiffs ascribe to it,

i.e., that it forever commits anyone who owned a piece of the

franchisee at the time the agreement was signed to being sued in

New Hampshire.16 Forum selection clauses, while enforceable

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 25 of 49
indirectly from the business relationship evidenced by the

contract”) (internal quotation marks omitted); Oak Sys., Inc. v.

Francotyp-Postalia. No. 01-2794, 2002 WL 442104, at *1-*2 (E.D.

Pa. Feb. 5, 2002) (similar); but see Popeyes, Inc. v. Tokita,

Nos. 87-3011, 90-1179, 1993 WL 386260, at *2 (E.D. La. Sept. 21,

1993) (interpreting “any action” to “apply to any action between

the parties related to the franchise agreements” containing the

forum selection clause). Because the choice-of-forum clause here

no longer applies to Berks, however, the court need not decide

whether it applies to any or all of the plaintiffs’ claims

against him.

 

26

under New Hampshire law, “are subject to rigorous rules of

interpretation.” Strafford Tech., Inc. v. Camcar, Div. of

Textron, Inc., 147 N.H. 174, 176 (2001) (citing Bremen, 407 U.S.

at 10). The plaintiffs’ interpretation of the choice-of-forum

clause--which, despite the court’s invitation, received very

little attention in their supplemental brief--does not survive

that level of scrutiny. The forum selection clause in the

franchise agreement between Pla-Fit and Seven B-Fit does not

provide for jurisdiction over Berks, who sold his interest in

Seven B-Fit more than six months before the plaintiffs commenced

suit. See Mobilificio San Giacomo S.p.A. v. Stoffi, No. 96-415,

1998 WL 125534, at *9 (D. Del. Jan. 29, 1998) (refusing to

enforce forum selection provisions in agreements that had expired

well before commencement of suit).

By the same reasoning, however, Berks may no longer take

advantage of the agreement’s arbitration clause. “[W]hen an

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 26 of 49
27

arbitration clause is invoked after the contractual relationship

between the parties has ended, the parties’ intent governs

whether the clause’s authority extends . . . .” Zandford v.

Prudential-Bache Sec., Inc., 112 F.3d 723, 727 (4th Cir. 1997);

see also, e.g., 1 Martin Domke et al., Domke on Commercial

Arbitration § 12:6 (3d ed. 2004). As is the case with the

choice-of-forum clause, the text and structure of the franchise

agreement make clear that the parties did not intend the

arbitration clause to apply to former Owners.

The clause, Article 19.12, states in relevant part that:

the parties will attempt to resolve promptly by good

faith negotiations any controversy or claim between the

parties, including their respective affiliates, owners,

officers, directors, employees, and agents, arising out

of or relating to this Agreement . . . . All

controversies, disputes, or claims between the parties,

including their respective affiliates, owners,

officers, directors, employees, and agents, arising out

of or relating to this Agreement that are not resolved

by negotiations . . . shall on demand of either party

be submitted for arbitration . . . .

Because Berks is no longer among the “owners, officers,

directors, employees, and agents” of Seven B-Fit, this clause,

like the choice-of-forum clause, no longer applies to him. Just

as Pla-Fit may no longer enforce that clause against Berks, then,

he may no longer invoke the arbitration clause against Pla-Fit. 

See Intergen N.V. v. Grina, 344 F.3d 134, 143 (1st Cir. 2003)

(observing that non-parties to a contract ordinarily may not

invoke its arbitration clause); McCarthy v. Azure, 22 F.3d 351,

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 27 of 49
17As these cases discuss at length, the court of appeals

recognizes a number of theories allowing a non-party to invoke an

arbitration clause--similar to those courts have used to bind

non-parties to forum selection clauses, see note 10, supra--but

the court need not consider any of those theories here because

Berks has not raised them. 

28

355 (1st Cir. 1994) (similar).17 His motion to dismiss is denied

insofar as it relies on the arbitration clause. 

B. Berks’s contacts with New Hampshire

The court now turns to the plaintiffs’ argument that, the

choice-of-forum clause aside, Berks nevertheless has sufficient

contacts with New Hampshire to subject him to jurisdiction here.

“Personal jurisdiction implicates the power of a court over a

defendant . . . both its source and its outer limits are defined

exclusively by the Constitution.” Foster-Miller, 46 F.3d at 143-

44 (citing Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de

Guinee, 456 U.S. 694, 702 (1982)). As this court observed in a

previous dispute between some of the same parties, different

constitutional amendments control personal jurisdiction,

depending on the basis for federal subject-matter jurisdiction. 

PFIP, 2004 DNH 159, 5 (citing United States v. Swiss Am. Bank,

Ltd., 274 F.3d 610, 618 (1st Cir. 2001)). While, in a diversity

case, the due process clause of the Fourteenth Amendment demands

that the defendant have adequate contacts with the forum state

for personal jurisdiction to lie, in a federal question case, the

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 28 of 49
29

due process clause of the Fifth Amendment applies instead, and

requires only that the defendant have adequate contacts with the

United States as a whole. Swiss Am. Bank, 274 F.3d at 618.

As this court also explained in PFIP, however, that

distinction is largely academic in a case like this, where the

plaintiffs’ federal claims--like PFIP’s claims in its prior

lawsuit against Berks--arise under statutes that do not provide

for nationwide service of process on defendants. 2004 DNH 159,

6. So, to bring the defendants within the jurisdiction of this

court, they must be served under Rule 4(k)(1) of the Federal

Rules of Civil Procedure, which, in relevant part, authorizes

service over a defendant “‘only to the extent permitted by the

law of the state in which the district court sits.’” Id.

(quoting United Elec., Radio & Mach. Workers of Am. v. 163

Pleasant St. Corp., 960 F.2d 1080, 1086 (1st Cir. 1992) (further

internal quotation marks omitted)).

That law, the New Hampshire long-arm statutes reaching

unregistered foreign corporations like the You Fit entities, N.H.

Rev. Stat. Ann. § 293-A:15-10, and non-resident individuals like

Berks, id. § 510:4, extends the jurisdiction of the New Hampshire

courts as far as the due process clause of the Fourteenth

Amendment allows. PFIP, 2004 DNH 159, 6-7 (citing Sawtelle v.

Farrell, 70 F.3d 1381, 1388 (1st Cir. 1995)). The question,

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 29 of 49
30

then, reduces to whether exercising personal jurisdiction over

the defendants would comport with that constitutional provision. 

Due process requires that a defendant have “sufficient

minimum contacts with the state such that ‘maintenance of the

suit does not offend traditional notions of fair play and

substantial justice.’” Adelson v. Hananel, 510 F.3d 43, 49 (1st

Cir. 2007) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310,

316 (1945)) (further internal quotation marks omitted). These

contacts can give rise to general jurisdiction, based on the

defendant’s continuous and systematic activity in the forum

state, or specific jurisdiction, based on the nexus between the

plaintiff’s claims and the defendant’s forum-based activities. 

See, e.g., Hannon, 524 F.3d at 279. Here, the plaintiffs have

not argued for general jurisdiction, so the court will consider

specific jurisdiction only.

Specific jurisdiction consists of three elements: 

relatedness, purposeful availment, and reasonableness. See,

e.g., Phillips v. Prairie Eye Ctr., 530 F.3d 22, 27 (1st Cir.

2008), cert. denied, 129 S. Ct. 999 (2009). To carry its burden

to show personal jurisdiction, “[t]he plaintiff must demonstrate

that each of these three requirements is satisfied.” Id.

Furthermore, and of no small consequence here, “[q]uestions of

specific jurisdiction are always tied to the particular claims

asserted,” Phillips Exeter Acad. v. Howard Phillips Fund, 196

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 30 of 49
18As referenced supra at note 6, the plaintiffs have offered

nothing to link this training to Berks’s alleged misappropriation

beyond an unexplained assertion that the training included

“critical information.” Those kinds of bald statements carry no

weight in jurisdictional rulings, even under the prima facie

standard. See Mass. Sch. of Law, 142 F.3d at 34. Furthermore,

the employees were working for Seven B-Fit, not Berks personally,

so attributing their contacts with New Hampshire to Berks would

require piercing the Seven B-Fit corporate veil, which (as

opposed to piercing the veil of the You Fit entities, discussed

infra) has not been sought here. 

31

F.3d 284, 289 (1st Cir. 1999), and “jurisdiction is determined

separately as to each defendant,” Cambridge Literary Props., Ltd.

v. W. Goebel Porzellanfabrik G.m.b.H. & Co. Kg., 295 F.3d 59, 65

(1st Cir. 2002). In other words, as this court has put it,

“[s]pecific personal jurisdiction is both defendant-specific and

claim-specific, so that jurisdiction may exist as to some claims

and some defendants but not others.” PFIP, 2004 DNH 159, 12.

The plaintiffs have nevertheless based their jurisdictional

argument almost entirely on one claim against one defendant: 

their claim for misappropriation of trade secrets against Berks. 

Originally, the plaintiffs premised this argument on the notion

that, by receiving allegedly confidential information “provided

from New Hampshire,” Berks had established contacts sufficient to

subject him to jurisdiction here. One of the problems with this

theory is that, aside from the trip that two Seven B-Fit

employees made to New Hampshire to receive training,18 the

exchange of information took the form of the plaintiffs’

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 31 of 49
32

communications into Florida, and “in the personal jurisdiction

context, the focus is on the interests and activity of the

defendant, not the plaintiff.” Lorelei Corp. v. County of

Guadalupe, 940 F.2d 717, 721 (1st Cir. 1991) (internal quotation

marks and citation omitted). 

So the plaintiffs’ new theory relies on Berks’s reaching

into New Hampshire to communicate with Rondeau, allegedly

extracting “trade secrets” to be misappropriated in the

operations of the You Fit gyms. Leaving aside the late hour at

which it was first advanced, there are at least two weaknesses in

this theory. First, while the plaintiffs need not prove their 

claims by a preponderance of the evidence to make a prima facie

showing of personal jurisdiction, they still must “proffer[]

evidence that, if credited, is enough to support findings of all

facts essential” to that conclusion. Boit, 967 F.2d at 675. It

is doubtful whether Rondeau’s account of his conversations with

Berks, and attempts to explain the nature of the plaintiffs’

claimed “trade secrets,” rise to even that modest level, i.e.,

where the court could find that Rondeau in fact disclosed trade

secrets to Berks during those conversations. As discussed supra,

Rondeau described the alleged “trade secrets” in only the vaguest

terms, including counsel’s “secret recipe” analogy, and those

kinds of statements are generally insufficient to ground

jurisdictional findings, see Mass. Sch. of Law, 142 F.3d at 34.

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 32 of 49
33

Second, the plaintiffs have provided no authority for their

view that, when a defendant accesses the plaintiff’s trade

secrets through contacts with the forum state, but

misappropriates the trade secrets through activity elsewhere, the

misappropriation claim nevertheless meets the relatedness

standard: that the claim “‘arise out of’ or be ‘related to’ the

activities within the forum state.” Adelson, 510 F.3d at 49. 

And there is one case that squarely rejects the plaintiffs’

theory of jurisdiction. See Arch Aluminum & Glass Co. v. Haney,

964 So. 2d 228, 233 (Fla. Dist. Ct. App. 2007).

The plaintiff there, a Florida corporation, claimed that the

defendant, its former sales manager, had misappropriated its

trade secrets by disclosing them to a business that competed with

the plaintiff out-of-state. Id. at 231. In ruling that it

lacked personal jurisdiction, the court drew a distinction

between the defendant’s acquisition of the information--which,

because it occurred while he was still working for the plaintiff,

was lawful--and his alleged distribution of the information after

he left the company--which was not. Id. at 233. Because only

the acquisition had occurred in Florida, the court reasoned, the

trade secrets claim did not arise out of the defendant’s contacts

with the forum state. Id.

Likewise, while Berks allegedly accessed the plaintiffs’

trade secrets through his contacts with them in New Hampshire, he

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 33 of 49
19Indeed, Rondeau testified that he would not have revealed

this information to Berks absent the non-disclosure provisions.

34

was authorized to do so by the confidentiality provisions of the

settlement and license agreement and the franchise agreement,19

and while he allegedly misappropriated those trade secrets, he

did so through conduct that occurred entirely in Florida. Under

the reasoning of Arch Aluminum & Glass, then, the plaintiffs’

claim for misappropriation of trade secrets would not arise out

of Berks’s contacts with New Hampshire. Cf. Delta Education,

Inc. v. Langlois, 719 F. Supp. 42, 48 (D.N.H. 1989) (finding

jurisdiction over defendants who had misappropriated plaintiff’s

trade secrets while working for the company in New Hampshire). 

There is authority directly to the contrary, however, see

S & D Trading Acad., LLC v. AAFIS, Inc., 494 F. Supp. 2d 558, 567

(S.D. Tex. 2007) (ruling that, where defendant’s employees had

been given authorized access to plaintiff’s trade secrets while

visiting the forum, then left to misappropriate it elsewhere, the

trade secrets claim still arose out of the contacts with the

forum), as well as other cases that at least arguably support the

plaintiffs’ position on an abstract level, see, e.g., Scuderi

Group, LLC v. LGD Tech., LLC, 575 F. Supp. 2d 312, 322 (D. Mass.

2008); Insituform Techs., Inc. v. Reynolds, Inc., 398 F. Supp. 2d

1058, 1066-67 (E.D. Mo. 2005); Unicru, Inc. v. Brenner, No. 04-

248, 2004 WL 785276, at *9 (D. Or. Apr. 13, 2004); Harry Miller

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 34 of 49
20The cases the plaintiffs cited (for the first time) at the

hearing, as they acknowledged, did not attempt to decide where a

claim for misappropriation of trade secrets arises, but simply

stand for the uncontroversial proposition that, if a claim arises

out of a defendant’s telephone calls into a forum state, then the

relatedness test is satisfied. See Trade Wings, LLC v.

Technetics, Inc., 2002 DNH 182, 8-9 (finding breach of contract

claim arising out of allegedly defective goods to be related to

communications into New Hampshire during negotiation of contract,

as well as shipment of goods themselves into state); Pelchat v.

Sterilite Corp., 931 F. Supp. 939, 945 (D.N.H. 1996) (finding

claim for retaliation in violation of the FMLA to relate to

boss’s calls to the plaintiff’s home in New Hampshire harassing

her for missing work while caring for her premature infant); Lyme

Timber Co. v. DSF Investors LLC, 150 N.H. 557, 560 (2004)

(finding misrepresentation and similar claims to relate to

defendant’s communications to plaintiff in New Hampshire which

included the alleged misrepresentations). The question here,

though, is whether a claim for the misappropriation of trade

secrets through the plaintiff’s use of them outside of the forum

relates to the defendant’s contacts with the forum through which

the secrets were legally obtained.

35

Co. v. Carr Chem Inc., 5 F. Supp. 2d 295, 298 (E.D. Pa. 1998). 

Despite bearing the burden of showing personal jurisdiction,

however, the plaintiffs have furnished the court with no

authority on this point.20

The court considers Arch Aluminum & Glass persuasive here in

light of guidance from the court of appeals that the relatedness

standard “demands something like a proximate cause nexus” between

the defendant’s contacts with the forum and the plaintiff’s cause

of action. Cambridge Literary Props., 295 F.3d at 65 (internal

quotation marks omitted). It seems a stretch to say that Berks’s

calls with Rondeau proximately caused an alleged misappropriation

of trade secrets which Berks had already been provided by virtue

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 35 of 49
36

of his status as the plaintiffs’ licensee and the owner of their

franchisee, i.e., without having to extract them from Rondeau. 

Indeed, that was how the plaintiffs themselves had set forth

their misappropriation theory, at least before the hearing.

Nevertheless, the court will simply assume, without

deciding, that the plaintiffs have made a minimal prima facie

showing that their claim against Berks for misappropriation of

trade secrets sufficiently relates to his telephone calls with

Rondeau so as to satisfy the relatedness standard. The court

will likewise assume that Berks’s alleged conduct satisfies the

purposeful availment aspect of the jurisdictional test. See

Phillips Exeter Acad., 196 F.3d at 291 (noting “a natural

blurring of the relatedness and purposeful availment inquiries in

cases in which the alleged contacts are less tangible than

physical presence”) (parenthetical omitted). The question

remains whether exercising jurisdiction over the trade secrets

claim against Berks would be reasonable. The court concludes

that the plaintiffs have not carried their burden to demonstrate

that it would be, particularly in light of their failure to show

jurisdiction over any other claim against any other defendant.

Before explaining that conclusion, the court will set forth

its premise. Neither in their briefing nor at the hearing did

the plaintiffs offer more than the barest assertion that this

court has jurisdiction over Berks (or any defendant) as to any

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 36 of 49
21As noted supra, the plaintiffs also assert an unjust

enrichment claim based on the defendants’ allegedly “wrongful

activities.” So this claim, as well as the plaintiffs’ claim

under RSA 358-A, could, as pled in the amended complaint,

incorporate the defendants’ alleged misappropriation of trade

secrets, as well as their alleged use of the plaintiffs’

trademarks. But the plaintiffs have not argued that and,

regardless, it would extend jurisdiction over only part of two

other claims based on Berks’s telephone calls with Rondeau.

37

claim besides the one for misappropriation of trade secrets,

i.e., their claims for trademark infringement, false designation

of origin, unfair and deceptive acts or practices, and breach of

the franchise and settlement and license agreements arising out

of Berks’s alleged infringement of the plaintiffs’ marks through

the You Fit gyms, and their copyright infringement claim arising

from the mailing used to promote them.21 When asked about this

omission at the hearing, the plaintiffs simply analogized Berks’s

series of telephone calls with Rondeau to a “river that flows

into the ocean” of their other claims. That is manifestly

insufficient.

As this court observed in the parties’ previous dispute,

personal jurisdiction over a trademark infringement or similar

claim generally exists only in the place where some conduct

essential to those claims occurred. PFIP, 2004 DNH 159, 14

(citing Cambridge Literary Props., 295 F.3d at 64-65). All of

the alleged conduct giving rise to the plaintiffs’ trademark

infringement and related claims in this action occurred, or is

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 37 of 49
22As this court also ruled in PFIP, that the plaintiffs

claim to have suffered harm in New Hampshire from the defendants’

allegedly infringing activities in Florida is not enough on its

own to confer jurisdiction here. 2004 DNH 159, 13-14 (citing,

among other sources, 5 J. Thomas McCarthy, McCarthy on Trademarks

and Unfair Competition § 32:38 (4th ed. 2002)). The intervening

decision by the court of appeals in Northern Laminate Sales, Inc.

v. Davis, 403 F.3d 14 (1st Cir. 2005), is not to the contrary. 

There, while the defendant had made misrepresentations to the

plaintiff’s president during a meeting in New York, those

statements were followed by a letter and an e-mail to the

plaintiff in New Hampshire repeating them and making additional

misrepresentations. Id. at 19-20. So there was more than simply

the in-state effects of the defendant’s out-of-state conduct to

support personal jurisdiction. Id. at 25. See NeoDevices, Inc.

v. Neomed, Inc., 2009 DNH 20, 9-11 (refusing to read Northern

38

occurring, in Florida. That state was the place of the

litigation between Berks and PFIP that produced the settlement

and license agreement, which authorized Berks to operate gyms,

also in Florida, using the plaintiffs’ trademarks and other

intellectual property. Both that agreement and the subsequent

franchise agreement were signed in Florida. Most importantly,

though, Berks’s alleged infringement of those trademarks and

anticipated copyright occurred wholly through the operations of

the You Fit gyms in Florida, which cater only to Floridians.

Just as in the parties’ previous dispute, then, this court

lacks jurisdiction over the plaintiffs’ claims, whether statutory

or contractual, which “focus on the defendants’ use of [the

plaintiffs’] logos and trademarks, that is the dissemination of

the advertising and other display of the logos and trademarks in

Florida.”22 Id. at 15-16. That these allegedly infringing uses

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 38 of 49
Laminate to hold that in-state harm caused by out-of-state

conduct suffices to confer personal jurisdiction). 

39

of the plaintiffs’ trademarks and copyrights have been combined

with an unauthorized use of the plaintiffs’ claimed trade secrets

allegedly learned through contacts with New Hampshire--the “river

into the ocean” theory--does not establish jurisdiction over all

of those claims because, again, “[q]uestions of specific

jurisdiction are always tied to the particular claims asserted.”

Phillips Exeter, 196 F.3d at 289.

Jurisdictional questions, as also already noted, must

likewise be answered as to each defendant individually. See

Cambridge Literary Props., 295 F.3d at 65. The plaintiffs have

not identified any contacts at all between the You-Fit entities

named as defendants here and the state of New Hampshire. 

Instead, the plaintiffs argue that Berks’s contacts with New

Hampshire should be imputed to the You-Fit entities, either under

ordinary principles of agency or the equitable doctrine of

piercing the corporate veil. Neither theory fits here.

It is well-settled that the actions of a corporation’s

agents are imputed to it for purposes of the jurisdictional

inquiry (as for all other purposes, since a corporation can

physically act only through its agents). See, e.g., Jet Wine &

Spirits, Inc. v. Bacardi & Co., 298 F.3d 1, 7-8 (1st Cir. 2002). 

It is equally well-settled, though, that a corporation is not

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 39 of 49
23By Rondeau’s account, the calls began after Berks signed

the franchise agreement in June 2006 and continued for

approximately one year, so it is possible that the calls

continued for a month or so after the You-Fit entities had come

into existence. But there has been no showing that whatever

calls took place in that brief period would be sufficient to

ground jurisdiction over those defendants; indeed, it is open to

question whether the plaintiffs have even shown that the whole

year’s worth of calls gives rise to jurisdiction over Berks. 

40

responsible for the actions of those acting on its behalf--its

promoters--before the corporation comes into existence. See 1A

William Meade Fletcher, Fletcher Cyclopedia of Corporations

§ 218, at 468 (rev. ed. 2002); 18 C.J.S. Corporations §§ 68-69,

at 344-46 (1990). The You-Fit entities were not incorporated

until May 2007, around the time that the series of Berks’s

telephone calls into New Hampshire had come to an end.23 So

those calls are not chargeable to the You-Fit entities for

purposes of the jurisdictional analysis. See Arch Aluminum &

Glass, 964 So.2d at 234 (rejecting jurisdiction over a

corporation based on its promoter’s disclosure of confidential

information in the forum prior to the corporation’s existence). 

If, as the plaintiffs claim, Berks was acting on behalf of the

You-Fit entities at all during those calls, he was doing so as a

promoter, not an agent.

That brings the court to the plaintiffs’ second theory of

jurisdiction over the You-Fit entities: that Berks incorporated

them for the fraudulent purpose of misappropriating the

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 40 of 49
24Instead, the plaintiffs rely on Nisselson v. Lernout, 469

F.3d 143 (1st Cir. 2006), cert. denied, 127 S. Ct. 2131 (2007),

and like cases, for the proposition that an agent’s wrongful

actions are imputed to the principal. Those cases are inapposite

because, as just discussed, the You Fit entities--and hence any

principal-agent relationship between them and Berks--did not yet

exist during the phone calls to New Hampshire that provide the

sole support for the plaintiffs’ claim to jurisdiction.

41

plaintiffs’ trade secrets, so the entities’ corporate form should

be disregarded for purposes of the jurisdictional inquiry. The

court notes at the outset that, because the You-Fit entities were

incorporated under Florida law, that law supplies the applicable

standard for piercing their corporate veils, at least as to the

state-law trade secrets claim (which, as just discussed, is the

only claim to which Berks’s New Hampshire contacts even arguably

relate). See Goya Foods, Inc. v. Unanue, 233 F.3d 38, 43 n.4

(1st Cir. 2000); 1 Fletcher, supra, § 41.90, at 696-97 (rev. ed.

2004). The plaintiffs have not acknowledged that standard, or

cited any Florida authority.24 The standard, however, is a

demanding one: a plaintiff must show that (1) the shareholder

dominated and controlled the corporation to such an extent that

it in fact lacked an independent existence and the shareholder

was its alter ego, (2) the corporate form was used fraudulently

or for an improper purpose, and (3) the fraudulent or improper

use of the corporate form caused injury to the plaintiff. See,

e.g., Gasparini v. Pordomingo, 972 So. 2d 1053 (Fla. Dist. Ct.

App. 2008). The plaintiffs have come nowhere close to carrying

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 41 of 49
25The corporate records of the You Fit entities introduced

at the hearing support this view, despite Berks’s inability to

produce their articles of incorporation.

42

this “very heavy burden.” Gov’t of Aruba v. Sanchez, 216 F.

Supp. 2d 1320, 1362 (S.D. Fla. 2002) (applying Florida law).

The plaintiffs rely heavily on the fact that Berks

“maintains control over You Fit and directs its operations,” but

that is both unsurprising (given his status as the president and

majority shareholder of the You-Fit entities) and woefully

inadequate to disregard their corporate form. “Even if a

corporation is merely an alter ego of its dominant shareholder or

shareholders, the corporate veil cannot be pierced so long as the

corporation’s separate identity was lawfully maintained,” id.

(bracketing and quotation marks omitted), which, by all

indications, is what happened here.25 The plaintiffs also

heavily relied (at the hearing, at least) on the fact that Berks

incorporated the You-Fit entities just eleven months after

another corporation he partially owned, Seven B-Fit, had signed

on as the plaintiffs’ franchisee, arguing that this chronology

supports the inference that the You-Fit corporations were formed

for the improper purpose of misappropriating the plaintiffs’

trade secrets and the like. The court need not, and cannot,

accept such a “farfetched inference.” Mass. Sch. of Law at

Andover, 142 F.3d at 34. Berks had been in the business of

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 42 of 49
43

running gyms, through a number of different corporations, long

before Seven-B Fit became the plaintiffs’ franchisee, so his

formation of additional entities to operate additional gyms

during that period is hardly suspicious, particularly in light of

his passive involvement in Seven B-Fit.

More fundamentally, though, the plaintiffs’ argument

presumes that what the You-Fit entities are doing is in fact

“improper,” and it suffices to say that the court remains

unconvinced of that proposition at this point. The plaintiffs’

real theory of veil-piercing seems to be that, if a corporation

is engaged in “fraudulent and tortious conduct,” it is unfair to

allow its shareholders to escape liability, but that is in fact

exactly what the principle of limited liability dictates, unless

the corporation’s very existence is tainted by fraud “or some

analogous betrayal of trust.” Lipsig v. Ramlawi, 760 So. 2d 170,

187 (Fla. Dist. Ct. App. 2000). That has not been shown here.

The upshot is that, at best, the plaintiffs have made a weak

prima facie showing of jurisdiction over Berks, and neither of

the other defendants, and have done so as to only one of the nine

claims in the amended complaint. It follows that the

reasonableness element of the jurisdictional test carries more

weight than it would on a stronger showing of relatedness and

purposeful availment. See Adelson, 510 F.3d at 52.

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 43 of 49
44

Reasonableness is a function of the following “Gestalt factors”:

(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

controversy, and (5) the common interests of all

sovereigns in promoting substantive social policies.

Id. (quoting United Elec. Workers, 960 F.2d at 1092). In the

prior jurisdictional dispute between some of the parties here,

this court ruled that the factors counseled against exercising

jurisdiction, PFIP, 2004 DNH 159, 23, and much of that analysis

is applicable here as well.

First, Berks has not articulated any particular burden of

appearing in New Hampshire to defend the plaintiffs’ claims, so

the first gestalt factor has no real significance here. Id. at

21 (citing Sawtelle, 70 F.3d at 1395). The other factors,

however, all weigh against jurisdiction.

Though New Hampshire has some interest in having the dispute

adjudicated here because the plaintiffs are New Hampshire

citizens, Florida’s interest in serving as the forum state is

considerably stronger, as the site of all of the allegedly

wrongful activity. Id. (citing Sawtelle, 70 F.3d at 1395). 

Indeed, if the plaintiffs are to be believed, the defendants are

engaged in a wrongful appropriation of the plaintiffs’

intellectual property to divert Florida gym-goers to the

defendants’ facilities at the plaintiffs’ expense; Florida has a

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 44 of 49
45

strong interest in discouraging its residents, and protecting its

other residents, from that kind of chicanery. See, e.g., CFTC v.

Cromwell Fin. Servs., 2006 DNH 019, 14 (noting, in transferring

an action claiming violations of commodities trading laws to

Florida, that state’s “strong local interest” as the place where

the violations occurred). As this court reasoned in PFIP, that

interest also tips the fifth Gestalt factor, the states’ common

interest in promoting substantive social policies, against

jurisdiction here. 2004 DNH 159, 22-23.

It is the third and fourth Gestalt factors, however, that

seal the deal. While the plaintiffs undoubtedly see this court

as a “convenient” forum to litigate their claims against the

defendants, it is not an “effective” one, given their failure to

demonstrate, even minimally, personal jurisdiction on any claim

against any defendant other than the trade secrets claim against

Berks. So, to obtain relief on their other claims against Berks,

and all their claims against the You Fit entities, the plaintiffs

will need to re-file them in some other forum that does have

personal jurisdiction. Exercising jurisdiction over just the one

claim, while the others are litigated elsewhere, will not serve

the interests of the judicial system in the effective resolution

of controversies. See id. at 22 (citing Pritzker v. Yari, 42

F.3d 53, 65 (1st Cir. 1994)). The Gestalt factors, on balance,

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 45 of 49
26There are circumstances, e.g., cases involving pro se

litigants or other parties of significantly limited financial

resources, where this court arguably should, and often does, rely

heavily on its independent research and analysis in examining the

parties’ positions. But those circumstances are not present

here, where the plaintiffs, who operate a successful business,

are represented by skilled and experienced counsel from a highly 

reputable law firm.

46

indicate that subjecting Berks to jurisdiction on the trade

secrets claim would be unreasonable. See id.

Because the plaintiffs have failed to carry their burden to

show one of the required elements of specific jurisdiction,

reasonableness (assuming that they have shown the other two,

relatedness and purposeful availment), the defendants’ motion to

dismiss must be granted on that basis. See Phillips, 530 F.3d at

27; PFIP, 2004 DNH 159, 23. As the length of this order

suggests, the defendants’ motion, and the plaintiffs’ arguments

in response, presented a number of complex issues treated, in

most instances, only obliquely by the caselaw. By and large, the

plaintiffs--who bear the burden to show jurisdiction in this,

their chosen forum--failed to provide the court with any of that

authority or even to develop their arguments sufficiently,

forcing the court to take up the slack.26 This task was made all

the more time consuming by the plaintiffs’ last-minute shift in

their theory of jurisdiction. The plaintiffs, who frequently

resort to this in this court in the name of protecting their

trademarks and copyrights, see, e.g., PFIP, LLC v. Planet Health

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 46 of 49
47

& Fitness, Inc., No. 08-461 (D.N.H. Nov. 6, 2008); PFIP, LLC v.

Fitworld, LLC, No. 08-170 (D.N.H. Apr. 30, 2008); PFIP, LLC v.

Body Transit, Inc., No. 07-365 (D.N.H. Nov. 5, 2007), should know

better then to expect such indulgence.

The court is particularly distressed by the letter it

received from counsel for the plaintiffs shortly after the

hearing, notifying the court of a letter from counsel for the

defendants “demand[ing] to be included in the ‘spam,’” i.e.,

“email marketing contacts regarding the various [PFIP] marketing

programs sent from New Hampshire to Mr. Berks’s companies in

Florida.” Because the defendants had argued, in resisting

personal jurisdiction, that they had no interest in receiving

those unsolicited materials, the plaintiffs’ counsel argued in

this submission, defense counsel’s letter “demonstrates that

credibility does not favor Mr. Berks and his corporate

defendants”--which means, in turn, that “the YouFit companies

were formed with the intent to commit a fraud.”

This letter is troubling for a number of reasons. First,

while not submitted ex parte, it is nevertheless a communication

from a lawyer to a judge about a pending matter prohibited by

Local Rule 77.6. Second, its conclusion, i.e., that Berks formed

the You Fit entities for a fraudulent purpose, bears virtually no

logical relationship to its premise, i.e., that Berks has

contradicted a position he took at the hearing. Third, and quite

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 47 of 49
27This court expresses no view on whether that is in fact

what the settlement and license agreement requires.

28Document no. 14.

48

seriously, its premise is a clear misconstruction (and, one

hopes, not an intentional misrepresentation) of the letter from

the defendants’ counsel, which on its face asked only that PFIP

“include [PFE’s] ‘Planet Fitness’ clubs on its website in the

same manner and with same obligations and privileges” as

franchised clubs, specifically “the privilege of running online

promotions on their click-through webpages appearing on the

Planet Fitness website,” as allegedly required by the settlement

and license agreement.27 The letter says nothing about the

marketing communications. The submission from the plaintiffs’

counsel, then, supports a negative inference as to their

credibility, rather than as to that of the defendants. See also

note 11, supra.

 

IV. Conclusion 

For the foregoing reasons, the defendants’ motion to

dismiss28 is GRANTED for lack of personal jurisdiction. That

motion’s request to dismiss in favor of arbitration is DENIED,

and its request to transfer is DENIED as moot. The defendant’s

Motion for Protective Order Regarding Untimely Interrogatories

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 48 of 49
29Document no. 35.

49

and Document Requests (filed by all defendants)29 is DENIED as

moot. The clerk shall enter judgment accordingly and close the

case.

SO ORDERED.

____________________________

Joseph N. Laplante

United States District Judge

Dated: April 27, 2009

cc: Teresa C. Tucker, Esq.

Allison C. Ayer, Esq.

Christopher T. Vrountas, Esq.

Andrew R. Schulman, Esq.

Matthew S. Nelles, Esq.

Case 1:08-cv-00271-JL Document 51 Filed 04/27/09 Page 49 of 49