Alpha Capital Anstalt v. Oxysure Systems, Inc.

252 F. Supp. 3d 332, 2017 U.S. Dist. LEXIS 71461
CourtDistrict Court, S.D. New York
DecidedMay 8, 2017
Docket15-CV-5443 (VM)
StatusPublished
Cited by9 cases

This text of 252 F. Supp. 3d 332 (Alpha Capital Anstalt v. Oxysure Systems, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alpha Capital Anstalt v. Oxysure Systems, Inc., 252 F. Supp. 3d 332, 2017 U.S. Dist. LEXIS 71461 (S.D.N.Y. 2017).

Opinion

DECISION AND ORDER

VICTOR MARRERO, United States District Judge.

Plaintiffs Alpha Capital Anstalt (“Alpha Capital”) and Osher Capital Partners, LLC (“Osher,”)(collectively, “Plaintiffs”) brought this action against defendants Ox-ysure Systems, Inc. (“Oxysure”) and Julian Ross (“Ross”) (collectively, “Defendants”), alleging that Defendants breached the terms of the Securities Purchase Agreement (“SPA,” Dkt. No. 75-1) entered into by the parties. (Dkt. Nos. 1, 40.) Ross, through two letters dated February 16, 2017, to the Court, requested leave to move to dismiss Plaintiffs’ Amended Complaint (Dkt. No. 40) pursuant to Rules 12(b)(2), 12(b)(6), and 9(b) of the Federal Rules of Civil Procedure. (Dkt. Nos. 98, 99.) The Court now construes this, correspondence as a Motion to Dismiss (“Motion”). For the reasons stated below, the Motion is DENIED.

I. BACKGROUND

Alpha Capital’s Amended Complaint (“Complaint,” see Dkt. No. 40) alleges that [336]*336Oxysure breached the SPA by: (1) incurring indebtedness over $200,000 and (2) issuing Series C, D and E stock (the “C, D and E Stock”). Alpha Capital seeks the following damages: (1) a preliminary and permanent injunction; (2) damages resulting from the breach of contract; and (3) attorneys’ fees.1

Osher has also filed a complaint in a related action pending before this Court. (The “Osher Complaint,” Case No. 15-cv-9594, see Dkt. No. 1.) The Osher Complaint not only alleges that Oxysure breached the SPA, but that Ross, in his individual capacity, also breached the SPA by: (1) incurring indebtedness over $200,000; (2) issuing the C, D and E stock; and (3) preventing Osher from participating in subsequent financing. Osher asserts claims for: (1) fraud in the inducement against Oxysure; (2) fraud in the inducement against Defendants; (3) market manipulation against Defendants; (4) breach of contract for the sale of variable rate securities against Oxysure; (5) breach of contract for the sale of variable rate securities against Defendants; and (6) breach of contract for failure to deliver shares against Oxysure. Osher requested the following damages: (1) rescission qf the contract; (2) recessionary damages; (3) damages for fraudulently inducing Osher to enter into the SPA; (4) damages resulting from the market manipulation; (5) a preliminary and permanent injunction; (6) damages for breach of contract; and (7) attorneys’ fees. Alpha Capital’s and Osher’s cases were consolidated for all purposes. (See Dkt. No. 49.)

Shortly after this Court denied Plaintiffs’ Motion for Summary Judgment (Dkt. No. 84), Oxysure filed for bankruptcy in the Eastern District of Texas. (See Dkt. No. 86.) As a result, this case was stayed pending the disposition of the bankruptcy proceedings. (See Dkt. No. 87.) On January 3, 2017, Plaintiffs requested that the stay be lifted as to Ross, and Alpha Capital renewed its request to amend its complaint to assert individual claims against Ross. (See Dkt. No. 88.) In response, Ross objected to the lifting of the stay and argued that this Court had no grounds to exercise personal jurisdiction over him. (See Dkt. No. 89.) Magistrate Judge Gor-enstein subsequently lifted the stay as to Ross, and instructed Ross to file the present Motion. (See Dkt. No. 91.)

Ross now moves to dismiss the Complaint, arguing that: (1) this Court cannot exercise personal jurisdiction over Ross; (2) Plaintiffs have not alleged any basis for holding Ross personally liable for fraud; (3) Plaintiffs have not met the particularity requirements- of the Private Securities Litigation Reform Act (“PSLRA”) for their fraud and market manipulation claims; (4) Plaintiffs have not pleaded a violation of Regulation M or Rule 10b — 5; and (6) Plaintiffs have failed to allege loss causation. (See Dkt. Nos. 98, 99.)

Plaintiffs contend that: (1) the Court has personal jurisdiction over Ross pursuant to the Escrow Agreement entered into between the parties as well as N.Y. C.P.L.R. Sections 302(a)(2) or 302(a)(3); (2) Ross is personally liable for fraud because he personally made fraudulent misstatements in order to manipulate the price of Oxysure securities; (3) Plaintiffs have alleged specific manipulative acts to satisfy the particularity requirement under the PSLRA; (4) Plaintiffs have adequately pled scienter; (5) Plaintiffs do not allege a violation of Regulation M but rather allege [337]*337that Ross falsely represented that Oxysure had not engaged in any stabilization or manipulation in the price of securities which constitutes a violation of Rule 10b-5; and (6) Plaintiffs have alleged loss causation. (See Dkt. No. 94.)

II. DISCUSSION

A. PERSONAL JURISDICTION

1. Legal Standard

Upon motion, the Court is required to dismiss an action against any defendant over whom it lacks personal jurisdiction. See Fed. R. Civ. P. 12(b)(2). Upon such motion, the plaintiff “bears the burden of showing that the court has jurisdiction over the defendant.” In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204, 206 (2d Cir. 2003) (per curiam); accord DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 84 (2d Cir. 2001); Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999). Where, as here, the court does not conduct an eviden-tiary hearing on the issue of personal jurisdiction, “the plaintiff need only make a prima facie showing that the court possesses personal jurisdiction over the defendant.” DiStefano, 286 F.3d at 84 (citing Bank Brussels Lambert, 171 F.3d at 784). To make this showing, a plaintiff may demonstrate “ ‘through [its] own affidavits and supporting materials, containing [a good faith] averment of facts that, if credited ..., would suffice to establish jurisdiction over the defendant.’” In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 399 F.Supp.2d 325, 330 (S.D.N.Y. 2005) (quoting Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir. 2001)).

When evaluating a motion to dismiss for lack of personal jurisdiction courts “may consider materials outside the pleadings, including affidavits and other written materials[.]” Jonas v. Estate of Leven, 116 F.Supp.3d 314, 323 (S.D.N.Y. 2015). In deciding whether the plaintiff has met this burden, the pleadings and affidavits must be viewed in the light most favorable to the plaintiff, with all doubts resolved in its favor. See, e.g., DiStefano, 286 F.3d at 84; Whitaker, 261 F.3d at 208. “However, con-clusory allegations are not enough to establish personal jurisdiction.” Gmurzynska v. Hutton, 257 F.Supp.2d 621, 625 (S.D.N.Y. 2003) (internal quotation marks omitted), aff'd, 355 F.3d 206 (2d Cir. 2004); accord Yellow Page Solutions, Inc. v. Bell Atl. Yellow Pages Co., No. 00-cv-5663, 2001 WL 1468168, at *3 (S.D.N.Y. Nov. 19, 2001) (“The plaintiff cannot rely merely on conclusory statements or allegations ...; rather, the prima facie showing must be ‘factually supported.’”) (internal citations omitted).

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252 F. Supp. 3d 332, 2017 U.S. Dist. LEXIS 71461, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alpha-capital-anstalt-v-oxysure-systems-inc-nysd-2017.