Not a Lexis Advance subscriber? Try it out for free.

Anstalt v. Oxysure Sys.

United States District Court for the Southern District of New York

November 2, 2016, Decided; November 2, 2016, Filed

15-CV-5443 (VM)



VICTOR MARRERO, United States District Judge.

Plaintiffs Alpha Capital Anstalt ("Alpha Capital") and Osher Capital Partners, LLC ("Osher Capital,")(collectively "Plaintiffs") brought this action against defendants  [*405]  Oxysure Systems, Inc. ("Oxysure") and Julian Ross ("Ross") (collectively "Defendants"), alleging that Defendants breached the terms of the Securities Purchase Agreement ("SPA") entered into by the parties. (Dkt. Nos. 1, 40.) Plaintiffs now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Rule 56"). (Dkt. Nos. 73-76.) Upon review of the record, the Court finds that Plaintiffs have not satisfied their burden of demonstrating the absence of any genuine issue of [**2]  material fact that the SPA prohibited the issuance of the Series B Convertible Stock (the "Convertible Notes") or the C, D and E and Stock. Accordingly, Plaintiffs' motion is DENIED.


A. Plaintiffs' Motion for Summary Judgment

Alpha Capital's Amended Complaint ("Complaint," See Dkt. No. 40) alleges that Oxysure 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; and (2) damages resulting from the breach of contract; and (3) attorneys' fees.

Osher has also filed a complaint in a related action pending before this Court. ("Osher Complaint," Case No. 15-cv-9594, See Dkt. No. 1.) The Osher Complaint alleges that Oxysure 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) fraud in the inducement against Defendants; (4) market manipulation against Defendants; (5) breach of contract for [**3]  the sale of variable rate securities against Oxysure; (6) breach of contract for the sale of variable rate securities against Defendants; and (7) breach of contract for failure to deliver shares against Oxysure. Osher requested the following damages: (1) rescission of the contract; (2) rescissionary 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.)

Oxysure improperly filed a motion to dismiss Osher's Complaint without first submitting pre-motion correspondence to the Court pursuant to the Court's Individual Practices. (See Dkt. No. 60.) Plaintiffs responded with a Motion for a Preliminary Injunction that Oxysure opposed. (See Dkt. No. 66.) The Court thereafter held a telephone conference with all parties and directed them to submit a briefing schedule for a Motion for Summary Judgment and expedited discovery, if needed. (See Dkt. Minute Entry dated April 7, 2016.) Because the pending Motion to Dismiss and Motion for [**4]  a Preliminary Injunction thus became moot, the Court subsequently terminated them. See id.

Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.

216 F. Supp. 3d 403 *; 2016 U.S. Dist. LEXIS 159794 **

ALPHA CAPITAL ANSTALT, et al., Plaintiff, - against - OXYSURE SYSTEMS, INC., et al., Defendants.

Prior History: Alpha Capital Anstalt v. Oxysure Sys., 2015 U.S. Dist. LEXIS 183338 (S.D.N.Y., Oct. 30, 2015)


issuance, summary judgment, stock, convertible, financing, indebtedness, common stock, transactions, Exchange Act, instruments, terms, variable rate, ambiguities, damages, induce, Conversion, genuine, debt instrument, allegations, limitations, notice

Civil Procedure, Judgments, Summary Judgment, Entitlement as Matter of Law, Entitlement as Matter of Law, Genuine Disputes, Materiality of Facts, Burdens of Proof, Movant Persuasion & Proof, Nonmovant Persuasion & Proof, Securities Law, Registration Requirements, Registration of Markets & Market Participants, Broker-Dealers, Releases & Waivers, Exchange Act Compliance, Void & Voidable Contracts, Statute of Limitations, Postoffering & Secondary Distributions, Implied Private Rights of Action, Governments, Legislation, Tolling, Contracts Law, Contract Interpretation, Intent, Ambiguities & Contra Proferentem, Contract Ambiguities, Patent Ambiguities, Business & Corporate Compliance, Contracts Law, Contract Conditions & Provisions, Integration Clauses, Parol Evidence, Contract Interpretation, Business & Corporate Law, Corporate Governance, Directors & Officers, Scope of Authority