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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

ADIL SHAFI, an individual, 

 Defendant/Counterclaim Plaintiff 

 

v. 

BRAINTECH, INC, a Nevada corporation, 

Counterclaim Defendant, 

and 

FREDERICK WEIDINGER, an individual, 

 Additional Counterclaim Defendant. 

_____________________________________/ 

Case No. 09-10454 

Hon. Victoria A. Roberts 

DEFENDANT ADIL SHAFI’S MOTION IN LIMINE 

 Defendant Shafi moves for an order precluding Braintech from raising any issues 

in defense of Shafi’s employment claims which were raised in its now dismissed 

complaint. The doctrines of law of the case, res judicata and collateral estoppel all 

preclude Braintech from re-litigating any of the claims which have been dismissed by 

virtue of the dismissal of Braintech’s complaint on June 3, 2010. Shafi simultaneously 

files a Memorandum of Law in support. 

 

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Respectfully submitted, 

BERRY MOORMAN P.C. 

By: s/James P. Murphy 

James P. Murphy (P36728) 

Attorneys for Defendant/Counterclaim 

Plaintiff 

535 Griswold, Suite 1900 

Detroit, Michigan 48226 

(313) 496-1200 

murph@berrymoorman.com

June 3, 2011 

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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

ADIL SHAFI, an individual, 

 Defendant/Counterclaim Plaintiff 

 

v. 

BRAINTECH, INC, a Nevada corporation, 

Counterclaim Defendant, 

and 

FREDERICK WEIDINGER, an individual, 

 Additional Counterclaim Defendant. 

_____________________________________/ 

Case No. 09-10454 

Hon. Victoria A. Roberts 

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT ADIL SHAFI’S 

MOTION IN LIMINE 

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TABLE OF CONTENTS 

INDEX OF AUTHORITIES................................................................. ...............iii 

I. INTRODUCTION................................................................................................................1 

II. ARGUMENT......................................................................................................................2 

Point 1 

THE DOCTRINES OF RES JUDICATA AND COLLATERAL ESTOPPEL BAR 

BRAINTECH FROM INTRODUCING ANY EVIDENCE TO SHOW THAT SHAFI 

COMMITTED FRAUD, MISREPRESENTATION, BREACH OF CONTRACT, 

BREACH OF FIDUCIARY DUTIES OR DEFALCATION OF EMPLOYMENT 

RESPONSIBILITIES..................................................................................................2 

A. The Dismissal of Braintech's Claims in This Case Should be Given 

Preclusive Effect...........................................................................................2

B. All Elements of Res Judicata and Collateral Estoppel are Present..............3 

C. The Law of the Case Doctrine Mandates Application of Res Judicata 

and Collateral Estoppel................................................................................4 

Point 2 

BRAINTECH AND ITS ATTORNEYS ARE ENGAGING IN MISCONDUCT BY 

SEEKING TO DEFENSIVELY RAISE THE CLAIMS IN ITS DISMISSED 

COMPLAINT..............................................................................................................5 

III. CONCLUSION............................................................................................................6 

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INDEX OF AUTHORITIES 

Cases Page(s)

Stelts v. Univ. Emergency Specialists, Inc., 20 F. App'x 448 (6th Cir. 2001).......................3 

Bragg v. Flint Bd. of Educ. 570 F.3d 775 (6th Cir. 2009)......................................................3 

Orca Yachts, 287 F.3d at 318................................................................................................3 

Varat Enters., Inc., 81 F.3d 1310, 1315 (4th Cir 1996)..........................................................3 

Shoup v. Bell & Howard Co., 872 F.2d 1178, 1179 (4th Cir. 1988).......................................3 

United States v. Todd, 920 F.2d 399, 404 (6th Cir. 1990)......................................................4 

Michigan Int’l Union v. Miller, 6 F. Supp. 2d 634, 639 (E.D. Mich. 1998)..............................4 

Rule(s) Page(s)

Fed R. Civ. P. 41(b)......................................................................................................2, 3 

Statute(s) Page(s)

28 U.S.C. 1927.......................................................................................................................6 

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I. INTRODUCTION 

On June 3, 2010, this Court dismissed Braintech’s Complaint. The Court may 

recall that Braintech’s Complaint sought rescission of all of the underlying transaction 

contracts executed between Braintech and Shafi. Nevertheless, to support its claims for 

rescission, Braintech asserted detailed claims of alleged false statements, 

misrepresentations of fact, claims that Shafi misrepresented pipeline revenue of the two 

companies Shafi sold to Braintech, claims that Shafi committed defalcation in 

connection with his employment as the chief executive officer of Braintech, and other 

similar allegations, all of which it now seeks to litigate defensively. 

Since this Court has granted summary judgment on all claims except Shafi’s 

employment claim, this case will be much simplified and is strictly based upon the 

interpretation of the contract at issue, Shafi’s Employment Agreement. The 

Employment Agreement provides that in the event Shafi is not terminated for “good 

cause” Shafi is entitled to a severance award which amounts to approximately 

$700,000.00. It is now apparent, based upon Braintech’s proposed issues of fact and 

law to be litigated1

 as well as its concise statement of the claims in the Joint Final 

Pretrial Order, that Braintech seeks to litigate all of the issues in its now dismissed 

Complaint. Because Braintech has not sought reconsideration of the dismissal of its 

Complaint, this Court should enforce the preclusive effect of the dismissal of its 

Complaint and exclude from evidence any claims raised in its Complaint. As a matter of 

fact, all of the issues Braintech seeks to raise and litigate in the Final Pretrial Order are 

 

1

 See Final Joint Pretrial Order, submitted June 3, 2011. 

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included with and wrapped up in the now dismissed Complaint. 

This case should proceed to trial solely and exclusively on Shafi’s Employment 

Agreement and whether or not he was terminated for “good cause.” This case merely 

turns on an issue of contract interpretation. By virtue of the dismissal of Braintech’s 

Complaint, Shafi’s conduct is no longer at issue and cannot be raised by Braintech. 

The sole and exclusive issue which will be litigated and decided by the finder of fact is 

whether Braintech complied with the notice and termination procedures of the 

Employment Agreement which either allowed for Shafi to obtain severance or not. 

II. ARGUMENT 

Point 1 

THE DOCTRINES OF RES JUDICATA AND COLLATERAL ESTOPPEL BAR 

BRAINTECH FROM INTRODUCING ANY EVIDENCE TO SHOW THAT SHAFI 

COMMITTED FRAUD, MISREPRESENTATION, BREACH OF CONTRACT, BREACH 

OF FIDUCIARY DUTIES OR DEFALCATION OF EMPLOYMENT RESPONSIBILITIES 

A. The Dismissal of Braintech's Claims in This Case Should be Given 

Preclusive Effect 

On June 3, 2010, Judge Roberts dismissed Braintech's claim for failure to have 

counsel appear on its behalf. The Order did not indicate whether dismissal was with or 

without prejudice. Absent contrary language, Rule 41(b) treats it as dismissal on the 

merits and provides preclusive effect. Rule 41(b) states: 

If the plaintiff fails to prosecute or to comply with these rules or a 

court order, a defendant may move to dismiss the action or any 

claim against it. Unless the dismissal order states otherwise, a 

dismissal under this subdivision (b) and any dismissal not under 

this rule—except one for lack of jurisdiction, improper venue, or 

failure to join a party under Rule 19— operates as an adjudication 

on the merits. 

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Fed R. Civ. p. 41 (b) (emphasis added). 

The Sixth Circuit interprets such orders as having preclusive effect. In Stelts v. 

Univ. Emergency Specialists, Inc., 20 F. App'x 448 (6th Cir. 2001), the district court

dismissed a former employee's suit for lack of prosecution. The Sixth Circuit held the 

dismissal constituted a final judgment on the merits. See also Bragg v. Flint Bd. of Educ. 

570 F.3d 775 (6th Cir. 2009). 

B. All Elements of Res Judicata and Collateral Estoppel are Present 

"Under res judicata principles, a prior judgment between the same parties can 

preclude subsequent litigation on those matters actually and necessarily resolved in the 

first adjudication." Orca Yachts, 287 F.3d at 318. The doctrine of res judicata 

encompasses claim preclusion and issue preclusion. In re Varat Enters., Inc., 81 F.3d 

1310, 1315 (4th Cir 1996). Claim preclusion means that if the second case arises from 

the same cause of action as the first, the judgment in the first case bars litigation "not 

only of every matter actually adjudicated in the earlier case, but also of every claim that 

might have been presented." Varat, 81 F.3d at 1315. Issue preclusion is more narrowly 

drawn. Issue preclusion bars subsequent litigation of legal and factual issues common 

in both actions "actually and necessarily determined by a court of competent jurisdiction 

in the first litigation." Id. 

With the dismissal of Braintech’s Complaint, the doctrine of claims preclusion 

accordingly bars Braintech from asserting the same claim offensively or defensively. 

See Shoup v. Bell & Howard Co., 872 F.2d 1178, 1179 (4th Cir. 1988)(Plaintiffs barred 

from filing the same lawsuit in different federal courts to avoid an adverse determination 

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of statute of limitations.). 

C. The Law of the Case Doctrine Mandates Application of Res Judicata 

and Collateral Estoppel 

As disclosed in its “Concise Statement of Defendants Defenses” in the Final 

Pretrial Order, Braintech proposes to litigate issues such as “Shafi refusing to perform 

his duties,” ...”being dishonest” and ...“making misrepresentations” about his company 

and the product owned by his company, Reliabot. In addition, Braintech proposes to 

litigate issues related to Shafi’s employment, including “failing to generate revenue,” 

...”refusing to attend meetings”...“refusing to work effectively”...”refusing to develop and 

enhance product,”...”refusing to travel,”...”destroying material” and ...”defying 

instructions he was given by superiors.” All of these matters have been previously 

adjudicated in this case by the dismissal of Braintech’s Complaint on June 3, 2010. The 

Sixth Circuit has recognized that the law of the case doctrine permits a court to enforce 

a decision made at one stage of the case in later successive stages of the same 

litigation. United States v. Todd, 920 F.2d 399, 404 (6th Cir. 1990). “Although Todd is a 

criminal case, Circuit Judge Cornelia Kennedy analogized the law of the case doctrine 

as applied in the civil context before finding that the doctrine applies in the criminal 

context as where a coordinate court makes a ruling and then a second court looks at 

the original ruling.” See, Michigan Int’l Union v. Miller, 6 F. Supp. 2d 634, 639 (E.D. 

Mich. 1998). Braintech has not sought reconsideration of the Order dismissing its 

claims. All of the issues sought to be litigated by Braintech defensively are wrapped up 

and included in the Complaint which has already been dismissed. The law of the case 

doctrine should be applied to give preclusive effect to the order of dismissal, and 

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Braintech should not be permitted to litigate any of the issues it proposes. 

Point 2 

BRAINTECH AND ITS ATTORNEYS ARE ENGAGING IN MISCONDUCT BY 

SEEKING TO DEFENSIVELY RAISE THE CLAIMS IN ITS DISMISSED COMPLAINT 

As this Court is aware, Braintech’s “successor,” Robotic Vision Technology LLC 

(“RVT”), has filed suit against Shafi in the Eastern District of Virginia, claiming to be a 

successor of Braintech. In that case, RVT has filed what is essentially a duplicate of the 

Complaint this Court dismissed. Unlike this case, in the Eastern District of Virginia, RVT 

seeks to enforce one or more of the contracts associated with the underlying 

transaction. In the Eastern District of Virginia, Shafi has moved to dismiss, arguing that 

that case subjects him to multiple, vexatious litigation identical to the claims already 

dismissed in this case (or identical to the claims which should have been asserted in 

this case). See, Motion and Brief to Dismiss Eastern District of Virginia case, annexed 

as Exhibit 1. 

Shafi has already complained to this Court regarding this conduct. Although this 

Court declined to stay this litigation, the Court understood that Shafi would be moving to 

dismiss the Virginia litigation or have it transferred here. Braintech’s former principal, 

Rick Weidinger, is listed as the only witness which will be called in this case. Weidinger 

is also behind the RVT case in Virginia and in fact is a plaintiff in the Virginia litigation, 

asserting personal claims against Shafi. Even if this Court determines that the 

principals of res judicata, collateral estoppel or law of the case do not preclude 

Braintech from litigating claims in its now dismissed Complaint, this Court should 

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exercise its discretion and refuse to permit Braintech to assert any defense in this case, 

given the fact that two identical claims are proceeding in two different federal district 

courts. 

Braintech’s attorneys are well aware of the Virginia case. By seeking to litigate 

the exact same issues here defensively, they vexatiously impose the expense of 

litigating the exact same issues in two different federal court houses 500 miles apart. 

The malicious nature of this apparently coordinated effort is unprecedented and should 

subject Braintech and its attorneys to sanctions under 28 U.S.C. 1927. 

II. CONCLUSION 

 The only issues left in this case are Shafi’s employment-related claims which are 

strictly governed by the employment contract. The simple issue to be tried is whether 

Shafi was terminated with “good cause” as that term is defined under the Employment 

Agreement. Braintech should not have the opportunity to “re-litigate” claims which have 

already been dismissed by its failure to have an attorney appear on its behalf. 

Moreover, Braintech has taken no action before this Court to have the Court reconsider 

its prior Order dismissing the Complaint. There are no grounds to permit Braintech to 

raise any of the issues now defensively as a result of the dismissal of its Complaint. 

 

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Respectfully submitted, 

BERRY MOORMAN P.C. 

By: s/James P. Murphy 

James P. Murphy (P36728) 

Attorneys for Defendant/Counterclaim 

Plaintiff 

535 Griswold, Suite 1900 

Detroit, Michigan 48226 

(313) 496-1200 

murph@berrymoorman.com 

Dated: June 3, 2011 

CERTIFICATE OF SERVICE

STATE OF MICHIGAN ) 

 )ss 

COUNTY OF WAYNE ) 

I hereby certify that on the 3rd day of June, 2011, a copy of the foregoing 

Defendant Adil Shafi’s Motion in Limine and Memorandum of Law in Support was filed 

electronically. Notice of this filing will be sent to all parties by operation of the Court’s 

electronic filing system. Parties may access this filing through the Court’s system. 

Respectfully submitted, 

BERRY MOORMAN P.C. 

By: s/James P. Murphy 

James P. Murphy (P36728) 

Attorneys for Defendant/Counterclaim 

Plaintiff 

535 Griswold, Suite 1900 

Detroit, Michigan 48226 

(313) 496-1200 

murph@berrymoorman.com 

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