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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

RESPONSE OF ADIL SHAFI TO THIRD-PARTY DEFENDANT FREDERICK 

WEIDINGER’S MOTION AND BRIEF FOR LEAVE TO FILE SUPPLEMENTAL BRIEF 

IN SUPPORT OF JOINT MOTION FOR SUMMARY JUDGMENT

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TABLE OF CONTENTS

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

I. ARGUMENT................................................................................................................1

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INDEX OF AUTHORITIES

Case Page

Ashford v. County of Saginaw, 2010 U.S. Dist. LEXIS 117658

(E.D. Mich. Nov. 4, 2010)...............................................................................................2

Rule

E.D. Mich. Local Rule 7.1(b)(2)&(c)(3).............................................................................2

Statute

Fed. R. Civ. Proc. 16(b)(4)................................................................................................2

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I. ARGUMENT

Braintech filed this case on February 6, 2009. Weidinger was made a party on 

April 22, 2009 by Shafi’s counter-claim. The Court established a cutoff date to file 

dispositive motions by November 19, 2010. Braintech and Weidinger filed a joint motion 

for summary judgment on November 19, 2010, and the parties fully argued and briefed 

the issues with a response by Shafi, reply by Braintech and Weidinger, and sur-reply by 

Shafi. Now, more than two years after the case was filed and four months after the 

dispositive motion cutoff date, with trial scheduled for May 10, Weidinger moves the 

Court to allow him to file what essentially amounts to another motion for summary 

judgment by introducing a new legal argument.

Weidinger’s motion for leave to file a supplemental brief lacks any legal support 

or authority. The one case cited by Weidinger in support of his motion is an 

unpublished district court case from the U.S. District Court of New Mexico. (See

Weidinger Motion, p. 2; citing Duprey v Twelfth Judicial District Court, No. 08-0756, 

2009 U.S. Dist. LEXIS 78059 at *11 (D.N.M. 2009)). This case does not address the 

issue posed by Weidinger. In Duprey v. Twelfth Judicial District Court, the New Mexico 

federal district court allowed the submission of a supplemental authority pertaining to a 

legal argument already raised in a motion filed within the court’s briefing schedule. See 

Id., at *7 & 10-11. 

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Weidinger does not offer supplemental authority but rather wants a second bite 

at the apple by introducing new legal issues and defenses.1 Duprey does not provide 

support for Weidinger’s proposition that he should be allowed to raise new legal issues 

and defenses. Other than Duprey, Weidinger provides no other legal basis as to why 

this Court should allow him to disregard the Court’s briefing schedule and derail the trial 

scheduled for May 10, 2011.

Pursuant to Local Rule 7.1, supplemental briefing, such as filing more than one 

motion for summary judgment or more than one response to a motion for summary 

judgment, is not provided as a matter of right but by leave of court. See Ashford v. 

County of Saginaw, 2010 U.S. Dist. LEXIS 117658 (E.D. Mich. Nov. 4, 2010); see also 

E.D. Mich. Local Rule 7.1(b)(2)&(c)(3). Weidinger has not provided a compelling 

reason or basis in law why this Court should allow him to file a supplemental brief. 

Weidinger had every opportunity to argue this in his motion for summary judgment filed 

in November 2010, but failed to do so. To raise this legal argument now amounts to an 

additional motion for summary judgment and would require amending the Court’s 

scheduling order. “A schedul[ing order] may be modified only for good cause and with 

the judge's consent.” Fed. R. Civ. Proc. 16(b)(4). Weidinger has not shown good cause 

as to why the Court’s scheduling order should be modified, especially since he had the 

opportunity to make an argument involving the integration clause in his November 2010 

motion. 

1

The integration issue raised by Weidinger does not even apply to Weidinger. The contracts at issue are 

between Braintech and Shafi. 

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Weidinger also argues Shafi’s claim involving fraud is barred under the legal 

defense of “puffing.” Weidinger has already addressed this issue in his motion for 

summary judgment and in his response. His proposed supplemental brief adds nothing 

new to the arguments. 

Weidinger’s motion for leave to file a supplemental brief should be denied 

because the parties have had ample opportunity to argue the issues involved in this 

case and Weidinger has failed to provide a compelling reason as to why this Court 

should allow his motion to leave to file a supplemental brief.

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: March 21, 2011

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CERTIFICATE OF SERVICE

STATE OF MICHIGAN )

)ss

COUNTY OF WAYNE )

I hereby certify that on the 21st day of March, 2011, a copy of the foregoing 

Response of Adil Shafi to Third-Party Defendant Frederick Weidinger’s Motion and Brief 

for Leave to File Supplemental Brief in Support of Joint Motion for Summary Judgment 

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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