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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

MELODY JOY CANTU and

DR. RODRIGO CANTU, 

Plaintiffs

V.

DR. SANDRA GUERRA and

DIGITAL FORENSICS 

CORPORATION, LLC

Defendants

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CASE NO.: 5:20-CV-00746-JKP (HJB)

DEFENDANT, DR. SANDRA GUERRA’S MOTION TO ENFORCE SCHEDULING 

ORDER AND FOR SANCTIONS AGAINST PLAINTIFFS

TO THE HONORABLE UNITED STATES DISTRICT COURT:

NOW COMES Defendant, DR. SANDRA GUERRA (“Defendant” and “Dr. Guerra”), and 

files this her Motion to Enforce Scheduling Order and for Sanctions Against Plaintiffs, and in 

support thereof would show unto the Court as follows:

I. Introduction.

1. Pursuant to the Order of the Court [Doc. 68], each party’s respective counsel

attended a Zoom hearing on February 25, 2022 regarding the parties’ [Seventh] Joint Continuance 

Request [Doc. 67]. The Court entered an Order on February 25, 2022 [Doc. 70] (the “Scheduling 

Order”) which specifically states: “The Parties must complete the agreed mediation or other ADR 

proceeding by June 29, 2022. At the conclusion of any ADR proceeding, a report must be filed 

with the Court.”

2. Despite the express order of the Court, Plaintiffs now refuse to participate in

mediation.

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3. Therefore, Defendant files this Motion requesting that the Court issue an order 

compelling Plaintiffs to comply with the Scheduling Order, which requires all parties to participate 

in mediation. Defendant also requests that the Court impose sanctions against Plaintiffs and/or 

Plaintiffs’ counsel pursuant to FRCP 16(f)(1)(C). Additionally, or alternatively, Defendant 

requests that the Court order Plaintiffs and/or Plaintiffs’ counsel, pursuant to FRCP 16(f)(2), to 

pay the reasonable attorneys’ fees incurred by Defendant as a result of Plaintiffs’ noncompliance 

with the Scheduling Order. 

II. Relevant Factual and Procedural History.

4. At its core, this lawsuit is a thinly veiled attempt by Plaintiffs to re-litigate matters 

which were the subject of a 2008 District Court lawsuit involving the custody of the then-minor 

children of Plaintiff, Rodrigo David Cantu, and Defendant (the “District Court Lawsuit”).1

Plaintiffs allegations against Defendant in this lawsuit primarily involve a domestic/family dispute. 

However, in order to invoke the jurisdiction of this Court, Plaintiffs have also alleged various 

federal claims which present “federal questions under the Computer Fraud and Abuse Act, 18 

U.S.C. §§1030(a)(2(C), 1030(a)(5)(A)-(C) & 1030(g).”

2

 

5. The parties agreed to attend an early mediation before conducting depositions and 

conducting written discovery. Plaintiffs and Dr. Guerra participated in a Zoom mediation with 

mediator, Donald R. Philbin, Jr. on August 20, 2021, which was ultimately unsuccessful. See Doc. 

60.

6. However, counsel for DFC was permitted to withdraw as counsel of record for DFC 

1 Defendant requests the Court to take judicial notice of Cause No. 2008-CI-18856, In the Interest 

of Sofia Elena Cantu and Maya Isabella Cantu, in the 150th Judicial District Court of Bexar 

County, Texas. 

2 Complaint, Doc. 01, ¶6.

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for personal/medical reasons on August 6, 2021 [Doc. 56]. No attorney filed a Notice of 

Appearance on behalf of DFC before the scheduled mediation. Therefore, DFC did not participate 

in the mediation held on August 20, 2021. 

7. On November 4, 2021, J. David Apple, of the law firm of Apple & Fink, LLP, filed 

a Notice of Attorney Appearance for DFC. [Doc. 63]. DFC was not represented by counsel and 

did not actively participate in the litigation of this lawsuit during the period between August 6, 

2021 and November 4, 2021. Therefore, in light of DFC’s engagement of new counsel, the parties 

filed a Sixth Continuance Request [Doc. 65]. The Court granted the parties’ Sixth Continuance 

Request on December 15, 2022 [Doc. 66].

8. On February 16, 2022, the parties’ filed a [Seventh] Joint Continuance Request

[Doc. 67]. Pursuant to the Order of the Court [Doc. 68], each party’s respective counsel attended 

a Zoom hearing on February 25, 2022 regarding the parties’ [Seventh] Joint Continuance Request

[Doc. 67]. 

9. At hearing, the parties discussed the status of the case with U.S. Magistrate Judge

Henry J. Bemporad. During the hearing, Judge Bemporad advised the parties that he intended to 

issue an order that, among other things, required Plaintiffs, Dr. Guerra, and DFC to mediate. 

Plaintiffs’ counsel did not enter or voice any objection at the hearing to the Court’s instructions 

regarding mediation.

10. The Court entered the Scheduling Order on February 25, 2022 [Doc. 70], which 

specifically states: “The Parties must complete the agreed mediation or other ADR proceeding by 

June 29, 2022. At the conclusion of any ADR proceeding, a report must be filed with the Court. 

See Local Rule CV-88(g). ”

11. On May 6, 2022, counsel for Dr. Guerra emailed counsel for Plaintiffs and DFC to 

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propose Mr. Philbin as the mediator (since he was already familiar with the case) and advise of the 

numerous dates Mr. Philbin was available to mediate between June 20 – June 28, 2022.

12. Counsel for Mr. Apple promptly responded with his and his clients’ availability for 

a Zoom mediation on the offered dates. On that same day, Ms. Nicole Guitelman, on behalf of 

Plaintiffs,

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advised that Plaintiffs’ counsel would discuss the mediation dates with Plaintiffs and 

“get back [to everyone].” See Exhibit A. Plaintiffs’ counsel did not inform anyone at that time 

that Plaintiffs or Plaintiffs’ counsel had any objection to mediation.

13. On May 17, 2022, counsel for DFC emailed Plaintiffs’ counsel to request an update 

from Plaintiffs on scheduling mediation. See id. Counsel for Dr. Guerra responded to all parties 

advising that Mr. Philbin had become booked up through June 30, 2022 while the parties had been 

awaiting Plaintiffs’ response. Counsel for Dr. Guerra advised the parties of Mr. Philbin’s 

availability in early July 2022 and proposed several dates for mediation. See id.

14. On May 17, 2022, Ms. Guitelman, on behalf of Plaintiffs, unilaterally imposed the 

following condition to Plaintiffs’ attendance at mediation:

“...in regards to the mediation, we need to know what has changed from the

previous mediation offer [on August 20, 2021 (9 months ago)]. Our clients have 

mediated with Dr. Guerra multiple times in the past4and are left with the notion 

that your client never had an interest in a resolution. Therefore, we request to know 

what has changed for your client this time.” See Exhibit A.

15. Counsel for Dr. Guerra reminded Plaintiffs’ counsel of the Scheduling Order. See 

id. However, Ms. Guitelman, on behalf of Plaintiffs’ counsel, ignored the fact that DFC had not 

participated in the prior mediation and responded as follows:

3 Ms. Guitelman is not an attorney of record for Plaintiffs on any of the pleadings in this matter. 

Ms. Guitelman is identified in the signature block of her emails as a “Law Clerk” at Tor Ekland 

Law, PLLC in New York City, New York. 

4 Plaintiffs’ counsel conflates this case with the District Court Lawsuit. As discussed supra ¶4, 

Plaintiffs and Dr. Guerra only attend one prior mediation in this cause. 

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“We have already mediated with Dr. Guerra in this matter, and see no value in 

spending our client’s money on additional mediation, given your expressed position 

at the last one [on August 2 (9months ago)].

We are unaware of any mediation requirement or requirement by order of the 

court...” See Exhibit A (emphasis added).

III. Argument and Authorities.

16. Plaintiffs’ refusal to participate in mediation with both DFC and Dr. Guerra is a 

violation of the Scheduling Order and the Federal Rules. Accordingly, Defendant requests that 

the Court issue an order compelling Plaintiffs to comply with the Scheduling Order which requires 

all parties to participate in mediation and, thereafter, file a report with the Court in accordance 

with Local Rule CV-88(g). Defendant also requests that the Court impose sanctions against 

Plaintiffs and/or Plaintiffs’ counsel pursuant to FRCP 16(f)(1)(C). Additionally, or alternatively,

Defendant requests that the Court order Plaintiffs and/or Plaintiffs’ counsel, pursuant to FRCP 

16(f)(2), to pay the reasonable attorneys’ fees incurred by Defendant as a result of Plaintiffs’ 

noncompliance with the Scheduling Order.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendant, DR. SANDRA GUERRA,

respectfully prays that this Court, (i) grant Defendant’s Motion to Enforce Scheduling Order and 

for Sanctions Against Plaintiffs in its entirety, (ii) impose sanctions against Plaintiffs and/or 

Plaintiffs’ counsel pursuant to FRCP 16(f)(1)(C), (iii) additionally, or alternatively, order Plaintiffs

and/or Plaintiffs’ counsel, pursuant to FRCP 16(f)(2), to pay Defendant $750.00 (or $1,500.00 in 

the event the Court holds an oral hearing on this Motion) for the reasonable attorneys’ fees incurred 

by Defendant as a result of Plaintiffs’ noncompliance with the Scheduling Order, and (iv) grant 

Defendant all such other and further relief, both general and special, at law or in equity, to which 

she may be entitled. 

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Dated: May 19, 2022. Respectfully submitted,

DAVIS, CEDILLO & MENDOZA, INC.

McCombs Plaza, Suite 500

755 E. Mulberry Avenue

San Antonio, Texas 78212

Telephone No.: (210) 822-6666

Telecopier No.: (210) 822-1151

 

By: /s/Ricardo G. Cedillo __________ 

RICARDO G. CEDILLO

Texas State Bar No. 04043600

rcedillo@lawdcm.com

BRANDY C. PEERY

Texas State Bar No. 24057666

bpeery@lawdcm.com

ATTORNEYS FOR DEFENDANT, DR. SANDRA 

GUERRA

CERTIFICATE OF SERVICE

I certify that on this 19th day of May 2022, a true and correct copy of the foregoing was 

electronically filed with the Clerk of the Court using the CM/ECF system which will send 

electronic notification of such filing to the parties on record. 

 /s/Ricardo G. Cedillo 

RICARDO G. CEDILLO

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