UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO

______________________________________

MELODY JOY CANTU AND DR. RODRIGO 

CANTU,

Plaintiffs,

v.

DR. SANDRA GUERRA and DIGITAL 

FORENSICS CORPORATION, LLC,

Defendants.

5:20-CV-0746 JKP – HJB

______________________________________

Plaintiffs’ Opposition to Defendant Digital Forensic Corporation, LLC's Motion to Dismiss 

the First Amended Complaint

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Table of Contents

Introduction......................................................................................................................... 1

Facts.................................................................................................................................... 2

Legal Standard .................................................................................................................... 4

Argument ............................................................................................................................ 5

I. The Complaint Plausibly Alleges CFAA Loss........................................................... 6

II. All the Counts Are Within the Statute of Limitations ................................................ 8

A. The CFAA Counts Are Within the Statute of Limitations ..................................... 8

B. The Texas Computer Law Counts Are Within the Statute of Limitations ............. 9

C. The Federal Wire Tap Claims are Within the Statute of Limitations................... 10

D. The Malicious Prosecution Claim is Within the Statute of Limitations............... 10

E. The IIED Claim is Within the Statute of Limitations........................................... 11

III. The Complaint Plausibly Names Digital Forensics Corp. as a Defendant ........... 11

Conclusion ........................................................................................................................ 12

Certificate of Service ........................................................................................................ 14

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Table of Authorities

Cases

Ashcroft v. Iqbal, 556 U.S. 663 (2009)........................................................................................... 4

Barnstormers, Inc. v. Wing Walkers, LLC, No. EP-10-CV-261-KC, 2011 U.S. Dist. LEXIS 

47143 (W.D. Tex. May 3, 2011)................................................................................................. 7

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)........................................................................... 4

Genesco Sports Enter. v. White, No. 3:11-CV-1345-N (BF), 2011 U.S. Dist. LEXIS 147599

(N.D. Tex. Oct. 27, 2011)........................................................................................................... 7

Hays v. Hall, 488 S.W.2d 412 (Tex.1972).................................................................................... 11

Jones v. Alcoa, 339 F.3d 359 (5th Cir. 2003) ................................................................................. 8

Krys v. Pigott, 749 F.3d 117 (2d Cir. 2014) ............................................................................. 4, 12

Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383 (5th Cir. 2010).................... 5

McGucken v. Displate Corp., No. A-19-CV-00042-LY, 2019 U.S. Dist. LEXIS 140721 (W.D. 

Tex. Aug. 20, 2019).................................................................................................................... 5

Meats by Linz, Inc. v. Dear, No. 3:10-CV-1511-D, 2011 U.S. Dist. LEXIS 42800 (N.D. Tex. 

Apr. 20, 2011)............................................................................................................................. 7

Motio, Inc. v. BSP Software LLC, Civil Action No. 3:16-cv-00331-O, 2016 U.S. Dist. LEXIS 

193379 (N.D. Tex. May 27, 2016).............................................................................................. 7

Palin v. N.Y. Times Co., 940 F.3d 804 (2d Cir. 2019).................................................................... 5

Rajaee v. Design Tech Homes, Ltd., No. H-13-2517, 2014 U.S. Dist. LEXIS 159180 (S.D. Tex. 

Nov. 11, 2014) ............................................................................................................................ 7

SKF USA, Inc. v. Bjerkness, 636 F. Supp. 2d 696 (N.D. Ill. 2009) ................................................ 6

Sw. Airlines Co. v. Farechase, Inc., 318 F. Supp. 2d 435 (N.D. Tex. 2004).................................. 7

Talon Transaction Techs., Inc. v. Stoneeagle Servs., Inc., No. 3:13-cv-00902-P, 2013 U.S. Dist. 

LEXIS 201725 (N.D. Tex. Aug. 15, 2013)................................................................................. 7

Weaver v. Witt, 561 S.W.2d 792 (Tex. 1977)............................................................................... 11

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Statutes

18 U.S.C. § 1030(c)(4)(A)(i) .......................................................................................................... 6

18 U.S.C. § 1030(e)(11).................................................................................................................. 6

18 U.S.C. § 1030(g) ........................................................................................................................ 8

18 U.S.C. 2520(e) ......................................................................................................................... 10

Tex. Civ. Prac. & Rem. Code §16.002 ......................................................................................... 10

Texas Civil Practice & Remedies Code § 143.001(b).................................................................... 9

Rules

Fed. R. Civ. P. 12(b)(6)................................................................................................................... 4

Fed. R. Civ. P. 8(a)(1)-(3)............................................................................................................... 4

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Introduction

This Court should deny Defendant Digital Forensics Corporation, LLC’s (“DFC”) bare 

bones Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6) because it’s conclusory 

and cites no case law. When all reasonable inferences are made and all the facts viewed in 

Plaintiffs’ favor, Plaintiffs’ First Amended Complaint pleads plausible facts that support as a 

matter of law that:

1. DFC caused at least $5,000 in Computer Fraud and Abuse Act loss, including the costs 

of hiring computer forensics companies Exhibit A Computer Forensics Investigations (“EACFI”) 

and Kip & Associates to investigate and mitigate Defendants’ unauthorized access of, and 

damage to, Plaintiffs’ computers; computer hardware replacement costs for compromised 

computer hardware; and consequential damages from lost work time resulting from the computer 

intrusion.

2. The counts as pleaded are all within the relevant statute of limitations and therefore the 

affirmative defense of the Statute of Limitations is inappropriate for this Motion to Dismiss;

3. The Complaint properly pleads plausible facts that DFC committed the illegal acts

complained of, and its factual defense that they were committed by another party is inappropriate 

for a Motion to Dismiss.

This Court should deny DFC’s Motion to Dismiss.

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Facts

As pleaded in Plaintiffs’ First Amended Complaint, on or about May 16, 2018, CoDefendant Dr. Sandra Guerra hired Defendant Digital Forensics Corporation, LLC to hack, 

surveil, and damage Plaintiffs’ computers and computer networks. In June of 2018, the Cantus 

started experiencing problems with their internet connection at home, despite having purchased

ample bandwidth from their cable and internet provider. They repeatedly experienced bandwidth 

issues with their iPads, Smart TVs, and other devices their family of two adults and three 

children use daily. Their NEST home security camera network crashed, and they had similar 

problems with their computer networked thermostat and other networked household devices.1 At 

the time they were unaware that this was the result of Defendants’ actions.

On August 22, 2018, DFC completed Phase I of its surveillance, phishing, and hacking of

Plaintiffs and gave co-defendant Dr. Guerra a report bearing its company name.2 The Phase I 

report documents DFC’s illegal phishing of Plaintiffs. And, as stated in the facts of the First 

Amended Complaint “The Phase I report states: “[I]f the client is interested in proceeding to 

Phase II, the client needs to file a police report.” A sample police report was included with the 

Phase I report.”3 The existence of this report directly implicates DFC in the hacking, 

surveillance, phishing, and eventual malicious prosecution of Plaintiff Melody Joy Cantu.

On September 4, 2018, Dr. Guerra filed the false police report against Plaintiff Melody 

Cantu at the urging of Defendant DFC. On the video recording of Dr. Guerra’s police report, she

1 (First Am. Compl. at¶ 31 (Dkt. No. 6).

2 (Id. at ¶ 36). On October 16, 2019, DFC’s Phase I report was produced to undersigned 

counsel by Co- Defendant Dr. Sandra Guerra’s counsel.

3 (Id. at ¶ 36).

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can be heard saying that Digital Forensics requires her to file a report in order to proceed 

further.4 This false police report led to Melody Cantu’s arrest and prosecution for harassment. 

On June 24, 2019, the prosecution against Plaintiff Melody Cantu was resolved in her favor, as 

the case was dismissed due to the violation of her constitutional right to a speedy trial. Plaintiff 

Melody Cantu was innocent and the proceeding lacked probable cause, as there was no evidence 

to substantiate Defendant’s claim of harassment.

5

As alleged in the First Amended Complaint, Defendants’ unauthorized computer 

intrusions and damage to Plaintiffs computer systems necessitated the hiring of computer 

forensic firms to investigate and mitigate. Specifically, On January 3, 2019, the Cantus hired two 

computer forensics companies, Exhibit A Computer Forensics Investigations (“EACFI”) and Kip 

& Associates.6 The Cantus paid EACFI a $5,000 non-refundable retainer.7 EACFI’s 

investigation concluded that Digital Forensics Corporation was targeting Melody Cantu on 

behalf of co-defendant Dr. Guerra.8 Kip & Associates reiterated EACFI’s report, stating that the 

Cantus were victims of targeted electronic and digital attacks, beginning in 2018, including 

phishing emails, text messages, sham retail websites, credit card fraud attempts, and identity 

theft attempts.9 As a result of this cyberthreat environment, the Cantus invested more money in 

investigative, corrective, and protective measures.10 This included computer and network 

forensic analysis, device forensic analysis, network monitoring, consultation services, a dark web 

4 (Id. at ¶ 113). 5 (Id. at ¶¶¶¶ 2, 53, 115-117). 6 (Id. at ¶ 47). 7 (Id.).

8 (Id. at ¶ 48. 9 (Id. at ¶ 49).

10 (Id. at ¶ 50).

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scan, data and device storage for data and devices.11 The Cantus replaced their router, at the cost 

of $660, since they feared there was malware on their old router.12 Starting February 1, 2019, the 

Cantus paid CDR Business IT Solutions, LLC $108.24 a month for network monitoring of their 

new router.13 The computer forensic investigation also required the Cantus to turn over many of 

their electronic devices, work and personal, for analysis, interrupting their use of them.

14 This 

necessitated the purchase of replacements.15 Melody Cantu also took time off from work to 

handle the numerous service calls to Spectrum/Charter to try and resolve the network service 

interruptions.16 All these costs aggregate to over $5,000 in loss sustained by the Cantus in 

2019.17

Legal Standard

Under Federal Rule of Civil Procedure 8, a pleading only requires short and plain 

statements of: “the court's jurisdiction; claims to which the pleader is entitled to relief; and a 

demand for relief sought.”18 Under Federal Rule of Civil Procedure 12(b)(6), a defendant may 

move to dismiss a complaint for “failure to state a claim upon which relief can be granted.”19

In deciding a motion to dismiss under 12(b)(6), Plaintiffs’ allegations are accepted as 

true, and all reasonable inferences must be drawn in Plaintiffs’ favor.20 A court should deny a 

11 (Id.).

12 (Id. at ¶ 51). 13 (Id.).

14 (Id.).

15 (Id.).

16 (Id.).

17 (Id. at ¶ 52). 18 Fed. R. Civ. P. 8(a)(1)-(3).

19 Fed. R. Civ. P. 12(b)(6). 20 Krys v. Pigott, 749 F.3d 117, 128 (2d Cir. 2014).

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Motion to Dismiss if a complaint states “enough facts to state a claim to relief that is plausible on 

its face.”21 This means the complaint pleads facially plausible facts “that allows the court to draw 

the reasonable inference that the defendant is liable for the misconduct alleged.”22 The 

complaint’s facial plausibility is the standard, and “not whether it is less plausible than an 

alternative explanation.”23 Accordingly, a “court’s review is limited to the complaint, documents 

attached to the complaint, and any documents attached to the motion to dismiss that are central to 

the claim referenced by the complaint.”24

Argument

Defendant cites no case law supporting its arguments that Plaintiffs have inadequately 

pleaded CFAA loss, that they are barred by the affirmative defense of statute of limitations, and 

to substantiate the claim that Plaintiffs have named the wrong Defendant. The Court should deny 

DFC’s bare bones Motion to Dismiss that ignores the case law.

First, Courts routinely recognize the types of CFAA loss Plaintiffs pleaded as cognizable 

CFAA loss.

Second, because the Complaint facially pleads dates that place its counts within the 

relevant statute of limitations the affirmative defense of statute of limitations is inappropriate at 

the Motion to Dismiss stage. Because a statute of limitations defense is an affirmative defense, 

DFC bears the burden of proof on this point.

21 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 22 Ashcroft v. Iqbal, 556 U.S. 663, 678 (2009). 23 Palin v. N.Y. Times Co., 940 F.3d 804, 815 (2d Cir. 2019) (reversing dismissal of defamation 

complaint because District Court erred in holding the claims weren’t plausible).

24 McGucken v. Displate Corp., No. A-19-CV-00042-LY, 2019 U.S. Dist. LEXIS 

140721, at *4 (W.D. Tex. Aug. 20, 2019) (citing Lone Star Fund V (U.S.), L.P. v. Barclays Bank 

PLC, 594 F.3d 383, 387 (5th Cir. 2010)).

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Third, the Complaint adequately pleads plausible facts that support the counts against 

DFC, including their Phase I Report given to Co-Defendant Dr. Guerra with DFC’s name on it. 

In essence, DFC is trying to argue facts on a Motion to Dismiss because it can cite no law to 

support its motion. This Court should deny DFC’s Motion to Dismiss.

I. The Complaint Plausibly Alleges CFAA Loss

The First Amended Complaint particularly alleges at least $5,000 in loss within a year.

Counts 1-8 of the Complaint accuse Defendants of violating, or conspiring to violate, the 

Computer Fraud and Abuse Act, 18 U.S.C. §1030(a)(2)(C) and § 1030(a)(5)(A) by gaining 

unauthorized access, and committing unauthorized damage, to Plaintiffs’ computers. In order to 

bring a civil CFAA claim, Plaintiff must allege at least $5,000 in loss within a year.

25 The CFAA 

defines “loss” (which defendants mistakenly call “damages,” a term with a different meaning 

under the CFAA) as

any reasonable cost to any victim, including the cost of responding to an offense, 

conducting a damage assessment, and restoring the data, program, system, or 

information to its condition prior to the offense, and any revenue lost, cost incurred, 

or other consequential damages incurred because of interruption of service.26

This does not include economic harm unrelated to the intrusion or damage to the 

computer system.27 The Plaintiffs have plausibly pleaded that the Defendants’ unauthorized 

intrusion and damage to their computers cost them at least $5,000 in computer forensic 

25 18 U.S.C. § 1030(c)(4)(A)(i)(I)(requiring at least $5,000 in loss to bring a civil CFAA 

claim).

26 18 U.S.C. § 1030(e)(11). 27 SKF USA, Inc. v. Bjerkness, 636 F. Supp. 2d 696, 721 (N.D. Ill. 2009).

Case 5:20-cv-00746-JKP Document 19 Filed 10/26/20 Page 10 of 18
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investigation, mitigation and related costs.28 Courts routinely recognize the type of loss pleaded 

by Plaintiffs as cognizable CFAA loss - the costs incurred as a result of investigating and 

remedying a computer intrusion, and the consequential losses incurred because of the 

interruption in service.29

As detailed above in the fact section, among other things, the First Amended Complaint 

alleges that on January 3, 2019, the Plaintiffs hired two computer forensic companies to 

investigate defendants’ computer intrusions, and that they paid one of them “Exhibit A Computer 

Forensics Investigations” a $5,000 non-refundable retainer to investigate.30 The First Amended 

Complaint further alleges that the Cantus were forced to spend money on “network forensic 

analysis, device forensic analysis, network monitoring, consultation services, a dark web scan, 

and data and device storage” for potentially compromised computers.31 Finally, the First 

Amended Complaint pleads that Melody Cantu was forced to take time off from work to deal 

with the intrusions and disruption to their computer service, costing them wages.

32 These are all 

plausibly pleaded facts that Courts recognize as CFAA loss. This Court should deny Defendant 

DFC’s Motion to Dismiss the CFAA counts.

28 (First Am. Compl. at ¶¶ 47-52)(Dkt. No. 6).

29 See Motio, Inc. v. BSP Software LLC, Civil Action No. 3:16-cv-00331-O, 2016 U.S. Dist. 

LEXIS 193379, at *47-48 (N.D. Tex. May 27, 2016); Rajaee v. Design Tech Homes, Ltd., No. H-13-

2517, 2014 U.S. Dist. LEXIS 159180, at *9 (S.D. Tex. Nov. 11, 2014) (collecting cases on CFAA loss); 

Talon Transaction Techs., Inc. v. Stoneeagle Servs., Inc., No. 3:13-cv-00902-P, 2013 U.S. Dist. LEXIS 

201725, at *9 (N.D. Tex. Aug. 15, 2013); Genesco Sports Enter. v. White, No. 3:11-CV-1345-N (BF), 

2011 U.S. Dist. LEXIS 147599, at *10 (N.D. Tex. Oct. 27, 2011); Barnstormers, Inc. v. Wing Walkers, 

LLC, No. EP-10-CV-261-KC, 2011 U.S. Dist. LEXIS 47143, at *29 (W.D. Tex. May 3, 2011); Meats by 

Linz, Inc. v. Dear, No. 3:10-CV-1511-D, 2011 U.S. Dist. LEXIS 42800, at *9 (N.D. Tex. Apr. 20, 2011); 

Sw. Airlines Co. v. Farechase, Inc., 318 F. Supp. 2d 435, 439 (N.D. Tex. 2004). 30 (First Am. Compl. at ¶ 47.)(Dkt. No. 6).

31 Id. at ¶ 50. 32 (First Am. Compl. at ¶ 51)(Dkt. No. 6).

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II. All the Counts Are Within the Statute of Limitations

This Court should deny DFC’s motion to dismiss based on statutes of limitations because

the First Amended Complaint facially pleads facts that place the alleged conduct within the 

relevant statute of limitations. A statute of limitations defense is generally an affirmative defense 

unless the violation is clear from the face of the complaint.33 Facially, all of Plaintiffs’ counts are 

within the relevant statute of limitations.

A. The CFAA Counts Are Within the Statute of Limitations

On June 24, 2020 Plaintiff filed their Complaint in this action naming DFC.34 The First 

Amended Complaint pleads plausible facts documenting Defendants’ computer intrusions and 

damages beginning in May 2018 and continuing through August 22, 2018, the date of DFC’s

Phase 1 Report, and terminating at a presently unknown date. The Statute of Limitations for civil 

CFAA claims is two years from discovery of the computer intrusion or damage.

35 When 

Plaintiffs first started noticing problems with their computers in June 2018, they didn't know the 

cause. Defendants computer intrusion and damage continued past June 2018, placing them 

within the CFAA’s two-year statute of limitation for civil claims. And it wasn’t until October 16, 

2019, when Co-Defendant Dr. Guerra's counsel produced Digital Forensics Phase I Report to 

undersigned counsel, that Plaintiffs learned definitively of DFC’s action against them; including 

33 Jones v. Alcoa, 339 F.3d 359, 366 (5th Cir. 2003); Fed. R. Civ. P. 8(c)(1) (listing 

statute of limitations as an affirmative defense).

34 (Compl.)(Dkt. No. 1)

35 18 U.S.C. § 1030(g) (“[N]o action may be brought under this subsection unless such 

action is begun within 2 years of the date of the act complained of or the date of the discovery of 

the damage.”).

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direct evidence of its phishing of Plaintiffs with fraudulent links in violation of Texas law.

36

Furthermore, it wasn’t until January 2019 that Plaintiffs hired computer forensic companies that 

confirmed their suspicions they’d been hacked, but without definitive proof of by whom. On 

June 24, 2020 Plaintiff filed their Complaint in this action naming DFC.37 This is within two 

years of the actions complained of, and well within two years of its discovery.

B. The Texas Computer Law Counts Are Within the Statute of Limitations

DFC fails in its statute of limitation argument with the Texas Computer Law Counts 

(Counts 9-11) for the same reasons its statute of limitations arguments fail on the CFAA front.

38

Plaintiffs are within the two year statute of limitations under the Texas Civil Practice & 

Remedies Code § 143.001, as well as being within the statute’s “discovery” provision:

A person must bring suit for damages under this section before the earlier of the 

fifth anniversary of the date of the last act in the course of the conduct constituting 

a violation under Chapter 33, Penal Code, or the second anniversary of the date the 

claimant first discovered or had reasonable opportunity to discover the violation.

39

The Cantus only had a reasonable opportunity to find out about DFC’s hacking and 

surveillance after months of investigation starting during the summer of 2018.40 The Court 

should deny DFC’s Motion to Dismiss the Texas Computer law claim based on the statute of 

limitations.

36 (First Am. Compl. ¶ 37)(Dkt. No. 6). On October 16, 2019, DFC’s Phase I report was 

produced to undersigned counsel by Co- Defendant Dr. Sandra Guerra’s counsel.

37 (Compl.)(Dkt. No.1).

38 (First Am. Compl. at ¶¶ 93- 108)(Dkt. No. 6).

39 Texas Civil Practice & Remedies Code § 143.001(b)

40 See above, “Facts” section.

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C. The Federal Wire Tap Claims are Within the Statute of Limitations

DFC’s ongoing actions against Plaintiffs in the second half of 2018 are well within the 

Wire Tap Acts two year statute of limitations, as well as within its “discovery” provisions.41

DFC alleges they are not liable DFC claims they’re not liable under 18 USC 2520 et seq. for

intentionally using, and endeavoring to use, any electronic, mechanical, or other device, 

including the installation of a cable line splitter and tracking URLs, to intercept Plaintiffs’ wire, 

oral, or electronic communications. As alleged in the First Amended Complaint, Plaintiffs did

not discover DFC’s cable splitter wiretap on their cable line until September 21, 2018.

42 This 

alone places DFC’s actions well within the two-year statute of limitations under the Wire Tap 

Act. The Court should deny DFC’s Motion to Dismiss the Wire Tap claims based on the statute 

of limitations.

D. The Malicious Prosecution Claim is Within the Statute of Limitations

As stated in the First Amended Complaint Defendant DFC acted with malice against 

Plaintiff Mrs. Cantu in order to acquire additional money from Co- Defendant Dr. Sandra 

Guerra.

43 DFC’s Phase I report encouraged Dr. Guerra to file a police report in order to gain 

access to DFC’s Phase II report.44 DFC argues that Plaintiffs’ Malicious Prosecution count is not 

within the one year statute of limitations. 45 But the statute of limitations begins to run on 

41 See 18 USC 2520(e) (stating an action under it may commenced within two years after 

the date upon which claimant first has a reasonable opportunity to discover the violation).

42 (First Am. Compl. at ¶¶ 41- 42))(Dkt. No. 6).

43 Id. at ¶¶ 5, 9. 44 Id. at ¶¶¶ 5, 36, 40. 45 Tex. Civ. Prac. & Rem. Code §16.002.

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termination of the underlying prosecution.46 On June 24, 2019, all charges against Melody Cantu 

were dismissed on speedy trial grounds.47 As Melody Cantu’s case was dismissed on June 24, 

2019, and we filed our Complaint on June 24, 2020, it is within one year of the favorable 

termination of Defendants’ malicious prosecution.

48 The Court should deny DFC's Motion to 

Dismiss the Malicious Prosecution claim based on the statute of limitations.

E. The IIED Claim is Within the Statute of Limitations

Plaintiffs’ claim of intentional infliction of emotional distress is within the two-year

statute of limitations as pleaded. Moreover, the statute of limitations is tolled until the time that 

the plaintiff discovers, or through the exercise of reasonable care and diligence should discover, 

the nature of his injury.49 The Cantus experienced a state of emotional distress due to prolonged 

and sustained fear for their safety and privacy of their family and themselves, because of 

Defendants hacking, surveillance, phishing, and malicious prosecution. And as pleaded in the 

First Amended Complaint, this occurred within two years of the filing of the Complaint. The 

Court should deny DFC's Motion to Dismiss the IIED claim based on the statute of limitations.

III. The Complaint Plausibly Names Digital Forensics Corp. as a Defendant

DFC factually argues they did not have a contract with Co-Defendant Dr. Sandra Guerra 

and prepared the Phase I report given to her with DFC’s name on it for an entity Plaintiffs have 

46 Id.

47 (First Am. Compl. ¶¶ 2, 53)(Dkt. No. 6).

48 (Compl.)(Dkt. No. 1).

49 Weaver v. Witt, 561 S.W.2d 792, 794 (Tex. 1977) citing Hays v. Hall, 488 S.W.2d 412 

(Tex.1972).

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12

never heard of called 1ST All File.50 This is a factual argument inappropriate for a Motion to 

Dismiss.

51 Moreover, 1ST All File is not once mentioned in the Phase I report conducted by 

DFC which lists co-defendant Dr. Guerra as a client.52 Additionally, Dr. Guerra states in her 

Counterclaims that she retained Digital Forensics Corporation, LLC.53

Conclusion

The Court should deny Defendant’s Motion to Dismiss under Federal Rule of Civil 

Procedure 12(b)(6) because the First Amended Complaint plausibly and sufficiently pleads its 

causes of action as a matter of law. Defendants nowhere plead that anything about Plaintiffs’

Amended Complaint is implausible, rather they argue the claims are legally insufficient while 

failing to cite any case law. This Court should deny Defendants Motion to Dismiss. In the 

alternative, it should dismiss without prejudice with leave to replead.

50 (DFC Mot. to Dismiss at ¶ 6)(Dkt. No. 16).

51 Krys v. Pigott, 749 F.3d 117, 128 (2d Cir. 2014). 52 On October 16, 2019, DFC’s Phase I report was produced to undersigned counsel by 

co- defendant Dr. Sandra Guerra’s counsel.

53 (Dr. Sandra Guerra's Countercl. at ¶ 4).)(Dkt. No. 14).

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Dated: October 26, 2020

Respectfully submitted,

/s/ Tor Ekeland

Tor Ekeland (NY Bar No. 4493631)

Pro Hac Vice

Tor Ekeland Law, PLLC

30 Wall Street, 8th Floor

New York, NY 

t: (718) 737 - 7264

f: (718) 504 - 5417

tor@torekeland.com

and

/s/ Rain Levy Minns

Rain Minns

State Bar No. 24034581

William N. Woodson, III

State Bar No. 24110551

Minns Law Firm, P.C.

d/b/a Rain Minns Law Firm

4412 Spicewood Springs Rd., Suite 500

Austin, Texas 78759-8583

Tel.: 512-372-3222

Fax: 512-861-2403

rain@rainminnslaw.com

bill@rainminnslaw.com

Counsel for Plaintiffs Melody Joy Cantu and 

Dr. Rodrigo Cantu

Case 5:20-cv-00746-JKP Document 19 Filed 10/26/20 Page 17 of 18
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Certificate of Service

I certify that on this 26st of October, 2020, 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/ Tor Ekeland

Case 5:20-cv-00746-JKP Document 19 Filed 10/26/20 Page 18 of 18