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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)

DEFENDANTS’ SUR-REPLY TO PLAINTIFFS’ REPLY TO DEFENDANTS’ 

RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR LEAVE TO FILE 

SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT 

AND REQUEST FOR SANCTIONS AGAINST PLAINTIFFS

TO THE HONORABLE UNITED STATES DISTRICT COURT:

NOW COME Defendants, DR. SANDRA GUERRA (“Dr. Guerra”) and DIGITAL 

FORENSICS CORPORATION, LLC (“DFC” and, together with Dr. Guerra, “Defendants”), and 

file this Defendants’ Sur-Reply to Plaintiffs’ Reply to Defendants’ Response in Opposition to 

Plaintiffs’ Motion for Leave to File Supplemental Motion for Summary Judgment and Request 

for Sanctions Against Plaintiffs [Doc. 122] and, in support thereof, respectfully show unto the 

Court as follows:

ARGUMENT AND AUTHORITIES

I. PLAINTIFFS HAVE FAILED TO CARRY THEIR BURDEN TO SHOW GOOD CAUSE. 

A. Plaintiffs’ Explanation for Delay is Not Compelling. 

1. Plaintiffs admit that they have been in possession of the computer codes they 

purportedly seek to add as new summary judgment evidence since November 11, 2023. Yet, 

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Plaintiffs provide no compelling explanation as to why Plaintiffs waited over 8 months thereafter 

to file a motion for leave to supplement their motion for summary judgment. 

2. Plaintiffs make the conclusory statement that “analysis” of the computer code was 

“tedious and technical” but offer no specific details or explanation as to what exactly was entailed 

in such alleged “analysis” process or how long it took. Plaintiffs also offer no explanation as to 

why they never filed an advisory to the Court or conferred with opposing counsel at any time 

over the past 8 months to report on the status of Plaintiffs’ alleged analysis of the computer codes 

or to otherwise advise the Court or opposing counsel of their desire to supplement their motion 

for summary judgment once such analysis was completed. 

3. Plaintiffs have failed to produce any evidence of the exercise of diligence on their 

part which adequately explains their failure to timely move for leave in the over 8 months since 

they obtained the computer codes. Accordingly, the first factor under the Rule 16(b) “good 

cause” analysis weighs against granting Plaintiffs’ motion. 

B. The Computer Codes Do Not Conclusively Establish Defendants’ Liability. 

4. Plaintiffs seek leave to add 117 pages of computer code as new evidence in 

support of Plaintiffs’ motion for summary judgment, but do not offer any evidence that interprets 

or analyzes the code or otherwise supports Plaintiffs’ conclusory allegation in their Reply that 

the computer codes establish Defendants’ “unlawful and illegal conduct.”1

 In fact, Plaintiffs 

concede that the “codes raise more questions than it [sic] answers” which conflicts with 

Plaintiffs’ assertion that the codes conclusively “establish Defendants’ liability for the 

complained cause of action.”2 

1

 Doc. 122, p. 7, ¶b. 

2 Id., p. 8. 

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5. Thus, the second factor regarding the importance of supplementing Plaintiffs’ 

motion summary judgment to include bare bones “computer code” weighs against granting 

Plaintiffs’ motion.

C. Defendants Will Be Prejudiced if Plaintiffs are Permitted to Supplement 

Plaintiffs’ Motion for Summary Judgment. 

6. In assessing factor three, “courts ‘consider the timing of the request vis-à-vis the 

case’s procedural posture; if the discovery period has expired or the case is essentially too far 

along, courts generally find prejudice to the defendant.”3 Here, Plaintiffs incorrectly state that 

“currently there is no scheduling order” in this case.4 The Court issued an Order on August 8, 

2023 regarding the scheduling deadlines [Doc. 98] and stated therein that the dispositive motion 

deadline expired on October 14, 2022. 

7. Plaintiffs argue that Defendants will not be prejudiced if Plaintiffs are granted 

leave to supplement their motion for summary judgment over 9 months after the dispositive 

motion deadline because there are no hearing dates or trial scheduled in this case.5 However, the 

Court has issued a Trial Scheduling Order [Doc. 123] and the Final Pretrial Conference is now 

scheduled on September 7, 2023 and Jury Trial is scheduled on September 11, 2023. 

8. Accordingly, Defendants will be prejudiced if Plaintiffs are granted leave to 

supplement because of the possibility that Defendants may not be afforded the full 14 days under 

Local Rule CV-7(D)(2) to file their Response and the likelihood that Defendants will be forced 

to allocate time and resources away from drafting Court ordered pre-trial submissions and 

preparing for trial to instead draft a Response to Plaintiffs’ proposed supplemental motion for 

3 Cantu v. Wayne Wilkens Trucking, LLC, No. SA-19-CV-1067-XR, 2020 WL 3132410, at *2

(W.D. Tex. June 11, 2020) (quoting Strong v. Marathon Res. Mgmt. Grp., LLC, No. 1:18-CV634-RP, 2019 WL 4696418, at *2 (W.D. Tex. Sept. 25, 2019) (internal citations omitted).

4

 Doc. 122, p. 9, ¶c 

5 Doc. 122, p. 9

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summary judgment. Therefore, factor three weighs against granting Plaintiffs’ motion for leave 

to supplement. 

D. The Court Has Ordered the Parties to Jury Trial on September 11, 2023. 

9. Lastly, this case has been pending for over 3 years. The Court has found that 

“although dispositive motions remain pending...this case is sufficiently ready for jury trial.”6 As 

such, this case is now set for jury trial on September 11, 2023. Consequently, the trial date is 

imminent and there is no availability of a continuance to cure any potential prejudice to 

Defendants if Plaintiffs are granted leave to supplement their motion for summary judgment. 

Therefore, factor four weighs against granting Plaintiffs’ motion. 

II. PLAINTIFFS INTENTIONALLY HAVE FAILED TO CARRY THEIR BURDEN TO SHOW GOOD 

CAUSE. 

10. In their Response [Doc. 121], Defendants specifically identified the issue of 

Plaintiffs’ failure to disclose to the Court in their Motion for Leave that Plaintiffs’ Proposed 

Supplemental Motion for Summary Judgment also seeks to add new arguments regarding 

Plaintiffs’ purported malicious prosecution claims against Defendants7 and new summary 

judgment evidence that was available to Plaintiffs and was in fact produced by Plaintiffs months 

before the dispositive motion deadline.8

 

11. Nevertheless, Plaintiffs wholly failed to address this issue in their Reply and 

refused to correct Plaintiffs’ misrepresentation to the Court. In fact, Plaintiffs (without disclosing 

or acknowledging their actions to the Court) continue to attempt to insert into their proposed 

supplemental motion for summary judgment evidence that was not only undisputedly available 

6

 Doc. 123. 

7

 Doc. 120-3, p. 14. 

8 Compare Docs. 110, 112, and 114 to Doc. 120-3, fn. 39 [Ex. D (Doc. 120-4), Bates labeled 

MCantuProd00133-134], fn. 40 [Ex. E (Doc. 120-5), Bates labeled MCantuProd0097-101], fn. 

40 [Ex. F (Doc. 120-6)], fn. 41 [Ex. G (Doc. 120-7)]. 

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to Plaintiffs but was actually produced by Plaintiffs well in advance of the October 14, 2023

dispositive motion deadline. 

12. Accordingly, Defendants reassert their arguments set forth in their Response 

[Doc. 121] in support of their request for sanctions against Plaintiffs and/or Plaintiffs’ counsel. 

PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendants, DR. SANDRA GUERRA and 

DIGITAL FORENSICS CORPORATION, LLC, respectfully pray that this Court, (i) deny 

Plaintiffs’ Motion for Leave to File Supplemental Motion for Summary Judgment, (ii) grant 

Defendants’ request for sanctions hereunder and order Plaintiffs and/or Plaintiffs’ counsel, 

pursuant to Rule 11(c)(2) and/or Rule 16(f)(1)(C), to pay the reasonable attorneys’ fees and costs 

incurred by Defendants in responding to and defending against Plaintiffs’ Motion for Leave, and 

(iii) grant Defendants all such other and further relief, both general and special, at law or in 

equity, to which they may be justly entitled. 

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Dated: August 7, 2023. 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

-ANDAPPLE & FINK, L.L.P.

735 Plaza Blvd., Suite 200 

Coppell, Texas 75019

Telephone No.: (972) 315-1900 

Telecopier No.: (972) 315-1955 

 

By: /s/J. David Apple__________ 

 J. DAVID APPLE

 Texas State Bar No. 01278850 

 jdapple@applefinklaw.com 

ATTORNEYS FOR DEFENDANT, 

DIGITAL FORENSICS CORPORTION, 

LLC

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CERTIFICATE OF SERVICE

I certify that on this 7th day of August 2023, 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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