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

______________________________________

Reply in Support of Plaintiffs’ Motion to Dismiss 

Dr. Sandra Guerra’s Amended Counterclaims

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TABLE OF CONTENTS

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

Argument ............................................................................................................................ 2

I. Count One Fails to Allege a CFAA Violation ............................................................ 2

A. Defendant Insufficiently Pleads CFAA Loss.......................................................... 2

B. Dr. Cantu Had the Right to Access His Daughter's Ipad ........................................ 4

C. Defendant Cannot Make a CFAA Claim on Behalf of Verizon ............................. 5

II. Count Two Fails to Allege a HACA Violation ........................................................... 5

III. Plaintiffs’ Contact with Others is Insufficient to Sustain Defendant's Stalking 

Claim............................................................................................6

IV. Count Four Insufficiently Alleges Outrageous Conduct Necessary for IIED............. 6

V. Count Five Fails to Plead a Defamation Retraction Demand, and Defamation, 

with Particularity ......................................................................................................... 7

VI. Count Six Fails to Sufficiently Plead Abuse of Process ............................................. 8

Conclusion .......................................................................................................................... 9

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TABLE OF AUTHORITIES

Cases

Ashcroft v. Iqbal, 556 U.S. 662 (2009)........................................................................................... 3

Bell Alt. Corp. v. Twombly, 550 U.S. 554 (2007)........................................................................... 3

BHL Boresight, Inc. v. Geo-Steering Sols., Inc., No. 4:15-CV-00627, 2016 U.S. Dist. LEXIS 

44729 (S.D. Tex. Mar. 29, 2016)................................................................................................ 4

Blackstock v. Tatum, 396 S.W.2d 463 (Tex. Civ. App. 1965)........................................................ 1

Cheatam v. JCPenney Co, No. 1:16-CV-00072-MAC, 2016 U.S. Dist. LEXIS 121531 (E.D. Tex. 

July 13, 2016) ............................................................................................................................. 7

Frith v. Guardian Life Ins. Co. of Am., 9 F. Supp. 2d 734 (S.D. Tex. 1998) ................................. 3

Meyers v. Siddons-Martin Emergency Grp. LLC, No. 16-1197, 2016 U.S. Dist. LEXIS 130348 

(E.D. La. Sep. 23, 2016) ............................................................................................................. 4

Pittsburg SNF LLC v. PharMerica East, Inc., 2012 U.S. Dist. LEXIS 141005, 2012 WL 

4509753 ...................................................................................................................................... 8

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

Nov. 11, 2014) ............................................................................................................................ 4

Romero v. Brown, 937 F.3d 514 (5th Cir. 2019) ............................................................................ 4

Scott v. Houma-Terrebonne Hous. Auth., CV No. 02-770 SECTION “N” (4), 2002 U.S. Dist. 

LEXIS 16719 (E.D. La. Sep. 5, 2002)........................................................................................ 7

United States ex rel. Rigsby v. State Farm Fire & Cas. Co., No. 1:06CV433-HSO-RHW, 2015 

U.S. Dist. LEXIS 197006 (S.D. Miss. Aug. 6, 2015)................................................................. 4

Wornick Co. v. Casas, 856 S.W.2d 732 (Tex. 1993)...................................................................... 6

Statutes

18 U.S.C. 1030(e)(11)..................................................................................................................... 3

Tex. Civ. Prac. & Rem. Code § 73.055(d)...................................................................................... 7

 

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Plaintiffs Dr. Rodrigo Cantu and Melody Joy Cantu, through their undersigned attorneys, 

hereby reply in support of their motion under Fed. R. Civ. P. 12(b)(6) to dismiss Defendant Dr. 

Sandra Guerra’s amended counterclaims.

Introduction

This Court should dismiss Defendant Dr. Guerra’s amended counterclaims with prejudice 

because they are insufficiently pleaded as a matter of law. For instance, Defendant pleads

conclusory facts that the financial jurisdictional threshold of $5,000 or more was met, but no 

hard numbers, payments, or receipts in support of their Computer Fraud and Abuse Act 

("CFAA") Loss ("CFAA Loss") claims. But courts do not recognize this type of vague pleading 

as a sufficient factual basis claims of CFAA Loss, and routinely dismiss on this basis.

Nor does anything change the fact that the statute of limitations bars counts Three 

through Five of Defendant's amended counterclaims. Or that Texas State Law requires a 

retraction demand for defamation (Count Five) be sent via a letter containing the requisite 

statutory particularity the Defendant hasn't alleged. Just as they've failed to allege any specific 

defamatory statements as Texas State Law mandates along with every state in the Union. 

Defendant merely alludes to general subjects and nothing specific. Finally, Dr. Guerra 

insufficiently pleads Abuse of Process as a matter of law because it is a cause of action limited to 

the illegitimate use of legal process, and filing a normal civil lawsuit against someone doesn’t 

come close.1

1 See, e.g., Blackstock v. Tatum, 396 S.W.2d 463, 468 (Tex. Civ. App. 1965).

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Defendant Dr. Guerra’s response mistakenly claims that Plaintiffs’ Motion To Dismiss 

argues facts. As detailed in the Plaintiffs' Motion to Dismiss and below, however, Defendant's

counterclaims fail to cite plausible facts that as a matter of law support their claims, even 

assuming they're true. This Court should dismiss all of Co-Defendant’s (Dr. Guerra’s) amended 

counterclaims under Federal Rule of Civil Procedure 12(b)(6) with prejudice.

Argument

I. Count One Fails to Allege a CFAA Violation 

Defendant hasn't alleged any number amount of CFAA Loss; merely that there was a 

CFAA loss of $5,000 or more. Courts routinely dismiss CFAA claims for failing to specifically 

plead number amounts for CFAA Loss - or for pleading facts as CFAA Loss that aren't by 

statutory definition - as defined under 18 U.S.C. 1030(e)(11). Saying you've met the threshold of 

CFAA Loss that sustains a civil cause of action is not enough. Defendant misconstrues the

standard here as a Due Process Notice issue, arguing that because a response to their claims is 

possible, it necessarily follows that the claims are sufficient as a matter of law. But the issue is 

whether the plausible facts alleged support all the elements of the cause of action at law - not 

whether a response is possible. And Defendant's amended counterclaims fail to do so.

A. Defendant Insufficiently Pleads CFAA Loss 

The CFAA requires a loss of $5,000 or more in order to sustain a civil cause of action

under it. Merely pleading that one has met this financial loss threshold is not enough; as 

discussed in Plaintiffs' Motion to Dismiss, Defendant's counterclaims must plead plausible facts 

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supporting the allegation.2 When it comes to pleading CFAA Loss, this means reasonable losses 

directly related to the alleged intrusion, or consequential damages from any interruption of 

service (something not alleged here).3

Defendant Dr. Guerra fails to identify a single payment made to co-defendant Digital 

Forensics Corporation ("DFC") - or anyone - that meets the $5,000.00 loss threshold. Dr. Guerra

pleads no numbers beyond the conclusory statements that she's met the threshold for CFAA

Loss. One expects Defendant Dr. Guerra to have receipts, or allege numbers from invoices, as 

courts require and as Plaintiff did.4 Nor are we told the alleged value of her work that she 

purportedly had to take off; or why she needed to take time off when she'd purportedly hired 

DFC to handle it.

This lack of particularity is an issue is because it makes it impossible to determine if the 

alleged financial loss comes within the scope of the definition of CFAA Loss as a matter of law. 

This is important because if there isn't $5,000 or more of CFAA Loss, there is no civil 

jurisdiction. That's why Courts require details like specific payment amounts for particular 

services to be pleaded plausibly if a CFAA claim is to make it past the pleading stage.5 Courts 

2 Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (citing Bell Alt. Corp. v. Twombly, 550 U.S. 554 (2007)); 

see also Frith v. Guardian Life Ins. Co. of Am., 9 F. Supp. 2d 734, 737-38 (S.D. Tex. 1998) (explaining that 

dismissal can be based on either a lack of a cognizable legal theory or the absence of sufficient facts alleged under a 

cognizable legal theory). 3 18 U.S.C. 1030(e)(11) "The term “loss” means 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 . . . ."). 4 (First Am. Compl. ¶47-52)(Dkt. No. 6.) 5 18 U.S.C. §1030(g) requires that CFAA loss be reasonably related to the alleged computer intrusion and 

total at least $5,000 over a one-year period. See also Meyers v. Siddons-Martin Emergency Grp. LLC, No. 16-1197, 

2016 U.S. Dist. LEXIS 130348, at *7-9 (E.D. La. Sep. 23, 2016); United States ex rel. Rigsby v. State Farm Fire & 

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don't need to be burdened with CFAA litigation only to find out down the line that the claim 

didn't meet the jurisidictional threshold. Defendant pleads insufficient facts to sustain a civil 

CFAA claim as a matter of law and the Court should dismiss the CFAA counterclaims with 

prejudice. Presumably, if the Defendant had receipts, they could have totaled and detailed them 

and added the numbers to their amended counterclaims, as Plaintiffs did with their CFAA claim.

But given the opportunity, Defendant didn't amend her counterclaim to include specific 

payments, and her facts are insufficient to establish they are CFAA losses as a matter of law. 

Thus, the Court should dismiss Defendant's CFAA Claims with prejudice.

B. Dr. Cantu Had the Right to Access His Daughter's Ipad

Dr. Guerra and Dr. Cantu have two daughters together. As argued in Plaintiff's Motion to 

Dismiss, as their father, Dr. Cantu had every right to access his minor daughter’s computer.6 To 

hold otherwise is to argue parents can't monitor their children's internet or computer activity. 

Defendant doesn't dispute that Dr. Cantu is her father and that his daughter was in his home. Nor 

do they allege any limitations on Dr. Cantu's parental authority in his own home with regard to 

his minor daughter. Thus, as a matter of law based on the facts pleaded, the Court should dismiss

Defendant's CFAA claim[s] on this count because there was no unauthorized access. A parent 

has a right to access his minor child's computers and can authorize others to do so. Defendant 

Cas. Co., No. 1:06CV433-HSO-RHW, 2015 U.S. Dist. LEXIS 197006, at *37-38 (S.D. Miss. Aug. 6, 2015); BHL 

Boresight, Inc. v. Geo-Steering Sols., Inc., No. 4:15-CV-00627, 2016 U.S. Dist. LEXIS 44729, at *59-61 (S.D. Tex. 

Mar. 29, 2016) (“Without allegations that allow the Court to infer that Defendants are liable for cognizable losses 

under the CFAA, the Court must conclude that BHL's complaint runs afoul of Rule 12(b)(6) requirements.”); Rajaee 

v. Design Tech Homes, Ltd., No. H-13-2517, 2014 U.S. Dist. LEXIS 159180, at *9 (S.D. Tex. Nov. 11, 2014)(“ 

Plaintiff has not offered evidence sufficient to raise a genuine issue of material fact that he sustained $5,000 in 

cognizable “loss” under the CFAA, and [his] CFAA claim is dismissed.”). 6 See Romero v. Brown, 937 F.3d 514, 519 (5th Cir. 2019) (“Indeed, a parents' right to “care, custody, and 

control of their children” is “perhaps the oldest of the fundamental liberty interests recognized by [the Supreme] 

Court.” (citations omitted)).

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furthermore relinquished any claims to unauthorized access when she voluntarily gave the iPad 

to her daughter, knowing the daughter would be at Dr. Cantu's with it.

C. Defendant Cannot Make a CFAA Claim on Behalf of Verizon

Defendant attempts to plead a CFAA claim based on access to online accounts housed on 

servers controlled by Verizon, and owned by Verizon, or a vendor it contracted with. As argued 

in Plaintiff's Motion to Dismiss, Defendant cannot bring a CFAA claim on the basis of access to 

computers and servers they don't own. Defendant alleged in their counterclaim that the 

computers accessed are Verizon’s, and she is stuck with this fact at the pleading stage.7

Defendant does not have standing to sue on behalf of alleged injuries to Verizon’s computers.

Moreover, there are no allegations that the hacks were successful, and indeed by Defendant's 

own statements, it appears no breach ever occurred.8

II. Count Two Fails to Allege a HACA Violation

As detailed in the Motion to Dismiss, the Court should dismiss Count Two’s Texas 

Harmful Access by Computer Act (HACA) for similar reasons argued in the CFAA claim above. 

In her amended counterclaims, Defendant still insufficiently pleads injury, and ignores the fact 

that Dr. Cantu had parental rights to access his minor daughter’s iPad in his home. Moreover, 

Defendant does not have standing to assert the HACA claims of others.

7 (Dr. Guerra’s Am. Countrcl. ¶21). 8 Dr. Guerra’s Resp. to Mot. to Dismiss ¶29)(Dkt. No. 32.)

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III. Plaintiffs’ Contact with Others is Insufficient to Sustain Defendant's Stalking 

Claim 

Defendant only alleges one in-person meeting with Plaintiff Melody Cantu. Despite 

alleging stalking and harassment count against Melody Joy Cantu Defendant doesn't plead a 

single message sent directly to her. Instead, Defendant lists text messages and phone calls 

Plaintiff made to other people. As argued in the Motion to Dismiss, this is insufficient to sustain 

a claim of stalking - there is no pattern or course of conduct here that rises to the level of 

harassment or stalking as a matter of law. A one-time meeting, no matter how emotional, does 

not a course of conduct make. Moreover, the cause of action is barred by the statute of 

limitations, and Defendant's attempt to claim that the filing of Plaintiff's lawsuit miraculously

changes that is unavailing. Asserting legal rights in a judicial forum is not a form of stalking. It is 

the opposite. Judicial remedies are our society’s chosen method to resolve disputes between 

parties in lieu of forms of self help our society discourages - like stalking or forms of violence.

To argue that filing a lawsuit is a form of stalking and harassment is to argue

IV. Count Four Insufficiently Alleges Outrageous Conduct Necessary for IIED

As argued in Plaintiff's Motion to Dismiss, Defendant's factual allegations don't come 

close to being the type of outrageous, societally condemned and shocking action courts will 

allow past the pleading stage.9 Moreover, the claim is barred by the statute of limitations.

9 See, e.g., Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex. 1993).

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V. Count Five Fails to Plead a Defamation Retraction Demand, and Defamation,

with Particularity 

Defendant Dr. Guerra is mistaken in thinking that Federal Rule of Civil Procedure 9(b) 

imposes a particularity requirement on defamation claims. It is Texas State Law.

10 And in Texas, 

like in most states, it is not enough to merely allege the subject matter of an alleged defamatory 

statement, but that the statement itself be identified, and: when it was published, the alleged 

particular meaning, and the specific circumstances giving rise to the defamatory meaning.

Defendant Dr. Guerra has alleged that Plaintiff Melody Joy Cantu defamed her generally 

but does not in any way identify the allegedly defamatory statements beyond subject matter 

categories. In fact, it is not even clear what statements Defendant Dr. Guerra is referring to in 

Count Five. She only refers to them as “the statements” without providing any direct quotes or 

sources for the alleged statements. Even in her Facts section, she fails to lay out any quotes or 

publications made by the Plaintiffs and summarizes allegedly offensive or disparaging conduct 

without identifying any actual statements.11 This is insufficient to meet the requirement that 

defamation be pleaded with particularity.

Moreover, the Texas statute requires that retraction letters contain a number of elements 

that go to the above particularity standards. Defendant, while alleging she sent a Cease and 

Desist Letter, hasn't alleged that it met the statutory requirements. Additionally, the statute of 

10 ex. Civ. Prac. & Rem. Code § 73.055(d)(3)-(5). 11 See e.g., Cheatam v. JCPenney Co, No. 1:16-CV-00072-MAC, 2016 U.S. Dist. LEXIS 121531, at *16-

17 (E.D. Tex. July 13, 2016) (“Cheatam's defamation claims do not contain sufficient detail to allow JCPenney or 

the individual defendants to respond and should be dismissed pursuant to Rule 12(b)(6).”); Scott v. HoumaTerrebonne Hous. Auth., CV No. 02-770 SECTION “N” (4), 2002 U.S. Dist. LEXIS 16719, at *12-13 (E.D. La. 

Sep. 5, 2002) (“The Court agrees with the defendants that the plaintiff's allegations of defamation are conclusory.”) 

(applying Louisiana law).

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limitations has run on this claim, and it should be dismissed for that reason as well. This Court 

should dismiss the defamation count with prejudice, for failure to plead particularity.

VI. Count Six Fails to Sufficiently Plead Abuse of Process

Defendant Guerra continues to conflate Abuse of Process with Malicious Prosecution. 

The purpose of the tort of abuse of process is to address harms suffered as a result of a legitimate 

process used for an illegitimate purpose. Whereas, malicious prosecution is designed to address 

harms suffered as a result of illegitimate process. “[T]he scope of the tort is limited to the 

improper use of legal process, such as the issuance of a citation or a writ, and does not extend to 

the prosecution of a civil action itself. See Detenbeck v. Koester, 886 S.W.2d 477, 481 (Tex. Civ. 

App.—Hous. [1st Dist.] 1994) (“[A]buse of process consists not in the filing and maintenance of 

a civil action, but rather in the perversion of some process issued in the suit after its

issuance.”).”12

The Defendant has failed to state any case for Abuse of Process other than that she does 

not desire to defend against a civil suit, which is not grounds for relief under an Abuse of Process 

claim. To hold that the filing of a suit for adjudication on the merits of a plausibly pleaded 

complaint is an abuse of process would be to hold, absurdly, that every case is the potential 

subject for an abuse of process claim.

12 Pittsburg SNF LLC v. PharMerica East, Inc., 2012 U.S. Dist. LEXIS 141005, *9, 2012 WL 4509753.

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Conclusion

For the reasons set forth above, the Court should grant Plaintiffs’ Motion to Dismiss 

under Federal Rules of Civil Procedure 12(b)(6). Moving Plaintiffs respectfully request that all 

Dr. Guerra’s counterclaims against Plaintiffs be dismissed.

Dated: January 13, 2021 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

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

Counsel for Plaintiffs Melody Joy Cantu and 

Dr. Rodrigo Cantu

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Certificate of Service

I certify that on this 13th of January, 2021, 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

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