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

______________________________________

Initial Pre-Trial Conference Joint Report

Case 5:20-cv-00746-JKP Document 26 Filed 11/13/20 Page 1 of 10
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I. Proposed Scheduling Recommendations

1. As for initial disclosures, they are to be submitted by all parties on or before 

December 1, 2020.

2. As for the alternative dispute resolution report, the parties shall file it on or before 

February 15, 2021.

3. As for the offer of settlement from parties asserting claims for relief, those parties 

shall submit a written offer on or before February 15, 2021. As for the offer of 

settlement from opposing parties, those parties shall respond to the written offer on or 

before March 1, 2021. 

4. As for the last day for parties to file any motion seeking to amend or supplement 

pleadings, or join parties. Those are to be filed on or before March 17, 2021.

5. As for the designation of experts, parties asserting claims for relief shall file their 

designation of testifying experts on or before February 17, 2021.

6. As for the designation of experts, parties resisting claims shall file their designation of 

testifying experts on or before April 2, 2021. 

7. As for the rebuttal of experts containing written reports, the parties shall file those 

within 30 days of receipt of the report from the opposing expert.

8. As for the discovery deadline, parties are to have completed discovery by May 17, 

2021.

9. As for the settlement negotiations status report, all counsel shall confer and file said 

report on or before May 31, 2021

10. As for the dispositive motions deadline, all parties shall file any such motions no later 

than June 16, 2021.

11. As for the pre-trial conference and the trial date, those will be up to the District 

Court’s discretion.

II. Joint Rule 26(f) Report

1. Are there any outstanding jurisdictional issues? For removed cases based on diversity 

jurisdiction, do the parties agree that the parties (including any members of a 

partnership or LLC) are diverse and the amount in controversy exceeded $75,000 at 

the time of removal? If not, each party should state its position on the diversity of the 

parties and the amount in controversy.

Case 5:20-cv-00746-JKP Document 26 Filed 11/13/20 Page 2 of 10
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There are currently no outstanding jurisdictional issues. 

2. Are there any unserved parties? If more than 90 days have passed since the filing of 

the Complaint or Petition, should these unserved parties be dismissed?

Plaintiffs are considering naming entitles, subsidiaries, and corporate members 

of Co-Defendant Digital Forensics Corporation, LLC.

3. What are the causes of action, defenses, and counterclaims in this case? What are the 

elements of the cause(s) of action, defenses, and counterclaims pled?

v For Plaintiffs’ (Melody Joy Cantu and Dr. Rodrigo Cantu): 

Ø Plaintiffs’ cause of action is for the hacking, surveilling, and damaging 

Plaintiffs’ protected computers and computer networks without authorization 

or effective consent, and intentionally damaging those computers and 

networks, causing losses greater than $5,000. A malicious prosecution was 

also filed against Plaintiff Melody Cantu. Plaintiff Melody Cantu was arrested 

right before a scheduled holiday trip with her husband and children, on 

charges eventually dismissed on speedy trial grounds. This was followed by a 

filing of a false Child Protective Services complaint against Plaintiffs. All of 

the aforementioned events cause Plaintiff much emotional distress.

§ The elements of Plaintiffs’ cause of action are: violations of the federal 

Computer Fraud and Abuse Act, 18 U.S.C. § 1030 et. seq. (“CFAA”), the 

Federal Wiretap Act, 18 U.S.C. §§ 2510 et. seq., the Texas Harmful 

Access by Computer Act (“HACA”), Texas Penal Code § 33.02(b-1) (1), 

and the Texas torts of malicious prosecution and intentional infliction of 

emotional distress.

Ø The plaintiffs’ defenses to Dr. Guerra’s counterclaims are, that they 

insufficiently plead as a matter of law and barred by the statute of limitations.

§ The elements of Plaintiffs’ defenses are: 

1. Dr. Guerra insufficiently alleges a violation of the Computer Fraud 

and Abuse Act (“CFAA”), 18 U.S.C. § 1030(a)(2)(C) for unauthorized 

access to a computer because: (1) she has not pleaded CFAA losses of 

$5000 or more reasonably related to the alleged computer intrusion; 

(2) Dr. Cantu, as a parent, is authorized to access the computers his 

minor daughter uses in his home; (3) the Verizon computers allegedly 

accessed are not Dr. Guerra’s but Verizon’s, and (4) 18 U.S.C. § 1039 

is a federal criminal statute that does not permit civil actions. 

Case 5:20-cv-00746-JKP Document 26 Filed 11/13/20 Page 3 of 10
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2. Second, Dr. Guerra’s allegation of a violation of the Texas Harmful 

Access by Computer Act (“HACA”) in Count Two fails for the similar 

reasons the CFAA claims do. It fails to allege a cognizable HACA 

Injury. Moreover, Dr. Cantu had effective consent as a parent to access 

his minor daughter’s iPad in his home. 

3. Third, Dr. Guerra has also failed to allege plausible facts that 

sufficiently establish she was stalked and harassed by Plaintiff Melody 

Cantu as required by Texas law because, among other things, there is 

no allegation Plaintiff Melody Cantu threatened to physically injure 

Dr. Guerra or commit an offense against her, that Plaintiff Melody 

Cantu had the means to do so, and that Dr. Guerra clearly told Plaintiff 

Melody Cantu to stop. And most of the alleged harassment was 

directed towards other people. The two-year statute of limitations bars 

this counterclaim. 

4. Fourth, Dr. Guerra fails to plead plausible facts that constitute extreme 

and outrageous conduct necessary to sustain a claim for Intentional 

Infliction of Emotional Distress (“IIED”). The two-year statute of 

limitations bars this counterclaim. 

5. Fifth, Dr. Guerra fails to allege she asked the Plaintiffs to correct their 

allegedly defamatory statements, as Texas Law requires, nor does she 

particularly identify any defamatory statements by Plaintiffs. The twoyear statute of limitations bars this counterclaim. 

6. Sixth, 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 lawsuit against someone doesn’t count. 

v For Defendant Dr. Sandra Guerra (“Defendant/Counter-Plaintiff Guerra”): 

Ø Defendant Dr. Sandra Guerra (“Defendant/Counter-Plaintiff Guerra”) will 

assert defenses to Plaintiffs’ causes of action that they are insufficiently 

pleaded as a matter of law (causes of action 1-8). Defendant also asserts that 

the Computer Fraud & Abuse Act’s (causes of action 1-8) $5,000 damage 

threshold is not met. Defendant also asserts that the two (2) year statutes of 

limitations bar Plaintiffs’ claims for the Computer Fraud & Abuse Act (causes 

of action 1-8), the Texas Civil Practice & Remedies Code, Sec. 143.001 

(causes of action 9-11), the Federal Wiretap Act, 18 U.S.C. Sec. 2510 et. seq. 

(causes of action 12), and for the claim of intentional infliction of emotional 

distress (cause of action 14). Also, the one (1) year statute of limitation bars 

the claim for malicious prosecution (cause of action 13). Defendant/CounterPlaintiff Guerra also specifically denies Plaintiffs’ factual allegations as 

specifically articulated in Guerra’s Answer and Counterclaim.

Case 5:20-cv-00746-JKP Document 26 Filed 11/13/20 Page 4 of 10
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Ø The elements of Defendant/Counter-Plaintiff Guerra’s causes of action 

asserted in her Counterclaim are: 

1. Violation of 18 U.S.C Sec. 1030(a)(2)(c): 

• intentionally accessing a protected computer without authorization 

or exceeding authorized,

• and thereby obtaining personal and private accounts, information, 

and document from any protected computer without permission.

2. Violation of Tex. Civ. Prac. & Rem. Code § 143.001 & Tex. Penal Code 

§ 33.02(a) (the Harmful Access by Computer Act (“HACA”):

• intentionally or knowingly accessing a computer, computer 

network, or computer system without effective consent. 

• The intentional or knowing violation gives rise to a civil cause of 

action under Texas Civil Practice & Remedies Code 

Section 143.001.

3. Violation of Tex. Civ. Prac. & Rem. Code § 85.001 & Tex. Pen. Code 

§ 42.07(a) (Stalking and Harassing Behavior).

• Sending electronic communications in a manner reasonably likely 

to harass, annoy, alarm, abuse, torment, embarrass, or offend Dr. 

Guerra. 

• threatens, in a manner reasonably likely to alarm the person 

receiving the threat; or

• sends repeated electronic communications in a manner reasonably 

likely to harass, annoy, alarm, abuse, torment, embarrass, or offend 

another.

• In addition to harassing communications to Dr. Guerra directly, 

Melody repeatedly called and messaged Dr. Guerra’s former in-laws 

and professional colleagues in an intrusive and disparaging manner.

4. Intentional Infliction of Emotional Distress.

• the defendant acted intentionally or recklessly;

• the defendant's conduct was extreme and outrageous;

• the defendant's actions caused the plaintiff emotional distress;

• the resulting emotional distress was severe; and

• Proximate damages.

5. Defamation.

• there was a published statement;

• the statement was defamatory and concerning the plaintiff, &

• the defendant acted with either actual malice – if the plaintiff was a 

public official or public figure – or negligence – if the plaintiff was 

a private figure – regarding the truth of the statement; and

• proximate damages.

6. Abuse of Process.

• there was a published statement;

• the statement was defamatory and concerning the counter-plaintiff; 

and 

Case 5:20-cv-00746-JKP Document 26 Filed 11/13/20 Page 5 of 10
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• the defendant acted with negligence as the counter-plaintiff was a 

private figure – regarding the truth of the statement; and

• proximate damages.

4. Are there agreements or stipulations that can be made about any facts in this case or 

any element in the cause(s) of action?

Parties are not prepared to make any stipulations at this time.

5. What are the parties’ views and proposals on all items identified in Rule 26(f)(3)?

The plaintiffs agree to the discovery schedule set forth above and plan to 

work out a more detailed discovery plan such as any issues with 

disclosures, privilege, and any limitations parties have.

6. What, if any, discovery has been completed? What discovery remains to be done? 

Have the parties considered conducting discovery in phases?

All discovery remains to be done. On October 16, 2019, Co-Defendant Dr. 

Guerra’s counsel turned over a report that she received from CoDefendant Digital Forensics Corporation, LLC, following a preservation 

letter we sent.

7. What, if any, discovery disputes exist?

No discovery dispute exists.

8. Have the parties discussed the desirability of filing a proposed order pursuant to 

Federal Rule of Evidence 502?

The parties have not discussed filing a proposed order pursuant to Federal 

Rule of Evidence 502, but plan to do so.

Case 5:20-cv-00746-JKP Document 26 Filed 11/13/20 Page 6 of 10
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9. Have the parties discussed mediation? 

The parties have not discussed mediation but plan to.

III. Advisory as to Magistrate Jurisdiction

v Plaintiffs do not consent to proceed before a United States Magistrate Judge in 

this matter (please see the attached form). 

v Defendant/Counter-Plaintiff Guerra consents to proceeding before a United States 

Magistrate Judge in this matter (please see the attached form). 

Case 5:20-cv-00746-JKP Document 26 Filed 11/13/20 Page 7 of 10
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Dated: November 13, 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

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

t

a

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B

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. 

Case 5:20-cv-00746-JKP Document 26 Filed 11/13/20 Page 8 of 10
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Certificate of Service

I certify that on this 13th of November, 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 26 Filed 11/13/20 Page 9 of 10
Case 5:20-cv-00746-JKP-HJB Document 15-1 Filed 10/06/20 Page 1 of 1

Melody Joy Cantu and Dr. Rodrigo Cantu

X

DocuSign Envelope ID: B2521ADD-8E08-4CC4-9D82-78D9179ECE8A

11/12/2020

Case 5:20-cv-00746-JKP Document 26 Filed 11/13/20 Page 10 of 10