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 CO-DEFENDANT DR. GUERRA’S MOTION 

TO ENFORCE SCHEDULING ORDER AND FOR SANCTIONS 

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Plaintiff’s Opposition to Co-Defendant’s Motion to Compel

Co-Defendant Dr. Sandra Guerra’s (“Dr. Guerra”) motion seeks to compel Plaintiffs

Melody Joy Cantu and Rodrigo David Cantu (“the Cantus”) to repeat mediation. The Cantus 

disagree with Co-Defendant Dr. Guerra’s enforcement of the court order at Dkt No. 68. The 

Cantu’s never opposed the order, as mediation with Dr. Guerra was completed on August 20, 

2021, followed by a joint filing to the Court stating that the parties do not plan to mediate any 

further. The Court should deny Dr. Guerra's motion.

I. Factual Background

On March 25, 2021, in compliance with Local Rule CV-88(b), parties filed a “Joint 

Alternative Dispute Resolution Status Report.”1 In it, the parties state they have agreed to 

mediate this matter with a specific mediator, Don Philbin. On August 20, 2021, Co-Defendant 

Dr. Guerra and the Cantus participated in an unfruitful mediation with Mr. Philbin and,

following said mediation, filed a “Joint Advisory to the Court.”2 According to the Joint 

Advisory, the Cantus participated in a mediation with Dr. Guerra and could not come to an 

agreement. Parties agreed they had no intent to continue mediation.3

1 (Joint ADR Status Report) (Dkt. No. 44.) 2 (Joint Advisory to the Court) Dkt. No. 60.) 3 Id at ¶ 3.

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In the same “Joint Advisory to the Court”, the Cantus and Dr. Guerra state Co- Defendant 

Digital Forensics Corporation, LLC’s (“DFC”) counsel of record withdrew two weeks prior to 

the mediation between the Cantus and Dr. Guerra. Therefore, DFC did not participate in the 

mediation.

On May 6, 2022, Dr. Guerra’s counsel reached out to request repeat mediation, this time 

with DFC as a party to the mediation. On August 20, 2021, the Cantus mediated with Dr. Guerra. 

Concerned with spending time, money, and their emotional well-being on another mediation 

attempt with Dr. Guerra, we reached out to Dr. Guerra’s counsel regarding dates for mediation 

and depositions. In addition, the Cantus requested we find out what has changed from the last 

mediation, that compelled Dr. Guerra and her counsel to request we go down that beaten path. 

The Cantus were open to the possibility of repeat mediation if Dr. Guerra provided good cause.

Dr. Guerra’s counsel refused to provide a reason for requesting repeat mediation and 

insisted that there is a court order that we are violating. Dr. Guerra’s motion cites Dkt. No. 70, 

“The Scheduling Order,” states:

“The Parties must complete the agreed mediation or other ADR proceedings by June 29, 

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

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This order is in place to make sure all alternative dispute resolutions be completed by a 

specific date and is not a requirement to repeat costly and fruitless ADRs. Per our records and the 

“Joint Advisory to the Court”, the Cantus have fulfilled said obligation with Dr. Guerra.4

Our firm is in communication with DFC’s counsel and has offered them the option of 

mediation.

II. Argument

The right to a jury trial is a fundamental common-law right preserved by the Framers of 

the Constitution.

5 In order to prevent the U.S. history with the British courts, the Seventh 

Amendment was instituted as a safeguard to prevent forced trials by non-jury tribunals. While 

alternative dispute resolution does not violate the Seventh Amendment, required participation in 

mediation before being allowed to seek a jury trial is a precondition that effectively strips away 

rights to a jury trial, specifically burdening the parties with costs for the mediation and attorney’s 

fees.

As counsel to the Cantus, our firm is not interested in churning hours and suggesting our 

clients go through additional, emotionally trying, and costly mediation for no good cause.

4 (Joint Advisory to the Court) Dkt. No. 60.)

5 See U.S. CONST. amend. VII (“In Suits at common law, where the value in controversy shall exceed 

twenty dollars, the right of trial by jury shall be preserved...”).

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We've complied with the Court’s straightforward standing order and local rules. Per 

Local Rule CV-88, parties are allowed to request relief from ADR.6 In another matter, this Court 

stated the following in regard to Local Rule CV-88:

The Court's local rules provide that "[t]he court may refer a case to 

ADR on the motion of a party, on the agreement of the parties, or on 

its own motion. . . ." Local Rule CV-88(c). If a case is referred to 

ADR, a party has the right to object and "may obtain relief from an 

order upon a showing of good cause." Id. at 88(g); Andre v. Allstate 

Texas Lloyd's, 2016 U.S. Dist. LEXIS 189821, 2016 WL 9414129, 

at *3 (W.D. Tex. Oct. 14, 2016). But, as Judge Yeakel has noted in 

a very similar case, under the applicable statute a party "is required 

to consider use of an alternative dispute resolution procedure but is 

not obliged to consent to one." Dkt. No. 24, Farrington v. Infowars, 

LLC, No. 1:20-cv-332 LY (Oct. 22, 2020) at 2.7

Dr. Guerra seeks a remedy where she has no right.

Conclusion

This Court should deny Dr. Guerra’s Motion to Enforce Scheduling Order and Request 

for Sanctions because the Cantu's and Dr. Guerra have mediated and stated so in a joint filing 

with the Court. Furthermore, Dr. Guerra has no legal right to compel mediation. 

6 See Local Rule CV-88(g). 7 Mustard v. Infowars, LLC, No. A-20-CV-0485-RP, 2020 U.S. Dist. LEXIS 200258 (W.D. Tex. Oct. 27, 

2020).

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Dated: May 26, 2022 Stipulated and 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 26th 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/ Tor Ekeland

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