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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’ 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’ Response in Opposition to Plaintiffs’ Motion for Leave to File Supplemental 

Motion for Summary Judgment [Doc. 120] and Request for Sanctions Against Plaintiffs:

I. INTRODUCTION.

1. This case has been pending for over 3 years.

1

2. Plaintiffs filed eight requests for continuance of the Court’s scheduling order over 

the past 3-year period.

2

 The discovery deadline in this case expired on September 15, 2022, and 

1 Plaintiffs’ Complaint was filed on June 24, 2020 [Doc. 1]. 

2 See First Continuance Request [Doc. 42]; Second Continuance Request [Doc. 45]; Third 

Continuance Request [Doc. 47]; Fourth Continuance Request [Doc. 49]; Fifth Continuance 

Request [Doc. 57]; Sixth Continuance Request [Doc. 65]; Seventh Continuance Request [Doc. 

67]; Eighth [misnamed Seventh] Continuance Request [Doc. 95]. 

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the dispositive motion deadline expired on October 14, 2022.3 Plaintiffs and Defendants timely 

filed their respective motions for summary judgment, responses, replies, and sur-replies thereto.4

 

3. Various motions to compel discovery were pending as of the date of the dispositive 

motion deadline on October 14, 2022 and the Court had set an in-person hearing on such motions 

for November 4, 2023.5 However, Plaintiffs never requested an extension of time to file Plaintiffs’ 

Motion for Summary Judgment pending the outcome of such in-person hearing. 

4. Now, over 9 months after the scheduling order deadline to file dispositive motions,

Plaintiffs seek leave to file Plaintiffs’ Proposed Supplemental Motion for Summary Judgement 

[Doc 120-3] for the purpose of “incorporat[ing]...into Plaintiffs’ arguments” evidence produced 

by DFC on November 11, 2022 (over 8 months ago).6 However, not only is such request for leave 

untimely, but Plaintiffs failed to advise 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 

5. Accordingly, Defendants oppose Plaintiffs’ Motion for Leave because Plaintiffs 

have failed to demonstrate good cause for permitting such an untimely supplemental motion for 

summary judgment. Defendants also request that the Court impose sanctions against Plaintiffs 

3

 Doc. 98. 

4 See Doc. 109, Doc. 110, Doc. 112, Doc. 114, Doc. 115, Doc. 118, Doc. 119. 

5

 Doc. 108. 

6 Plaintiffs’ Motion for Leave [Doc. 120], ¶¶3, 6. 

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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and/or Plaintiffs’ counsel pursuant to Rule 11(c)(2) and/or Rule 16(f)(1)(C) as a result of Plaintiffs’ 

frivolous motion and their abject failure to disclose to the Court and counsel that Plaintiffs were 

also seeking leave to supplement their request for summary judgment with evidence and arguments 

that were readily available to Plaintiffs at the time Plaintiffs filed their motion for summary 

judgment and responses and replies to Defendants’ competing motions for summary judgment in 

October – November 2022.9

II. ARGUMENTS AND LEGAL AUTHORITY.

A. Plaintiffs Have Failed to Address or Satisfy the Four-Factor Test for the “Good 

Cause” Requirement Under Rule 16(B).

6. Rule 16 of the Federal Rules of Civil Procedure requires the District Court to 

promptly enter a scheduling order that limits, among other things, the time in which the parties 

may file motions.

10 Under Rule 16(b)(4), a scheduling order deadline “may be modified only for 

good cause and with the judge’s consent.”11 

7. The good cause standard under Rule 16(b) requires the “party seeking relief to show 

that the deadlines cannot reasonably be met despite the diligence of the party needing the 

extension.”12 Once the scheduling order deadline to file dispositive motions has expired, the party 

seeking leave must satisfy the following four-factor test: “ ‘(1) explanation for the failure to [timely 

move for leave to amend]; (2) the importance of the [amendment]; (3) potential prejudice in 

allowing the [amendment]; and (4) the availability of a continuance to cure such prejudice.’”13 

9

 FED. R. CIV. P. 11. 

10 Id. at 16(b)(3)(A).

11 Id. at 16(b)(4).

12 6A Charles Alan Wright et al., Federal Practice and Procedure § 1522.1 (2d ed. 1990). 

13 See S&W Enters., LLC, 315 F.3d at 536 (citing Reliance Ins. Co. v. La. Land & Exploration 

Co., 110 F.3d 253, 257 (5th Cir.1997) (quoting Geiserman v. MacDonald, 893 F.2d 787, 791 (5th

Cir.1990)); see also Batiste v. Lewis, 976 F.3d 493, 500-01 (5th Cir. 2020).

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8. Here, Plaintiffs do not even address, much less satisfy, Rule 16(b)(4)’s good cause 

standard, and the four factors weigh against Plaintiffs.

9. First, Plaintiffs offer no explanation whatsoever for their over 8-month failure to 

seek leave to supplement their Motion for Summary Judgment [Doc. 110] to include evidence [Ex. 

A, Doc. 120-1] Plaintiffs admit was produced to them by DFC on November 11, 2022.14 More 

significantly, setting aside Plaintiffs’ inexplicable failure to disclose to the Court in their Motion 

for Leave that they were also seeking to supplement their Motion for Summary Judgment to 

include evidence that Plaintiffs produced over 1 year ago on July 15, 2022,15 Plaintiffs offer no 

explanation whatsoever for their failure to include such evidence (i) with Plaintiffs’ Motion for 

Judgment [Doc. 110] filed on October 14, 2022 (the dispositive motion deadline), or (ii) with 

Plaintiffs’ Opposition to Dr. Guerra’s Motion for Summary Judgment [Doc. 112] filed on October

27, 2022, or (iii) with Plaintiffs’ Reply to Dr. Guerra’s Response to Plaintiffs’ Motion for 

Summary Judgment [Doc. 118] filed on November 4, 2022.

10. Plaintiffs also incorrectly allege that DFC continues to “withhold discovery” that 

was required to be produced by November 3, 202216 pursuant to the parties Joint Advisory to Court 

Regarding the In-Person Hearing Set on November 4, 2022.17 Nevertheless, Plaintiffs have taken 

absolutely no action over the past 7 months to compel or otherwise seek judicial intervention with 

respect to the discovery they allege is being withheld. Moreover, Plaintiffs’ Motion for Summary 

Judgment [Doc. 110] already includes Plaintiffs’ unsubstantiated allegations regarding 

Defendants’ purported “withholding of evidence.”18

14 Doc. 120, ¶3

15 Supra fn. 8.

16 Doc. 120, ¶¶2-5.

17 Doc. 116.

18 Doc. 110, p. 10.

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11. Second, even if the links produced by DFC on November 11, 2022 [Ex. A (Doc. 

120-1)] or the Purported Malicious Prosecution Evidence produced by and/or available to 

Plaintiffs on July 15, 202219 were important to Plaintiffs’ case (which Defendants dispute), the 

purported importance of that evidence highlights the need for Plaintiffs to have (i) timely filed 

such evidence with Plaintiffs’ Motion for Summary Judgment or with any of Plaintiffs’ subsequent 

responses or replies to Defendants’ competing motions for summary judgment in October – 

November 2022, or (ii) immediately sought leave from the Court to supplement Plaintiffs’ Motion

for Summary Judgment instead of waiting over 8 months after DFC produced such evidence. The 

alleged importance of such evidence, if any, does not override the Court’s enforcement of the 

Court’s scheduling order. 

12. Third, granting Plaintiffs leave to file Plaintiffs’ Supplemental Motion for 

Summary Judgment over 10 months after the close of discovery and over 9 months after the 

dispositive motion deadline will prejudice Defendants because they will need to file responses to 

Plaintiffs’ Supplemental Motion for Summary Judgment which will needlessly increase the cost

of litigation to the detriment of Defendants. 

13. Lastly, Plaintiffs have already filed eight requests for continuance of the Court’s 

Scheduling Order over 3-year period this case has been pending.20 No trial date has been set in 

this case, and granting Plaintiffs leave to file Plaintiffs’ Supplemental Motion for Summary 

Judgment will only further delay the possibility of setting of a trial date in the near future.

19 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)] (collectively, the “Purported Malicious Prosecution Evidence”).

20 See First Continuance Request [Doc. 42]; Second Continuance Request [Doc. 45]; Third 

Continuance Request [Doc. 47]; Fourth Continuance Request [Doc. 49]; Fifth Continuance 

Request [Doc. 57]; Sixth Continuance Request [Doc. 65]; Seventh Continuance Request [Doc. 

67]; Eighth [misnamed Seventh] Continuance Request [Doc. 95]. 

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14. Accordingly, Plaintiffs have not and cannot establish that “good cause” exists to

supplement Plaintiffs’ Motion for Summary Judgment. Consequently, Defendants respectfully 

request that the Court deny Plaintiff’s Motion for Leave in its entirety. 

B. Defendants’ Request for Sanctions.

15. Defendants reassert the facts and legal arguments and authorities set forth in the 

preceding paragraphs and incorporate those facts and legal arguments and authorities by reference 

below as if fully set forth verbatim.

16. By presenting to the Court a written motion “—whether by signing, filing, 

submitting, or later advocating— an attorney or unrepresented party certifies that to the best of the 

person’s knowledge, information, and belief formed after an inquiry reasonable under the 

circumstances:

(1) [such motion] is not presented for any improper purpose, such as to harass,

delay, or needlessly increase the cost of litigation...”21

17. Plaintiffs have provided no valid reason that justifies their filing a motion for leave 

to file Plaintiffs’ Proposed Supplemental Motion for Summary Judgment over 9 months after the

expiration of the dispositive motion deadline. 

18. More significantly, Plaintiffs falsely allege in Plaintiffs’ Proposed Supplemental 

Motion for Summary Judgment that “Dr. Guerra has a history of misrepresentation in federal and 

state court proceedings.” Yet, Plaintiffs incorrectly represent to the Court that they are only 

requesting leave to file Plaintiffs’ Proposed Supplemental Motion for Summary Judgment for the 

purpose of “incorporat[ing] Defendants’ belatedly produced evidence [from November 11, 2022] 

into Plaintiffs’ arguments.”22 Nowhere in Plaintiffs’ Motion for Leave do Plaintiffs disclose to the 

21 FED. R. CIV. P. 11(b)(1).

22 Doc. 120, ¶¶6.

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Court that Plaintiffs’ Proposed Supplemental Motion for Summary Judgment also seeks to add

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

Plaintiffs months before the dispositive motion deadline on October 14, 2022.23 

19. Plaintiffs’ untimely Motion for Leave was not asserted in good faith and Plaintiffs, 

once again,24 have needlessly increased the cost of litigation to the detriment of Defendants by 

forcing Defendants to incur additional attorneys’ fees to respond to such improper Motion. The 

flouting of the scheduling order deadlines and conscious disregard of the Rules by Plaintiffs and 

Plaintiff’s counsel, as well as the failure by Plaintiffs’ counsel to adhere to the duty of candor they 

owe to the Court, warrant the imposition of sanctions. 

20. Accordingly, Defendants seek sanctions against Plaintiffs and/or Plaintiffs’ counsel 

under Rule 11(c)(2) in the form of an award of Defendants’ reasonable and necessary attorneys' 

fees. Alternatively, or additionally, Defendants seek sanctions against Plaintiffs and/or Plaintiffs’ 

counsel under Rule 16(f)(1)(C) for their defiance of the Rules and the Court’s scheduling order. 

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 

23 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)]. 24 See e.g., Doc. 72, Doc. 104, Doc. 111.

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(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. 

Dated: July 24, 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 24th day of July 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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