1:25-cv-00194•Reyna et al v. Exxon Mobile Corporation et al
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Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION JOSEPH ANTHONY REYNA,1 § Plaintiff, § § v. § CIVIL ACTION NO. 1:25-cv-194 § EXXON MOBILE CORP., et al., § Defendants. § ORDER GRANTING IFP MOTION (Dkt. No. 2) AND REPORT AND RECOMMENDATION FOR DISMISSAL OF RULE 27 MOTION I. Synopsis Joseph Anthony Reyna wants to use Rule 27 of the Federal Rules of Civil Procedure to perpetuate testimony and preserve evidence against Exxon in what he alleges will be a federal lawsuit regarding air pollution. Mr. Reyna does not plead the requirements of Rule 27, and this Court recommends denial of his request and dismissal of this suit. II. Background On September 3, 2025, Plaintiff Joseph Anthony Reyna (“Reyna”) filed “Verified Rule 27 Petition to Perpetuate Testimony and Preserve Evidence” in the Southern District of Texas, Brownsville Division. Dkt. No. 1. Reyna identifies the following Defendants: “Exxon Mobil Corporation; Exxon Mobil Pipeline Company; Exxon Mobil Foundation; and John Does 1-25 (affiliates, ESG vendors, records custodians).” Dkt. No. 1, p. 3. Reyna states he expects to be a party to a future action against Exxon Mobil based on several federal environmental statutes and some environmental statutes from the state of Texas. Dkt. No. 1, p. 2. He alleges that he needs pre- suit discovery to preserve evidence and to perpetuate testimony from the adverse parties. Dkt. No. 1, pp. 1-2. III. Procedural Leniency for Unrepresented Plaintiffs Plaintiffs proceeding without a legal representative are considered pro se plaintiffs and 1 Reyna names two petitioners in his case, himself and the corporation Dreams over Dollars. Dkt. No. 1, p. 1. He claims to represent both parties. Id. Only natural persons can represent themselves, and corporations may not appear in federal court without an attorney. See Rowland v. California Men’s Colony, 506 U.S. 194, 202 (1993) and Memon v. Allied Domecq QSR, 385 F.3d 871, 873 (5th Cir. 1982). Therefore, the Court recognizes only Plaintiff Reyna in this action. United States District Court Southern District of Texas ENTERED November 21, 2025 Nathan Ochsner, Clerk Case 1:25-cv-00194 Document 10 Filed 11/21/25 in TXSD Page 1 of 7
Page 2 of 7 receive the benefit of liberal construction of their claims. See Kaltenbach v. Richards, 464 F.3d 524, 527 (5th Cir. 2006). However, pro se pleadings must still contain sufficient facts to support their claims, and the plaintiff is still required to “fundamentally abide by the rules that govern the federal courts.” United States v. Pineda, 988 F.2d 22, 23 (5th Cir. 1993); Fryer v. United States, EP-19-CV-00134-DCG-ATB, 2020 WL 6588397, at *3 (W.D. Tex. July 20, 2020) (quoting E.E.O.C. v Simbaki, Ltd., 767 F.3d 475, 484 (5th Cir. 2014)). A party's pro se status does not create an “impenetrable shield, for one acting pro se has no license to harass others, clog the judicial machinery with meritless litigation, and abuse already overloaded court dockets.” Farguson v. Mbank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986). IV. Application to Proceed In Forma Pauperis Title 28, Section 1915(a)(1) of the United States Code provides that “any court of the United States may authorize the commencement . . . of any suit, action or proceeding, civil or criminal . . . without prepayment of fees . . . by a person who submits an affidavit . . . that the person is unable to pay such fees . . . .” 28 U.S.C. § 1915(a)(1). An applicant need not be “absolutely destitute” to benefit from this statute. Hayes v. U.S., 71 Fed. Cl. 366, 369 (Fed. Cl. 2006) (citing Adkins v. E. I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948)). In his IFP application, Reyna indicated he has minimal cash on hand, no real property, no substantive personal property, and a minimal household income. Dkt. No. 2. After reviewing Reyna’s application, the Court finds he cannot pay the filing fee without experiencing undue financial hardship. Accordingly, the Court GRANTS Reyna’s in forma pauperis application (Dkt. No. 2) and ORDERS the Complaint (Dkt. No. 1) be filed without pre-payment of fees or costs. This in forma pauperis status is granted subject to later determination that Reyna’s Rule 27 petition should be dismissed if the allegation of poverty is either untrue, or if the action is found to be either frivolous or malicious under § 1915(e)(2). The Court may still impose costs of court against a petitioner at the conclusion of a lawsuit. Moore v. McDonald, 30 F.3d 616, 621 (5th Cir. 1994). V. Reyna’s Petition is improper under Rule 27 of the Federal Rules of Civil Procedure. Federal Rule of Civil Procedure 27 pertains to depositions to perpetuate testimony prior to trial. Ash v. Cort, 512 F.2d 909, 911 (3d Cr. 1975). Pursuant to Rule 27(a)(1), the petition is filed Case 1:25-cv-00194 Document 10 Filed 11/21/25 in TXSD Page 2 of 7
Page 3 of 7 by a “person who wants to perpetuate testimony about any matter cognizable in a United States court. . . .” Fed. R. Civ. Pro. 27. The petition “must ask for an order authorizing the petitioner to depose the named persons [] to perpetuate their testimony.” Id. The rule provides further requirements for the petition, stating [t]he petition must be titled in the petitioner’s name and must show: (A) that the petitioner expects to be a party to an action cognizable in a United States court but cannot presently bring it or cause it to be brought; (B) the subject matter of the expected action and the petitioner's interest; (C) the facts that the petitioner wants to establish by the proposed testimony and the reasons to perpetuate it; (D) the names or a description of the persons whom the petitioner expects to be adverse parties and their addresses, so far as known; and (E) the name, address, and expected substance of the testimony of each deponent. Id. The Rule “is not a substitute for discovery” and “is available in special circumstances to preserve testimony which could otherwise be lost.” Ash, 512 F.2d at 912. Additionally, “Rule 27 is not appropriate for the purpose of discovering facts for a future lawsuit.” Robinson v. Winslow Twp., No. 10-2824, 2010 WL 3326678, at *5 (D.N.J. Aug. 23, 2010). “Rule 27 simply authorizes the perpetuation of evidence, not the discovery or uncovering of it.” In re Vratoric, No. 02:09– mc–00284, 2009 WL 3526562 (W. D. Pa. Oct. 23, 2009) at *2. Additionally, “[c]ourts generally agree that to allow Rule 27 to be used for the purpose of discovery before an action is commenced to enable a person to fish for some ground for bringing suit would be an abuse of the rule.” Id. Rule 27 also “requires that a petitioner demonstrate an immediate need to perpetuate evidence.” In re Landry-Bell, 232 F.R.D. 266 (E. D. La. 2005) (internal citation omitted). General allegations that evidence may be lost are insufficient. Id. (citing Penn Mutual Life Ins. Co. v. United States, 68 F.3d 1371 (D.C.Cir.1995)). Reyna admits at least one purpose for filing his Rule 27 petition not permitted by the rule, because he writes that he “seeks pre-suit discovery.” Dkt. No. 1, p. 1. A Rule 27 petition cannot be used to commence discovery before filing an action. See In re Ramirez, 241 F.R.D. 595, 596 (W.D. Tex. 2006) (“It is well-established in case law that perpetuation means the perpetuation of known testimony.”). Additionally, one of Reyna’s asserted reasons for not bringing the action now is because “ephemeral retention makes complaint impossible without preservation.” Dkt. No. 1, p. 8. Seemingly, he argues that he cannot make his complaint without access to these “ephemeral Case 1:25-cv-00194 Document 10 Filed 11/21/25 in TXSD Page 3 of 7
Page 4 of 7 datasets” he refers to in his petition. Id. at p. 2. However, “Rule 27 simply authorizes the perpetuation of evidence, not the discovery or uncovering of it.” In re Vratoric, 2009 WL 3526562 at *2. Reyna also requests document production, a preservation order, a custodian list, limited monitoring, a protective order, and notice to the Texas Attorney General. These requests show Reyna’s use of a Rule 27 petition is improper, because he is essentially requesting Defendant produce information as if discovery had commenced. See Robinson, 2010 WL 3326678, at *5 (“Rule 27 is not appropriate for the purpose of discovering facts for a future lawsuit.”). Although Reyna requests “Depositions on written questions,” Reyna does not provide the names of the expected adverse parties and their addresses. Dkt. No. 1, p. 7; See Fed. R. Civ. Pro. 27(a). Even if “Exxon Custodian of records; Port of Brownsville Records Officer; TCEQ Region 15 monitoring director” qualified as providing a “description of the person” expected to be the adverse party, Reyna does not provide their addresses “so far as known.” Fed. R. Civ. Pro. 27(a). Reyna also fails to provide “the name, address, and expected substance of the testimony of each deponent” as required under FRCP 27(a)(1)(E). Reyna writes that his petition is “necessary to avoid spoliation of ephemeral datasets . . . that will otherwise vanish before a complaint can be pled with specificity” (emphasis in original). Dkt. No. 1, p. 2. However, the conclusory statement that the ephemeral datasets “will otherwise vanish” does not actually show the Court that this evidence will likely be lost before he is able to file a lawsuit. See Ash, 512 F.2d at 912-13. Moreover, Reyna points to datasets. Although datasets may aid a witness in providing testimony, Reyna’s concern with the datasets demonstrates his petition is not truly concerned with the perpetuation of testimony but, instead, with the discovery of data. All in all, in his petition, Reyna does not show this is one of the special circumstances where known testimony could be lost if not preserved prior to commencing an action. Ash, 512 F.2d at 912 (stating that Rule 27 “is available in special circumstances to preserve testimony which could otherwise be lost.”). See In re Landry-Bell, 232 F.R.D. at 266 (stating that general allegations evidence may be lost are insufficient). For these reasons, Reyna’s Rule 27 petition is improper. Accordingly, this Court recommends denying Reyna’s petition (Dkt. No. 1). Case 1:25-cv-00194 Document 10 Filed 11/21/25 in TXSD Page 4 of 7
Page 5 of 7 VI. Frivolousness Review Under Section 1915(e)(2). Because the Court grants Reyna leave to proceed in forma pauperis, the Court is now required to review Reyna’s cause of action under 28 U.S.C. § 1915(e)(2). Dismissal of a complaint prior to service of the defendants is authorized to “discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of . . . the threat of sanctions for bringing vexatious suits under Federal Rule of Civil Procedure 11.” Neitzke v. Williams, 490 U.S. 319, 327 (1989). For these reasons, the Court may dismiss a case on its own motion; the Court is not required to wait until a defendant has been served, at taxpayer expense, and has moved for dismissal. Id. Further, 28 U.S.C. § 1915(e)(2) provides for sua sponte dismissal of a complaint filed in forma pauperis if the Court determines at any time the action is (i) frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from suit. 28 U.S.C. § 1915(e)(2)(B); see also Amrhein v. United States, 740 F. App'x 65,66 (5th Cir. 2018) (“A district court must sua sponte dismiss an IFP complaint in a civil action at any time if it determines that the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune.”). “Before dismissing a pro se litigant's case for failure to state a claim, a district court ordinarily must give the litigant an opportunity to amend his complaint to remedy the deficiencies.” Graves v. Cain, 734 Fed. Appx. 914, 915 (5th Cir. 2018) (citing Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994)). The report and recommendation of a United States Magistrate Judge provides sufficient notice of the Court's intent to dismiss, and the 14-day objections period provides time for a response. Alexander v. Trump, 753 F. App'x 201, 208 (5th Cir. 2018) (citing Magouirk v. Phillips, 144 F.3d 348, 359 (5th Cir. 1998). Reyna states he “anticipate[s] litigation” against “Exxon Mobil Corporation” and affiliates.” Dkt. No. 1, p. 1. The anticipated litigation “aris[es] from operations affecting Cameron and Willacy Counties, Texas.” Dkt. No. 1, p. 1. The operations are “Exxon’s port transfers, pipeline transport, waste-handling practices, and affiliated LNG/export investments.” Reyna appears to argue that these operations “impose disproportionate burdens on predominantly Hispanic, low-income communities in the Rio Grande Valley.” Dkt. No. 1, p. 2. Reyna claims Case 1:25-cv-00194 Document 10 Filed 11/21/25 in TXSD Page 5 of 7
Page 6 of 7 standing “arises personally (as resident, heir, whistleblower)[.]”2 Dkt. No. 1, p. 3. Reyna’s admittedly anticipated litigation is not equal to filing an actual lawsuit against another party. Reading Reyna’s Petition in the light most favorable to him, Reyna does not provide facts to support his claim that the Defendants’ operations are burdening the local community. Further, even though Reyna claims to be a resident, he provides the court with a mailing address outside the area he claims is affected by Defendants’ actions. Reyna also claims to be RGV-born and heir to land in Starr County, but none of these alleged facts suggest Reyna has been injured by Defendants’ conduct in Cameron and Willacy counties. Even with a liberal reading, Reyna’s claims lack a legal basis because the Court cannot discern the gravamen of his complaint. These claims are “so insubstantial, implausible, . . . or otherwise completely devoid of merit” that the Court lacks federal jurisdiction to entertain them. Atakapa Indian de Creolo Nation v. Louisiana, 943 F.3d 1004, 1006 (5th Cir. 2019) (citing Oneida Indian Nation of N.Y. v. Oneida Cty., 414 U.S. 661, 666 (1974)). For these reasons, the Court recommends Reyna’s action be dismissed as frivolous. VII. Recommendation The Court RECOMMENDS DISMISSISING Reyna’s Rule 27 Petition as improper under Fed. R. Civ. Pro. 27 (Dkt. No. 1). The Court RECOMMENDS DISMISSING Reyna’s suit without prejudice as frivolous under 28 U.S.C. § 1915(e)(2). VIII. Notice to Parties The parties have fourteen (14) days from the date of being served with a copy of this Report and Recommendation in which to file written objections, if any, with the United States District Judge. 28 U.S.C. § 636(b)(1). A party filing objection must specifically identify the factual or legal findings to which objections are being made. The District Judge is not required to consider frivolous, conclusive, or general objections. Battle v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). If any party fails to timely object to any factual or legal findings in this Report and 2 Reyna also claims standing “arises . . . organizationally (as director of a nonprofit serving Cameron/Willacy).” Dkt. No. 1, p. 3. However, this Court does not recognize the organization “Dreams over Dollars” as a plaintiff, because it is not represented by legal counsel. See n. 1 of this Order and Report and Recommendation. Additionally, Reyna does not name himself as director of the corporation. For these reasons, the Court does not consider this statement as an argument for standing on behalf the corporation. Case 1:25-cv-00194 Document 10 Filed 11/21/25 in TXSD Page 6 of 7
Page 7 of 7 Recommendation, the District Judge is not required to conduct a de novo review of the record before adopting these findings. If the District Judge chooses to adopt such findings without conducting a de novo review of the record, the parties may not attack those findings on appeal, except on the grounds of plain error. Alexander v. Verizon Wireless Servs., L.L.C., 875 F.3d 243, 248 (5th Cir. 2017). Signed on November 21, 2025. Karen Betancourt United States Magistrate Judge Case 1:25-cv-00194 Document 10 Filed 11/21/25 in TXSD Page 7 of 7
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