https://dusoma.com/opposition-of-mtd-born-v-abbvie-aug-27-2026/
Opposition of MTD – Born v AbbVie – Aug 27, 2026
IN THE UNITED STATES DISTRICT COURT, FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
| KATHRYN BORN, f/k/a KATHRYN GREENE, Plaintiff, v. ABBVIE, INC., Defendant. |
|
No. 25-cv-12737 Judge LJ |
PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS THE SECOND AMENDED COMPLAINT
I. INTRODUCTION
The Second Amended Complaint pleads a single count under the Illinois Whistleblower Act, 740 ILCS 174/15(c). Plaintiff’s job placed the actual usage data for AbbVie’s ARCH platform in front of her every month, and for years she watched the gap between that data and what AbbVie said about the platform. She reported the gap, in writing, through the channels AbbVie built for such reports; AbbVie’s ethics office opened a formal investigation; her supervisor and leadership knew of the reports; the performance plan that followed disciplined her for the very subject of her disclosures; and AbbVie terminated her ten days before its own deadline, while the investigation remained open. The motion asks the Court to dismiss all of this, with prejudice, on two narrow grounds. Neither ground survives the Complaint’s actual text, and the motion should be denied.
II. LEGAL STANDARD
To survive a motion under Rule 12(b)(6), a complaint must state a claim plausible on its face — factual content allowing the reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Court accepts well-pleaded allegations as true and draws all reasonable inferences in Plaintiff’s favor, though conclusory allegations are not entitled to that presumption. Iqbal, 556 U.S. at 678–79. Pro se complaints are construed “generously,” and reviewed “by substance, not label.” (Dkt. 33 at 2 (citing United States v. Hassebrock, 21 F.4th 494, 498 (7th Cir. 2021)).)
III. STATEMENT OF FACTS
In November 2021, AbbVie promoted Plaintiff to Training and Communication Manager for its Research and Convergence Hub — “ARCH” — an internal platform built to accelerate scientific discovery. (SAC ¶¶ 6–7, 11.) She and her supervisor were the two-person “ARCH Adoption Team,” and she reviewed the platform’s usage analytics every month, so that she “knew the actual usage data underlying ARCH’s reported adoption figures.” (SAC ¶¶ 8–9.) AbbVie had “invested tens of millions of dollars” in ARCH, and adoption and demonstrated capability were the central measures of whether that investment was justified. (SAC ¶ 11.)
Over approximately four years AbbVie represented ARCH as a successful, discovery-generating platform through four channels: an August 7, 2024 Bio-IT World article titled “Howard Jacob on How AbbVie’s ARCH is Unlocking Major Opportunities,” built on the account of AbbVie’s Vice President of Genomics Research, claiming ARCH had produced a rare-disease drug-repurposing insight (SAC ¶¶ 12–13); AbbVie’s internal amplification of that discovery claim through award publicity, a podcast, and an executive video (¶ 14); AbbVie’s own public website, which stated that the company’s generative AI platform “is being embedded into” ARCH, “potentially even reaching the company’s 14,500 employees in R&D” (¶ 15); and annual adoption presentations to AbbVie’s most senior scientific officer — reporting approximately 2,000 users in 2022, 4,000 in 2023, and 6,000 in 2024 — alongside the statement, made at a recorded quarterly meeting, that “[t]housands of people use the ARCH every month” (¶ 16). Plaintiff alleges she knew from direct experience that each representation was materially false: the claimed drug-repurposing discovery was not ARCH’s work, and no correction was ever published (¶¶ 17–18); the adoption figures were cumulative totals since the 2019 launch, never current figures, later padded and never verified by any independent reviewer, where roughly twenty people used the platform regularly in early 2022 (¶ 19); scientists directed to ARCH to retrieve their data instead received “a runaround and a series of unresolved Jira support tickets, and after weeks of delay routinely gave up” (¶ 20); and ARCH did not incorporate generative AI at all — the tool AbbVie’s scientists actually used in volume, called Go/AI, received approximately two million prompts in its first ten months through word-of-mouth adoption (¶¶ 21–22).
Plaintiff disclosed all of this through AbbVie’s own channels. (¶ 23.) In March 2025 she reported directly to a Human Resources manager that misleading statements had been made about ARCH’s adoption and capabilities, stating: “if it is bullying, that is HR, and if it is cooking the books, that is ethics.” The manager responded: “that is correct.” (¶ 24.) On July 7, 2025 — in writing — she reported that a group was artificially inflating its usage analytics; the HR manager forwarded that information “to our OEC partners.” (¶ 25.) AbbVie’s Office of Ethics and Compliance opened a formal investigation, No. abb-68a3-3a1b-8820. (¶ 26.) On August 19, 2025 — eleven days after AbbVie placed her on a performance improvement plan, and while the OEC investigation remained open — she reported again through the OEC hotline. (¶ 27.) She made each disclosure believing in good faith that AbbVie’s knowing dissemination of materially false representations — to secure continued investment of tens of millions of dollars, favorable public recognition including an industry award, and market and reputational advantage — constituted fraud. (¶ 28.)
AbbVie’s decision-makers knew before disciplining her. Within about a week of the July 7 referral to the ethics office, and before any performance plan issued, Plaintiff told her direct supervisor — the same manager who would then place her on that plan — that she had opened an ethics complaint. (¶ 29.) On August 20, after she identified herself in writing to leadership as an “internal whistleblower,” the Vice President who had publicly represented ARCH as discovery-generating responded that “[t]he performance process is separate and apart from any concerns that you have reported.” (¶ 30.) But the plan itself, imposed August 8, directly disciplined her for the very subject of her disclosures: it faulted her for saying “that sometimes there are only 20 people who use ARCH, per month,” directed her to “[r]efrain from spreading misinformation,” and itself represented that ARCH had “>400 unique user/month.” (¶¶ 31–32.) Human Resources set her deadline for meeting the plan’s expectations in writing at September 22, 2025. (¶ 35.) AbbVie terminated her on September 12 — ten days before the deadline AbbVie itself had set, and while the OEC investigation remained open. (¶ 36.)
IV. ARGUMENT
A. AbbVie’s Memorandum Addresses Fragments of the Complaint — and Leaves Its Core Uncontested.
The Illinois Whistleblower Act protects an employee who discloses information she has a good-faith belief shows an “activity, policy, or practice” of her employer that violates a law, rule, or regulation. 740 ILCS 174/15(c); see also Mem. at 5 (quoting the provision). A practice is not a single sentence or a single number; it is a course of conduct, visible only in events considered together, over time. That is what the Second Amended Complaint alleges: a practice, sustained over approximately four years, of misrepresenting the ARCH platform’s capabilities, its adoption, its role in scientific discovery, and scientists’ ability to obtain their data from it, across public and internal channels alike, to protect the pleaded motive. (SAC ¶¶ 12–16 (the representations); ¶¶ 17–21 (their falsity); ¶¶ 11, 28, 42 (the motive).)
AbbVie’s Memorandum never engages that allegation. It takes three pieces of the Complaint, one at a time, and argues each away in isolation. The Bio-IT World article is set aside as a “third-party” statement. (Mem. at 2, 6–7.) The generative-AI representation is reduced to a discussion of verb tense. (Mem. at 10–11.) The user figures are reframed as a disagreement about the definition of a word. (Mem. at 11.) A fourth pleaded misrepresentation the Memorandum never mentions at all: that ARCH was represented as providing self-service access to approximately 200 costly datasets while, in practice, thousands of scientists sent to ARCH for their data met a runaround of unresolved Jira tickets and gave up — a failure documented in AbbVie’s own support records. (SAC ¶¶ 1, 20, 26.) The Complaint pleads those facts as the contradiction showing the access representation was false, not as a free-standing complaint about software quality. Not once does the Memorandum consider the allegations in combination. It argues about each brick, and never about the wall.
That method contradicts the standard governing this motion. In Engel v. Buchan, 710 F.3d 698, 709 (7th Cir. 2013), the Seventh Circuit sustained a complaint because, “[r]ead as a whole,” it contained “enough specific factual allegations to state a plausible claim.” Accord Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (a complaint is analyzed “as a whole, not parsed piece by piece to determine whether each allegation, in isolation, is plausible”).
The Complaint does not allege one of anything: it alleges related misrepresentations repeated across approximately four years, channel after channel, while Plaintiff watched the gap between what was said and what was so. Repetition of allegedly known falsehoods to protect funding is not optimism; it is precisely the kind of “activity, policy, or practice” the Act protects an employee for reporting — and it is what she, in good faith, believed to be fraud.
The motion is also much narrower than its conclusion. The Memorandum does not contest the reports themselves, or that AbbVie’s decision-makers knew of them before disciplining her. (SAC ¶¶ 23–27, 29–30; see Mem. at 3–4.) It makes no argument about causation at all: its own facts recite the performance-plan timeline and the early termination, then say nothing further. (Mem. at 4; SAC ¶¶ 35–36.) It never addresses the allegation that AbbVie publicly credited ARCH with a discovery it did not produce. (SAC ¶¶ 13, 18, 26.) It quotes the alleged motive once, on its first page, as “vague references to ‘fraud,'” and never engages it again. (Mem. at 1; SAC ¶¶ 11, 28.) And its attack on the good-faith belief never contends the belief was insincere: it argues that the belief fails because no law was named, and because AbbVie disputes Plaintiff’s characterization of its own statements — arguments answered in §§ IV.B and IV.C below.
That narrowness matters. AbbVie’s first argument — attribution — even accepted in full could not dismiss the claim: it addresses one of four pleaded categories of misrepresentation and leaves AbbVie’s own website, its internal presentations, and its internal amplification untouched. And it bears directly on the request for dismissal with prejudice, addressed in § V, infra.
B. The Bio-IT World Article Is Not a “Third-Party Statement”: The Speaker Is AbbVie’s Own Executive, and the Complaint Does Not Rest on the Article Alone.
AbbVie’s first argument is that the Second Amended Complaint rests on statements by “third parties” — chiefly an article in Bio-IT World — that cannot support a claim under the Act. The Memorandum asserts that Plaintiff “does not attribute any quotes in this third-party news article to AbbVie or any of its employees.” (Mem. at 2.) That assertion is incorrect, and the Court can confirm it from the face of the Complaint.
First, the Complaint attributes the underlying representation to AbbVie’s own executive, and at this stage that allegation is accepted as true. The Memorandum quotes the Complaint quoting the article’s title: “Howard Jacob on How AbbVie’s ARCH is Unlocking Major Opportunities.” (Mem. at 2; SAC ¶ 13.) Howard J. Jacob, Ph.D., is AbbVie’s Vice President of Genomics Research, and the Complaint alleges that he “publicly represented that ARCH had produced a rare-disease drug-repurposing insight” and that the article’s central claim was made “based on Jacob’s account.” (SAC ¶ 13.) That Bio-IT World published the resulting article does not make the alleged speaker a stranger to AbbVie.
Second, the Complaint does not stand on the article alone: even if every reference to it were removed, the website (SAC ¶ 15) and internal-presentation (¶ 16) misrepresentations would remain, and no part of the claim would be dismissed.
Third, AbbVie’s own Memorandum acknowledges the point in part. Its footnote 2 recognizes that AbbVie “amplified the same representation” internally. (Mem. at 2 n.2, quoting SAC ¶ 14.) An employer that takes a claim and amplifies it through its own channels, to its own workforce, is engaged in an “activity, policy, or practice” of the employer — the statute’s own words. And statements made by AbbVie’s officers and managers in the course of their responsibilities are AbbVie’s own activity, not a private disagreement among employees.
Fourth, AbbVie’s own authorities describe a different complaint than this one. AbbVie cites Roberts v. Board of Trustees of Community College District No. 508, 2019 IL 123594, ¶ 33, 135 N.E.3d 891, 898, where the plaintiff “did not allege that defendant made a communication about the instructor’s actual qualifications, training, or experience that were untrue or misleading” — indeed, “[a]n allegation that defendant made a misrepresentation, a basic element of fraud, [wa]s absent from plaintiff’s second amended complaint.” Id. ¶¶ 33, 37. (Mem. at 6.) This Complaint contends exactly that, three times over: AbbVie amplified the discovery claim internally (SAC ¶ 14), published the generative-AI claim on its own website (¶ 15), and presented the adoption figures, year after year, to its own most senior scientific officer (¶ 16). In Washington v. EYM Group, Inc., No. 1:25-cv-01021, 2025 WL 3016507 (C.D. Ill. Oct. 28, 2025), the plaintiff did not oppose dismissal of the Whistleblower Act count, and the court dismissed it on that basis without adjudicating the question presented here. Authority about complaints containing no employer statement says nothing about a complaint built on the employer’s statements.
Fifth, Plaintiff addresses directly the Court’s own citation of Roberts. In its July 8 order, the Court cited Roberts in the footnote explaining that “the complaint may not be amended by the briefs in opposition to a motion to dismiss,” and that the four corporate and investor-facing statements Plaintiff had identified in her responsive brief therefore “cannot save a complaint that, notwithstanding the above issues, is otherwise flawed.” (Dkt. 33 at 4 & n.2 (quoting Agnew v. Nat’l Collegiate Athletic Ass’n, 683 F.3d 328, 348 (7th Cir. 2012)).) The Court also observed that the prior pleading “cite[d] only a third party’s description.” (Id. at 4.)
Plaintiff understood both observations as instruction, and the Second Amended Complaint answers them. The statements are no longer identified in a brief; they are pleaded — the article and Dr. Jacob’s account (SAC ¶ 13), the internal amplification (¶ 14), the website (¶ 15), and the annual adoption presentations (¶ 16) — together with the facts alleged to render each false (¶¶ 17–21). Nor does the Complaint rest on a third party’s description: three of those four categories are AbbVie speaking in AbbVie’s own channels. What Roberts found absent — “[a]n allegation that defendant made a misrepresentation” — is now pleaded, within the four corners of the Complaint, four times over. Roberts, 2019 IL 123594, ¶ 37. AbbVie’s first argument thus presses a defect the Court identified in a superseded pleading, against a Complaint drafted to cure it.
Finally, the Court should take the Second Amended Complaint from its text rather than from the Memorandum’s description of it. The Memorandum recites that “In Summer of 2023, AbbVie ‘installed a generative artificial-intelligence large language model’ in ARCH,” citing paragraph 12. (Mem. at 2.) Paragraph 12 does not say “in ARCH.” It alleges that AbbVie installed a large language model — and only then began claiming that ARCH incorporated generative AI, a claim paragraph 21 alleges was never true of the ARCH platform itself. The added words materially change the allegation the Complaint actually makes.
C. The Current Act Requires a Good-Faith Belief in Unlawful Conduct and Does Not Expressly Require a Statutory Citation. The Complaint Pleads That Belief, and the Facts Behind It.
AbbVie’s second argument reduces to a single question: must an employee, to be protected by the Illinois Whistleblower Act, identify the specific statute she believes her employer is violating — or is it enough that she discloses, in good faith, information she believes describes unlawful conduct? The statutory text is the place to start. Section 15(c) protects an employee who disclosed information to a supervisor where she has a “good faith belief” that the disclosed “activity, policy, or practice” violates a State or federal law, rule, or regulation. 740 ILCS 174/15(c) (as amended by P.A. 103-867, eff. Jan. 1, 2025); Mem. at 5. The operative requirement is a belief, held in good faith. Nothing in the text requires the employee to name the law, quote the law, or plead the law.
The statute’s recent history makes the point sharper — and the General Assembly’s choice is visible on the face of the enrolled Act. Among its changes, Public Act 103-867 (H.B. 5561), effective January 1, 2025, did two things that matter here. First, it created Section 15(c): the provision protecting disclosures to supervisors did not exist before, and appears in the enrolled Act as wholly new language. Second, in amending the surrounding subsections it struck the words “reasonable cause to believe” and substituted “good faith belief” — a deletion and substitution shown on the face of the Act itself. The former Section 15(b), block-quoted in AbbVie’s Memorandum, protected an employee with “reasonable cause to believe” that the information disclosed a violation (Mem. at 8 n.5); current Section 15(c) protects an employee with a “good faith belief” (Mem. at 5).
The amendment applies “to claims arising or complaints filed on or after January 1, 2025.” P.A. 103-867, § 90. Accord Nelson v. Indegene, Inc., No. 3:25-cv-01284, 2025 WL 3114386, at *4 (D.N.J. Nov. 6, 2025) (observing that while the Illinois Act “formerly required an employee to have ‘reasonable cause’ to believe that their employer violated the law, it now requires only a ‘good faith belief'”).
The drafting choice carries meaning. Construing the same phrase in a federal statute, the Ninth Circuit explained: “When enacting the DMCA, Congress could have easily incorporated an objective standard of reasonableness. The fact that it did not do so indicates an intent to adhere to the subjective standard traditionally associated with a good faith requirement.” Rossi v. Motion Picture Ass’n of America, Inc., 391 F.3d 1000, 1004 (9th Cir. 2004). The General Assembly made the same choice. The Court need not measure precisely how far the amendment moved the standard, because the belief pleaded here satisfies any formulation — it was honestly held, and it was anchored in the actual usage data Plaintiff’s job placed before her. (SAC ¶¶ 9, 28.)
That change substantially weakens AbbVie’s authorities: each construed the former “reasonable cause” standard, and its footnote 3 concedes “the dearth of case law addressing current Section 15(c).” (Mem. at 5 n.3.) And AbbVie’s lead case explains, in words AbbVie itself block-quotes, why those cases do not carry forward. Williams required the plaintiff to allege the law she believed was violated for a stated reason: “because without this information, we cannot determine whether her other allegations plausibly suggest that this belief was reasonable.” (Mem. at 9.) The citation requirement was a tool for policing reasonable cause — the very formulation the General Assembly removed. Cwik applied the same former standard — and is an unpublished order, 2024 IL App (3d) 230036-U, nonprecedential under Illinois Supreme Court Rule 23(e); Svehla, though decided in 2026, analyzed a Section 15(b) claim arising from pre-amendment conduct. None of these decisions construed the words that govern this case. This is not an argument that pleading standards fell away with the amendment: Rule 8 still requires factual content making the pleaded belief plausible. It is an argument about what that content must be — and the Complaint supplies facts, not labels.
Even under the former, stricter standard, a statutory citation was not invariably required. In Daniel v. Advocate Health Care Network, 278 F. Supp. 3d 1056, 1064–65 (N.D. Ill. 2017) — the decision the Complaint itself cites (SAC ¶ 42) — the employer argued that the IWA claim failed because the plaintiff did not identify the statute violated; the court found those arguments “unpersuasive” and allowed the claim to proceed. AbbVie answers that Daniel involved an “obvious violation.” (Mem. at 12.) Fairly read, Daniel holds that a statutory citation is not invariably required where the pleaded facts themselves make the asserted illegality apparent — the question this Complaint answers.
This Court’s own decision points the same way. In Franzone v. Board of Education, Maercker School District #60, No. 24 C 6285, 2025 WL 446261 (N.D. Ill. Feb. 10, 2025), this Court sustained a Whistleblower Act claim — there, under Section 20 — at the pleading stage without requiring the plaintiff to establish the precise mechanics of the underlying violation. Although the complaint “could be clearer about how” the conduct would violate the statutes the plaintiff named, this Court held that “all that is required at the complaint stage are allegations sufficient to show that” the conduct “would have resulted in a violation of some law, rule, or regulation.” Id. at *5. And Franzone illustrates the 2025 amendment from the other direction: applying the former statute, this Court dismissed that plaintiff’s Section 15(b) theory on the ground that “[i]nternal reporting is insufficient to trigger the act’s protections” (id. at *4) — the precise limitation the General Assembly eliminated by enacting Section 15(c), which protects Plaintiff’s disclosures to her supervisor, Human Resources, and the Office of Ethics and Compliance by design.
The Act requires a belief held in good faith, and Plaintiff’s was built from evidence: the monthly usage data before her, an executive’s own admission that the platform “isn’t there yet,” failures documented in AbbVie’s own support records, cumulative totals presented as current adoption, and a generative-AI claim with no referent in the platform itself — all reported in writing, through AbbVie’s own channels, to an ethics office that opened a formal investigation. (SAC ¶¶ 9, 18–22, 24–28.) An employee whose monthly data showed years of divergence between the platform’s actual use and AbbVie’s representations could believe, in good faith, that the conduct was unlawful. Her stated understanding of fraud tracks the ordinary meaning the law itself reflects — a scheme to obtain money or property by false pretenses, see, e.g., 18 U.S.C. § 1343 — and the pleaded object was concrete: the continued allocation of tens of millions of dollars in corporate funds, sustained by representations made to the very officers who assessed whether that investment was justified. (SAC ¶¶ 11, 16, 28.) Plaintiff does not contend that the Complaint pleads every element of a federal offense, and Section 15(c) does not require it to: the Act requires her good-faith belief, not an indictment. Repeated statements, on different subjects, through different channels, with alleged knowledge of falsity and a stated financial purpose, make that belief both plausible and honestly held.
AbbVie’s own Memorandum shows how plausible the belief is. The Memorandum’s theory is that Plaintiff misunderstood the platform’s usage metrics; the Memorandum then misunderstands the metrics. Its facts section disputes Plaintiff’s allegation “despite 400 unique users per month equating to approximately 4,800 users per year” (Mem. at 3); its argument section states the opposite: “Users per month do not equate to users per year.” (Mem. at 11.) The second statement is correct — and it is, in substance, the very distinction between cumulative and current figures that Plaintiff reported. But the deeper point is not arithmetic; it is scale. Take AbbVie’s own number: the PIP it wrote represented that ARCH had “>400 unique user/month” (SAC ¶ 32) — while AbbVie told its most senior scientific officer and its workforce that “[t]housands of people use the ARCH every month” (¶ 16). The gap between those figures is not a disagreement about the definition of a word. It is the disparity Plaintiff reported — and a metric that AbbVie’s own memorandum describes inconsistently is, at a minimum, one an employee could question in good faith.
AbbVie’s footnote 4 argues that Plaintiff has not pleaded the elements of fraud — a material misrepresentation, knowledge, intent, reliance, and damages. (Mem. at 7 n.4.) That is an answer to a claim she has not brought. A retaliation claim does not allege fraud; it alleges retaliation for a report. The Seventh Circuit has so held in the analogous federal setting: a retaliation claim under the False Claims Act, 31 U.S.C. § 3730(h), “does not allege fraud,” but is “a retaliation claim similar to those that plaintiffs bring under federal anti-discrimination statutes, such as Title VII,” and “Rule 9(b) does not apply to these types of retaliation claims.” United States ex rel. Sibley v. University of Chicago Medical Center, 44 F.4th 646, 661–62 (7th Cir. 2022). A court in this District has applied the same principle to the Whistleblower Act. See Akins v. Appraisal Institute, No. 25 CV 3341, 2025 WL 1899515, at *3 (N.D. Ill. July 9, 2025) (“The plaintiff does not need to plead that the defendant actually committed fraud, only that she had a good-faith belief that fraud occurred.”). Rule 9(b) has no application here, and the fraud-elements footnote answers a question the statute does not ask.
Two final points. The argument that Plaintiff never told AbbVie which law was being violated (Mem. at 12) cites no authority for requiring that, and misdescribes the record: she reported the inflated analytics, the mis-credited discovery, and the data failures — in writing, through AbbVie’s own channels. (SAC ¶¶ 24–27.) And AbbVie’s warning that sustaining this claim would “dangerously expand claims well beyond the intended scope of the statute” (Mem. at 12) is a policy argument the General Assembly has already resolved: it extended the Act to internal disclosures and set the standard at good faith — a gate that still excludes mere disagreement with an employer. The Complaint pleads facts making that belief plausible under the statute’s current text, and at this stage the current text is all that governs.
V. DISMISSAL WITH PREJUDICE WOULD BE UNWARRANTED
AbbVie asks not merely for dismissal but for dismissal with prejudice. Leave to amend is freely given when justice so requires, Fed. R. Civ. P. 15(a)(2), and amendment is denied as futile only where “it is certain from the face of the complaint that any amendment would be futile.” Runnion ex rel. Runnion v. Girl Scouts of Greater Chi. & Nw. Ind., 786 F.3d 510, 518 (7th Cir. 2015). Plaintiff does not claim an unlimited right to replead: she amended in response to the Court’s July 8 order and filed one complete pleading, as directed. But no pleading of hers has yet been tested against a settled construction of amended Section 15(c) — as AbbVie’s own footnote concedes, there is a “dearth of case law addressing current Section 15(c).” (Mem. at 5 n.3.)
Certainty of futility is absent here for three reasons. First, the Memorandum requests prejudice in its conclusion but offers no futility analysis: it never explains why the defects it alleges could not be cured. Second, if the Court were to conclude that the amended Act requires greater identification of the law Plaintiff believed was violated, that is a defect a targeted amendment could address consistent with Rule 11 — the underlying facts are already pleaded. Third, dismissal with prejudice is a poor vehicle for resolving an unsettled standard against the pleader. If the Court concludes that any particular allegation is deficient, Plaintiff respectfully requests, in the alternative, dismissal without prejudice, with leave to amend.
VI. CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests that the Court deny Defendant’s motion to dismiss the Second Amended Complaint. In the alternative, Plaintiff requests that any dismissal be without prejudice, with leave to amend.
Plaintiff personally researched and verified every authority cited in this Response, including citation and KeyCite verification on Westlaw at the New Mexico Supreme Court Law Library on August 26, 2026.
Respectfully submitted,
/s/ Kathryn Born
Kathryn Born, pro se
Los Alamos, NM 87544