On January 17, 2013, the US Court of Appeals for the Ninth Circuit issued an opinion in Faulkner v. ADT Security Services holding that a state-court complaint may be dismissed after removal for failure to meet federal pleading standards.

John Faulkner brought a putative class action against ADT Security Services (ADT) in California state court claiming that ADT recorded his telephone conversations with an ADT representative without Faulkner's consent in violation of California's invasion of privacy law. ADT later removed the case to federal court on diversity grounds.

After removing the case, ADT moved to dismiss for failure to state a claim under FRCP 12(b)(6). The district court granted ADT's motion and dismissed Faulkner's complaint.

The Ninth Circuit affirmed the district court's decision, holding that Faulkner's complaint failed to meet the heightened federal pleading standard set out in Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly. Under the standard articulated by Iqbal and Twombly, a complaint must allege "enough facts to state a claim to relief that is plausible on its face" to survive a motion to dismiss.

The Ninth Circuit further noted that federal (not state) pleading standards apply to state-court complaints after removal, despite the fact that the plaintiff's complaint was originally filed in state court. However, out of an "overabundance of caution" the Ninth Circuit remanded the case back to the federal district court to consider allowing Faulkner to amend his complaint in a manner that would satisfy federal pleading standards.

Faulkner reinforces the importance of taking the potentially more stringent federal pleading standards into consideration when drafting a state-court complaint if counsel thinks the case could be removed to federal court. Alternatively, when faced with a motion to dismiss after removal, plaintiff's counsel may want to take the initiative and file an amended complaint that conforms to the pleading standards set out in Iqbal and Twombly.