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Krinsk v. SunTrust Banks, Inc. - 654 F.3d 1194 (11th Cir. 2011)


Although, under the Federal Rules of Civil Procedure, an amended complaint supersedes the initial complaint and becomes the operative pleading in the case, the filing of an amended complaint does not automatically revive all defenses or objections that the defendant may have waived in response to the initial complaint. The filing of an amended complaint will not revive the right to present by motion defenses that were available but were not asserted in timely fashion prior to the amendment of the pleading. However, the defendant will be allowed to plead anew in response to an amended complaint, as if it were the initial complaint, when the amended complaint changes the theory or scope of the case. It simply would be unfair to allow the plaintiff to change the scope of the case without granting the defendant an opportunity to respond anew.


Krinsk applied for a home loan with Defendant SunTrust Bank (“SunTrust”). Events that followed led to Krinsk filing a class-action complaint for: (1) financial elder abuse under Florida's Adult Protective Services Act; (2) breach of contract; (3) deceit; (4) negligent misrepresentation; (5) breach of fiduciary duty; (6) violation of Regulation Z of the Truth in Lending Act ("TILA"); and (7) breach of the implied covenant of good faith and fair dealing. SunTrust filed a motion to compel plaintiff Krinsk to submit her claims to arbitration pursuant to an arbitration agreement governed by the Federal Arbitration Act (“FAA”). The district court denied the motion and held that SunTrust had, by participating in the litigation for nine months prior to requesting that the case be submitted to arbitration, waived its contractual right to compel arbitration. In its appeal, SunTrust argues that Krinsk's submission of an amended complaint revived its right to compel arbitration, notwithstanding its previous waiver of that right.


Did Krinsk's submission of an amended complaint revive SunTrust Bank’s right to compel arbitration, notwithstanding its previous waiver of that right?




The court concluded that this case presented one of those limited circumstances, and that the SunTrust Bank's right to compel arbitration was therefore revived. Although the amended complaint did merely assert new claims based on the same operative facts as the claims in the original complaint, the amended complaint was by no means "immaterial." The amended complaint greatly broadened the potential scope of the litigation by opening the door to thousands—if not tens of thousands—of new class plaintiffs. SunTrust Bank could not have foreseen that Krinsk would expand the putative class in such a broad way nine months into the litigation. Given that unforeseen alteration in the shape of the case, the bank, in plain fairness, should have been allowed to rescind its earlier waiver through its prompt motion to compel arbitration.

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