Set Reset – Fifth Circuit Joins The Eleventh – Arbitration Rights Can Revive

In every jurisdiction in the country, the general rule is that a party to litigation waives arbitration rights by "substantially invok[ing] the judicial process to the detriment or prejudice of the other party."  Subway Equip. Leasing Corp. v. Forte, 169 F.3d 324, 328 (5th Cir. 1999).

Despite this general rule, in 2016, the Eleventh Circuit found that a defendant "did not waive the right to arbitrate the state law claims raised in the second amended complaint because those claims were not in the case when it waived by litigation the right to arbitrate the [federal] claim."  Collado v. J & G Transport, 820 F.3d 1256, 160-61 (11th Cir. 2016).  In other words, when a plaintiff amends her complaint to add distinctly new claims, a new right to compel arbitration of the new claims may accrue.