from the United States District Court for the Southern
District of Florida D.C. Docket Nos. 1:10-cv-22190-JLK;
TJOFLAT, JULIE CARNES, and MELLOY, Circuit Judges.[*]
MELLOY, Circuit Judge:
Defendant RBC Bank (USA) ("RBC") appeals the
district court's denial of a motion to compel
arbitration. We affirm, albeit for reasons different than
those cited by the district court.
Dasher held a checking account with RBC and used a debit card
for that account. Dasher asserts RBC failed to properly warn
him of possible overdrafts at points of sale when he used his
debit card. He also asserts RBC impermissibly rearranged the
order of debit-card transactions so as to process larger
transactions before smaller transactions. Through this
practice, RBC more quickly drove account balances to zero,
thus maximizing the number of separate overdrafts. RBC
charged a fee for each overdraft regardless of the size of
the overdraft. By rearranging transactions in a manner that
maximized the number of separate overdrafts, RBC maximized
total fees charged to Dasher.
and other account holders sued RBC, and the present case
became part of the Checking Account Overdraft Litigation, MDL
No. 2036. RBC moved to compel arbitration, seeking to invoke
an arbitration provision in a 2008 customer account
agreement. The district court denied the motion. See In
re Checking Account Overdraft Litig., No.
09-MD-02036-JLK, 2010 WL 3361127 (S.D. Fla. Aug 23, 2010).
RBC appealed. While the appeal was pending, the Supreme Court
decided AT&T Mobility LLC v. Concepcion, 563
U.S. 333 (2011). Perceiving the possible applicability of
Concepcion, the parties moved to vacate and remand
for reconsideration. The Eleventh Circuit granted the motion.
See In re Checking Account Overdraft Litig., 425
Fed.Appx. 826 (11th Cir. 2011) (per curiam).
the district court, the parties conducted limited discovery
related to the issue of arbitration. Discovery revealed PNC
Bank, N.A. ("PNC") had acquired RBC and had issued
a new version of its customer-account agreements in
2012. In doing so, PNC relied upon provisions in
the 2008 agreement authorizing RBC's successors to step
into RBC's shoes and also authorizing RBC to make changes
to the terms of the agreement. PNC's 2012 agreement
lacked an arbitration provision. The 2012 agreement purported
to become binding and effective upon account holders who
continued to use their accounts without opting out. Dasher
did not opt out of the 2012 agreement.
renewed the RBC motion to compel arbitration, arguing the
2008 agreement and its arbitration provision should apply.
Dasher resisted, arguing PNC's more recent 2012 agreement
wholly superseded the 2008 agreement, thus leaving the
parties without a contractual duty to arbitrate. On January
11, 2013, the district court issued a written order agreeing
with Dasher and denying the motion to compel. In re
Checking Account Overdraft Litig., 915 F.Supp.2d 1334
(S.D. Fla. 2013). PNC filed a notice of appeal that same day.
after the district court entered its order, PNC sent account
holders an amended agreement inserting an arbitration
provision into the otherwise operative 2012 agreement. The
amendment purported to become effective February 1, 2013. The
arbitration provision of the February 2013 amendment is not a
model of clarity, but it contains language suggesting it
might have retroactive effect upon existing claims. The
February 2013 amendment indicates PNC deems account holders
to accept the amendment if the account holders fail to opt
out and continue to use their accounts. Dasher neither opted
out nor ceased using his account.
parties then briefed and argued their appeal from the
district court's January 2013 order. We affirmed the
judgment of the district court on February 10, 2014,
concluding the 2012 agreement wholly superseded the 2008
agreement, thus leaving the parties without a current duty to
arbitrate. See Dasher v. RBC Bank (USA), 745 F.3d
1111, 1127 (11th Cir. 2014). PNC filed a motion for
reconsideration on February 28, 2014. In that motion, PNC
argued "the logic of the Panel Opinion" showed that
"if PNC amended its account agreement to include an
arbitration provision (which it did beginning in February
2013), Plaintiffs must arbitrate their claims, because the
most-current version of the agreement 'supersedes'
any prior agreement." We denied the motion for
reconsideration on March 27, 2014.
April 1, 2014, PNC filed a motion to stay the mandate pending
pursuit of a writ of certiorari in the Supreme Court. We
granted the stay, PNC unsuccessfully sought review in the
Supreme Court, and our Court issued the mandate on October
20, 2014. On November 10, 2014, pursuant to an October 29,
2014 scheduling order, Dasher filed an amended consolidated
complaint in the district court.
on December 5, 2014, PNC moved to compel arbitration based
upon the February 2013 amendment to the 2012 agreement. Prior
to this motion, and throughout the lengthy appeal from the
January 2013 order, PNC had not sought to enforce the
arbitration provision from the February 2013 amendment.
Further, PNC did not suggest it had directed the February
2013 amendment to Dasher's counsel in February 2013
during the window of time PNC designated for its account
holders to accept or opt out of the proposed amendment.
Similarly, PNC did not suggest it directed the proposed
amendment to the attention of the court at that time. In
fact, PNC does not suggest it attempted to supplement any
record or notify the court or opposing counsel other than
through the above-quoted and oblique parenthetical reference
contained in the February 2014 motion for reconsideration.
resisted the new motion to compel arbitration, arguing PNC
had waived the right to rely upon the arbitration provision
in the February 2013 amendment by failing to raise it at an
earlier time. Dasher characterized the timing of the 2013
amendment and PNC's earlier failure to alert counsel and
the court of the amendment as strategic ploys. PNC, on the
other hand, argued the amendment was unrelated to
Dasher's litigation and was merely a change to a standard
form agreement sent to account holders as a matter of routine
business. PNC argued further that waiver should not apply
because the district court record had closed prior to the
February 2013 amendment such that the amendment could not
have become part of the appellate record. According to PNC,
there was no opportunity to raise the February 2013 amendment
with the court prior to completion of the last appeal. The
parties also presented arguments as to whether applicable
state law permitted the insertion of an arbitration provision
into an agreement in the absence of express acceptance by
district court denied the motion in August 2015, finding PNC
waived the right to pursue arbitration under the 2013
amendment because PNC (1) did not create the amendment until
almost three years after litigation commenced; (2) failed to
assert the amendment for almost two years after it
purportedly went into effect; and (3) vigorously pursued
arbitration under a different provision throughout this time
without seeking to rely on the 2013 amendment and without
timely notifying counsel or the court of the amendment. In
the alternative, citing cases arising under the Uniform
Commercial Code, the district court held the addition of an