21-2603-cv (L)
Behrens v. JPMorgan Chase Bank, N.A.


                                               IN THE
                   UNITED STATES COURT OF APPEALS
                       FOR THE SECOND CIRCUIT
                                       ____________________

                                         August Term, 2023
                                       Argued: October 4, 2023
                                       Decided: March 13, 2024

 Nos. 21-2603-cv (L), 21-2651-cv (XAP), 21-2660-cv (XAP), 21-2661-cv (XAP), 21-
                                  2662-cv (XAP)
                             ____________________

 BRUCE BEHRENS, KATHLEEN BEHRENS, DAVID SCHEFFERT, SHERRI SCHEFFERT, and
 RICHARD WAKEFORD, on behalf of themselves and all others similarly situated,

                                               Plaintiffs-Appellants-Cross-Appellees,

                                                 v.

     JPMORGAN CHASE BANK, N.A., U.S. BANK, N.A., CHICAGO MERCANTILE
  EXCHANGE, INC., THE CME GROUP, INC., and NATIONAL FUTURES ASSOCIATION,

                                               Defendants-Appellees-Cross-Appellants,

     MILLENNIUM TRUST CO., a.k.a. Millennium Trust Co. LLC, PAUL THOMAS,
                RUSSELL WASENDORF, JR., and PERRY COMEAU,

                                               Defendants-Appellees,

 STEVE BREWER, a.k.a. Steven John Brewer, GARLON MAXWELL, AMBER MAXWELL,
                     RUSSELL WASENDORF, and DOES #1-40,
                                       Defendants. *
                                ____________________

Before: JACOBS, WESLEY and ROBINSON, Circuit Judges.

        Five former customers of Peregrine Financial Group, Inc., the defunct

futures commission merchant, appeal the dismissal of their putative class action.

In a summary order published simultaneously with this opinion, we affirm the

district court’s dismissal with prejudice of all federal claims as time barred and

the dismissal of one of the Defendants. We publish this opinion to decide only

the sole issue on the cross-appeal: whether a party may compel a district court to

exercise subject-matter jurisdiction on a theory of jurisdiction that the party has

raised untimely. We hold that it may not and accordingly AFFIRM.

                                ____________________

                           SUSAN JOAN LEVY, Susan J. Levy, Esq., New York, NY,
                           for Plaintiffs-Appellants-Cross-Appellees.

                           CHRISTOPHER J. HOUPT, Mayer Brown LLP, New York,
                           NY, for Defendant-Appellee-Cross-Appellant JPMorgan
                           Chase Bank, N.A.

                           ERIC R. SHERMAN, Dorsey & Whitney LLP, Minneapolis,
                           MN, for Defendant-Appellee-Cross-Appellant U.S. Bank,
                           N.A.



*   The Clerk’s office is directed to amend the caption.
                         ABBY F. RUDZIN (Kayla N. Haran, on the brief),
                         O’Melveny & Myers LLP, New York, NY, for
                         Defendants-Appellees-Cross-Appellants Chicago
                         Mercantile Exchange, Inc. and The CME Group, Inc.

                         GREGORY M. BOYLE, Jenner & Block LLP, Chicago, IL
                         (Adam G. Unikowsky, Jenner & Block LLP,
                         Washington, DC, on the brief), for Defendant-Appellee-
                         Cross-Appellant National Futures Association.

                         MICHAEL E. GIORDANO (Samuel M. Braverman, Louis V.
                         Fasulo, on the brief), Fasulo Braverman & DiMaggio,
                         LLP, New York, NY, for Defendant-Appellee Millennium
                         Trust Co.

                         Lisa L. Shrewsberry, Traub Lieberman Straus &
                         Shrewsberry LLP, Hawthorne, NY, for Defendant-
                         Appellee Paul Thomas.

                         Julie B. Begovan, Griesing Law, LLC, Brooklyn, NY, for
                         Defendants-Appellees Russell Wasendorf, Jr., and Perry
                         Comeau.

DENNIS JACOBS, Circuit Judge:

      Five former customers (“Plaintiffs”) of Peregrine Financial Group, Inc.

(“Peregrine”), the defunct futures commission merchant, appeal the dismissal of

their putative class action by the United States District Court for the Southern

District of New York (Broderick, J.). 1 In a summary order published




1 A futures commission merchant is “the commodity market’s equivalent of a
securities brokerage house, soliciting and accepting orders for futures contracts
and accepting funds or extending credit in connection therewith.” In re
simultaneously with this opinion, we affirm the dismissal of all federal claims as

time barred (and the dismissal of one of the Defendants); this opinion decides

only the issue raised on the cross-appeal. Several Defendants, well-satisfied

with the dismissal with prejudice of the federal claims, untimely moved the

district court to reconsider the dismissal without prejudice of the analogous

state-law claims. Defendants’ motions argued for the first time that the district

court was obligated to exercise subject-matter jurisdiction over the state-law

claims pursuant to the Class Action Fairness Act (“CAFA”), 

(d);

the motions were denied. We publish this opinion to consider a question of first

impression in this Circuit: whether the existence of subject-matter jurisdiction

requires a district court to exercise it, even if it is invoked belatedly--on analogy

to the rule that a party can object to the lack of such jurisdiction “at any time.”

Lyndonville Sav. Bank & Trust Co. v. Lussier, 

, 700 (2d Cir. 2000).

We hold that a party may forfeit subject-matter jurisdiction by failing to invoke it

timely. We accordingly AFFIRM.




Amaranth Nat. Gas Commodities Litig., 

 (2d Cir. 2013) (citation
omitted); see also 7 U.S.C. § 1a(28).


                                           4
                                           I.

                                           A.

        We accept all factual allegations in the complaint as true in reviewing a

district court’s ruling on a motion to dismiss. Muto v. CBS Corp., 

 (2d Cir. 2012).

        Plaintiffs--all natives of Oelwein, Iowa--have “invest[ed] in futures and

options contracts since 2005.” 2 A205–06 (SAC ¶ 110). In 2007, Plaintiffs

transferred their assets to Peregrine, allegedly on the promise that it was a

“winning strategy,” made by investment advisers at “a local steakhouse” in

Oelwein. A222 (SAC ¶¶ 199, 201). In October 2008, during the subprime

mortgage crisis, Plaintiffs’ “entire investments were wiped out.” A206 (SAC

¶ 115). In April 2009, Plaintiffs retained counsel and pursued arbitration with

the National Futures Association. Plaintiffs viewed the arbitration as “clearly a

fraud case” and raised various claims related to violations of margin rules, but

ultimately recovered an “utterly inconsequential” award. A317 (SAC ¶ 662);

A477.



2 In citations, “A” refers to the appendix; “SA” refers to the special appendix;
and “SAC” refers to the Second Amended Complaint.


                                          5
      Plaintiffs’ claims got new wind in 2012 when Peregrine’s CEO, Russell

Wasendorf, Sr., left a confession note after attempting suicide. The note

confessed that Wasendorf had long embezzled from Peregrine’s customer

accounts and diverted some $200 million for his personal use. The confession

prompted a criminal prosecution, Peregrine’s bankruptcy, and multiple class-

action lawsuits; Plaintiffs attempted to participate in some of these actions but

received no recovery.

      On July 11, 2016, eight years after their financial losses, Plaintiffs

commenced the present action. Their complaint sketched a theory of harm that

attempted to connect their prior losses in 2008 with Wasendorf’s confession in

2012. Plaintiffs posited that, to camouflage his misappropriation scheme,

Wasendorf had to create the illusion of “legitimate trading losses,” but without

engaging in genuine trades that carried “the risk of having to satisfy

counterparty monetary obligations.” A184–85, 194 (SAC ¶¶ 12, 47). Therefore,

“reason dictates” that Wasendorf must have conducted “fictitious trades” to

“shadow trade the actual market to give the appearance to [customers] that they

lost due to real transactions,” but with the ultimate purpose “to deplete and

destroy a customer account.” A186, 189–90, 192 (SAC ¶¶ 18, 28, 37). From this

                                          6
view, Plaintiffs surmised that their 2008 losses were not caused by improper

trades that violated margin rules, but by outright “theft” disguised as “a total

trading loss.” A192–93 (SAC ¶¶ 38, 43).

                                           B.

      On March 31, 2019, the district court dismissed the federal claims 3 as

untimely with prejudice, and declined to exercise supplemental jurisdiction.

The remaining state-law claims were thus dismissed without prejudice. (With

respect to one of the Defendants, the district court separately dismissed all claims

against it pursuant to an enforceable arbitration agreement.)

      On May 16, 2019, over a month later, five Defendants (“Cross-Appealing

Defendants”) 4 filed motions for reconsideration, arguing for the first time that

the district court must exercise subject-matter jurisdiction over Plaintiffs’ state-

law claims pursuant to CAFA. It is undisputed that the motions were filed well

after the fourteen-day deadline imposed by the local rules. The district court


3Plaintiffs’ federal claims are based on alleged violations of the Commodity
Exchange Act, 7 U.S.C. §§ 1–27f, and the Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. §§ 1961–1968.
4The Cross-Appealing Defendants are Chicago Mercantile Exchange, Inc.; CME
Group, Inc.; National Futures Association; JPMorgan Chase Bank, N.A.; and U.S.
Bank, N.A.

                                          7
rejected the Cross-Defendants’ argument that jurisdictional questions are

“always ripe”; it therefore declined to consider the “untimely motions.” SA42–

43. In so holding, the district court distinguished between (i) objecting to a

federal court’s exercise of jurisdiction, which the district court understood a

party could do at any stage in the litigation, and (ii) invoking the district court’s

jurisdiction, which the district court held, in substance, can be forfeited. The

Cross-Appealing Defendants argue that the district court was obligated to

exercise CAFA jurisdiction once they raised it, citing to the general principle that

federal courts have a “virtually unflagging obligation . . . to exercise the

jurisdiction given them.” Colo. River Water Conservation Dist. v. United States,

 (1976).

      We review a district court’s decision on a motion for reconsideration for

abuse of discretion. See Shrader v. CSX Transp., Inc., 

 (2d Cir.

1995). A district court abuses its discretion when “its decision rests on an error

of law.” Zervos v. Verizon N.Y., Inc., 

, 169 (2d Cir. 2001). We

review de novo a district court’s “legal conclusion as to whether subject-matter

jurisdiction exists.” A&B Alt. Mktg. Inc. v. Int’l Quality Fruit Inc., 

,

915 (2d Cir. 2022) (citation and alteration omitted).

                                           8
                                           II.

       We consider only the question whether the Cross-Appealing Defendants

could require the district court to exercise subject-matter jurisdiction belatedly,

just as parties can successfully object to a court’s lack of such jurisdiction “at any

time,” even after a judgment or decision has been issued. Lussier, 211 F.3d at

700.

       We have yet to answer this question in a majority opinion. 5 We now hold

that a federal court’s obligation to decide and exercise jurisdiction is not

reciprocal. Specifically, while federal courts must ensure that they do not lack

subject-matter jurisdiction, even if the parties fail to identify any jurisdictional

defect, there is no corresponding obligation to find and exercise subject-matter

jurisdiction on a basis not raised by the parties. Accordingly, a party forfeits the


5 The recent concurring opinion in Abbo-Bradley v. City of Niagara Falls
addressed this question. 

, 154–56 (2d Cir. 2023) (Sullivan, J.,
concurring). Abbo-Bradley concerned the timeliness of removal, but the appeal
also raised the auxiliary issue of whether a district court “was obliged” to
consider a basis for subject-matter jurisdiction that no party had raised. 

. The concurrence concluded that “our precedents clearly support the ‘one-
way’ view of the obligation to inquire sua sponte into subject-matter
jurisdiction”--i.e., that a court needs to consider only the “potential jurisdictional
defects that the parties had failed to point out,” not the “unbriefed arguments in
support of” jurisdiction. 

.


                                           9
invocation of subject-matter jurisdiction when it fails to timely raise it.

      First, this holding accords with the general principle that federal courts are

“courts of limited jurisdiction.” Hepburn & Dundas v. Ellzey, 

(1805) (Marshall, C.J.). The consequence of exercising jurisdiction where none

exists is not the same as declining to exercise jurisdiction when a district court

has not been timely called to do so. If a federal court lacks jurisdiction, it has no

adjudicative power to hear the parties’ dispute, and any relief it grants “would

be void.” Da Silva v. Kinsho Int’l Corp., 

 (2d Cir. 2000). For

this reason, a party can challenge--“at any time”--a federal court’s prior

judgment or order for lack of subject-matter jurisdiction. Lussier, 211 F.3d at

700. No voidness concern arises when a federal court declines to exercise

jurisdiction. Putting aside the few cases of exclusive federal jurisdiction, 6 a

party deprived of its choice of federal forum can still pursue its claims in state

courts.

      Second, the idea that a party might, under some circumstances, forfeit the



6 See, e.g., Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning, 

,
376 (2016) (noting that federal courts have exclusive jurisdiction over claims
arising under the Securities Exchange Act of 1934, 15 U.S.C. § 78aa(a)).


                                          10
invocation of subject-matter jurisdiction is not novel. The familiar example is

the federal removal statute. Generally, a defendant seeking to remove a case

from state court to federal court must do so “within 30 days” of receiving the

initial pleading or upon ascertaining removability. Abbo-Bradley, 73 F.4th at

150 (majority opinion) (citing 

(b)). Some exceptions may toll

this deadline, but at some point, a defendant who fails to remove the case timely

forfeits federal jurisdiction. 

 at 150–51 (affirming the remand of an untimely-

filed notice of removal, even though the defendants raised a colorable argument

for federal-officer jurisdiction); cf. Makarova v. United States, 

(2d Cir. 2000) (holding that the party invoking a federal court’s jurisdiction “has

the burden of proving by a preponderance of the evidence that it exists”).

      Third, the distinction between challenging versus invoking subject-matter

jurisdiction is observed by the Federal Rules of Civil Procedure and by

precedents of both the Supreme Court and our Court. There is a defense of “lack

of subject-matter jurisdiction,” which can be raised at any time. Fed. R. Civ. P.

12(b)(1) (emphasis added). And a district court “must” dismiss an action

whenever it determines that it “lacks subject-matter jurisdiction.” Fed. R. Civ. P.

12(h)(3) (emphasis added). The Supreme Court has used similar wording in

                                         11
cautioning against an overreach in federal jurisdiction. See Arbaugh v. Y&H

Corp., 

 (2006) (“The objection that a federal court lacks subject-

matter jurisdiction . . . may be raised by a party, or by a court on its own

initiative, at any stage in the litigation, even after trial and the entry of

judgment.” (emphasis added)); Henderson ex rel. Henderson v. Shinseki, 

 (2011) (“[F]ederal courts have an independent obligation to ensure

that they do not exceed the scope of their jurisdiction . . . .” (emphasis added)).

      We have used the same phrasing when describing the obligation to attend

to our subject-matter jurisdiction. Lussier held it “axiomatic” that “federal

courts . . . may not decide cases over which they lack subject matter jurisdiction.”

211 F.3d at 700 (emphasis added). In Durant, Nichols, Houston, Hodgson &

Cortese-Costa P.C. v. Dupont, we held that “[i]f subject matter jurisdiction is

lacking and no party has called the matter to the court’s attention, the court has

the duty to dismiss the action sua sponte.” 

 (2d Cir. 2009)

(emphasis added); cf. Travelers Ins. Co. v. Carpenter, 

 (2d Cir.

2005) (“[W]here jurisdiction is questionable we are obliged to examine the

question sua sponte.” (emphasis added)). No case from the Supreme Court or

this Circuit stands for the converse proposition that parties can invoke jurisdiction

                                           12
at any time and oblige federal courts to ensure that they have not overlooked an

unarticulated basis for jurisdiction.

         Finally, three Courts of Appeals have upheld the “one-way” view of the

jurisdictional inquiry. The Fifth Circuit held: “[Although] we must always be

vigilant to ensure that we have subject matter jurisdiction, addressing this issue

sua sponte if need be . . . [,] this discipline is separate from our declining to

address untimely raised legal theories in support of that jurisdiction.” Ceres

Gulf v. Cooper, 

, 1207 n.16 (5th Cir. 1992) (emphasis added). The

First Circuit made the same point: “Even though federal subject-matter

jurisdiction cannot be established through waiver or estoppel, it may be defeated

by waiver or estoppel.” Sexual Minorities Uganda v. Lively, 

 (1st

Cir. 2018) (emphasis added). Likewise, the Tenth Circuit held: “Our duty to

consider unargued obstacles to subject matter jurisdiction does not affect our

discretion to decline to consider waived arguments that might have supported

such jurisdiction.” United States ex rel. Ramseyer v. Century Healthcare Corp.,

, 1518 n.2 (10th Cir. 1996), superseded by statute on other grounds as

recognized in Atlas Biologicals, Inc. v. Kutrubes, 

, 1323 (10th Cir.

2022).

                                           13
                                    *      *      *

      In summary: (i) if a party properly and timely invokes subject-matter

jurisdiction, the district court must exercise it; (ii) if no party invokes a theory of

subject-matter jurisdiction, the district court is not obligated to consider it or to

search for jurisdiction sua sponte, although it may choose to do so; and (iii) if a

party invokes subject-matter jurisdiction untimely, the district court has

discretion to consider the issue or to deem it forfeited, subject to the typical

abuse-of-discretion review. Cf. Valencia ex rel. Franco v. Lee, 

(2d Cir. 2003) (“[W]e review the district court’s decision to exercise

[supplemental jurisdiction under 

(a)] under an abuse-of-

discretion standard.”). The factors relevant to this review include, among

others, the length of the delay, the procedural posture of the case, and the

availability of an alternative forum. Cf. Nowak v. Ironworkers Loc. 6 Pension

Fund, 

, 1191 (2d Cir. 1996) (“In reviewing [a district court’s] decision

to retain [supplemental] jurisdiction [when all federal claims have been

dismissed,] we consider factors such as judicial economy, convenience, fairness,

and comity.”).

      Here, if the CAFA requirements under §§ 1332(d)(2) and (d)(5) are met and

                                           14
no exceptions to CAFA under §§ (d)(3) and (d)(4) apply, “subject matter

jurisdiction under CAFA is not discretionary.” L.S. v. Webloyalty.com, Inc., 

, 118 (2d Cir. 2020). Had jurisdiction been raised timely, the district

court would have been obligated to consider whether CAFA applies. However,

since the Cross-Appealing Defendants invoked CAFA jurisdiction untimely--

filing the motions for reconsideration over a month late, in a case in which

discovery has not yet begun, and advancing claims that the parties may continue

to litigate in state courts--we conclude that the district court was within its

discretion to decline to consider it.

      In reaching this conclusion, we can foresee that this ruling may simply

delay the inevitable--i.e., if Plaintiffs re-file their claims in state court and

Defendants remove that case to federal court, we come back to where we are.

But “subject-matter jurisdiction . . . does not entail an assessment of

convenience.” Wachovia Bank v. Schmidt, 

 (2006).

      For the foregoing reasons, and for the reasons stated in the summary order

we publish simultaneously with this opinion, we AFFIRM the district court’s




                                            15
dismissal of this action. 7




7 Plaintiffs also filed a motion to dismiss the cross-appeal (ECF Nos. 151, 157),
which was referred to the merits panel (ECF No. 177). Because we resolve the
cross-appeal on the merits, Plaintiffs’ motion is DENIED AS MOOT.


                                        16