The question on appeal is whether the Barton doctrine bars the bringing of this action in the federal district court against a bankruptcy trustee without the prior permission of the bankruptcy court. The district court dismissed the complaint for lack of subject-matter jurisdiction, and we affirm.
FACTS
The following facts, except a few that are undisputed, are all alleged in Mura-tore’s amended complaint. Plaintiff-appellant, Joseph R. Muratore, Sr. owned and controlled Columbus Mortgage Company, Inc. (Referred to herein as the “debtor”). On February 15, 1991, the debtor filed a voluntary petition for reorganization under Chapter 11 of the Bankruptcy Code. On December 23, 1991, the bankruptcy court granted the U.S. Trustee’s application to employ defendant-appellee, Stephen Darr, as trustee. On July 18, 1996, the bankruptcy court entered an order confirming the Plan of Reorganization. Approximately four years later, the bankruptcy court entered orders granting Darr’s application for final decree and approving his application for final compensation. Muratore filed objections to these applications, which the bankruptcy court considered and denied. Muratore did not appeal. The bankruptcy court closed the case on November 9, 2000.
In September of 2002, Muratore brought the instant lawsuit against Darr, in Darr’s capacity as trustee, in the United States District Court for the District of Rhode Island.
On September 30, 2002, apparently without relation to Muratore’s present action, the bankruptcy court reopened the bankruptcy proceedings, and they were still open on October 18, 2002 when Muratore amended his complaint herein. 1
In Count I of his amended complaint, Muratore alleged that Darr “did not faithfully perform the duties of his office and committed acts of misfeasance [and/or] malfeasance in the performance of his duties in that ... ”:
1. he did not pay taxes and, as a result, lost six properties at tax sale;
2. he defectively sold at a foreclosure rental properties, generating three additional law suits;
3. he defectively sold at a foreclosure income properties, generating three additional law suits;
4. he failed to file corporate returns, resulting in forfeiture of charter and causing real estate to revert to stockholders;
5. he failed to file tax returns to the Rhode Island Tax Administrator, resulting in the denial of issuance of letters of good standing, causing defective titles and defeating transfer of titles; and
6. purchases of some properties were procured with funds from the Gam-bino family in violation of 18 U.S.C. § 1956.
In Count II, Muratore alleged that Darr committed abuse of process by committing waste so egregious that his advisors and/or employees used Chapter 11 protection procedures to put Muratore out of business *143 rather than to assist in reorganizing Mura-tore’s business. He further alleged that “such use of his [Darr’s] powers constitutes use of judicial appointment and proceedings in bankruptcy for an ulterior purpose, to wit, to make it impossible for Muratore to conduct business and to earn a living from his business.” In Count III, Muratore alleged that Darr was negligent because he breached his duty to protect the assets of the trust and to serve the trust with diligence. In Count IV, Mura-tore alleged that the purchase of certain trust property was financed either directly or indirectly by funds obtained from the illegal interests and enterprises of a notorious crime family in violation of 18 U.S.C. § 1956.
Muratore neither obtained leave of the bankruptcy court nor sought bankruptcy court authority before commencing this lawsuit in the district court. Citing Mura-tore’s failure to obtain such authority, Darr moved to dismiss the complaint for lack of subject-matter jurisdiction. The district court allowed the motion. Mura-tore appeals from the dismissal.
Discussion
“We review ‘the grant of a motion to dismiss de novo, taking the allegations in the complaint as true and making all reasonable inferences in favor of plaintiff.’ ”
Doran v. Mass. Tpk. Auth.,
In
Barton v. Barbour,
the Supreme Court ruled that the common law barred suits against receivers in courts other than the court charged with the administration of the estate.
So, in cases of bankruptcy, many incidental questions arise in the course of administering the ' bankrupt estate, which would ordinarily be pure cases at law, and in respect of their facts triable by jury, but, as belonging to the bankruptcy proceedings, they become cases over which the bankruptcy court, which acts as a court of equity, exercises exclusive control.
Id.
at 134;
see also Katchen v. Landy,
A limited exception to the rule announced in
Barton
was codified in 28 U.S.C. § 959(a).
See, e.g., Allard v. Weitzman (In re DeLorean Motor Co.),
[tjrustees, receivers or managers of any property, including debtors in possession, may be sued, without leave of the court appointing them, with respect to any of their acts or transactions in carrying on business connected with such property. Such actions shall be subject to the general equity power of such court so far as the same may be neces *144 sary to the ends of justice, but this shall not deprive a litigant of his right to trial by jury. ■ ' ■
Muratore argues that section 959(a) applies here. In considering this argument, we must ascertain whether Muratore’s claims apply to the trustee’s “acts or transactions in carrying on business connected with” the bankruptcy estate.
There is little First Circuit case law on this issue, but courts elsewhere have interpreted “acts or transactions in carrying on business connected with” the bankruptcy estate to mean acts or transactions in conducting the debtor’s business in the ordinary sense of the words or in pursuing that business as an operating enterprise.
See, e.g., Melvin v. Klein,
For example, section 959(a) applied where a trustee continued the business of a debtor in operating a railroad, and the trustee had been sued in his representative capacity for damages for use of another’s tracks,
Thompson v. Texas Mexican Ry. Co.,
On the .other hand, courts have concluded that merely holding and collecting the assets intact,
Vass,
We agree with the district court that section 959(a) does not apply here. In his brief, Muratore represents that he was in the business of “leasing ter commercial and residential tenants, and all required acts associated with maintaining such leases.” His complaint, however, does not specify the nature of the businesses at issue. Darr contends that Muratore’s business was actually “the making of mortgage loans.” We need not, however, resolve this question. The allegations in the complaint focus upon Darr’s actions in the fulfillment or non-fulfillment of his fiduciary responsibilities as trustee, as opposed to acts or transactions in the furtherance of Muratore’s business whatever it was. See 11 U.S.C. § 959(a).
The accounting for and sale of property, the filing of tax returns, and the payment of taxes were among Darr’s statutory responsibilities and powers as a Chapter 11 trustee. 11 U.S.C. §§ 363 & 1106;
3
see also Holywell Corp. v. Smith,
The different counts in Muratore’s complaint all allege Darr’s misconduct in discharging his trustee’s administrative responsibilities. Count I alleges that Darr did not “faithfully perform the duties of his office” when he performed improper liquidations, failed to file tax returns and pay taxes, and allowed the purchase of property with illegal funds. Counts II, III, and TV merely reiterate these allegations within claims for “abuse of process,” “negligence,” and violations of 18 U.S.C. §§ 1961-1968 respectively.
4
These allegations are very similar to ones made in other cases holding the 959(a) exception did not apply.
Carter,
Muratore urges us to recognize as an additional or expanded exception to the Barton doctrine the situation where the trustee commits a tort of any sort. For this proposition, he relies chiefly on a single case,
In the Matter of Campbell,
“Apparently there are two situations in which a trustee ... may be sued in State Court without leave of the federal bankruptcy court, one being where the trustee has committed a tort, and the other where the claim of wrongful doing arises out of the trustee’s operating of the debtor’s business.”
Id.
(citing Lawrence P. King, 2 Collier on Bankruptcy, § 23.20 at 642-45 (14th ed.))
6
. This language appears to be the only example of a court having articulated so broad a tort exception to the Barton doctrine.
7
On the other side of the ledger, there are numerous cases in which the Barton doctrine was held to bar tort actions brought without permission of the bankruptcy court.
See, e.g., Carter,
220
*147
F.3d at 1253 (applying Barton doctrine and stating, “There also is no merit to Carter’s assertion that his tort claims — breach of fiduciary duty and reasonable care — are ‘unrelated to’ and ‘outside the scope’ of the bankruptcy proceeding because they do not arise directly from substantive provisions of the Bankruptcy Code.”);
In re Lehal Realty Assocs.,
In addition, Muratore argues that the Barton doctrine does not apply here because the bankruptcy case is closed and the estate assets are no longer “in the receiver’s hands” as they were in
Barton.
Muratore is wrong. To be sure, one purpose of the Barton doctrine is to prevent a party from obtaining “some advantage over the other claimants upon the assets” in the trustee’s hands, and that purpose would not necessarily be served here. But the doctrine serves additional purposes even after the bankruptcy case has been closed and the assets are no longer in the trustee’s hands.
See Barton,
[without the requirement [of obtaining leave], trusteeship will become a more irksome duty, and so it will be harder for courts to find competent people to appoint as trustees. Trustees will have to pay higher malpractice premiums, and this will make the administration of the bankruptcy laws more expensive (and the expense of bankruptcy is already a source of considerable concern). Furthermore, requiring that leave to sue be sought enables bankruptcy judges to monitor the work of the trustees more effectively. It does this by compelling suits growing out of that work to be as it were prefiled before the bankruptcy judge that made the appointment; this helps the judge decide whether to approve this trustee in a subsequent case.
Id.; see also In re Krikava,
In the alternative, Muratore requests that if this Court concludes that it lacks subject-matter jurisdiction, it should nevertheless refer this case to the bankruptcy court rather than dismiss it. This
*148
court, however, does not have this option. Rule 12(h)(3) of the Federal Rules of Civil Procedure states that a court “shall dismiss” an action over which it lacks subject-matter jurisdiction.
See also Mills v. State of Maine,
We AFFIRM the district court’s dismissal of the case.
Notes
. The reopening of the bankruptcy case was to allow Darr to execute a release of mortgage after the underlying debt was paid. The bankruptcy case was closed again on November 25, 2002.
. The predecessor to the section 959(a) exception, 28 U.S.C. § 125, was nearly identical:
Every receiver or manager of any property appointed by any court of the United States may be sued in respect of any act or tráns-action of his in carrying on the business connected with such property, without the previous leave of the court in which such receiver or manager was appointed....
Accordingly, we do not distinguish between cases that concern section 959(a) and those that concern 28 U.S.C. § 125.
. 11 U.S.C. § 363 states:
(b) (1) The trustee, after notice and a hearing, may use, sell, or lease, other than in the ordinary course of business, property of the estate....
(c) (1) If the business of the debtor is authorized to be operated under section 721, 1108, 1203, 1204, or 1304 of this title and unless the court orders otherwise, the trustee may enter into transactions, including the sale or lease of property of the estate, in the ordinary course of business, without notice or a hearing, and may use property of the estate in the ordinary course of business without notice or a hearing....
11 U.S.C. § 1106 states:
(a) A trustee shall—
(6) for any year for which the debtor has not filed a tax return required by law, furnish, without personal liability, such information as may be required by the governmental unit with which such tax return was to be filed, in light of the condition of the debtor’s books and records and the availability of such information; and
(7) after confirmation of a plan, file such reports as are necessary or as the court orders....
. Muratore does not appear to argue that the exception to the Barton doctrine applies to Count IV.
. For present purposes, we do not distinguish between cases involving Chapter 11 trustees and those involving Chapter 7 trustees.
See
*146
Corzin v. Fordu (In re Fordu),
. We find no mention of a tort exception to the Barton doctrine in the most recent, fifteenth edition of Collier on Bankruptcy. Cf. Lawrence P. King, 6 Collier on Bankruptcy ¶ 721.05 ("As a general rule, however, leave of the appointing court must be obtained to institute an action in a non-appointing forum for acts done in the trustee’s official capacity and within the trustee's authority as an officer of the court. Section 959(a) of title 28 creates a limited exception to this general rule by granting state courts jurisdiction over trustees in their official capacities where the acts or transactions complained of relate to 'carrying on business' connected to the property in trust.”) (footnotes omitted).
. There is a case pre-dating
Campbell
that contains dicta somewhat suggestive of a similar exception. In
In the Matter of Mercy-Douglass Hospital, Inc.,
. Muratore’s reliance upon
In re Mailman Steam Carpet Cleaning Corp.,