Clyde Thomas CARTER, Plaintiff-Appellant,

                                                       v.

  Bob RODGERS, Individually and, in his capacity as Trustee in the Clyde Thomas Carter Bankruptcy,
Clements Antiques of Tennessee, Inc., et al., Defendants-Appellees.

                                                No. 99-13703.

                                       United States Court of Appeals,

                                               Eleventh Circuit.

                                                 Aug. 2, 2000.

Appeal from the United States District Court for the Northern District of Alabama. (No. 97-03063-CV-S-NE),
C. Lynwood Smith, Jr., Judge.

Before TJOFLAT and HULL, Circuit Judges, and PROPST*, District Judge.

          HULL, Circuit Judge:

          Plaintiff-Debtor Clyde Thomas Carter appeals the district court's dismissal of his civil action based

on his failure to seek leave first from the bankruptcy court to file this action. We affirm.

                                              I. BACKGROUND

          Plaintiff Clyde Thomas Carter was a debtor in a Chapter 7 bankruptcy proceeding. Defendant Bob

Rodgers was the initial Bankruptcy Trustee ("Trustee") in Carter's bankruptcy proceeding. As Trustee,

Rodgers appointed Defendant Clements Antiques of Tennessee, Inc. ("Clements Antiques"), and its

principals, Defendants Charles W. Clements, Sr. and Charles W. Clements, Jr. ("the Clements") to conduct

a sale of Carter's personal property. The bankruptcy court approved these appointments.

          Clements Antiques conducted the sale by way of auction on August 5, 1995. Trustee Rodgers and

his wife attended the auction, and Rodgers's wife successfully bid on an item.1 Likewise, Clements Antiques,



      *
     Honorable Robert B. Propst, U.S. District Judge for the Northern District of Alabama, sitting by
designation.
  1
   Trustee Rodgers' wife, Mary Rodgers, purchased an oak dresser for $300, which was the last and highest
bid for the dresser at the auction. Mrs. Rodgers offered to void the dresser's sale and return the item to the
new trustee. This offer was denied by the new trustee who determined that "voiding of the sale would not
add value to the estate."
Clements Sr., and Clements Jr. (or family members on their behalf) purchased items at the auction. Upon

learning of these purchases, the bankruptcy administrator for the Northern District of Alabama complained

that the purchases rendered all Defendants non-disinterested parties in contravention of the Bankruptcy Code.

See 11 U.S.C. § 701(a)(1) ("[T]he United States trustee shall appoint one disinterested person ... to serve as

... trustee."); 11 U.S.C. § 327(a) ("[T]he trustee ... may employ ... auctioneers ... that do not hold or represent

an interest adverse to the estate."). As a result, Rodgers resigned as Trustee, and Clements Antiques returned

all commissions and buyer's premiums received in connection with the auction.2

             Carter filed this civil action in district court seeking compensatory and punitive damages from

Trustee Rodgers, Clements, and Clements Antiques based on alleged breaches of fiduciary duties and duties

of reasonable care with respect to Carter's bankruptcy estate. The district court found that Carter failed to

obtain leave of the bankruptcy court before filing this lawsuit and dismissed Carter's lawsuit pursuant to

Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction.3 Carter timely appealed.

                                                 II. DISCUSSION

A.           The Barton Doctrine

             This case presents an issue of first impression in this circuit regarding whether a debtor first must

obtain leave from the bankruptcy court before it can initiate an action in the district court when that action

is against the trustee or other bankruptcy-court-appointed officer, for acts done in the actor's official capacity.

Joining the other circuits that have considered this issue, we hold that a debtor must obtain leave of the

bankruptcy court before initiating an action in district court when that action is against the trustee or other




         2
     Clements Antiques and the successor Chapter 7 trustee entered into a settlement whereby Clements
Antiques agreed to return all commissions and fees it had received in connection with the auction, which
totaled approximately $8,600.
     3
   We review a dismissal for lack of subject matter jurisdiction de novo. See, e.g., Pillow v. Bechtel Constr.,
Inc., 

, 1351 (11th Cir.2000).

                                                          2
bankruptcy-court-appointed officer,4 for acts done in the actor's official capacity. See Springer v. Infinity

Group Co., No. 98-5182, 

(10th Cir. Aug.26, 1999) (unpublished table decision), cert. denied, ---

U.S. ----, 

, 

(2000); Gordon v. Nick, No. 96-1858, 

(4th Cir.

Sept.2, 1998) (unpublished table decision); In re Linton, 

, 546 (7th Cir.1998); Lebovits v.

Scheffel (In re Lehal Realty Assocs.), 

(2d Cir.1996); Allard v. Weitzman (In re DeLorean Motor

Co.), 

, 1240 (6th Cir.1993); Vass v. Conron Bros. Co., 

, 970 (2d Cir.1932);

Kashani v. Fulton (In re Kashani ), 

, 885 (9th Cir.BAP 1995).

        "An unbroken line of cases ... has imposed [this] requirement as a matter of federal common law."

. In so holding, these circuit courts have applied the rule referred to as the "Barton

doctrine." See 

Court in Barton v. Barbour, 

, 127, 

(1881), stated

that "[i]t is a general rule that before suit is brought against a receiver[,] leave of the court by which he was

appointed must be obtained." Barton involved a receiver in state court, but the circuit courts have extended

the Barton doctrine to lawsuits against a bankruptcy trustee. In Linton, the Seventh Circuit explained the

reasons behind its application of the Barton doctrine to a bankruptcy trustee, as follows: "The trustee in

bankruptcy is a statutory successor to the equity receiver, and ... [j]ust like an equity receiver, a trustee in

bankruptcy is working in effect for the court that appointed or approved him, administering property that has

come under the court's control by virtue of the Bankruptcy 

.

        In addition, the policy behind this leave of court requirement was well-stated by the Seventh Circuit:

        If [the trustee] is burdened with having to defend against suits by litigants disappointed by his actions
        on the court's behalf, his work for the court will be impeded.... Without the requirement [of 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



  4
    In this case, Defendants other than Rodgers were not court "appointed," but rather court "approved." We
find this distinction irrelevant, and hold that these court approved officers functioned as the equivalent of
court appointed officers for purposes of the Barton doctrine. See Allard v. Weitzman (In re DeLorean Motor
Co.), 

, 1240 (6th Cir.1993) ("We hold as a matter of law [that] ... court appointed officers who
represent the estate, are the functional equivalent of a trustee, where as here, they act at the direction of the
trustee and for the purpose of administering the estate or protecting its assets.").

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         make the administration of the bankruptcy laws more expensive.... Furthermore, requiring that leave
         to sue be sought enables bankruptcy judges to monitor the work of the trustees more effectively.

.

         Plaintiff's suit is a run-of-the mill Barton case. Carter sued Defendants in district court for breaches

of fiduciary duties stemming from their official bankruptcy duties. He needed leave of the bankruptcy court,

and absent that leave, the district court correctly found that it did not have subject matter jurisdiction over his

cause of action.

B.       Federal vs. State Causes of Action

         Carter argues that the Barton doctrine requires parties to obtain leave of the bankruptcy court only

when they wish to pursue a state court remedy. We disagree, and hold that when leave is required, it is

required before pursuing remedies in either state or other federal courts. We find no reason to distinguish

between instances where the trustee is sued in state court and those in which the trustee is sued in federal

court. See Kashani v. Fulton (In re Kashani ), 

, 885 (9th Cir.BAP 1995) ("[L]eave to sue the

trustee is required to sue in those federal courts other than the bankruptcy court which actually approves the

trustee's appointment."); In re Krikava, 

, 279 (Bankr.D.Neb.1998) ("Consent of the appointing

bankruptcy court is required even when the plaintiff seeks to sue in another federal court.").

C.       Related-To Bankruptcy Requirement

         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. Carter posits the theory that because

his claims are unrelated to the bankruptcy proceeding, the bankruptcy court lacks jurisdiction over his lawsuit

and, therefore, he was not required to obtain leave of the bankruptcy court before bringing his suit in district

court.

         We disagree. The bankruptcy court has jurisdiction over Carter's claims because his breach of

fiduciary duty and reasonable care claims are "related to" and "within the scope" of the bankruptcy


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proceeding. Because Carter's claims are related to the bankruptcy proceeding, we need not determine whether

leave of the bankruptcy court is required when a debtor sues a trustee for a tort completely "unrelated to" and

"outside the scope" of the bankruptcy proceeding.

        A proceeding is within the bankruptcy jurisdiction, defined by 28 U.S.C. § 1334(b), if it "arises

under" the Bankruptcy Code or "arises in" or is "related to" a case under the Code. " 'Arising under'

proceedings are matters invoking a substantive right created by the Bankruptcy Code. The 'arising in a case

under' category is generally thought to involve administrative-type matters, or as the ... court put it, 'matters

that could arise only in bankruptcy.' " In re Toledo, 

, 1345 (11th Cir.1999) (citations omitted).

We have stated, "[t]he usual articulation of the test for determining whether a civil proceeding is related to

bankruptcy is whether the outcome of the proceeding could conceivably have an effect on the estate being

administered in bankruptcy." Miller v. Kemira, Inc. (In re Lemco Gypsum, Inc.), 

, 788 (11th

Cir.1990).

        While Carter's action against Defendants arose after the date of the bankruptcy petition, his suit turns

solely on allegations of wrongdoing in the sale of property belonging to the bankruptcy estate.5 Any recovery

would reduce the administrative expenses of the sale of the estate property and would perforce increase the

amount of estate property available to satisfy creditors' claims. See 11 U.S.C. § 541(a)(7); see, e.g., McGuirl

v. White, 

(D.C.Cir.1996). Thus, the outcome of this case will impact Carter's bankruptcy estate.

        Further, Carter sued the trustee and other court approved officers of his bankruptcy estate for alleged

breaches of their bankruptcy-related duties. The Bankruptcy Code establishes the office of trustee and defines

the trustees' duties. Moreover, an action against a bankruptcy trustee for breach of bankruptcy-related

   5
    The instant case is quite different from that in Boone v. Community Bank of Homestead (In re Boone ),

(11th Cir.1995), where we determined that the bankruptcy court lacked jurisdiction over a
lawsuit by Chapter 7 debtors against a creditor for tortious interference. In Boone, the conduct giving rise
to the claim occurred after the date of the bankruptcy petition, and it was clear that the lawsuit "ha[d] no
conceivable effect on the estate or the administration of the estate," and that the outcome of the tortious
interference claim would not alter the "rights and duties arising from the petition in bankruptcy." See 

. In the present case, while Carter's lawsuit against Defendants also arose after the date of the
bankruptcy petition, his action will have an effect on the estate and the administration of the estate.

                                                       5
fiduciary duty can only arise in a bankruptcy case. Thus, Carter's "fiduciary claims against [the fiduciaries]

are within the bankruptcy jurisdiction defined by 28 U.S.C. § 1334(b) both as 'arising under' the Code and

'arising in' a bankruptcy case." Schechter v. Illinois (In re Markos Gurnee Partnership), 

, 222

(Bankr.N.D.Ill.1995); see In re Toledo, 

, 1345 (11th Cir.1999).

D.      The § 959 Exception

         Finally, Carter asserts that he should be permitted to file his lawsuit in the district court without first

obtaining leave from the bankruptcy court pursuant to section 959's statutory exception to the Barton

doctrine. Section 959 provides for a limited exception to the Barton doctrine, permitting suits against

"[t]rustees, receivers or managers of any property ... without leave of the court appointing them, with respect

to any of their acts or transactions in carrying on the business connected with such property." 28 U.S.C. §

959(a). However, we note that the "carrying on business" exception in section 959 is limited and not

applicable here.

         The "carrying on business" exception in section 959(a) is intended to "permit actions redressing torts

committed in furtherance of the debtor's business, such as the common situation of a negligence claim in a

slip and fall case where a bankruptcy trustee, for example, conducted a retail store." Lehal Realty 

. Section 959(a) does not apply to suits against trustees for administering or liquidating the

bankruptcy estate.    See 

does not apply where, as here, a trustee ... perform[s]

administrative tasks necessarily incident to the consolidation, preservation, and liquidation of assets in the

debtor's estate."); DeLorean Motor 

("Merely collecting, taking steps to preserve,

and/or holding assets, as well as other aspects of administering and liquidating the estate, do not constitute

'carrying on business' as that term has been judicially interpreted.") (citations omitted).

        Carter's action against the Defendants was for breach of fiduciary duty and involves the Defendants'

duties as they relate to the administration and liquidation of his estate. Because the alleged breaches

attributed to Defendants are not premised on an act or transaction of a fiduciary in carrying out Carter's



                                                         6
business operations, section 959(a) is not applicable. Therefore, Carter must obtain leave of the bankruptcy

court in order to sue Defendants in a forum other than the appointing court. See 

("[B]reach of a fiduciary duty in the administration of the estate does not fall within the exception provided

by 28 U.S.C. § 959(a)."); Mangun v. Bartlett (In re Balboa Improvements Ltd.), 

, 970 (9th

Cir.BAP 1989) ("[S]ection [989] was not intended to apply to a breach of fiduciary duty in the administration

of a bankruptcy estate.").

                                            III. CONCLUSION

        Plaintiff Carter failed to obtain leave from the bankruptcy court when such leave was a pre-requisite

to filing this civil action against the Defendants outside of that court. Therefore, the district court lacked

subject matter jurisdiction and properly dismissed this civil action against these Defendants.

        AFFIRMED.




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