Landrum v. Otero County Hospital Ass'n (In re Otero County Hospital)Landrum v. Otero County Hospital Ass'n (In re Otero County Hospital)
MEMORANDUM OPINION
THIS MATTER is before the Court on cross motions for summary judgment.
The issues raised in the cross-motions for summary judgment can be reduced to the following: 1) whether the injunction language contained in Section 14.20 of the Hospital’s confirmed Third Amended Chapter 11 Plan of Reorganizatiоn dated June 20, 2012 for Otero County Hospital Association, Inc. and the order confirming the plan (together, the “Plan”) bars Ms. Landrum’s claims against Dr. Moolamalla; and 2) whether the pre-confirmation notice to Ms. Landrum of the then proposed injunction satisfies due process requirements. The Hospital and Dr. Moolamalla (together “Defendants”) assert that Ms. Landrum’s State Court Action claims are enjoined by the Plan.
SUMMARY JUDGMENT STANDARDS
Summary judgment, governed by Fed. R.Civ.P. 56, will be granted when the mov-ant demonstrates that there is no genuine dispute as to a material fact and that the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a), made applicable to adversary proceedings by Fed. R.Bankr.P. 7056. “[A] party seeking summary judgment always bears the initial responsibility of informing the .,. court of the basis for its motion, and ... [must] demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,
Ms. Landrum’s Request to Strike Defendants’ Supporting Declarations
Defendants offered the following declarations in support of their request for sum
The Dion Declaration
The Dion Declaration recites that Ms. Dion is the Director of Quality at Gerald Champion Regional Medical Center (“GCRMC”), which is owned and operated by the Hospital. The Dion Declaration purports to establish that Dr. Moolamalla was employed by the Hospital at all relevant times and provided medical services at GCRMC, including at its Center for Women’s Hеalth; that the Center for Women’s Health is located on the GCRMC main campus accessible from GCRMC’s main building through a covered hallway; and that Ms. Landrum’s claims asserted against Dr. Moolamalla in the State Court Action arose at a time when Dr. Moolamal-la was employed by the Hospital.
In their reply brief, instead of explaining why Ms. Dion is competent to make the statements contained in the Dion Declaration, Defendants offered the Declaration of Surgit Moolamalla in Support of Defendants’ Motion for Summary Judgment (“Dr. Moolamalla Declaration”). See Docket No. 22 — Exhibit A. In the Dr. Moolamalla Declaration, Dr. Moolamalla states, among other things, that he was employed by the Hospital from approximately March 17, 2011 through approximately March 20, 2013; that during that time he performed medical services exclusively in his capacity as an employee and on behalf of the Hospital; that he provided medical treаtment to Ms. Landrum in August 2011 at the Center for Women’s Health; and that the Center for Women’s Health is part of the obstetrics and gynecology department of GCRMC and is located on the GCRMC campus.
Pursuant to Rule 56(e), the Court may give a paity who has failed to properly support an assertion of fact an opportunity to do so. Consistent with the summary judgment requirements of Rule 56, the Tenth Circuit has recognized that the Court “clearly has discretion to permit supplemental affidavits it finds useful for summary judgment determination.” Lighton v. Univ. of Utah,
If the Court had decided to grant summary judgment, it would have given Ms. Landrum the opportunity to file a surreply to dispute Dr. Moolamalla’s Declaration. Since summary judgment is being denied, the Court will treat as an established fact, for purposes of Defendants’ motion for summary judgment only, that Dr. Moolam-. alia at all material times was an employee of the Hospital and performed the procedures on Ms. Landrum of which she complains in the course of that employment. Ms. Landrum will be given the opportunity to controvert that “fact” later in this adversary proceeding.
The Paque Declaration
The Paque Declaration states, among other things, that Mr. Paque is a direсtor of Corporate Restructuring of Kurtzman Carson Consultants, LLC (“KCC”); that KCC is the official claims, noticing, and balloting agent for the Hospital appointed in the Bankruptcy Case; that he has access to KCC’s records concerning service of notices in the Bankruptcy Case; and that he is knowledgeable about KCC’s general practices and procedures used to effect service in chapter 11 cases. See Paque Declaration, ¶¶ 2, 3. The Paque Declaration also states, among other things, that Mr. Paque reviewed the list of patients on the confidential service list in Bankruptcy Case and that Ms. Landrum is included on that list with an address of P.O. Box 897, La Luz, New Mexico. See Paque Declaration, ¶¶ 5 and 6. Finally, the Paque Declaration states that each time a notice was served in the Bankruptcy Case on the confidential patient mailing list, the notices were sent to Ms. Landrum at the P.O. Box in La Luz, New Mexico. See Paque Affidavit, ¶¶ 6 and 7.
Ms. Landrum complains that Mr. Paque lacks personal knowledge of the matters contained in the Paque Declaration, and that, in any event, the Paque Declaration falls short of establishing that the notices from the Bankruptcy Case were properly addressed, stamped, and mailed to Ms. Landrum. The Court will deny Ms. Land-rum’s request to strike the Paque Declaration. As Director of KCC with access to the records concerning service by KCC in the Bankruptcy Case, Mr. Paque has sufficient personal knowledge of the customary procedures KCC followed in the ordinary course of its regularly conducted business activity as a noticing agent in Chapter 11 cases, and in sending notices in the Bankruptcy Case, including the names and persons contained on the service list KCC used to send notices in the Bankruptcy Case. See In re Petroleum Prod. Mgmt., Inc.,
FACTS NOT SUBJECT TO GENUINE DISPUTE
The following facts are not subject to genuine dispute:
1. The Hospital operates GCRMC in Alamogordo, New Mexico.
2. The Hospital filed a voluntary petition under Chapter 11 of the Bankruptcy Code on August 16, 2011 thereby commencing the Bankruptcy Case (the “Petition Date”).
3. The Plan contains the following provision:
On the Effective Date and except as otherwise provided in the Plan, all Persons who have beеn, are, or may be holders of Claims against the Debtor shall be permanently enjoined from taking any of the following actions against or affecting the Debtor, the Estate, the Assets or the Disbursing Agent, or any of their current or former respective members, directors, managers, officers, employees, agents, and professionals, successors and assigns or their respective assets and property with respect to such Claims (other than actions brought to enforce any rights or obligations under the Plan):
(i) commencing, conducting or continuing in any manner, directly or indirectly, any suit, action or other proceeding of any kind (including, without limitation, all suits, actions, and proceedings that are pending as of the Effective Date, which must be withdrawn or dismissed with prejudice);
(ii) enforcing, levying, attaching, collecting or otherwise recovering by any manner or means, whether directly or indirectly, any judgement, award, decree or order ...
Plan, Section 14.20. The abovе provisions together are called the “Plan Injunction.”
4. The Hospital confirmed the Plan on August 7, 2012. See Order Confirming the Third Amended Chapter 11 Plan of Reorganization dated June 20, 2012 for Otero County Hospital Association, Inc. (“Confirmation Order”).
5. The Confirmation Order contains the same provision as Section 14.20 of the Plan recited in paragraph 3, above.
6. The Plan became effective on September 19, 2012 (the “Effective Date”).
7. Ms. Landrum was included on the confidential service list filed in the Bankruptcy Case (the “Patient Service List”). See Order Granting Authority to File Separate Creditor Matrix and Schedule F Containing Patient Information Under Seal; Case No. 11-11-13686 JA — Docket No. 63; Paque Declaration, ¶ 5.
8. Ms. Landrum’s address on the Patient Service List was listed as P.O. Box 897, La Luz, New Mexico 88337. Paque Declaration, ¶ 5.
10. Ms. Landrum regularly received mail at P.O. Box 897, La Luz, New Mexico at all relevant times.
11. The Court appointed KCC to serve as the claims, noticing, and balloting аgent in the Bankruptcy Case. See Interim Order Authorizing and Approving the Appointment of Kurtzman Carson Consultants, LLC as Noticing, Claims and Balloting Agent, entered August 22, 2011 in Case No. 11-11-13686 JA — Docket No. 64; Final Order Authorizing and Approving Appointment of Kurtzman Carson Consultants LLC as Noticing, Claims and Balloting Agent, entered September 12, 2011 in Case No. 11-11-13686 JA — Docket No. 123; Paque Declaration, ¶ 2.
12. KCC mailed the following notices given in the Bankruptcy Case to Ms. Landrum on the following dates:
■ a. Notice of Commencement of Chapter 11 Bankruptcy Case (“Commencement Notice”) (Docket No. 73); mailed by First Class mail on August 23, 2011. See Affidavit of Service; Case No. 11-11-13686 JA — Docket No. 83;
b. Notice to Patients Concerning (A) Hearing to Consider Plan Confirmation and (B) Deadline to file Objections to the Plan (“Patient Notice”), mailed by First Class mail on June 25, 2012.' See Amended Affidavit of Service and Exhibit E to Amended Affidavit of Service; Case No. 11-11-13686 JA — Docket No. 622;
c. Notice of (A) Solicitation of Votes to Accept or Reject the Third Amended Chapter 11 Plan of Reorganization for Otero County Hospital Association, Inc. dated June 20, 2012(B) Hearing to Consider Plan Confirmation and (C) Deadline for Filing Objections to the Plan (“Confirmation Notice”), mailed by First Class mail on June 23, 2012. See Amended Affidavit of Service and Exhibit A to Amended Affidavit of Service; Case No. 11-11-13686 JA — Docket No. 622;
d.Notice of (A) Entry of Order Confirming Third Amended Chapter 11 Plan of Reorganization for Otero County Hospital Association, Inc.; (B) Occurrence of Effective Date; and (C) Bar Dates for Asserting Administrative Claims, Fee Claims and Rejections Claims (“Bar Date Notice”) (Docket No. 770), mailed on September 21, 2012. See Affidavit of Service, Case No. 11-11-13686 JA— Docket No. 788.
Paque Declaration, ¶¶ 6 and 7.
13.The Confirmation Notice, which is just over two pages exclusive of the signature blocks, provided notice of the final confirmation hearing date scheduled for August 3, 2012, and included the following language in boldface type:
[T]he plan contains injunctions which, with certain exceptions, permanently enjoin any holder of a claim against, among other things, taking any of the following actions against or affecting the Debtor, its Estate, its Assets, or the Disbursing Agent, or any of their current or former respective members, directors, managers, officers, employees, agents, and professionals, successors and assigns or their respective assets and property with respect to such claims (other than actions brought to enforce any rights or obligations under the Plan): (i) commencing, conducting or continuing in any manner, directly or indirectly, any suit, action or other proceeding of any kind (including, without limitation, all suits, actions, and proceedings that are pending as of the effective date of the Plan, which must be withdrawn or dismissed with prejudice);
14. The Bar Date Notice set a bar date of October 29, 2012 for asserting administrative claims against the Hospital (the “Administrative Claims Bar Date”).
15. The Bar Date Notice included notice of the following:
a) that the Plan and the Confirmation Order “are valid and binding upon the Debtor, the holders оf all Claims, and all other Persons and parties in interest, and their respective successors and assigns, and enforceable notwithstanding any otherwise applicable non-bankruptcy law.”
b) that the “[fjailure to file notice of an Administrative Claim timely and properly shall result in such Administrative Claim being forever barred and discharged.”
c) that “the Confirmation Order and the Plan contain other provisions that may affect your rights[,]” '
d) that a copy of the Plan and/or Confirmation Order is available “at http:// www.nmb.uscourts.gov or http://www. kccllc.net/gcrmc, or upon request to:
Kurtzman Carson Consultants, LLC
2335 Alaska Avenue
El Segundo, CA 90245
888-647-1737
GeraldChampionInfo@kccllc.com
16. The Bar Date Notice “encouraged [recipients of the Bar Date Notice] to review each of the Confirmation Order and the Plan in its entirety and consult with your own legal advisors should you have any questions in respect thereof.”
17. Ms. Landrum denies having received any mail concerning the Bankruptcy Case, but she cannot recall any interruption in mail service to her P;0. Box from the Petition Date through the Administrative Claims Bar Date.
18. The Hospital published notice of the Plan confirmation hearing date, the Plan effective date and the Administrative Claims Bar Date in the Alamogordo Daily News, the Albuquerque Journal, and the El Paso Times newspapers. See Docket Nos. 651, 670, 671, 826, 825, and 824.
19. Dr. Moolamalla is a physician licensed to practice medicine in the State of New Mexico.
20. At all relevant times, Dr. Moolam-alla was an employee of the Hospital.
21., Dr. Moolamalla provided medical services at GCRMC and at the Center for Women’s Health and Specialty Services (hereafter, the “Center for Women’s Health”).
23. In the summer of 2011, Ms. Land-rum made an appointment with Dr. Moo-lamalla to discuss birth control options, and went to her appointment with Dr. Moolamalla at the Center for Women’s Health.
24. Dr. Moolamalla provided medical treatment to Ms. Landrum in late August 2011 at the Center for Women’s Health relating to the administration of a long-acting birth control device (the “Medical Procedure”). The purpose of the Medical Procedure was to prevent Ms. Landrum from becoming pregnant.
25. Ms. Landrum learned she was pregnant in November 2011.
26. Ms. Landrum was aware of the Bankruptcy Case by at least January of 2012.
27. At the time Ms. Landrum sought treatment from Dr. Moolamalla, she believed he was self-employed.
28. Ms. Landrum filed'the State Court Action against Dr. Moolamalla on October 14, 2014, asserting breach of contract and ’ medical malpractice claims based on the Medical Procedure.
29. Dr. Moolamalla gave notice of the State Court Action to the Hospital.
30. The Hospital’s insurance carrier has assumed the defense of Ms. Landrum’s claims in the State Court Action.
31. Ms. Landrum did not file a proof of claim in the Bankruptcy Case nor did she assert an administrative claim in the Bankruptcy Case.
DISCUSSION
A. The scope of the Plan’s discharge injunction
The Plan provides:
On the Effective Date and except as otherwise provided in the Plan, all Persons who have been, are, or may be holders of Claims against the Debt- or shall be permanently enjoined from taking any of the following actions against or affecting the Debtor, the Estate, the Assets or the Disbursing Agent, or any of their current or former respective members, directors, managers, officers, employees, agents, and professionals, successors and assigns or their respective assets andproperty with respect to such Claims (other than actions brought to enforce any rights or obligations under the Plan):
(i) commencing, conducting or continuing in any manner, directly or indirectly, any suit, action or other proceeding of any kind (including, without limitation, all suits, actions, and proceedings that are pending as of the Effective Date, which must be withdrawn or dismissed with prejudice);
(ii) enforcing, levying, attaching, collecting or otherwise recovering by any manner or means, whether direсtly or indirectly, any judgement, award, decree or order ...
Plan, Section 14.20.
Ms. Landrum raises two main arguments in support of her position that this Plan provision does not bar her claims: 1) she is not a creditor or claimant; and 2) this provision impermissibly extends the injunction under 11 U.S.C. § 524 to non-debtor third parties. The Court will address each of these arguments in turn.
Whether Ms. Landrum is a Creditor of the Hospital
Ms. Landrum held and could have asserted an administrative claim against the Hospital in the Bankruptcy Case based on the Medical Procedure. It is an administrative claim because the claim arose during the pendency of the Bankruptcy Case but prior to confirmation of the Plan. See 11 U.S.C. § 503(b)(1)(A) (allowance of administrative expenses); Redmond v. NCMIC Fin. Corp. (In re Brooke Corp.),
Ms. Landrum asserts that the injunction contained in the Plan by its own terms does not apply to her State Court Actions. The Court disagrees. In construing the injunction language, the Court applies general rules of contract interpretation.
The injunction language in the Plan unambiguously states that the injunction extends to “all Persons, who have been, are, or may be holders of Claims against the Debtor.” Plan, Section 14.20. This broad language does not require a person to have filed a claim in the Bankruptcy Case, or even to hold an allowable claim against the Hospital. Because Ms. Land-rum had a “claim” against thе Hospital based on the Medical Procedure she received from the Hospital’s employee that occurred after the petition, but before confirmation of the Plan, the injunction applies to that claim.
In addition, the injunction language in the Plan unambiguously applies to claims that could be asserted against both the Hospital and an employee of the Hospital. The plain language of Section 14.20 of the Plan permanently enjoins all persons who may have claims against the Hospital from asserting claims against its current or former employees related to such claims. See Plan, ¶ 14.20 (“all Persons ... shall be permanently enjoined from taking any .,. actions against ... any of their current or former ... employees”). Regardless of whether she asserted her claim against the Hospital, Section 14.20 enjoins Ms. Land-rum from asserting a claim against the Hospital’s then employee, Dr. Moolamalla, based on the Medicаl Procedure.
Section 14.20 further enjoins all persons from commencing any action “affecting the Debtor,” its assets, or the estate. Id. Because the Hospital’s insurance carrier has assumed the defense of the claims against Dr. Moolamalla in the State Court Action, the State Court Action affects the Hospital. The Court infers based on the undisputed fact that the Hospital’s insurance carrier is defending the claims in the State Court Action, that the State Court Action will have an effect on the Hospital’s insurance premiums. Ms. Landrum argues that she did not cause the State • Court Action to affect the Hospital, but rather, Dr. Moolamalla caused the State Court Action to affect the Debtor by providing notice of the State Court Action to the Hospital. That argument is not persuasive. The filing of the State Court Action triggered the events affecting the Hospital.
In sum, because the State Court Action against a former employee of the Hospital relates to a claim that arose prior to confirmation that Ms. Landrum could have asserted against the Hospital, and because such action affects the Hospital, it is enjoined by the unambiguous language of Section 14.20.
Whether Section lj.20 impermissibly eoetends the discharge injunction to non-debtor third parties
Ms. Landrum also contends that the language of Section 14.20 is contrary to the requirements of the Bankruptcy Code. Under 11 U.S.C. § 524(e), the “discharge of a debt of the debtor does not affect the liability of any other entity on, or the property of any other entity for, such debt.” 11 U.S.C. § 524(e). This section “makes clear that the bankruptcy discharge of a debtor, 'by itself, does not operate to relieve non-debtors of their liabilities.” Gillman v. Continental Airlines (In re Continental Airlines),
However, a confirmed chapter 11 plan of reorganization is binding and entitled to res judicata effect. See In re Laing,
In Espinosa, the Supreme Court held that a party adversely affected by the terms of a confirmed Chapter 13 plan who received notice of the plan’s cоntents but failed to object before the expiration of the time to appeal was not entitled to relief, even though the plan contained a provision contrary to the requirements of the Bankruptcy Code and Bankruptcy Rules. See Espinosa,
Thus, so long as Ms. Landrum received adequate notice to satisfy the requirements of due process, the injunction contained in Section 14.20 of the Plan is en
B. Due Process
The binding effect of a confirmed Chapter 11 plan is subject to the requirements of due process. See In re Unioil,
Long standing Supreme Court precedent holds that “[a]n еlementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust, Co.,
Ms. Landrum contends that she cannot be bound by the Plan because did not receive notice sufficient to satisfy her constitutional due process rights for two reasons. First, she argues that she did not receive any notice. Second, she urges that, in any event, the notice was inadequate. The Court will address each argument in turn.
The Hospital’s transmission of notice to Ms. Landrum satisfies the requirements of due process. “[W]hen the name and address of an interested party is known, due process requires notice by mail or other means as certain to ensure actual notice.” In re Blinder, Robinson & Co., Inc.,
Moreover, proof that a notiсe was properly addressed and mailed is entitled to the presumption of receipt. See Hagner v. United States,
Adequacy of the Content of the Notice
The final element necessary to satisfy due process is whether the content of the notice reasonably conveyed the required information. See Mullane,
The Confirmation Notice included the Plan Injunction language in bold type. The Bar Date Notice and Confirmation Notice together gave Ms. Landrum nоtice that apprised her that failure to assert her administrative claim in the Bankruptcy Case would bar her from asserting her claim based on the Medical Procedure against the Hospital and its employees. Whether the content of these notices adequately conveyed the required information to render the Plan Injunction enforceable consistent with the due process clause turns on whether Ms. Landrum knew or had reason to investigate the relationship between the Hospital and Dr. Moolamalla.
As a potential creditor, Ms. Land-rum had a “responsibility to diligently investigate what claims [she] may have against the debtor.” DPWN Holdings (USA), Inc., v. United Air Lines, Inc.,
Ms. Landrum was treated at the Center for Women’s Health. The facts established by the motions for summary judgement do not address the relationship between the Hospital and the Center for Women’s Health. For example, if the Center of Women’s Health is a division of the Hospital, the Center of Women’s Health may very well be a name under which the Hospital did business. Neither the Voluntary Petition commencing the Bankruptcy Case, the Amended Voluntary Petition nor the Commencement Notice filed by the Hospital in the Bankruptcy Case list the Center for Woman’s Health as a name the Debtor has used or under which it operated business in the last eight years. See Docket Nos. 1, 30 and 73. Those documents reflect that the Debtor
If the Hospital did business under the Center for Woman’s Health name, it easily could have included that fact in a notice to Ms. Landrum, which would have triggered her duty to investigate whether her claim against Dr. Moolamalla would be subject to the Plan Injunction. The notices the Hospital gave, however, indicated otherwise or were silent.
The only evidence before the Court that Ms. Landrum was on inquiry notice of a possible connection between the Hospitаl and Dr. Moolamalla is that the Center for Woman’s Health is housed in a separate building on the Hospital campus connected to the main Hospital building by a hallway. However, the Court cannot adequately assess the import of this evidence without visually picturing how this might have led a reasonable person to conclude there might be an operational association between the Hospital and the Center for Women’s Health so as to put Ms. Landrum on inquiry notice that Dr. Moolamalla might be associated with the Hospital. If the Center for Women’s Health was part of the Hospital, other relevant evidence •might include whether any connection between the Hospital and the Center for Woman’s Health could be ascertained from billing statements, medical bills, disclosures, signage, name tags or similar items Ms. Landrum would have seen. If the notice provided to creditors, or other relevant information Ms. Landrum should have leаrned through inquiry, does not provide adequate information that a claim against Dr. Moolamalla might be affected by the Plan, such claims will not be affected by the confirmed plan. Cf. Barton Indus.,
The facts now before the Court are insufficient to determine on summary judgment whether the notices the Hospital gave Ms. Landrum in the Bankruptcy Case coupled with whatever knowledge . and inquiry notice she had were sufficient to bind Ms. Landrum to the Plan Injunction consistent with the requirements of due process.
CONCLUSION
Based on the foregoing, the Court will enter partial summary judgment in favor of Defendants determining that the Plan Injunction is broad enough to bar Ms. Landrum’s claims, and that Ms. Lаndrum actually received the Commencement Notice, Patient Notice, Confirmation Notice, and Bar Date Notice. Fact issues prevent the Court from determining on summary judgment whether the content of the notices to Ms. Landrum satisfies the requirements of due process sufficient to bind her to the injunction contained in the con
Notes
. See Plaintiff’s Motion for Summary Judgment (Docket No. 14); Defendants’ Motion for Summary Judgment (Partial) ("Defendants’ Summary Judgment Motion”) (Docket No. 16); Defendants’ Opposition to Plaintiff's Motion for Summary Judgment (Docket No. 18); Plaintiff’s Response to Defendants’ Motion for Summary Judgment (Docket No. 17); Plaintiff’s Reply in Further Support of her Motion for Summary Judgment (Docket No. 19); Defendants’ Reply in Support of Motion for Summary Judgment (Partial) (Docket No. 22); Plaintiff’s Sur-Reply to Defendants’ Motion for Summary Judgment (Docket No. 23).
. See Complaint for Declaratory Judgment that (1) the Automatic Stay, the Discharge Injunction, ánd Sectiоn 14.20 of the Debtor’s Confirmed Plan do not Affect Plaintiff’s Case against Dr. Moolamalla; (2) Plaintiff's Failure to File Evidence of a Claim Against the Debt- or does not Constitute Waiver-of the Claim Against Dr. Moolamalla; and (3) Plaintiff has not Willfully Violated Debtor’s Bankruptcy Stay ("Complaint”), See Docket No. I. The Complaint contains five counts for declaratory judgment. Defendants Hospital and Surgit Moolamalla asserted four counterclaims against Plaintiff: two counts for declaratory relief (Counts I and II); a claim for damages for contempt of court (Count III); and a claim for breach of contract (Count IV). See Answer to Complaint for Declaratory Judgment and Related Counterclaims ("Answer and Counterclaims”) (Docket No. 4).
.Defendants also seek summary judgment on Count IV of their counterclaims, except with respect to damages. See Docket No. 16. In Count IV, Defendants assert that the confirmed plan constitutes a contract between the Hospital and its creditors, including Plaintiff, and that Plaintiff’s filing of the State Court Action and failure to dismiss the State Court Action in violation of the terms of the confirmed plan constitutes a breach of contract. See Answer and Counterclaims — Docket No. 4.
. This conclusion and any findings or other conclusions predicated on Dr. Moolamalla’s status as an employee of the Hospital at all relevant times, is subject to Ms. Landrum having a further opportunity to dispute such employment status. See discussion at pages 468-69 below.
. Rule 56(c) contemplates that a party support a request for summary judgment by declaration. See Fed.R.Civ.P. 56(c), made applicable to adversary proceedings by Fed. R.Bankr.P.7056 ("A party asserting that a fact cannot be ... genuinely disputed must support the assertion by ... affidavits or declarations ... ”) (emphasis added). For purposes of Rule 56, a declaration subscribed as true under penalty of perjury is an adequate alternative to a signed affidavit witnessed by a notary public. See Richardson v. Gallagher,
. In American Properties, the bankruptcy сourt stated that “the mailing employee need not testify.” 30 B.R, at 244 (citation omitted).
. Ms. Landrum contests that the facility where she received treatment from Dr. Moo-
. The Landrum Deposition states:
Q. Okay. And where is that?
A. It’s in a building attached on the side of the hospital,
Q. Of Gerald Champion Regional Medical Center?
A. I think it's its own business. I don’t know that question.
Q. But the building is attached to Gerald Champion Regional Medical Cеnter?
A. It’s not attached attached, but there's a hallway that leads — no, it’s actually not attached.
Landrum Deposition, p. 35, lines 2 through 13.
. Cf. Reynolds v. Swigert,
. See Santee v. J & R Marketing (In re Mako, Inc.), 127 B.R. 474, 476 (Bankr.E.D.Okla.1991) (stating that "a Chapter 11 Plan is a contract, subject to the same rules of interpretation as such written contracts.”) (citation omitted); Connolly v. City of Houston (In re Western Integrated Networks, LLC),
. Western Real Estate did not involve an injunction contained in a confirmed Chapter 11 plan.
. See also, Unioil,
. The Hospital also provided notice of the confirmation hearing and of the Administrative Claims Bar Date by publication. Notice by mail coupled with notice by publication may be sufficient to satisfy the requirements of due process. See Blinder,
. See also, Witt v. Roadway Express,
. This case is distinguishable from a case in which a debtor gave the best notice based on facts known or knowable to it, but it still failed to put a creditor on inquiry notice.