* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20844

In The Matter Of: WATERFORD ENERGY

Debtor

– – – – – – – – – – – – – – – – – – – – –

KAISER-FRANCIS OIL COMPANY, formerly known as Waterford 

Energy Inc

Appellant

v.

STATE OF OKLAHOMA ex rel. Commissioners of the Land Office

Appellee

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:07-CV-1399

Before JONES, Chief Judge, and GARWOOD and SMITH, Circuit Judges.

PER CURIAM:*

Kaiser-Francis Oil Company (“Kaiser”) appeals the bankruptcy court

judgment, affirmed by the district court,that dismissed its adversary proceeding

for failure to state a claim under Rule of Civil Procedure 12(b)(6) and denied its

United States Court of Appeals

Fifth Circuit

F I L E D

September 30, 2008

Charles R. Fulbruge III

Clerk
No. 07-20844

2

motion to alter or amend the judgment under Bankruptcy Rule 9023. We agree

with the lower courts’ conclusions that Kaiser-Francis did not afford constructive

notice of its bankruptcy to the Commissioners of the Land Office by filing a

notice in the Oklahoma County records, nor did it raise an issue of

Commissioners of the Land Office’s actual notice. We affirm.

I. FACTS AND PROCEEDINGS

The State of Oklahoma Schools Land Trust (“the Trust”), a substantial

landowner in Oklahoma, owned a royalty interest in a number of mineral leases

in Beaver and Texas Counties, Oklahoma. The Commissioners of the Land

Office (“the CLO”) is the Oklahoma agency that administers and collects

royalties from minerals harvested from lands owned by the Trust. Waterford

Energy, Inc. (“Waterford”) began drilling and operating oil and gas wells in

Beaver and Texas Counties in 1983. Waterford also directly owned a working

interest in the mineral leases owned by the Trust and other individuals. In its

role as operator, Waterford was responsible for making payments to an

estimated 1700 owners of royalty and working interests in the wells. Waterford

sold its operating rights in the wells to a third party in 1985 but retained seveneighths of its working interest in the mineral leases. Kaiser later acquired

Waterford in a bankruptcy case.

On August 31, 1990, Waterford filed a chapter 11 bankruptcy petition in

the Southern District of Texas. Waterford did not notify the Trust or the CLO

of its bankruptcy proceeding, either by mail or publication. However, on

October 25, 1990, Waterford filed a copy of its bankruptcy petition and

preliminary draft reorganization plan in the real property records of Beaver and
No. 07-20844

1 These statutes provide:

Copies of any and all petitions, or orders or decrees of any United States Court,

in bankruptcy proceedings, duly certified as correct by the Clerk of such Court

or his Deputy, may be filed and recorded in the office of any County Clerk of this

state. Said County Clerk shall accept the same for filing when certified by the

Clerks of said Courts as true copies of said instruments and file and record the

same in his office and also shall cause the same to be indexed.

OKLA. STAT. tit. 19, § 262.

All of such certified copies of said petitions, orders or decrees so filed, whether

acknowledged or not, shall be constructive notice of their contents from and

after the filing and recording thereof.

Id. § 263. 

2 The CLO’s pending state-court suit mirrors a state class-action brought previously

against Kaiser. On August 24, 1995, certain royalty owners that had mineral lease

agreements with Waterford in Beaver and Texas Counties filed a class-action complaint

against Kaiser. In their suit, the plaintiffs sought to recover the nonpayment of royalties

3

Texas Counties, a procedure outlined in Oklahoma’s notice statutes.1 The filing

of these documents was not made pursuant to an order of the bankruptcy court,

and the documents did not list any bankruptcy case deadlines.

On February 19, 1991 (“the Confirmation Date”), following a hearing,

Waterford received a discharge in the bankruptcy court pursuant to a confirmed

plan of reorganization (“the Waterford plan”). Under the Waterford plan,

Waterford retained all of its assets, which included its working interest in the

mineral leases on the Trust’s lands. The Waterford plan also provided that

Kaiser would acquire all stock in Waterford and that the funds Kaiser paid for

the stock would be distributed to Waterford’s legitimate creditors on a pro rata

basis. After the Confirmation Date, Waterford was merged into Kaiser. 

On November 4, 2002, the CLO, on behalf of the Trust, asserted preconfirmation Waterford-based claims against Kaiser in Oklahoma state court for

nonpayment of royalties in the Beaver and Texas Counties wells, dating from

1983 through the Confirmation Date.2 The CLO argued that it did not receive
No. 07-20844

dating back to 1983. The Oklahoma state court certified the class of royalty owners in 1997.

Kaiser moved for summary judgment on the ground that the bankruptcy discharge in the

Waterford plan established an affirmative defense, butthe trial court deniedthe motion, ruling

that Waterford never provided constitutionally sufficient notice to the unknown royalty

owners. After class certification was affirmed on appeal, the CLO opted out of the class. The

case was eventually tried in Oklahoma state court in November 2001, and the royalty owners

were awarded a substantial judgment, which was affirmed on appeal.

4

notice of Waterford’s bankruptcy case, that Waterford’s liability for the CLO’s

claims was not discharged, and that Kaiser was liable as Waterford’s successor.

In response, Kaiser initiated an adversary proceeding in bankruptcy court

in the Southern District of Texas, seeking a declaratory judgment that Kaiser’s

liability for the CLO’s pre-confirmation Waterford-based claims had been

discharged under the Waterford plan and 11 U.S.C. § 1141(d) and that the CLO

was enjoined from bringing its state-court claims pursuant to the discharge

injunction under 11 U.S.C. § 524(a)(2). Because Kaiser conceded that Waterford

never provided actual notice to the Trust or the CLO, Kaiser’s sole allegation

was that the CLO was an unknown creditor and as such was only entitled to

constructive notice of Waterford’s bankruptcy proceeding. Kaiser argued that

Waterford had provided adequate constructive notice, because Waterford

recorded a copy of its bankruptcy petition and preliminary draft reorganization

plan in the real property records of Beaver and Texas Counties during the

pendency of its bankruptcy case pursuant to Oklahoma’s notice statutes. 

The CLO moved to dismiss Kaiser’s adversary proceeding, in part, for

failure to state a claim under Rule 12(b)(6). The CLO asserted that Kaiser’s

liability was not discharged because, among other reasons, Waterford never

provided adequate notice of its bankruptcy proceeding. On September 6, 2006,

the bankruptcy court granted the CLO’s Rule 12(b)(6) motion and dismissed

Kaiser’s adversary proceeding. The bankruptcy court found that the form of
No. 07-20844

5

recordation notice provided by Waterford was not adequate constructive notice

and did not discharge Kaiser’s liability for the CLO’s claims. 

On September 18, 2006, Kaiser filed a motion to alter or amend the

judgment under Bankruptcy Rule 9023, the bankruptcy court’s version of

Fed. R. Civ. P. 59, based upon a July 1, 1992 CLO memorandum, which Kaiser

claimed raised fact issues as to whether the CLO had actual knowledge of

Waterford’s bankruptcy case before the Confirmation Date. The bankruptcy

court rejected this argument.

Kaiser appealed the bankruptcy court’s decisions to the district court. On

October 11, 2007, the district court affirmed the bankruptcy court’s dismissal

order, holding that “the Oklahoma statutes [cited by Kaiser] were never

intended to address notice of a reorganization suit” and that “the bankruptcy

court [correctly] concluded that the Oklahoma statutes regarding notice to bona

fide purchasers were not sufficient constructive notice to pass constitutional

muster” as applied to the CLO. The district court also affirmed the bankruptcy

court’s denial of Kaiser’s motion to alter or amend the judgment. Kaiser appeals.

II. STANDARD OF REVIEW

The bankruptcy court dismissed Kaiser’s adversary proceeding for failure

to state a claim under Rule 12(b)(6) and the district court affirmed. Therefore,

we review this decision de novo. See Lowrey v. Tex. A & M Univ. Sys., 117 F.3d

242, 246 (5th Cir. 1997). This Court “accepts all well-pleaded facts as true,

viewing them in the light most favorable to the plaintiff.” Reliable Consultants,

Inc. v. Earle, 517 F.3d 738, 742 (5th Cir. 2008) “To survive a Rule 12(b)(6)

motion to dismiss, the plaintiff must plead enough facts to state a claim to relief

that is plausible on its face.” Id. (internal quotations omitted).
No. 07-20844

6

III. DISCUSSION

A. Motion to Dismiss

Kaiser filed this adversary proceeding seeking a declaratory judgment that

its liability for the CLO’s pre-confirmation, Waterford-based claims had been

discharged. The district court, assuming that the CLO was an unknown

creditor, dismissed Kaiser’s proceeding for failure to state a claim under

Rule 12(b)(6). It found that Waterford’s filing of a copy of its bankruptcy petition

and preliminary draft reorganization plan in the real property records of Beaver

and Texas Counties pursuant to Oklahoma’s notice statutes did not provide

adequate constructive notice and did not discharge Kaiser’s liability for the

CLO’s claims. In reviewing this dismissal, we must determine whether

Waterford provided adequate constructive notice of its bankruptcy proceeding.

We agree with the district and bankruptcy courts and affirm. 

The notice of a bankruptcy case is governed by federal law, not state law.

See, e.g., Circle K Stores, Inc. v. State of Mont. Dep’t of Revenue (In re The Circle

K Corp.), 198 B.R. 784, 790 (Bankr. D. Ariz. 1996); Buttes Gas & Oil Co. v. Cal.

Reg’l Water Quality Control Bd. (In re Buttes Gas & Oil Co.), 182 B.R. 493, 497

(Bankr. S.D. Tex. 1994). “Under the Bankruptcy Code, a debtor is generally

discharged from any debtthat arose prior to the bankruptcy court’s confirmation

of the debtor’s proposed . . . reorganization plan.” Zurich Am. Ins. Co. v. Tessler

(In re J.A. Jones, Inc.), 492 F.3d 242, 249 (4th Cir. 2007) (citing 11 U.S.C.

§ 1141(d)). However, before a 

pre-confirmation claim can be discharged under the applicable

provisions of the Bankruptcy Code, a debtor’s creditors must be

afforded notice of the debtor’s bankruptcy case, as well as the

deadline for asserting any pre-petition claims against the debtor, so

as to provide the creditors an adequate opportunity to assert any

claims they may have against the debtor’s estate. 
No. 07-20844

7

Id.; see Chemetron Corp. v. Jones, 72 F.3d 341, 346 (3d Cir. 1995) (“[I]nadequate

notice is a defect which precludes discharge of a claim in bankruptcy.”). On a

constitutional level, the Supreme Court clearly articulated the standard for

notice when it stated that “‘[a]n elementary 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.’” In re J.A. Jones, Inc., 492 F.3d at 249 (quoting Mullane v. Cent.

Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). Stated another way, “a

claim asserted by a creditor against a debtor’s estate cannot constitutionally be

discharged in accordance with the Bankruptcy Code unless the debtor provides

constitutionally adequate notice to the creditor of the debtor’s bankruptcy

proceeding, as well as the applicable filing deadlines and hearing dates.” Id.

“The type of notice that is reasonable or adequate for purposes of

satisfying the due process requirement in this context depends on whether a

particular creditor is known or unknown to the debtor.” Id. Although actual

notice of the bankruptcy filing and applicable bar date must be provided to

known creditors, constructive notice is sufficient to pass constitutional muster

for unknown creditors. See id. at 249–50; Chemetron, 72 F.3d at 346. It is well

established that notice by publication will generally suffice for constructive

notice. See In re J.A. Jones, Inc., 492 F.3d at 249–50; Chemetron, 72 F.3d at 346.

“Publication in national newspapers is regularly deemed sufficient [constructive]

notice to unknown creditors . . . .” Chemetron, 72 F.3d at 349–50.

In addition to these general constitutional requirements, the Bankruptcy

Code and Federal Rules of Bankruptcy Procedure specifically provide a process

to ensure that adequate constructive notice in a bankruptcy proceeding is

provided to unknown creditors. Section 342 of the Bankruptcy Code provides
No. 07-20844

8

that “[t]here shall be given such notice as is appropriate . . . of an order for relief

in a case under this title.” 11 U.S.C. § 342(a). Bankruptcy Rule 2002(l) states

that a court may order notice by publication if it finds that “notice by mail is

impracticable.” FED. R. BANKR. P. 2002(l). “Whenever [the Bankruptcy Rules]

require or authorize service or notice by publication, the court shall, to the

extent not otherwise specified in these rules, determine the form and manner

thereof, including the newspaper or other medium to be used and the number of

publications.” FED. R. BANKR. P. 9008.

Waterford’s form of recordation notice here does not satisfy the

requirements of the Due Process Clause or the Bankruptcy Code or Rules.

Notwithstanding the well-established rule for constructive notice, Kaiser

concedes that Waterford never provided notice by publication, with or without

bankruptcy court authorization, in a national newspaper such as the New York

Times or Wall Street Journal, or one likely to be read in Oklahoma, such as the

Daily Oklahoman or a local newspaper in Beaver and Texas Counties. Instead,

Waterford provided notice only through its filing of the bankruptcy petition and

preliminary draft reorganization plan in the real property records in Beaver and

Texas Counties. Kaiser argues, without citing any authority, that Waterford’s

form of recordation notice was superior to notice by publication. Kaiser asserts

that Waterford’s form of recordation notice “is a better quality of constructive

notice than publication notice because it constitutes a permanent record of the

chapter 11 case and reorganization plan in a governmental unit’s records.”

Waterford’s filing in the real property records failed, however, to list any of the

important bankruptcy deadlines, including the claims bar date, which would

normally be found in publication notice. See Chemetron, 72 F.3d at 347.

Moreover, Waterford did not seek bankruptcy court authorization for its novel

method of affording notice. Accordingly, the lower courts correctly concluded
No. 07-20844

9

that Waterford’s form of recordation notice was inadequate to serve the purposes

of constructive notice and properly dismissed Kaiser’s adversary proceeding. 

Waterford’s reliance on Oklahoma’s notice statutes to support constructive

notice is erroneous because the statutes were not intended to provide general

notice to all unknown creditors in a bankruptcy case. The Oklahoma Supreme

Court has repeatedly held that the doctrine of constructive notice applies only

to a person who is “dealing with the land itself.” Foster v. Augustanna Coll. &

Theological Seminary, 218 P. 335, 338 (Okla. 1923). It has also been held that

the public real property record is not constructive notice to a party that has no

duty to search it. See, e.g., Stocklassa v. Kinnamon, 269 P. 1080, 1081 (Okla.

1928). Further, because current landowners have no duty to search the real

property records, the doctrine of constructive notice does not apply in such a

context. See Straub v. Swaim, 296 P.2d 147, 148–49 (Okla. 1956) (“Plaintiff,

having already bought and paid for the property, taken possession thereof and

received a properly executed conveyance thereof at the time of the recording of

defendant’s mineral deed was not a subsequent purchaser and such recording

therefore afforded no notice to him . . . .”). Similarly, the Trust owned the land

at all relevant times and was entitled to receive royalties; under Straub, it had

no duty to search the real property records. Kaiser has failed to explain why an

unknown creditor, in the CLO’s or the Trust’s position, would have had a duty

to search the real property records in a county for notice of a bankruptcy case.

Even under Oklahoma law, Waterford’s form of recordation notice had no effect

on unknown creditors like the CLO. 

The interplay between federal bankruptcy law and Oklahoma’s notice

statutes also reveals thatthe state statutes were enacted to provide constructive

notice to post-petition, bona fide purchasers of the debtor’s real property, not to

unknown creditors in a bankruptcy case. “Prior to 1938, a post-petition
No. 07-20844

3 The current statute, enacted in 1978, provides for constructive notice to good faith

post-petition purchasers of property of the bankruptcy estate who do not have knowledge of

the commencement ofthe proceeding by filing a copy or notice ofthe bankruptcy petition where

a transfer of an interest in real property may be recorded. See 11 U.S.C. § 549(c). 

10

purchaser of real property [of the debtor] had no guarantee of receiving clear

title to that property.” Kelly Culpin, The Validity of Post-Petition Transfers of

Real Property: Who Does the Bankruptcy Code’s Section 549(c) Protect?, 40 Real

Prop. Prob. & Tr. J. 149, 157 (2005). In 1938, however, Congress enacted

11 U.S.C. § 44(g), which has since been repealed,3 and “introduced a method for

providing constructive notice of the bankruptcy proceeding to potential

purchasers of the debtor’s real property, lessening the opportunity for a debtor

to make fraudulent conveyances.” Id. at 158–59. “This section permitted the

trustee . . . to record a copy of the [bankruptcy] petition in the recorder’s office

in every county where the debtor owned or had an interest in real property” in

order to give constructive notice to potential purchasers. Id. at 159. In a

jurisdiction that recognized such a recording, (1) constructive notice took effect

only in the county where the bankruptcy proceeding was pending; and (2) the

filing of the bankruptcy petition in court did not afford constructive notice to

purchasers of real property located in other counties, unless a copy of the

bankruptcy petition had been recorded in the real property records of that

county. See 11 U.S.C. § 44(g) (repealed). The Oklahoma Supreme Court

recognized that Oklahoma’s notice statutes, OKLA. STAT. tit. 19, §§ 262-63,

implemented the latter section of 11 U.S.C. § 44(g) by “authoriz[ing] the filing

of such instruments” in the office of the county clerk. See Viersen v. Boettcher,

387 P.2d 133, 138 (Okla. 1963). Kaiser’s complaint does not allege that the CLO

is a post-petition, bona fide purchaser of property of the bankruptcy estate. The
No. 07-20844

4 Because we affirm the district court’s decision on the constructive notice ground, we

do not address the CLO’s argument that it was a known creditor and entitled to actual notice.

11

CLO is not bound by Waterford’s form of recordation notice as Oklahoma’s notice

statutes are inapplicable here. 

Finally, Kaiser cites Appling County v. Mun. Elec. Auth. of Ga., 621 F.2d

1301 (5th Cir. 1980), and contends that CLO, as a state agency, cannot challenge

the constitutional validity of its own state statute. See id. at 1307–08. That is

not what CLO has done; instead, it merely challenges the statute’s applicability

in this context. Appling is inapplicable.

For these reasons, the district court did not err in holding that Waterford

did not provide adequate constructive notice of its bankruptcy proceeding and

that Kaiser failed to state a claim.4

B. Motion to Alter or Amend the Judgment

Kaiser contends that the bankruptcy court should have allowed it to

amend its complaint based upon a July 1, 1992 internal CLO memo that

allegedly implied CLO might have had actual knowledge of the Waterford

bankruptcy. Kaiser’s case theretofore centered solely on the constructive notice

issues. Because Kaiser apprised the bankruptcy court of the memo only after

the court had dismissed, this court reviews its action for abuse of discretion. We

find none. Kaiser made no prejudgment motion to amend pursuant to Fed. R.

Bankr. P. 7015, and this court has “consistently upheld the denial of leave to

amend [post-judgment] where the party seeking to amend has not clearly

established that he could not reasonably have raised the new matter prior to the

trial court’s merits ruling.” Briddle v. Scott, 63 F.3d 364, 379 (5th Cir. 1995); see

also Vielma v. Eureka Co., 218 F.3d 458, 468 (5th Cir. 2000). Kaiser has made

no attempt to suggest that it was unaware of this memo, and thus unable to
No. 07-20844

12

assert an issue concerning CLO’s actual notice of the bankruptcy, before the

court ruled on the motion to dismiss. Busy courts need not be abused by

piecemeal litigation tactics.

IV. CONCLUSION

For these reasons,the judgments ofthe bankruptcy and district courts are

AFFIRMED.