MEMORANDUM AND ORDER

G. T. VANBEBBER, United States District Judge.

This case is before the court on Plaintiffs' motion to reconsider (Doc. 98) the court's July 6, 2000 Memorandum and Order (Doc. 94) denying Plaintiffs and Defendant Valley View State Bank's motions to remand the case to the District Court of Johnson County, Kansas. For the reasons set forth below, the court grants Plaintiffs' motion to reconsider and remands the case.

In the court's July 6, 2000 Memorandum and Order, the court stated the following in footnote one: "Although the state court record includes a notice of suit for service by publication for [defendant] Babarskas, the court was unable to find the requisite affidavit for service by publication as required by K.S.A. § 60-307[c]. Had Babarskas been properly served, the court would likely have remanded the case because the unanimity rule [requiring consent by all defendants for removal] would not have been met." Plaintiffs request that the court reconsider its order pursuant to D. Kan. Rule 7.3, because the state court record did in fact contain the required affidavit for service by publication; apparently, through error or oversight, the affidavit had been inadvertently omitted from the state court record before the court at the time it addressed the remand issue. The court has reviewed the affidavit for service by publication attached to Plaintiffs' motion to reconsider and concludes that service by publication upon defendant Babarskas was complete at the time defendants Katherine Bruni, Christina Toliver, and Mark Toliver removed the case on November 24, 1999. Because defendant Babarskas had been properly served at the time of removal, his consent was required for removal under the unanimity rule. See e.g., McShares v. Barry, 979 F. Supp. 1338, 1342 (D.Kan. 1997) (under the unanimity rule, notice of removal fails unless all defendants consent to removal). The court therefore remands the case to the District Court of Johnson County, Kansas because defendant Babarskas did not consent to removal, and the unanimity rule has not been met.

Apart from the newly submitted affidavit for service by publication, defendants Bruni, Christina Toliver, and Mark Toliver urge the court to find that service by publication upon defendant Babarskas was not complete at the time of removal for another reason — because the service had not been proved at the time of removal. K.S.A. § 60-307(f) provides: "Service by publication shall be deemed complete when it has been made in the manner and for the time prescribed in subsections (d) and (e), and the service shall be proved." K.S.A. § 60-312(c) addresses proof of service: "When mailing of copies of the publication notice is required in accordance with subsection (e) of K.S.A. § 60-307 and amendments thereto, the proof of such mailing shall be by affidavit of the person who mailed such copies and such affidavit shall be filled with the clerk of the court in which the action has been filed." Plaintiffs do not dispute that the person who mailed the copies of the publication notice, i.e. Plaintiffs' counsel, did not file such affidavit before removal. Plaintiffs did, however, file the affidavit of their counsel, Bernard Weinand, contemporaneously with Plaintiffs' reply to the motion to reconsider on September 7, 2000. Plaintiffs' counsel's affidavit states that he mailed and faxed a copy of the publication notice to defendant Babarskas on November 1, 1999, which was within seven days after the first publication on October 26, 1999 in accordance with K.S.A. § 60-307(e).

The court concludes that Plaintiffs' counsel's failure to file this affidavit before removal does not preclude this court from determining that service upon defendant Babarskas was complete at the time of removal. The parties acknowledge that the record contains a certificate of mailing indicating that the published notice was mailed to all defendants whose addresses were known. While K.S.A. § 60-312(c) requires an affidavit, not a certificate of mailing, the court finds Plaintiffs' counsel's technical defect does not defeat service upon defendant Babarskas before removal. The court finds that the certificate of mailing sufficiently complied with § 60-312(c) and that Plaintiffs' counsel's September 7, 2000 affidavit may relate back to November 1, 1999 — the date Plaintiffs' counsel mailed and faxed a copy of the publication notice to defendant Babarskas. Thus, the court concludes that service by publication upon defendant Babarskas was complete as of November 9, 1999 — the last publication date of the notice of suit — which was before removal on November 24, 1999.

Particularly significant to the court is the fact that this technical defect in proving service did not impair the substantive rights of defendant Babarskas. He was "served in a timely manner and [was] not prejudiced or misled in any way" by any error in the proof of service. Cook v. Freeman, 825 P.2d 1185, 1189 (Kan.Ct.App. 1992). Defendants Bruni, Christina Toliver, and Mark Toliver are using this technical defect to their advantage to claim that because the service was not proved, defendant Babarskas was not properly served, and his consent was not required for removal. The court does not find the ends of justice served by forcing the parties to litigate this matter in federal court simply because Plaintiffs' counsel failed to strictly comply with the affidavit requirement of K.S.A. § 60-312(c).

All facts — minus the affidavit — indicate proper service: The other publication requirements have been met; Plaintiffs' counsel had in fact mailed and faxed a copy of the publication notice; and defendant Babarskas is not challenging the service by publication. Nothing in the record indicates that defendant Babarskas was not operating under the assumption that he had been properly served and that he was a defendant in the case. For all intents and purposes, defendant Babarskas had been properly served at the time of removal; his consent was therefore required.

Defendants Bruni, Christina Toliver, and Mark Toliver also contend that service by publication was not complete upon defendant Babarskas at the time of removal because proof of service was not filed within ten days after service was effected, K.S.A. § 60-312(d), and the court had not approved the proof of service, K.S.A. § 60-307(f).

Section 60-312(d) addresses the time for return of service of process: "The officer or other person receiving a summons or other process shall make a return of service promptly and in any event within 10 days after the service is effected." The court doubts that this section applies to service by publication, as the section discusses return after a summons or other process is served. In addition, the proof of publication affidavit required for proof of service is dated November 10, 1999. In any event, under the facts of this case, any failure to make a return of service did not impair the substantial rights of defendant Babarskas and does not impair the service. See Cook, 825 P.2d at 1189.

Defendants Bruni, Christina Toliver, and Mark Toliver's argument that service was not complete because the court had not approved the service is equally unpersuasive. Section 60-307(f) provides, in part: "No judgment by default shall be entered on the service [by publication] until proof of service is made, approved by the court and filed." This portion of subsection (f) addresses when a court may enter default judgment on service by publication and has no bearing on whether defendant Babarskas was served prior to removal. Subsection (f) does not require court approval to complete service by publication; rather, court approval is required for entry of default judgment.

Finally Defendants Bruni, Christina Toliver, and Mark Toliver assert that K.S.A. § 60-307 does not provide service for Plaintiffs' claims in count II of the complaint because count II seeks to obtain a personal judgment against defendant Babarskas, and service by publication shall not warrant a personal judgment against a defendant. Though Defendants correctly state the law, see K.S.A. § 60-307(b), their arguments fail in light of the facts of this case. Count II involves the apportionment of tax liability between Plaintiffs and defendant Babarskas for the increased estate tax caused by Mariza Toliver's life insurance policy. Plaintiffs seek a declaration that the increased tax liability be assessed against defendant Babarskas's portion of the trust because he was the named beneficiary of the life insurance policy and that the Trustee is not entitled to recover any portion of the increased tax liability from the portions of the trust distributable to Plaintiffs. Even assuming that this argument is properly raised at this time, the court agrees with Plaintiffs: Because the entirety of the res in the Mariza Toliver trust is in Johnson County, Kansas, and Plaintiffs only sought a declaration as to the parties' rights and liabilities with respect to the trust, the court only needs in rem jurisdiction over the Defendants, including Babarskas.

For the foregoing reasons, the court concludes that remand to the District Court of Johnson County, Kansas is proper.

IT IS THEREFORE BY THE COURT ORDERED that Plaintiffs' motion to reconsider (Doc. 98) is granted and the case is remanded to the District Court of Johnson County, Kansas.

The case is closed.

IT IS SO ORDERED.