The opinion
PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
EMIDIO CHECCONE,1 )
) CASE NO. 4:26-cv-272
Plaintiff, )
)
v. ) JUDGE BENITA Y. PEARSON
)
IOLE CHECCONE et al., ) MEMORANDUM OF OPINION AND
) ORDER
Defendants. ) [Resolving ECF No. 4, 5, 6, 7, 8, 12, 13, 16,
) and 30]
This case comes before the Court on Defendant Iole Checcone’s Notice of Removal
(ECF No. 1) of Plaintiff Emidio Checcone’s (“Plaintiff” or “Emidio”) Complaint for Declaratory
Judgment and Other Relief, originally filed in the Probate Court of Mahoning County, Ohio
against Defendants Iole Checcone (individually and as Co-Trustee of the Iole C. Checcone
Revocable Trust) (“Defendant Iole” or “Iole”), Anne Marie Checcone (individually and as Co-
Trustee of the Albert G. Checcone Revocable Trust) (“Defendant Anne Marie” or “Anne
Marie”), and Mark Checcone (individually and as Co-Trustee of the Albert C. Checcone
Revocable Trust) (“Defendant Mark” or “Mark”). ECF No. 1, Ex. A.
Now pending before the Court is Plaintiff’s Motion to Remand (ECF No. 7), in which he
argues that remand is proper under the unanimity doctrine. Defendants Iole and Anne Marie
oppose the motion to remand (ECF No. 14); Plaintiff submitted a reply in support. ECF No. 24.
1 The docket erroneously spells Plaintiff’s first name as “Emiddio.” The Court shall
refer to Plaintiff as “Emidio Checcone,” consistent with Plaintiff’s state-court pleadings
and briefs.
Defendant Iole subsequently filed a Motion to Supplement Notice of Removal Instanter (ECF
No. 16), purportedly addressing Plaintiff’s unanimity arguments. Plaintiff opposes the Motion to
Supplement. ECF No. 25. Defendants Iole and Anne Marie also filed a joint Motion to Realign
the Parties (ECF No. 13), seeking to realign Defendant Mark as a plaintiff. That motion is also
fully briefed. Plf. Opp. Br., ECF No. 22; Def. Mark Opp. Br., ECF No. 23; Defs. Reply Br.,
ECF No. 28. Finally, Defendant Iole filed a Motion for Leave to File Exhibits Under Seal. ECF
No. 12. Plaintiff opposes. ECF No. 18. Defendant Iole replied. ECF No. 21.
Defendant Mark filed a Motion for Enlargement of Time to Answer (ECF No. 4). That
motion is granted and his answer (ECF No. 11) is timely.
For the reasons explained below, the Motion to Realign the Parties (ECF No. 13) is
denied. Defendant Iole’s Motion to Supplement the Notice of Removal, Instanter (ECF No. 16)
would be futile or duplicative of the Motion to Realign, and, therefore, is denied. Plaintiff’s
Motion to Remand (ECF No. 7) is granted.
I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
A. Factual Allegations
This action concerns two family trusts: the Albert G. Checcone Trust, executed and
amended in 1990 (“Albert Trust”), and the Iole C. Checcone Trust, executed and amended in
1990 (“Iole Trust”). The two revocable trusts were executed as part of an estate plan by Albert
and Iole Checcone, parents of Plaintiff Emidio and Defendants Mark and Anne Marie. ECF No.
1 at PageID #: 7, ⁋ 3. Albert and Iole maintained several accounts and assets through Merrill
Lynch to fund both trusts equally. ECF No. 1 at PageID ##: 10–11, ⁋⁋ 39–44. Emidio was the
Co-Trustee for the Albert Trust while Albert was living. ECF No. 1 at PageID #: 7, ⁋ 12. After
Albert’s death, Defendants Mark and Anne Marie were nominated as Co-Trustees of the Albert
Trust. ECF No. 1 at PageID #: 8, ⁋ 13. Only Defendant Mark has formally accepted that
nomination. ECF No. 1 at PageID #: 8, ⁋ 14. Similarly, Emidio was and remains the Co-Trustee
of the Iole Trust while Iole is living. ECF No. 1 at PageID #: 9, ⁋ 29. Emidio, Mark, and Anne
Marie are all remainder beneficiaries of the Iole Trust.
On March 20, 2023, Albert and Iole Checcone executed powers of attorney naming
Emidio as the Attorney-in-Fact. ECF No. 1 at PageID #: 11, ⁋ 47. Around this time, Iole’s long-
suffering mental health had deteriorated to the point that her doctors declared that she lacked that
ability make independent medical, financial, or legal decisions. ECF No. 1 at PageID ##: 9–10,
⁋ 33. Iole’s mental health decline is documented in numerous medical records. ECF No. 1 at
PageID #: 11, ⁋ 48.
According to Plaintiff, Defendant Anne Marie visited Albert and Iole in December 2024.
During that visit, and without Plaintiff’s knowledge, Anne Marie convinced her parents to
execute new springing powers of attorney (“POAs”). The new POAs named Anne Marie, not
Plaintiff, as the Attorney-in-Fact. Anne Marie also convinced Iole to execute a Health Care
Power of Attorney (“HCPOA”), again naming Anne Marie, not Plaintiff, as Attorney-in-Fact.
ECF No. 1 at PageID #: 12, ⁋⁋ 49, 51. Plaintiff contests both the POA and HCPOA, claiming
that Iole lacked the capacity to draft, prepare, or voluntarily sign either document due to her
severe dementia diagnosis. ECF No. 1 at PageID ##: 12–13, ⁋⁋ 53–59. He alleges both
documents resulted from undue influence and/or fraud. ECF No. 1 at PageID ##: 12–13, ⁋ 59.
In January 2025, Defendant Anne Marie submitted the POA to Merrill Lynch, which
rejected the document because it was a “springing” POA, requiring a medical certification of
incapacity. ECF No. 1 at PageID #: 13, ⁋ 62. A Merrill Lynch employee visited Albert and Iole
in February 2025 to discuss their trust accounts and to execute several Merrill-specific power of
attorney forms (“Merrill POAs”). ECF No. 1 at PageID #: 13, ⁋ 63. After receiving Merrill
POAs for both Albert and Iole, Defendant Anne Marie allegedly directed Merrill Lynch to close
Albert’s individually titled CDs and transfer the proceeds into the trust accounts, resulting in
asset ownership restructuring, additional management fees, and significantly increasing potential
risk exposure without notifying or consulting with Plaintiff, ECF No. 1 at PageID #: 13, ⁋ 66, the
Co-Trustee for both the Albert Trust and Iole Trust. ECF No. 1 at PageID ##: 7, 9, ⁋⁋ 12, 29.
After Albert’s death on May 20, 2025, Defendant Anne Marie allegedly sought written
certification of Iole’s incompetency from her physicians to “spring” the POA and HCPOA. ECF
No. 1 at PageID #: 16, ⁋⁋ 80–81, 83. Since their father’s death in May 2025, Plaintiff has been
unable to obtain information regarding the Albert Trust assets and accounts. ECF No. 1 at
PageID #: 17, ⁋⁋ 90–92.
B. Procedural History
Plaintiff filed this action in the Probate Court of Mahoning County, Ohio. ECF No. 1.
Service of summons and the complaint were completed using certified mail through the United
States Postal Service and consistent with Ohio Civ.R. 4.1. Defendant Anne Marie acknowledges
that service of process was mailed certified to all Defendants through the United States Postal
Service on December 15, 2025. ECF No. 6 at PageID #: 258. Defendant Mark was served on
December 20, 2025; Defendant Anne Marie was purportedly served on December 26, 2025.2
ECF No. 6 at PageID #: 258. Defendant Iole provided evidence that she was successfully served
through USPS certified mail on January 2, 2026. ECF No. 5-2. Although both Defendants Iole
2 Neither Defendants Iole or Anne Marie provided the Court with the Mahoning
County Probate Court docket summary or evidence of service attempts on other either
Anne Marie or Mark.
and Anne Marie have raised insufficient service of process defenses under Fed. R. Civ. P.
12(b)(5), see ECF No. 5 and ECF No. 6,3 Defendant Iole timely filed the Notice of Removal.
ECF No. 1.
Defendant Mark Checcone moved for an enlargement of time to answer the complaint.
ECF No. 4. He subsequently filed his Answer (ECF No. 11) on February 25, 2026. The motion
for enlargement of time to answer (ECF No. 4) is granted and Mark’s Answer (ECF No. 11) is
timely. In response to the Notice of Removal, Plaintiff timely filed a Motion to Remand (ECF
No. 7), raising the unanimity issue. ECF No. 7 at PageID ##: 282–83. Specifically, Plaintiff
alleges that neither Defendants Anne Marie nor Mark consented to removal.
In response, Defendant Iole filed a Motion for Leave to Supplement the Notice of
Removal Instanter (ECF No. 16), amending the Notice of Removal to include the following:
18. Co-Defendant Mark Checcone’s consent to removal is not necessary, as he
should be realigned as a party plaintiff, or in the alternative, a nominal party.
19. Co-Defendant Anne Marie Checcone’s consent to removal is not necessary,
as she has not yet been properly served.
20. Co-Defendant Anne Marie Checcone, regardless, has indicated her consent
to removal.
ECF No. 16 at PageID #: 359. In addition, and as noted in the proposed supplement, Defendants
Iole and Anne Marie jointly move to realign Defendant Mark Checcone as a party plaintiff (ECF
No. 13), arguing that his interests are aligned with Emidio’s, evidenced by his Answer (ECF No.
11), in which he prays the Court to grant all relief sought in favor of Plaintiff.
II. STANDARD OF REVIEW
3 Because this case is remanded, the Court lacks jurisdiction to resolve these
pending motions at ECF No. 5 and ECF No. 6.
A defendant may remove a civil action filed in state court under 28 U.S.C. § 1441, when
there is either diversity jurisdiction, pursuant to 28 U.S.C. § 1332, or the claims involve a federal
question, as defined in 28 U.S.C. § 1331. Notice of removal must be filed within 30 days after a
defendant receives the initial pleadings through service (or otherwise) or notice that a previously
unremovable case is now removable. 28 U.S.C. § 1446(b)(1) and (b)(3). A party seeking
removal bears the burden of establishing its right to removal. Eastman v. Marine Mechanical
Corp., 438 F.3d 544, 549 (6th Cir. 2006). Thus, it is the removing party’s burden to show
subject matter jurisdiction (either federal question or diversity) exists at the time of removal.
Harnden v. Jayco, Inc., 496 F.3d 579, 581 (6th Cir. 2007) (citing Eastman, 438 F.3d at 549–40).
Application of “the removal statute should be strictly construed and all doubts resolved in favor
of remand.” Eastman, 438 F.3d at 549–40 (citing Brown v. Francis, 75 F.3d 860, 864-65 (3d
Cir. 1996)); Mays v. City of Flint, Mich., 871 F.3d 437, 442 (6th Cir. 2017) (citing Harnden, 496
F.3d at 581).
III. DISCUSSION
Plaintiff advances two primary arguments to support his Motion to Remand: (1) the
Notice of Removal is procedurally deficient under the rule of unanimity; and (2) the Notice of
Removal fails to demonstrate Defendant Iole’s state of citizenship, as required for diversity
jurisdiction under 28 U.S.C. § 1332. In addition, Plaintiff complains that the Notice of Removal
is deficient because it does not include all exhibits—in particular, Defendant Iole’s medical
records—attached to the state-court pleadings.
A. Diversity jurisdiction
The Court begins, as it must, with subject matter jurisdiction. In diversity jurisdiction
cases, the citizenship of the parties must be sufficiently diverse and the amount in controversy
must exceed $75,000. 28 U.S.C. § 1332. “Under [§ 1332], there must be complete diversity
such that no plaintiff is a citizen of the same state as any defendant.” V & M Star, LP v.
Centimark Corp., 596 F.3d 354, 355 (6th Cir. 2010) (citing Lincoln Prop. Co. v. Roche, 546 U.S.
81, 89 (2005)). The citizenship of a natural person equates to his domicile. Von Dunser v.
Aronoff, 915 F.2d 1071, 1072 (6th Cir. 1990). “For adults, domicile is established by physical
presence in a place in connection with a certain state of mind concerning one’s intent to remain
there.” Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989) (citing Texas v.
Florida, 306 U.S. 398, 424 (1939)); Deasy v. Louisville & Jefferson Cty. Metro. Sewer Dist., 47
F. App’x 726, 728 (6th Cir. 2002) (citing Gilbert v. David, 235 U.S. 561, 569–70 (1915)) (“To
acquire a domicile within a particular state, a person must be physically present in the state and
must have either the intention to make his home there indefinitely or the absence of an intention
to make his home elsewhere.”). A person’s previous domicile is not lost until a new one is
established. Von Dunser, 915 F.2d at 1072. When determining a party’s domicile, the Court
must look to the totality of the evidence; subjective statements of intent will not outweigh
objective evidence to the contrary. Smith v. Smith, 526 F. Supp. 3d 263, 274–75 (E.D. Mich.
2021) (citing Willis v. Westin Hotel Co., 651 F. Supp. 598, 601 (S.D.N.Y. 1986)).
Here, the parties agree that Plaintiff is a citizen of California, Defendant Mark is a citizen
of Florida, and Defendant Anne Marie is a citizen of Washington. At issue is Defendant Iole’s
citizenship. It is undisputed that Defendant Iole was an Ohio citizen until Defendant Anne Marie
moved her to Seattle, Washington in June 2025. ECF No. 1 at PageID #: 19, ⁋⁋ 105–10. The
parties disagree as to whether Iole is sufficiently competent to establish Washington as her new
domicile.
In general, there is a rebuttable presumption that an individual adjudged incompetent is
incapable of forming the necessary intention to establish a new domicile. See Long v. Sasser, 91
F.3d 645, 647 (4th Cir. 1996) (citing Coppedge v. Clinton, 72 F.2d 531 (10th Cir. 1934) and
McCampbell v. McCampbell, 13 F. Supp. 874 (W.D. Ky. 1936)); see also Wright & Miller, 13E
Fed. Prac. & Proc. Juris. § 3616 (3d ed.) (“As a general rule, the incompetent’s last-acquired
domicile prior to the onset of the incapacity is preserved until that person again has the capacity
to make a reasoned decision as to where [s]he desires to live.”). If, however, an individual has
sufficient capacity to understand the nature and effect of their actions in choosing a home, even
if they have been adjudged incompetent or appointed a guardian, that is sufficient competency to
establish a new domicile. See Juvelis by Juvelis v. Snider, 68 F.3d 648, 655 (3d Cir. 1995)
(quoting Estate of Freeman v. Dep’t of Revenue, No. 2784, 1989 WL 23045, at *3 (Or. T.C. Mar.
9, 1989)) (“The actual mental capacity required for selection of a domicil[e] of choice has been
held to be much less than that required generally for the management of an individual’s
affairs.”); see Coppedge, 72 F.2d at 533 (“Whether an incompetent may change [her] domicile
depends on the extent to which his reason is impaired. . . . It is sufficient if [s]he understands the
nature and effect of [her] act.”). The burden of showing an incompetent individual has sufficient
capacity to change domicile is on the party asserting it. See Long, 91 F.3d at 647; Wright &
Miller, 13E Fed. Prac. & Proc. Juris. § 3616 (3d ed.) (“[T]he ultimate burden of persuasion on
the subject matter jurisdiction issue remains on the party invoking diversity of citizenship.”).
Plaintiff insists that Defendant Iole lacks sufficient competency to establish a new
domicile in Washington and that Defendant Anne Marie moved Iole without informing or
obtaining consent from Plaintiff or Defendant Mark, both of whom claim willingness to house
and care for Iole. ECF No. 1 at PageID #: 19, ⁋ 107. He further argues that Defendant Anne
Marie cannot rely on the springing POA or HCPOA because they are invalid, having been
executed after Defendant Iole’s physicians determined she was unable to make independent
medical or legal decisions. ECF No. 7 at PageID #: 286.
Defendant Iole retorts that she is competent enough to establish a new domicile and has
done so by moving into her daughter’s home in Washington with no intention of returning to
Ohio. Def. Anne Marie Aff., ECF No. 6-1; Def. Iole Aff., ECF No. 5-1; ECF No. 14 at PageID
#: 338. She also argues that no court has declared her legally incompetent. As further evidence
of her competency for diversity purposes, Defendant Iole states that she appeared before
Mahoning County, Ohio Probate Magistrate Jeff Joseph and successfully filed a Spousal Election
to Take Against the Will of Albert Checcone. ECF No. 14 at PageID #: 341. According to
Defendant Iole, the magistrate would not have accepted her filing if she was legally incompetent.
ECF No. 14 at PageID #: 341.
The Court need not belabor the issue because the parties are complete diverse regardless
of whether Defendant Iole is a citizen of Washington or a citizen of Ohio. There are no factual
allegations demonstrating that Defendant Iole resides in California or has the intent to remain in
California. Nevertheless, the Court agrees with Defendant Iole. While her treating physicians
may have certified that she is unable to make independent medical and legal decisions for
herself, no court has adjudged Iole to be incompetent.4 Even considering her purported reduced
mental capacity, Defendant Iole has provided sufficient evidence, in particular a Spousal
4 The Court does not make any findings as to when such certifications occurred,
nor should the Court’s conclusion regarding Defendant Iole’s competency to establish a
new domicile in Washington be construed as a ruling on the merits of Plaintiff’s prayer for
a declaration declaring Defendant Iole incompetent within the meaning of the Iole Trust.
Election to Take Against the Will successfully executed before an Ohio probate court magistrate
(see ECF No. 14 at PageID #: 341), demonstrating that she has sufficient capacity to understand
the nature and consequences of her actions in relocated to Washington and establishing that state
as her new domicile. Therefore, the Court has subject matter jurisdiction based on diversity.
B. Rule of unanimity
In addition to satisfying the requirements for subject matter jurisdiction, a notice of
removal is only proper if it comports with the rule of unanimity, a doctrine derived from the
removal statute’s text. Loftis v. United Parcel Serv., Inc., 342 F.3d 509, 516 (6th Cir. 2003); 28
U.S.C. § 1446. The unanimity rule requires that “all defendants who have been served or
otherwise properly joined in the action must either join in the removal, or file a written consent
to removal.” Loftis, 342 F.3d at 516 (quoting Brierly v. Alusuisse Flexible Packaging, Inc., 184
F.3d 527, 533 n.3 (6th Cir. 1999)). In the Sixth Circuit, the rule of unanimity is satisfied if all
served or properly joined defendants: (1) join in the removal; (2) file written consent to removal;
or (3) oppose a motion to remand. City of Cleveland v. Ameriquest Mort. Sec. Inc., 615 F.3d
496, 501 (6th Cir. 2010) (citing Brierly, 184 F.3d at 533 n.3). “Failure to obtain unanimous
consent forecloses the opportunity for removal.” Loftis, 342 F.3d at 516. The Court may not
raise the rule of unanimity sua sponte, rather, only if the issue is raised in a motion to remand.
Page v. City of Southfield, 45 F.3d 128, 133 (6th Cir. 1995); see Nessel on behalf of People of
Mich. v. Enbridge Energy, LP, 104 F.4th 958, 968 (6th Cir. 2024) (recognizing that the
jurisdictional statutory cutoffs in § 1446(b) are procedural and may be waived if not timely
raised in a motion to remand.). “All doubts as to the propriety of removal are resolved in favor of
remand.” Coyne v. Am. Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999).
Plaintiff raised the unanimity issue in his Motion to Remand (ECF No. 7 at PageID ##:
282–83), and, therefore, the Court must consider whether the Notice of Removal is procedurally
deficient. In addition to Joint Opposition to the Motion to Remand (ECF No. 14), Defendants
Iole and Anne Marie seek to realign Defendant Mark as a party plaintiff to obviate the need for
his consent. ECF No. 13. In addition, Defendant Iole moved to supplement the Notice of
Removal Instanter (ECF No. 16), adding an additional claim that Defendant Anne Marie was not
properly served and, therefore, her consent was not required.
Because the Court concludes that Defendant Mark should not be realigned as a party
plaintiff and is not a nominal party, the Court need not address the issue of Anne Marie’s
consent.
C. Party Realignment
“Party alignment is not solely a function of how the parties align themselves; courts may
realign the parties to reflect their actual ‘interests in the litigation.’” Evanston Ins. Co. v.
Housing Auth. of Somerset, 867 F.3d 653, 656 (6th Cir. 2017) (citing Cleveland Hous. Renewal
Project v. Deutsche Bank Tr. Co., 621 F.3d 554, 559 (6th Cir. 2010)) (original emphasis). The
Court must consider whether there is a “collision between the interests of the plaintiff and the
interests of the [defendant] as originally aligned” and, if so, whether that “collision” relates to the
“primary and controlling matter in dispute.” U.S. Fidelity & Guar. Co. v. Thomas Solvent Co.,
955 F.2d 1085, 1089 (6th Cir. 1992) (quoting Indianapolis Gas v. Chase Nat’l Bank of New
York, 314 U.S. 63, 69 (1941)). Courts must “look beyond pleadings, and arrange the parties
according to their sides in the dispute.” Fairmount Prop., LLC v. College Town Kent, LLC, No.
5:20-cv-320, 2020 WL 2519664, at *2 (N.D. Ohio May 18, 2020) (Boyko, J.) (citing
Indianapolis Gas, 314 U.S. at 69);
pleadings’ and the ‘nature of the controversy,’ courts must group parties with similar interests on
the same side of the suit and pit them against parties with competing interests.”).
In Evanston, the primary controversy involved a $4 million judgment against the Housing
Authority of Somerset concerning the negligent maintenance of the property that resulted in
death. 867 F.3d at 655. Evanston Insurance Company filed a declaratory judgment complaint in
federal court against the housing authority, the housing authority’s policy fund, and the families
of the decedents seeking to limit its liability to $1 million. Id. The family challenged subject
matter jurisdiction, claiming the housing authority and the policy fund should have been
realigned as plaintiffs, thus destroying diversity. Id. at 655–56. The Sixth Circuit disagreed,
concluding that the primary dispute was whether the policy limits were $1 million and, therefore,
Evanston’s interests diverged from all defendants in that case, making realignment inappropriate.
Id. at 656.
In contrast, in Cleveland Housing, the Sixth Circuit held that realignment as warranted.
In that case, an Ohio resident brought a public nuisance action against Deutsche Bank, several
affiliated companies, and the City of Cleveland, regarding numerous vacant properties owned by
Deutsche Bank. 621 F.3d at 556. Deutsche Bank removed the case to federal court and argued
that the City of Cleveland should be realigned as a party plaintiff, thus preserving diversity
jurisdiction. Id. at 559. The Sixth Circuit agreed, finding the primary controversy in the case
concerned abating nuisances caused by Deutsche Bank’s maintenance of vacant properties, a
purpose to which the City was not adverse. Id. The court explained that because the City had
imposed liens on some of the properties at issue was an ancillary issue to the primary nuisance
controversy. Id. at 560.
According to Defendants Iole and Anne Marie, Defendant Mark’s Answer (ECF No. 11)
evinces that he is fully aligned with Plaintiff’s position in this case. ECF No. 13 at PageID #:
327. They argue that Mark’s answer mirrors the prayer for relief and, in particular, seeks
“judgment in favor of Plaintiff . . . on each and every claim and count of the Complaint.” See
ECF No. 11 at PageID #: 310. Both Iole and Anne Marie point out that Mark seeks to invalidate
the contested POA and HCPOA granting Anne Marie authority to care for Iole and seeks to
remove Anne Marie as co-trustee of the Albert Trust. ECF No. 13 at PageID #: 328.
Plaintiff and Defendant Mark counter that the primary dispute concerns the proper
administration and governance of the Trusts, which includes Mark’s rights, duties, and potential
liabilities as co-trustee and remainder beneficiary. ECF No. 22 at PageID #: 415. Mark argues
that, as a fiduciary of the Albert Trust, he has a duty to ensure the proper administration of the
trust, but that the parties may differ in what proper administration entails. ECF No. 23 at PageID
#: 425. Similarly, Plaintiff argues that the issues in this case are directly relevant to Mark’s
interests as an independent fiduciary for the Albert Trust, and that those interests may be
potentially averse to Plaintiff’s. ECF No. 22 at PageID #: 416.
Considering the Complaint, the relief sought, and the nature of the claims alleged, the
Court agrees with Plaintiff and Defendant Mark that the primary issue in this case concerns the
proper administration and governance of the Albert Trust and Iole Trust. The more narrow
issues challenging Iole’s competency, Anne Marie’s alleged undue influence over her parents in
executing the contested powers of attorney, and whether Anne Marie improperly moved trust
assets are all secondary issues under the “proper trust administration” umbrella. While
Plaintiff’s and Defendant Mark’s interest concerning those secondary issues appear aligned, that
does not lead to a reasonable inference that they are aligned as to the general administration of
the trusts. Rather, it indicates that Mark found Plaintiff’s claims concerning those secondary
issues to be well taken.
Concerning the primary controversy, it is not evident that Mark and Plaintiff share
sufficient interests to warrant realignment. In general, all three Checcone children could be said
to share (or should share) in the desire for the trusts to be administered properly and in accord
with their documents. They are each a co-trustee of the Albert Trust and remainder beneficiaries
of the Iole Trust and each has a fiduciary duty concerning the execution and administration of
both trusts. See Smith v. Nelson, 86 F. Supp. 2d 787, 788–89 (N.D. Ohio 2000) (collecting
cases) (holding that, “[u]nder Ohio law . . . a trustee has a duty to defend the trust property” and,
therefore, “are real parties in interest.”). But that does not mean their interests align as to how
the trusts are administered and managed. This is particularly true concerning the relief sought
for a judgment reversing certain changes to the trust assets made by Anne Marie and declaring
certain assets titled to each trust.5 ECF No. 1 at PageID #: 23 (Prayer for Relief). Because Mark
and Plaintiff may have competing interests regarding the allocation of such assets, realignment is
not appropriate.
Iole’s and Anne Marie’s attempt to characterize Mark as a nominal party fails for the
similar reasons. ECF No. 13 at PageID #: 331. As a co-trustee of the Albert Trust, and a
remainder beneficiary of the Iole Trust, Mark holds a fiduciary position and, as such, has
5 Moreover, the Court has serious doubts as to whether it may exercise jurisdiction
to declare the assets titled to each trust at issue under the probate exception. Such relief
invokes in rem jurisdiction and would likely require the Court to “elbow its way into a fight
over a property” already under the Mahoning County Probate Court’s control. See Johnson
v. Johnson, 157 F.4th 813, 819 (6th Cir. 2025) (citing Chevalier v. Est. of Barnhart, 803
F.3d 789, 802 (6th Cir. 2015)). Regardless, because there is no unanimous consent to
removal, the Court need not resolve that issue.
fiduciary duties and responsibilities to defend the trust property. Smith, 86 F. Supp. 2d at 789.
Accordingly, he is not a nominal party but an interested party.
For these reasons, the Motion to Realign the Parties (ECF No. 13) is denied.
D. Leave to Supplement
Defendant Iole also moved for leave to supplement the Notice of Removal (ECF No. 16),
seeking to add three claims: (1) Mark should be realigned as a party plaintiff or else designated
as a nominal party; (2) Anne Marie was not properly served and, therefore, her consent to
removal was not required; and (3) Anne Marie consents to removal in any event. ECF No. 16 at
PageID #: 359.
In the Sixth Circuit, a notice of removal may be amended “under the same considerations
governing the amendment of any other pleading containing jurisdictional allegations.” Courtney
Southers v. Appalachian Reg. Healthcare, Inc., No. 7:20-cv-126, 2021 WL 1250315, at *2 (E.D.
Ky. Apr. 5, 2021) (quoting Gafford v. Gen. Electric Co., 997 F.2d 150, 164 (6th Cir. 1993)).
Under Rule 15, leave to amend should be freely given when justice so requires. Fed. R. Civ. P.
15(a)(2). As stated by the Supreme Court:
In the absence of any apparent or declared reason—such as undue
delay, bad faith, or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, futility of the amendment, etc.—the
leave sought should, as the rules require, be “freely given.”
Foman v. Davis, 371 U.S. 178, 182 (1962); Greer v. Strange Honey Farm, 114 F.4th 605, 617
(6th Cir. 2024). Rule 15(a) makes clear that the court has discretion when deciding whether to
permit amendments. Hemlock Semiconductor Corp. v. Deutsche Solar GmbH, 116 F. Supp. 3d
818, 837 (6th Cir. 2015) (“Decisions as to when justice requires amendments are left to the
sound discretion of the trial judge.”). “A court need not grant leave to amend when doing so
would be futile.” Doe v. BlueCross BlueShield of Tenn., Inc., 926 F.3d 235, 244 (6th Cir. 2019)
(citing Beydoun v. Sessions, 871 F.3d 459, 469 (6th Cir. 2017)).
In this case, because Defendant Mark does not consent to removal, the Court lacks
jurisdiction to resolve this case. Nothing in Defendant Iole’s proposed amendment cures this
defect. The Motion for Leave to Supplement the Notice of Removal (ECF No. 16) is denied as
futile or duplicative of the Motion to Realign. Plaintiff’s Motion to Remand (ECF No. 7) is
granted.
IV. CONCLUSION
For the foregoing reasons, Defendant Mark’s Motion for Enlargement of Time to Answer
(ECF No. 4) is granted. His Answer (ECF No. 11) is timely.
The Motion to Realign Mark Checcone as Party Plaintiff (ECF No. 13) is denied.
Defendant Iole’s Motion to Supplement the Notice of Removal, Instanter (ECF No. 16) is denied
as futile or duplicative of the Motion to Realign. Plaintiff’s Motion to Remand (ECF No. 7) is
granted. Because this case is remanded, the Court lacks jurisdiction to resolve the motions
pending at ECF No. 5, ECF No. 6, ECF No. 8, ECF No. 12, and ECF No. 30.
This action is remanded to the Mahoning County Probate Court.
IT IS SO ORDERED.
August 13, 2026 /s/ Benita Y. Pearson
Date Benita Y. Pearson
United States District Judge