PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FREDDY M. LONG, Guardian of the

Estate of and person of Gilbert

Venoy Long,

Plaintiff-Appellant,

No. 95-2947

v.

CHARLES G. SASSER, M.D.;

J. WILSON, III, M.D.,

Defendants-Appellees.

Appeal from the United States District Court

for the District of South Carolina, at Florence.

Cameron McGowan Currie, District Judge.

(CA-94-2342-4-22)

Argued: June 5, 1996

Decided: August 2, 1996

Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge, and

MACKENZIE, Senior United States District Judge for the Eastern

District of Virginia, sitting by designation.

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Affirmed by published opinion. Chief Judge Wilkinson wrote the

opinion, in which Judge Michael and Senior Judge MacKenzie joined.

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COUNSEL

ARGUED: Thomas Phillip Mains, Jr., MAINS & MAINS, L.C.,

Alexandria, Virginia, for Appellant. Steven Wayne Ouzts, TURNER,
PADGET, GRAHAM & LANEY, P.A., Columbia, South Carolina,

for Appellees.

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OPINION

WILKINSON, Chief Judge:

Appellant Freddy M. Long brought this medical malpractice case

on behalf of his ward, Gilbert Venoy Long, alleging federal jurisdiction based on diversity of citizenship. After Gilbert Long suffered a

serious stroke, Freddy Long moved him to a nursing home in Virginia. Finding that the stroke rendered Gilbert Long incapable of possessing the intent to establish a new domicile in Virginia, the district

court held that Long retained his previous South Carolina citizenship.

As both Gilbert Long and the defendant physicians were citizens of

South Carolina, the district court dismissed the case for lack of subject matter jurisdiction. We now affirm.

I.

On March 6, 1992, when a citizen and resident of South Carolina,

Gilbert Venoy Long arrived at the emergency room of Conway Hospital complaining of weakness in his right side. Long was admitted

to the hospital and then suffered a stroke while in the care of appellees, Dr. Charles G. Sasser and Dr. J. Wilson, III.

Long's family had him transferred first to Duke University Medical

Center and then to HealthSouth Rehabilitation Center in Florence,

South Carolina. Upon Long's discharge from HealthSouth, appellant,

a Virginia resident, moved him to a nursing home in Virginia.

Freddy Long filed suit in South Carolina federal court on behalf of

his ward. He alleged appellees committed medical malpractice in the

treatment of Gilbert Long while he was at Conway Hospital. Freddy

Long asserted federal jurisdiction based on diversity of citizenship.

He alleged that he and his ward were both residents of and domiciled

in Virginia. The parties agreed that Dr. Sasser and Dr. Wilson were

citizens of South Carolina.

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In July 1995, the two physicians filed a motion to dismiss alleging

a lack of diversity. On September 12, 1995, the district court dismissed the case for lack of subject matter jurisdiction, finding that

Gilbert Long had never changed his original South Carolina domicile

and that the parties therefore were all citizens of South Carolina for

diversity purposes.

II.

Appellant contends that the district court erred in concluding that

Gilbert Long was domiciled in South Carolina, asserting that Long

had the capacity to form, and did in fact form, the intent to establish

a Virginia domicile. We believe, however, that the record clearly supports the district court's finding that Gilbert Long lacked the requisite

mental capacity to change his domicile. We further conclude that the

need for clear jurisdictional rules and the absence of traditional diversity concerns in this sort of case all support affirmance.

A.

The question of citizenship for purposes of diversity jurisdiction is

ultimately one of federal law, Ziady v. Curley , 396 F.2d 873, 874 (4th

Cir. 1968), although federal courts may consult state law in making

a decision, Rodriguez-Diaz v. Sierra-Martinez , 853 F.2d 1027, 1030

(1st Cir. 1988). As the legal representative of Gilbert Long, Freddy

Long shared the citizenship of his ward for the purpose of determining the existence of diversity. 28 U.S.C. § 1332(c)(2). It is readily

apparent that Gilbert Long was a citizen of South Carolina for the

purpose of establishing diversity jurisdiction. That conclusion is compelled by Foster v. Carlin, 200 F.2d 943 (4th Cir. 1952), where we

held that:

One who has been adjudged incompetent may change his

domicile if, but only if, he has, since the adjudication of

incompetency, acquired sufficient understanding and mental

capacity to make an intelligent choice of domicile. After

such adjudication, the burden of proving the subsequent

acquisition of sufficient mental capacity is plainly on him

who alleges it.

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Id. at 946 (citing Coppedge v. Clinton , 72 F.2d 531 (10th Cir. 1934)

and McCampbell v. McCampbell, 13 F. Supp. 847 (W.D. Ky. 1936)).

It is uncontested that, prior to his stroke, Gilbert Long was domiciled in South Carolina. In addition, the record amply supports the

district court's conclusion that Gilbert Long lacked the capacity to

form any intent to establish a new domicile in Virginia. Dr. Sobhany,

Gilbert Long's physician, stated in an affidavit that Long's stroke left

him "completely mentally and physically incapacitated and unable to

understand or conduct his affairs." This assessment was corroborated

by the testimony of Gilbert Long's wife and children and a personal

friend. Even if Gilbert Long retained some capacity for comprehension, his son John testified that his father did not participate at all in

the decision to move him to Virginia. Accordingly, because Gilbert

Long was incapable of changing his domicile, his domicile remained

in South Carolina, Anderson v. Watt, 138 U.S. 694, 706 (1891), and

he remained a citizen of South Carolina for diversity purposes,

Gilbert v. David, 235 U.S. 561, 568-69 (1915).

All parties being citizens of South Carolina, the district court properly dismissed the complaint for lack of jurisdiction.

B.

Appellant urges us to abandon the rule of Foster v. Carlin and

adopt the approach of the Tenth Circuit in Rishell v. Jane Phillips

Episcopal Memorial Medical Center, 12 F.3d 171 (10th Cir. 1993).

Rishell permits a guardian acting in the best interests of a permanently

incompetent ward to change the domicile of that ward:

If the best evidence available shows the incompetent

likely will never be restored to reason, the law must allow

another, vested with legal authority, to determine domicile

for the best interests of that person. To prohibit such determinations is to leave the incompetent in a never-ending

limbo where the presumption against changing domicile

becomes more important than the interests of the person the

presumption was designed to protect.

Id. at 174.

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We are not inclined to disturb the rule of Foster. Jurisdictional

rules should above all be clear. They are meant to guide parties to

their proper forums with a minimum of fuss. While close cases may

arise under Foster regarding whether the ward possessed the necessary capacity to effect a change of domicile, Rishell requires a more

speculative inquiry as to whether the ward will remain incompetent

in the future, as well as inviting litigation over the "best interests" of

the ward. See Rishell, 12 F.3d at 174 ("Most critical to the paradigm

we have posed is the best interest of [the incompetent ward].").

Inquiring whether the "best interests" of the ward are served by a

guardian's attempt to effect a change in domicile to secure a federal

forum strikes us as singularly unproductive. We note, for example,

that this case does not raise the primary concern addressed by diversity jurisdiction -- fear of local bias against litigants from out of state.

This is essentially a local dispute; Gilbert Long was a resident of

South Carolina for many years prior to his stroke, and the doctors

who treated him were South Carolina doctors. We see no reason to

believe that this case will not receive a fair hearing before a South

Carolina court.*

III.

For the foregoing reasons, we affirm the judgment of the district

court.

AFFIRMED

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*The district court specifically found that the South Carolina statute of

limitations for medical malpractice claims would not prevent appellant

from bringing the case in state court. Defendants stipulated that the statute of limitations had been tolled due to Gilbert Long's incompetency,

providing Freddy Long with ample time to refile the action in the South

Carolina Court of Common Pleas.

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