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.

_________________________________________________________________

Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Michael and Senior Judge MacKenzie joined.

_________________________________________________________________

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.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

Appellant Freddy M. Long brought this medical malpractice case
on behalf of his ward, Gilbert Venoy Long, alleging federal jurisdic-
tion based on diversity of citizenship. After Gilbert Long suffered a
serious stroke, Freddy Long moved him to a nursing home in Vir-
ginia. Finding that the stroke rendered Gilbert Long incapable of pos-
sessing 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 sub-
ject 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 Hos-
pital complaining of weakness in his right side. Long was admitted
to the hospital and then suffered a stroke while in the care of appel-
lees, 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 dis-
missed 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 sup-
ports 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 diver-
sity 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 determin-
ing 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 com-
pelled 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 domi-
ciled 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 comprehen-
sion, 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 prop-
erly 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 deter-
          minations 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 neces-
sary 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 diver-
sity 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
_________________________________________________________________

*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 stat-
ute 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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