                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                       Revised July 21, 2003
                                                              June 16, 2003
               IN THE UNITED STATES COURT OF APPEALS
                                                         Charles R. Fulbruge III
                       FOR THE FIFTH CIRCUIT                     Clerk

                       _____________________

                            No. 02-10642
                       _____________________



     MARY VIRGINIA ACRIDGE, Individually and as
     Independent Executrix of the Estate of
     LOUIS E ACRIDGE, Deceased; DANIEL ACRIDGE BROYLES


                                    Plaintiffs - Appellees

          v.


     THE EVANGELICAL LUTHERAN GOOD SAMARITAN SOCIETY, ET AL


                                    Defendants


     THE EVANGELICAL LUTHERAN GOOD SAMARITAN SOCIETY;
     JERRY L ADAMS; ELAINE MORROW; SHERRI LUNSFORD HARRIS


                                    Defendants - Appellants

_________________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
_________________________________________________________________


Before KING, Chief Judge, and DAVIS, Circuit Judge, and VANCE,
District Judge.*

KING, Chief Judge:


     *
        District Judge of the Eastern District of Louisiana,
sitting by designation.
     Asserting diversity jurisdiction, the plaintiffs filed suit

in federal court seeking damages under Texas law for the death of

Louis Acridge in a Texas nursing home.      The defendants

Evangelical Lutheran Good Samaritan Society, Jerry Adams, Elaine

Morrow, and Sheri Lunsford Harris appeal the denial of their

motion for summary judgment on official immunity grounds.      They

also raise the issue of whether there is federal subject matter

jurisdiction over the underlying proceeding.      Because we conclude

that complete diversity among the parties is lacking, we vacate

the district court’s order denying summary judgment and remand

with instructions to dismiss the case for lack of subject matter

jurisdiction.

I.   FACTS AND PROCEDURAL BACKGROUND

     In 1968, Louis Acridge moved from Colorado to New Mexico,

where he was employed as a sheriff and lived with his wife,

Plaintiff-Appellee Mary Acridge.       In 1996, Mary placed Louis in a

retirement center in New Mexico as a result of a rapid

deterioration in his mental status caused by Alzheimer’s

dementia.   Mary became dissatisfied with the treatment Louis was

receiving and, in 1997, transferred him to the Farwell

Convalescent Center in Farwell, Texas.1      By that time, Louis was

     1
        Defendant Evangelical Lutheran Good Samaritan Society
(“Good Samaritan”) operated the Farwell Convalescent Center.
Defendant Jerry Adams was an administrator at the Center;
defendants Elaine Morrow and Sherri Lunsford Harris were the
directors of nursing at the Center during times relevant to this
case.

                                   2
completely unable to take care of himself, was disoriented as to

time and place, had little memory, and was virtually unaware of

his surroundings.   When Mary moved Louis to Texas, she applied

for and received Medicaid benefits from the Texas Department of

Human Services.   The Texas Medicaid statute states:

     Texas Residence Requirements

          (a) General requirements. To be eligible for the
     Texas Title XIX Medical Assistance Program, an individual
     must be a resident of the State of Texas; that is, he
     must have established residence in Texas and he must
     intend to remain in Texas.
          . . .
          (b) Eligibility requirements for persons from
     another state. If a client is eligible for Title XIX
     benefits in another state and receives benefits in that
     state, he is not eligible for Title XIX benefits from the
     state of Texas.

40 TEX. ADMIN. CODE. § 15.301 (West 2000).

     After being at the Center for more than a year, Louis

Acridge was placed in a room with Henry Plyler, another resident.

Plyler had a history of abusive behavior toward past roommates.

On June 23, 1999, staff members at the Center discovered Acridge

in his bed, covered in blood; a ballpoint pen protruded from his

right eye.   An investigation revealed that Plyler had beaten

Acridge on the head with a coffee mug and then stabbed him in the

eye with a pen.   The pen penetrated Acridge’s brain; he died

eight hours later as a result of this wound.

     In their First Amended Complaint filed June 7, 2001, the

plaintiffs alleged that the defendants negligently failed to

protect Louis Acridge from Plyler and that this failure was the

                                 3
proximate cause of Acridge’s death.    The plaintiffs also claimed

that the defendants were negligent in failing to warn Acridge and

his family of the known risks that Plyler presented to his

roommates.   The defendants filed a motion to dismiss the suit on

the grounds that no federal subject matter jurisdiction existed;

the plaintiffs brought suit in federal court under diversity

jurisdiction, but the defendants argued that complete diversity

was lacking because both Louis Acridge and the defendants were

Texas domiciliaries.    The district court denied this motion

without stated reasons.

      The defendants also moved for summary judgment, claiming

that each defendant was entitled to official immunity from suit.

The defendants further asserted that Plyler’s unforeseeable

criminal conduct was a superceding cause of Acridge’s death that

absolved the defendants of liability for any alleged negligent

conduct.    The district court, again without stated reasons,

denied the defendants’ motion for summary judgment.

      The defendants now bring this interlocutory appeal of the

district court’s denial of their summary judgment motion, arguing

that the court should have granted their motion claiming official

immunity.    The defendants also urge us to examine whether there

is diversity jurisdiction over these claims.

II.   WHETHER DIVERSITY JURISDICTION EXISTS OVER THESE CLAIMS

      Federal court jurisdiction here hinges on the domicile of

Mary Acridge in her capacity as Independent Executrix of the

                                  4
Estate of Louis Acridge.    Under 28 U.S.C. § 1332(c)(2) (2000),

the legal representative of the estate of a decedent is deemed to

be a citizen of the same state as the decedent for diversity

purposes.    Jurisdiction in this case rests on a single question:

when Mary Acridge moved Louis Acridge into a Texas nursing home,

did he become a Texas domiciliary?     If he did, then complete

diversity among the parties is lacking and the case cannot be

heard in federal court.    Temple Drilling Co. v. La. Ins. Guar.

Ass’n, 946 F.2d 390, 393 (5th Cir. 1991).     If not, then he

remained a New Mexico domiciliary and complete diversity with the

defendants exists.2

     A.     General Law of Domicile

     A brief overview of the law of domicile will be helpful in

our exploration of this question.     First, while we may look to

state law for guidance, the question of a person’s domicile is a

matter of federal common law.    Coury v. Prot, 85 F.3d 244, 248

(5th Cir. 1996); see also 15 Moore’s Federal Practice

§ 102.34[3][a] (3d ed. 2001) (reporting cases from eight circuits

taking this position).    A person acquires a “domicile of origin”

at birth, and this domicile is presumed to continue absent

sufficient evidence of change.    See, e.g., Palazzo v. Corio, 232

F.3d 35, 42 (2d Cir. 2000).    There is a presumption of continuing

     2
        Mary Acridge is a Colorado domiciliary and her son, also
a plaintiff, is a New Mexico domiciliary. The individual
defendants are all Texas domiciliaries; Good Samaritan is a North
Dakota corporation.

                                  5
domicile that applies whenever a person relocates.      Coury, 85

F.3d at 250.   In order to defeat the presumption and establish a

new domicile (the “domicile of choice”), the person must

demonstrate both (1) residence in a new state, and (2) an

intention to remain in that state indefinitely.      Id.   (“Mere

presence in a new location does not effect a change of domicile;

it must be accompanied with the requisite intent.”).       There is no

durational residency requirement in the establishment of

domicile; once presence in the new state and intent to remain are

met, the new domicile is instantaneously established.      15 Moore’s

Federal Practice, § 102.34[10] (3d ed. 2001).

      In determining whether a person has changed his domicile,

courts have identified many factors which should be considered.

Coury, 81 F.3d at 251 (“The factors may include the places where

the litigant exercises civil and political rights, pays taxes,

owns real and personal property, has driver’s and other licenses,

maintains bank accounts, belongs to clubs and churches, has

places of business or employment, and maintains a home for his

family.”).   The court should, when undertaking this examination,

weigh all factors equally; no single factor is determinative.

Id.   Additionally, statements of intent, either to remain in a

previous domicile or to establish a new one, are “entitled to

little weight” if they conflict with the objective facts.       Id.

      B.   Law of Domicile for Incompetent Persons



                                 6
     Of course, the intent inquiry becomes more problematic when

the person in question has, like Louis Acridge, become mentally

incompetent.    Only minimal competency is required to choose a new

domicile; even if the person in question has been adjudged

incompetent by a court and is incapable of managing his own

affairs, he can change his domicile so long as “he understands

the nature and effect of his act.”       Juvelis by Juvelis v. Snider,

68 F.3d 648, 655 (3d Cir. 1995).       However, an incompetent is

presumed to lack the mental capacity to change his own domicile.

Id. at 654.

     Where someone acting on an incompetent’s behalf moves the

incompetent to another state, the question becomes whether that

move (coupled with the trappings of intent for the incompetent to

remain in the new state indefinitely) should be permitted to

change the incompetent’s domicile.       There is a split in the

circuits (and no Fifth Circuit precedent) on the question of

whether someone acting on behalf of an incompetent can change the

incompetent’s state of domicile.

     In Rishell v. Jane Phillips Episcopal Memorial Medical

Center, 12 F.3d 171 (10th Cir. 1993), the legal guardian of a

person rendered incompetent while living in Oklahoma relocated

the person to Louisiana in order to obtain better medical care.

Id. at 172.    When the guardian then attempted to sue an Oklahoma

hospital in federal court on behalf of the patient, the hospital

moved to dismiss on the grounds that, because the guardian lacked

                                   7
the authority to change the patient’s domicile, no diversity

jurisdiction existed.   Id.   The Tenth Circuit concluded that,

where the incompetent will never regain sufficient mental

capacity to choose his own domicile, “the law must allow another,

vested with legal authority, to determine domicile for the best

interests of that person.”    Id. at 174; see also Restatement

(Second) of Conflict of Laws § 23 cmt. f (1988) (noting that a

court-appointed guardian can shift the domicile of an incompetent

to another state “if this shift of domicile would be in the best

interests of the incompetent and was not made to achieve some

selfish purpose of the guardian”).     As the court in Rishell

pointed out, to refuse to permit a guardian to change the

domicile of the person entrusted to his care would essentially

“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.”   Rishell, 12 F.3d at 174.    The Seventh Circuit agreed

with this conclusion.   Dakuras v. Edwards, 312 F.3d 256, 258 (7th

Cir. 2002) (“The responsibility for making the essential life

choices of children and wards is vested not in them but in their

parents or guardians, and we cannot see why the choice of

domicile should not be treated as one of those life choices.”).

     However, the Fourth Circuit takes the opposite position.     In

Long v. Sasser, 91 F.3d 645 (4th Cir. 1996), the court concluded

that a guardian could not change the domicile of an incompetent,

                                  8
even if the move was made in the best interests of the

incompetent.     Id. at 647-48 (citing Foster v. Carlin, 200 F.2d

943 (4th Cir. 1952)).      The court rejected the reasoning proffered

in Rishell, finding that such a “best interests” inquiry required

speculating both as to what was in the best interests of the

incompetent as well as to whether the incompetent would ever

regain sufficient mental capacity to choose a domicile of his own

volition.    Id. at 647.    Some commentators have agreed with this

reasoning.     Larry L. Teply, The Elderly and Civil Procedure:

Service and Default, Capacity Issues, Preserving and Giving

Testimony, and Compulsory Physical or Mental Examinations, 30

Stetson L. Rev. 1273, 1278-80 & n. 33 (2001) (citing Long with

approval and rejecting the Rishell approach as introducing

“undesirable uncertainties into subject matter determinations”).

     The defendants urge us to adopt the position taken by the

Seventh and Tenth Circuits (and rejected by the Fourth Circuit)

that someone acting in the “best interests” of an incompetent may

change the incompetent’s domicile.3     After carefully considering

the arguments set forth in each case, we agree with the Seventh


     3
        Each of the prior cases dealing with this question has
involved a court-appointed guardian with recognized legal
capacity to act on behalf of the incompetent; the record in this
case does not reveal that Mary Acridge took the step of having
herself appointed her husband’s legal guardian. However, neither
party argued, here or in the district court, that Rishell, Long,
or Dakuras should be distinguishable on that basis; as such, we
will treat the arguments to that effect as having been waived.
Trevino v. Johnson, 168 F.3d 173, 181 n.3 (5th Cir. 1999).

                                    9
and Tenth Circuits and hold that Mary Acridge had the authority

to change the domicile of Louis Acridge so long as she was acting

in his best interests.

       An incompetent sits in an unenviable position in society,

unable to fend for himself and completely dependent upon those

closest to him.    We agree with the Tenth Circuit: To hold that

the person charged with making decisions on behalf of an

incompetent lacks the authority to change the incompetent’s state

of domicile in his best interests leaves 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.”    Rishell, 12 F.3d at

174.    Further, the principal argument put forth in Long that such

a standard introduces unwanted uncertainty into the domicile

analysis is unpersuasive.    Long, 91 F.3d at 647.    No more

uncertainty exists in determining whether someone is acting in

the best interests of an incompetent than exists when a court

must consider and weigh the multitude of relevant factors in

determining the domicile of a competent adult.       Coury, 85 F.3d at

251.    We see no reason for a per se rule against changing

domicile in this situation; in examining the domicile of both

competent and incompetent adults, analysis of the facts and

circumstances of the case presents the court with the best

opportunity to reach the appropriate conclusion.      See 15 Moore’s

Federal Practice, § 102.34[4] (3d ed. 2001) (noting that some

                                 10
courts consider the question of domicile to be a mixed question

of law and fact which is so fact-dependent that it is reviewed

under the clearly erroneous standard reserved for questions of

fact); Coury, 81 F.3d at 251 (adopting this position in the Fifth

Circuit).

C.     Analysis of Louis Acridge’s Domicile

       Before turning to the “best interests” inquiry, we must

first contend with arguments made by each party that Louis

Acridge’s domicile has already been determined as a matter of

law.    The defendants rely on the fact that Mary Acridge applied

for and received Medicaid benefits in the state of Texas.

According to the Texas statute, only someone who has both

“established residence in Texas” and has an “inten[t] to remain

in Texas” is eligible for Medicaid benefits.    40 TEX. ADMIN. CODE.

§ 15.301(a).    The defendants conclude, therefore, that Louis

Acridge’s domicile changed “through operation of law” when he

applied for and received benefits that he could only be eligible

for as a Texas domiciliary.    See, e.g., In re Gillmore’s Estate,

243 A.2d 263, 268 (N.J. Super. Ct. App. Div. 1968) (remarking

that “a person who lacks capacity to acquire a new domicile by

choice” can acquire a domicile “through operation of law” if that

person’s actions, regardless of her lack of intent, demonstrate

that her domicile has actually changed).

       If we were to accept this argument, we would be expanding

the general rule that a “domicile by operation of law” can be

                                 11
established only where “the law confers upon one party the

control of the domicile of another because of the lack of

competence of the latter.”   Eugene F. Scales & Peter Hay,

Conflict of Laws, § 4.42 (1st ed. 1984).    “Domicile by operation

of law” typically limits itself to domestic relations situations,

such as the common law rule that a married woman took the

domicile of her husband or the rule that an unemancipated child

has the domicile of his parents.     8 C.J.S. Domicile, § 9 (2002)

(“Domicile by operation of law . . . ordinarily results from

legal domestic relations.”).   Nothing in the Texas Medicaid

statute purports to create a domicile based upon the act of

applying for benefits – the statute merely limits eligibility to

Texas domiciliaries.

     However, while the defendants cannot argue that Louis

Acridge’s domicile changed by operation of law, their reliance on

Mary’s application for Texas Medicaid benefits for Louis as a

factor favoring a finding of changed domicile is persuasive.

According to the federal regulations governing state Medicaid

eligibility:

     (3)   For any institutionalized individual who became
     incapable of indicating intent at or after age 21, the
     State of residence [for purposes of Medicaid eligibility]
     is the State in which the individual is physically
     present, except where another State makes a placement.

     (4)   For any other institutionalized individual, the
     State of residence is the State where the individual is
     living with the intention to remain there permanently or
     for an indefinite period.


                                12
42 C.F.R. § 435.403(i)(3)-(4) (2002).    The definition of “State

of residence” in subsection (4) mimics the generally understood

definition of “domicile” – including the definition set forth in

the Texas Medicaid statute.    See Restatement (Second) of Conflict

of Laws § 11 cmt. k (1988) (“Statutes in the United States rarely

speak in terms of domicil but use ‘residence’ instead.    Residence

is an ambiguous word whose meaning in a legal phrase must be

determined in each case.    Frequently it is used in a sense

equivalent to domicil.”); see also Martinez v. Bynum, 461 U.S.

321, 330 (1983) (stating that “residence” requires both “physical

presence and an intention to remain”); Arredondo v. Brockette,

648 F.2d 425, 431 (5th Cir. 1981) (“The word ‘residence’ has many

meanings in the law, largely determined by the statutory context

in which it is used.”).    Thus, the use of the term “State of

residence” in subsection (3) can be understood to mean

“domicile”; it follows that, for Medicaid purposes, someone who

is over the age of 21, lives in an institution, and is incapable

of forming intent is considered to be a domiciliary of the state

in which he physically resides.    Thus, under the applicable

Medicaid regulations, Louis Acridge was a Texas domiciliary for

Medicaid purposes.

     However, we decline to accept the defendants’ related

argument that, because Louis Acridge was a Texas domiciliary for

purposes of Medicaid law, he must also be a Texas domiciliary for

purposes of determining diversity jurisdiction.    The general rule

                                  13
is that “[a] person has only one domicile at a particular time.”

Knapp v. State Farm Ins., 584 F.Supp. 905, 907 (E.D. La. 1984).

However, more specifically, the rule is that a person may not

have more than one domicile at a time “at least for the same

purpose.”   Restatement (Second) of Conflict of Laws § 11(b) &

cmts. m & n (1988) (“A person may have no more than one domicil

at a time, at least for the same purpose. . . . [T]he core of

domicil everywhere is the same.    But in close cases, decision of

a question of domicil may sometimes depend upon the purpose for

which the domicil concept is used in the particular case.”).

Thus, while the fact that Medicaid law makes someone a Texas

domiciliary for Medicaid purposes could be a factor to be

considered in determining domicile for diversity purposes, it is

not conclusive on that question.

     The plaintiffs argue that this court must find that Louis

Acridge is a New Mexico domiciliary because a New Mexico state

court, in probating Louis Acridge’s will, found that it had venue

over the case “because the Decedent’s domicile at the time of

death was Clovis, Curry County, New Mexico.”   The plaintiffs seek

to rely upon the principles of collateral estoppel (combined with

the Full Faith and Credit Clause) to conclude that the defendants

are bound by that determination of Louis Acridge’s domicile and

may not relitigate the question in these proceedings.

     Where a party seeks to use an issue decided in state court

to preclude relitigation in federal court, the federal court

                                  14
must, under the full faith and credit doctrine, give that issue

the same preclusive effect that the courts of the state which

decided the issue would give it.     28 U.S.C. § 1738 (2000); see

also Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 375

(1996).   Under New Mexico law, a party seeking to invoke

collateral estoppel based upon a previous state court decision

must demonstrate: (1) the causes of action in the previous and

current suits are different; (2) the issue in question was

“actually litigated” in the previous suit; (3) the issue in

question was necessary to the outcome of the previous suit; and

(4) “the party to be bound by collateral estoppel had a full and

fair opportunity to litigate the issue in the prior suit.”     Hyden

v. Law Firm of McCormick, Forbes, Caraway & Tabor, 848 P.2d 1086,

1091 (N.M. Ct. App. 1993).

     While this suit certainly presents a different cause of

action than the probating of Acridge’s estate, the plaintiffs

cannot satisfy the remainder of the test.    There is no evidence

that the issue of Louis Acridge’s domicile was ever fully

litigated in state court; all we have is the bare statement by

the court that Acridge was a New Mexico domiciliary.

Additionally, whether or not Louis Acridge was a New Mexico

domiciliary was not necessary to the determination that his

estate was eligible for probate in New Mexico; according to state

law, the estate of a non-domiciliary can be probated in New

Mexico “in any county where property of the decedent was located

                                15
at the time of his death.”    N.M. STAT. ANN. § 45-3-201 (Michie

1978).   Thus, even if the court found that Louis Acridge was a

Texas domiciliary, it still could have permitted probate of the

estate on the grounds that Acridge owned property located in New

Mexico (as, in fact, he did).    Finally, none of the defendants

was a party to the probate proceedings, nor were his or her

interests represented by someone who was a party to those

proceedings.   As such, none of the defendants had a full and fair

opportunity to litigate the question of Louis Acridge’s domicile.

Because the plaintiffs cannot satisfy the requirements for

collateral estoppel under New Mexico law, this court is not

required to give preclusive effect to the determination by the

New Mexico state court that Louis Acridge was domiciled in that

state.

     Having disposed of these arguments, we can now turn to the

“best interests” analysis to determine Louis Acridge’s domicile,

keeping in mind that the burden of proof concerning change of

domicile rests with the party seeking to establish that domicile

has changed.     Juvelis, 68 F.3d at 648.   Because the defendants

have moved to dismiss for want of jurisdiction, they have the

burden of proving that Mary Acridge changed her husband’s

domicile when she placed him in Falwell Convalescent Center.

     Since domicile is a fact-bound question, we would ordinarily

remand for the district court to make the necessary

determination.    This record, however, permits of only one

                                  16
conclusion.   Mary Acridge admits that she removed her husband

from the Buena Vista Retirement Center in Clovis, New Mexico

because she was “dissatisfied with the care that Louis was

receiving.”   There is no evidence in the record that Mary Acridge

gained any personal benefit from having her husband moved to

another state.     Louis Acridge remained in the Farwell

Convalescent Center for more than two years before being stabbed

by Henry Plyler; there is no evidence in the record that, at any

point during his stay, Mary Acridge had grown unhappy with the

care her husband was receiving or considered relocating him to a

third retirement home in another state.     In short, on the

evidence in the record, Mary Acridge moved her husband from New

Mexico to Texas in order to obtain, in his best interests, the

highest possible standard of care for the remainder of his life.

      Because Mary Acridge was acting in the best interests of her

husband when she moved him to the Farwell Convalescent Center, it

is clear that, for purposes of diversity jurisdiction, Louis

Acridge was a Texas domiciliary at the time of his death.      As

such, complete diversity among the parties in this action is

lacking.   There is no federal subject matter jurisdiction over

this case.4

IV.   CONCLUSION

      4
        Because we conclude that federal jurisdiction over these
claims is lacking, we decline to reach the defendants’ additional
contentions regarding the district court’s denial of their motion
for summary judgment on official immunity grounds.

                                  17
     We VACATE the district court’s order denying the defendants’

motion for summary judgment and REMAND the case with instructions

to dismiss for lack of subject matter jurisdiction.   Costs shall

be borne by the plaintiffs.




                               18
