334 F.3d 444 (5th Cir. 2003), 02-10642, Acridge v. Evangelical Lutheran Good Samaritan Soc.

Docket Nº:02-10642
Citation:334 F.3d 444
Party Name:Acridge v. Evangelical Lutheran Good Samaritan Soc.
Case Date:June 16, 2003
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 444

334 F.3d 444 (5th Cir. 2003)

Mary Virginia ACRIDGE, Individually and as Independent Executrix of the Estate of Louis E. Acridge, Deceased; Daniel Acridge Broyles, Plaintiffs-Appellees,



The Evangelical Lutheran Good Samaritan Society; Jerry L. Adams; Elaine Morrow; Sherri Lunsford Harris, Defendants-Appellants.

No. 02-10642.

United States Court of Appeals, Fifth Circuit

June 16, 2003.

Page 445

[Copyrighted Material Omitted]

Page 446

Russell Hardin, Jr., Joe Mac Roden (argued), Rusty Hardin & Associates, Houston, TX, for Plaintiffs-Appellees.

Gary Douglas Welch (argued), James Lawrence Wharton, Lindsay Broome Nickle, Jones, Flygare, Brown & Wharton, Lubbock, TX, for Defendants-Appellants.

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

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

KING, Chief Judge:

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 Sherri 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.


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

Page 447

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 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.


Federal court jurisdiction here hinges on the domicile of Mary Acridge in her capacity as Independent Executrix of the 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

Page 448

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 38, 42 (2d Cir. 2000). There is a presumption of continuing 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, 85 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

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

Page 449

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 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...

To continue reading