Barry Mallek v. Allstate Life Insurance Company

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1105
BARRY MALLEK,
Plaintiff - Appellant,
v.
ALLSTATE LIFE INSURANCE COMPANY,
Defendant - Appellee,
ALICE MALLEK,
Third Party Defendant - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:11-cv-00031-RLV-DCK)
Submitted: June 20, 2014 Decided: August 13, 2014
Before WILKINSON, MOTZ, and THACKER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Barry Mallek, Appellant Pro Se. Hillorie A. Leaman, Lisa D.
Stern, DRINKER, BIDDLE & REATH, Philadelphia, Pennsylvania;
Jeffrey Phillips Macharg, Heather C. White, SMITH MOORE
LEATHERWOOD LLP, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Barry Mallek appeals the district court’s order
granting summary judgment to Allstate Life Insurance Co. in
Mallek’s action alleging North Carolina breach of contract and
constructive fraud claims. The district court’s jurisdiction
was founded on diversity. We note that the district court did
not engage in an explicit choice-of-law analysis to determine
what law applied to the case; the district court inconsistently
applied North Carolina and federal common law to the dispute,
which had significant ties to other jurisdictions. The question
of what law governs this case is best addressed by the district
court in the first instance. Therefore, we grant leave to
proceed in forma pauperis, vacate the district court’s judgment,
and remand to allow the district court to perform a choice-of-
law assessment for each of Mallek’s claims, and to analyze the
claims and defenses at issue in this action applying the law of
the appropriate jurisdiction. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
VACATED AND REMANDED

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