Barry Mallek v. Allstate Life Insurance Compan

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to proceed in forma pauperis (FRAP 24) [999291811-2] Originating case number: 5:11-cv-00031-RLV-DCK Copies to all parties and the district court/agency. [999414695].. [14-1105]

Appeal: 14-1105

Doc: 17

Filed: 08/13/2014

Pg: 1 of 2

UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

Appeal: 14-1105

Doc: 17

Filed: 08/13/2014

Pg: 2 of 2

PER CURIAM:
Barry
granting

Mallek

summary

appeals

judgment

to

the

Allstate

district
Life

court’s

Insurance

order
Co.

in

Mallek’s action alleging North Carolina breach of contract and
constructive fraud claims.
was founded on diversity.

The district court’s jurisdiction
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-oflaw 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

2