Wendalee VANNOY, Plaintiff-Appellant, v. VERIO INC., doing business as NTT/Verio, Defendant-Appellee, 146 F. App'x 753

PER CURIAM: After a review of the record, study of the briefs, and consideration of oral argument, we are convinced that the law of Delaware is the appropriate law to apply in the determination of this case. In this respect the district court did not err. We have noted that there was no pretrial order in this case and that the question of choice of law was not presented to the court until the first day of trial. Although the court considered the issue presented, the case nevertheless was tried and decided by the jury on the basis of Texas law. Thereafter, in response to the defendant’s motion for judgment as a matter of law or, alternatively, for a new trial under rules 50(

c) and 59 of the Federal Rules of Civil Procedure, the district court set aside the verdict of the jury in favor of the plaintiff and entered a judgment for the defendant. In this respect, we think the district court abused its discretion. Under the circumstances of this case, the more appropriate response would have been to set aside the verdict and order a new trial on the basis of Delaware law. Therefore, we vacate the judgment and remand this case.

The district court should allow amendments to the pleadings, appropriate discovery, motions and briefing (and argument if the court chooses) regarding the proper application of Delaware law to these facts, and a new trial if required. Consequently, the judgment is VACATED, and the ease is REMANDED for further proceedings not inconsistent with this opinion. VACATED and REMANDED. . Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.